author: GOLDTEWAITE, J.

text:
    DERRICK vs. BAKER, adm’r.
    1. The question, whether the bailment of a sum of money, is of such a character, as will make the bailee responsible without a demand made, in consequence of the use of the money delivered, is a question of fact; and the evidence from which the fact is to be ascertained, is for the consideration oí the jury.
    Error to Madison Circuit court.
    Assumpsit, before Lane, J.
    Plaintiff’s intestate, being about to take a journey to foreign parts, left a sum of money with defendant, to be distributed among his relatives, in case he never returned. The intestate died on the journey, and the money not being appropriated by defendant, according to the intention of the intestate, this action was brought to recover it.
    Defendant requested the court to charge the jury, that if they believed the money was left with defendant as alleged, yet no action could be sustained for its recovery, unless after demand made, — which was declined. The court charged the jury, that if at any time after the bailment, bailee parted with the money, an action could be sustained without demand; all of which was excepted to, and here assigned as error. ' •

      McClung, for plaintiff in error.

      Hopkins, contra.
   GOLDTEWAITE, J.

In the consideration of this case, we are led necessarily into an enquiry into the precise character of the bailment, and of the duties to be performed by the bailee. If the character of the bailment can be determined, and the duties of the bailee ascertained, the solution of the questions presented by the bill of exceptions will be without difficulty.

It is sufficiently clear from the evidence, that if the bailor lived, the money was to be returned to him, and was to be distributed only in the event of his death. The expression of this wish, or rather the direction given by the bailor, created neither a gift nor a will, nor could it be effectual, as a donatio causa mortis. It was entirely inoperative, as its performance would not, in law, have discharged the bailee from the liability to account to the personal representative of the bailor, after his death. The bailment may therefore be considered as entirely divested of this condition, without which it would have been either a mutuum or a deposit, as will be seen from the following definitions: a mutuum is created, when the identical thing bailed is not to be returned,' but another thing of the same nature, kind or value; a deposit takes place, when the identical thing bailed is to be returned to the bailor. The former is the usual case of a deposit of money with a bank, in the ordinary course of its business, and the property in it is immediately transferred from the bailor to the bailee, and it becomes a mere gratuitous loan, which it is the duty of the bailee to return in kind, on request. The latter may be illustrated, by what is ordinarily termed a special deposit of bills or coin, when they are merely lodged for safe custody, and of which the property remains in the bailor unchanged There are, it is true, many other cases of deposit, but this is selected, as best showing the precise difference between this class of bailments, and that of a mutuum. It is evident, that in 'the one case, a use of the thing bailed is contemplated, and not in the other. Although it is generally true of deposits, that the use of the thing bailed is not allowable, yei there are many cases in which it must be contemplated by the parties to the contract, where the use may be necessary to the preservation, or to the benefit of the thing deposited, as in the case of bailment of a horse or milch cow, the depositary would certainly be authorised to use the first, so far, at least, as to preserve it in health, and to milk, the latter. But, in the case of a deposit of money, it may be assumed, that there can be no lawful use of it by the depositary, because the use is inseparable from the property. Deposites, from their diversified nature, are subject to no general rule, which will authorise a court to pronounce the user of the thing deposited, a breach of duty in the depositary, but each case must be determined by its own peculiar features, it being necessary, in all cases, to consider whether there may or may not be an implied consent to the use. These general principles, in relation to the classes of bailment, usually termed deposit and mu-tuum, are extracted from the valuable work of Judge Story, and reference may be had to pages 34, 66, 7, 8 and 9. When these principles are applied to the case on the record, it will be perceived that the evidence was not sufficiently conclusive, to enable the court to pronounce, that the case presented was a mutuum, in which aspect alone, would the charge requested by the plaintiff in error, have been the appropriate one. It is equally clear, that the evidence did not warrant the court in assuming, that such a case of deposit was made out, as would make the party responsible without a demand, in consequence of the use of the money delivered. The evidence should have been left to the jury, and they instructed to determine from it, whether the consent of the bailor was given, that the money might be used.

The fact, that the money was not shown to be capable of any identification, was a circumstance from which such an assent might be presumed; while, on the other hand, if the deposit was made with the wife of Derrick, and if it was iutendel that he should not intermeddle with the money, these circumstances might lead to a contrary conclusion. We do not consider the latter as having the controlling effect which the pounsel for the defendant in error contends for: certainly no contract of deposit could be made with the wife, without the consent of the husband, and when assented to, he was lawfully entitled to the possession of the money committed to her; nor is the effect of the written acknowledgment, given before administration, such as is supposed by the counsel for the defendant in error. If the acknowledgment was to control the case, it would establish a mutuum,, as it speaks not of a spedal deposit,, but of an indebtedness, which is'entirely inconsistent with the idea of apure deposit. The admissions and promises made before the grant of administration, established no liability, and could not change the nature of the bailment.

As the instructions given were calculated to mislead thp jury from the'consideration of the true question to be determined, and assumed as proved, a matter proper to be decided by the jury, — the judgment must be reversed, and the case remanded.


source: Caselaw Access Project

author: COLLIER, C. J.

license: Public Domain

text:
    EARBEE vs. WOLFE & CLARKS.
    1. Where the payee of a promissory note 'makes an endorsement in full, purporting to transfer the interest therein to a third person, and afterwards comes to the possession of the note, it is competent for him to maintain an action thereon, without producing extrinsic proof of ownership.
    Error to the Circuit court of Sumter.
    Assumpsit, tried before Chapman, J.
    It appears from the record in this case, that the defendants in error, who were plaintiffs below, filed with their “declaration, and sealed thereto a promissory note, of which the following is a copy, to wit:
    “ $2426 25-100. New York, 21 September, 1836.
    “Fifteen months after date, we, the subscribers, of liivingston, Sumter co. State of Alabama, promise to pay to the order of Wolfe and Clarks, (at the branch of the State Bank of Ala. at Mobile,) twenty-four hundred and twenty-five 25-100 dollars, for value received, without defalcation or discount.
    “Due 24 Dec’r, ’37. ■ Earbee & Weaver.”
    Upon which said note, were the following endorsements, to wit:
    “ Wolfe & Clarks,

      “ Charles Labuzan, AgH”

      On this part of the transcript, the plaintiff assigns for error, “that the court erred in rendering judgment for the plaintiffs in the court below* as the endorsements on the note copied in the record, shows a transfer to others who should have been parties plaintiff.”

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

This assignment does not arise out of what is properly a part of the record. The note, with its endorsements, does not appear to have been made such by the pleadings, or any proceeding had in the Cir cuit court. It cannot, then, be regarded in any other light, than as evidence filed by the defendants in error* to show their cause of action.

B.ut if we were authorised to consider the note and'em dorsement as of record in the case, the objection of a want of title in the defendants, would not avail the plaintiff. In Pitts vs. Keyser & Keyser, (1 Stew. Rep, 154,) it was decided, that where the payees of a promissory note, made an endorsement in full, purporting to transfer the interest therein to a third person, and after-wards came to the possession of the note, it was competent for them to maintain an action thereon, without producing any extrinsic proof of ownership — (To the same effect, see Dugan et al. vs. The United States, 3 Wheat. R. 172.)

■ These authorities would be conclusive against the plaintiff, if the assignment was sustained by the record.' The other grounds on which a reversal is sought, were held to be unavailing in Earbee vs. Ware, at this term.

The judgment-is consequently affirmed.


author: ORMOND, J. — It

text:
    STANLEY et al. vs. HILL.
    I -. Matters resting in the discretion of the court below, cannot be reviewed.
    2. A frivolous plea may be treated as a nullity, and judgment signed for want of a plea.
    Error to Coosa County court.
    Assumpsit. — This action was brought in the court below, by the defendant, against the plaintiffs.
    The declaration recites, that the plaintiffs in error, and one James Russel, who is not sued, executed the note on which the action is founded. At the return term of the writ, the plaintiffs in error pleaded in abatement, that the note on which the action was founded, was executed by them jointly, with James Russel, who was not sued in the action. To this plea, the plaintiff below demurred. At the trial term of the cause, the court, on the motion of the plaintiff below, permitted him to withdraw his demurrer to the defendants’ plea in abatement, though objected to by the defendants’ counsel, and rejected the plea of the defendants as frivolous. The defendants then asked leave of the court to plead over, which the court refused, and rendered judgment for the plaintiff below, from which judgment, a writ of error is prosecuted to this court, and these matters are now assigned as error.

      Stone% for plaintiffs in error.
   ORMOND, J. — It

was a matter resting entirely on the discretion of the court, to permit the plaintiff below to withdraw his demurrer to the defendants’ plea, and theré-fore cannot be examined in this court, on error.

The court did not err in rejecting the plea of the defendant, as it was perfectly frivolous, and presented no point, either in bar or abatement of the action. The plaintiff might have treated it as a nullity, a ml signed judgment for want of a plea; there could not, therefore, be error in rejecting it — (State vs. Williams, 3 Stewart’s Rep. 454.)

By the act to regulate proceedings in law and equity in this State, passed in eighteen hundred and nineteen, the pleadings are required to be made up during the first week of the term. If this rule be not complied with, and there is no consent enlarging the tin e, the plaintiff’s suit may be dismissed for fail me to file his declaration, or judgment by default be entered for want of a plea, unless the court, in its discretion, on good cause shewn, should grant longer time. The rejection of the defendants’ plea, left them at the trial term undefended, and entitled the plaintiff to his judgment, unless the court, in the exercise of its discretion, should then permit a plea to be filed. This permission was refused, and if it were a question we could review, we could not say the discretion of the court was unwisely exercised.

Let the judgment be affirmed.


author: GÓLDTHWAITE, J.

text:
    THE STATE vs. MATTHEWS.
    1. Enquiries into the genuineness of the records of the court eannot be allowed, in a criminal case, after the jury are etn-panneled.
    2. Parol evidence to prove the identity of a record, where the venue is changed, is admissible, on a suitable issue joined raising the question.
    Error to Henry Circuit court.
    Indictment for murder, tried before A. Martin, J.
    The prisoner was indicted at the Spring .term of the Circuit court of Barbour county, in the present year, for the murder of one William Herring, and on his arraignment, pleaded not guilty; on his application, the venue was changed to Henry county, in the Circuit court of which, a trial was had at the Spring term, eighteen hundred and thirty-nine, which resulted in the conviction and sentence of the prisoner.
    After the jury was sworn and ernpanneled, the solicitor offered to read to the jury, the original bill of indictment, said to have been found by the grand jury in Barbour county; and the prisoner, by his counsel, objected, for the reason that there was no sufficient evidence before the court, to show that the paper offered to be read was the original indictment in the case. The certificate of the clerk of the Circuit court of Barbour county, did not show that the original indictment was appended, and made part of the transcript. It also appeared on inspection of the transcript, that the original indictment, and other original papers in said case, were not appended to the same. The original indictment and affidavit, with the transcript, had been enveloped and sealed up together, and delivered to the clerk of the Circuit court of Henry-county, by the clerk of the Circuit court of Barbour county, but the clerk’s certificate did not show that the said indictment had been so enclosed, or that the original papers then offered to be read, belonged to, or was any part of the record, or that they in any manner belonged to it. The certificate is in these words:
    “ The State of Alabama, Barbour county.
    “I, Neal McDonald, clerk of the Circuit court of said county, do hereby certify, that the foregoing pages contain a correct transcript of the order of the change of venue, and of the several orders and recognizances which relate to the case of the State against Michael Matthews, for murder, as therein specified. Given under my hand and private seal, (having no seal of office.)
    “Neal M’DoNald, [L. S.] Clerk.”
    The court decided, that the certificate of the clerk, and the record produced, did not warrant the reading of the indictment, but that other evidence might be offered to show the fact, independent of the record and clerk’s certificate. Thereupon, the clerk of the Circuit court of Barbour county, was sworn as a witness, who testified that the indictment then offered, was the original indictment found in the said cause: that it was enclosed with the transcript, sealed up, and delivered by him to the clerk of the Circuit court of Henry county. To the admission of this evidence, the prisoner objected, and the Circuit court having admitted it, reserved the questions of law t ereon arising as novel and difficult, for the decision of the Supreme court.

      Attorney General, for the State.
   GÓLDTHWAITE, J.

Questions very similar to this, have several times been referred to this court for determination, but each one has hitherto been decided on its peculiar features, and no general rule, applicable to all cases, has been laid down.

In the case of the State vs. Collier, (2 Stewart, 388,) the prisoner’s counsel, at the trial, objected to the reading of any of the papers transmitted from Jackson county, (from which the venue was changed.) on the ground, that they were not properly in court. The clerk of the Jackson Circuit court, stated on oath, that three days before the trial commenced, he came to Huntsville, from Jackson county, bringing with him the original papers and transcript, with the certificate thereon, all open and unsealed; that on his arrival in Huntsville, he handed them over to the solicitor unsealed, who kept them till the morning of the trial, when, on their being returned to him, he, in Huntsville, and not in Jackson county, sealed them up and and handed them to the clerk of Madison Circuit court. The Supreme court determined, that the papers were properly before the Circuit court, notwithstanding the certificate was actually made out of Jackson county.

In the case of the State vs. Williams, (3 Stewart, 454,) one of the errors relied on was, that no proof was offered to show the manner wherein the indictment on which it was proposed to try the prisoner, came into the Circuit court of Autauga county, to which the venue had been changed. The learned judge who delivered the opinion of this court, as to that objection, remarks: “As to the manner in which the indictment was conveyed into the office of-the Circuit court of Autauga, it must be presumed to have been in conformity with the order which transferred the case from the one eonrt to the other. The order required, that the clerk of the Circuit court of Montgomery county, should safely transmit lo the clerk of the Circuit court of Autauga county, the indictment, and all original papers in the case, together with a certified copy of all orders and other proceedings which have been had in the case. This certified copy of the proceedings, is at the next term of the Circuit court, found in the possession, and among the official papers of the clerk of that court, and the indictment is filed with them; the case is twice continued by the defendant afterward ; he certainly cannot, at so latea period, and under these circumstances, be heard to say that the indictment does not appear to have come regularly into that court.”

In the case of the State vs. Greenwood, (5 Porter, 474,) the objection urged was, that the indictment should have been copied upon the records of the court where it was found. The court, in answer, remark: “All the papers relating to the cause, including the indictment, were in fieri, when the order for change of venue was made; and asit did not become a record until after enrolment, the objection could as' well be made in the court where the indictment was found, as elsewhere. The papers are, by law, entrusted to the custody of the clerk, and the certificate which he has made in this cause, that the indictment has been subjoined to the transcript, imports as absolute verity, as would bis production of it, on trial in the court where it was found. In either case, were it not the true indictment, the matter might be disputed in a proper mode.”

It is manifest, that the two former cases go much further than the present, to sustain the proceedings against the prisoner, but it is conceived that the true foundation on which all these must rest, independent of the peculiar features appertaining to each of them, is this — That no enquiry, such as was entered into, was proper, after the case was submitted to a jury : a defect in, or the want of a proper certificate, would be no good cause of acquittal: so, also, if the prisoner was tried on a copy, instead of the original indictment. All enquiries into the genuineness of the records of the court, are improper, after the case is submitted, and can only have a tendency to withdraw the consideration of the jury from the true matters in issue. It is evident, that an enquiry into the authenticity of a paper purporting to contain a statement of the charge, would have no tendency to prove the guilt or innocence of the prisoner, and is consequently wholly immaterial, when the trial is in progress. Neither is it conceived that the omission of the clerk to forward the original indictment, in conformity with the rule of court, could so operate as to produce an acquittal of the defendant. It might, and doubtless would be irregular, to force a trial in the absence of the indictment, or if a copy, instead of the original, was read to the jury, and the fact was unknown to the prisoner before the trial, it might be a reason why a new trial should be awarded, though even to this extent, the doctrine may be considered as questionable, and worthy of the closest examination.

For the reasons stated, we are of the opinion, that the questions preserited could not properly arise on the trial, and therefore, no error was committed, as the enquiry, at that time, was wholly immaterial. We are further of bpinion, that if the objection had been taken before the trial, and in order to prevent it, this would not have availed the prisoner, as the indictment was transmitted enclosed in the same envelope, toith the certificate of the propel* clerk. This was a substantial compliance with the rule of court. If the indictment had never been, in point of fact, sealed up, but was transmitted in any other way, it would not lose its character as a record, and could be received by the court to which the venue was changed, on evidence similar to that shown in this case; but as before remarked, the enquiry would be presented to the court, and not to the jury.

Let it be certified, that there is no error in the decision of the court, on the point referred.


author: COLLIER, C. X — The

text:
    BATES vs. THE PLANTERS’ & MERCHANTS’ BANK OF MOBILE.
    1. In a proceeding by notice from the Bank, the record must shew that the certificate of the President was received and acted on by the court below.
    2. Where a party obtains an injunction from chancery, to restrain the sheriff from paying over moneys in violation oí his (the sheriff’s) agreement, — the party obtaining the injunction is not required, as a condition precedent, to release errors at Jaw, in the judgment under which the moneys were made.
    Error to Mobile Circuit court.
    Proceedings on a notice from the the Bank, tried before Pickens, J. Verdict and judgment for plaintiffs below.
    The errors assigned were—
    1. That the certificate of the President of the Bank was not shewn on the record ;
    2. That the judgment was not warranted by the evidence ;
    3. That the court had no jurisdiction ; and
    4. That it was not a proper case for summary motion.
    Campbell, for plaintiff in error.
    Stewart, contra.
   COLLIER, C. X — The

defendants in error insist, that the plaintiff “ought not to have the benefit of any supposed errors assigned by him in this court, but should bé barred and precluded therefrom, and that the court now here should not hear or examine the said supposed errors, because, they say that after-the suing out of the said writ of error in this behalf, and before the return thereof to this court, to wit, on the-day of ——— eighteen hundred and thirty-eight, the said plaintiff in error did by a bill in chancery, wherein he was a plain*> tiff, and the said Bank was a defendant, apply to the honorable the judge of the first judicial circuit, and prayed therein to be relieved, against the said judgment at law now certified to this court, which bill sets forth and charges, among other things, that the name of the said plaintiff in error, on the said note, was not genuine, Stc. and praying an injunction, to restrain the payment of said note to the said plaintiff in error, — which injunction was allowed by said judge, — whereupon the said bill was filed in the said Circuit court of Mobile county, afid the said injunction was thereupon issued, and served on the said defendant in error, and on the sheriff of Mobile county, in whose hands the execution on said judgment was; and the sa>d appellee further saith, that the said bill is now still pending and undetermined in said court; that said appellee appeared at the Fall term, eighteen hundred and thirty-eight, of said court, to defend the same; that the said appellee was in fact restrained from collecting said debt by force of said injunction ; — all which appears of record in said Circuit court of Biobile county, on the chancery side thereof: and this, the said defendant in error, is ready to verify by the said record. Wherefore, inasmuch as the said plaintiff in error has applied for, and obtained the benefit of said injunction, he is-barred of his said supposed errors, and thereupon, the said defendant prays,” &c. To this plea, the plaintiff in error replied, nul iiel record.

Upon looking into the bill, we find that the plaintiff denies that the endorsement of the note of J. F. Roberts, on which the judgment in the present case is founded, was made by - him, or by his authority ; yet we do not understand this to be the basis of his application to equity for an injunction. But the gravamen of the case, as disclosed by the bill, may be thus succinctly stated: The plaintiff, and one O’Brien, having endorsed the par per of J. F. Roberts, which was negotiated at the Mobile Bank, and at the Planters’ and Merchants’ Bank, with a view to their indemnification, induced Roberts to convey to Thomas Bates, hi trust, certain real and personal property — with authority to the trustee to sell the same, whenever the estate of the cestui’s que trust was put in jeopardy, or they were required to advance their own funds, in consequence of Roberts’ default. In the Fall of eighteen hundred and thirty-seven, The Planters’ and Merchants' Bank, obtained judgments against all the parties to the notes of Roberts’ negotiated there, which were endorsed by the plaintiff in error; and in the spring of eighteen hundred and thirty-eight, The Mobile Bank recovered judgments against all the parties to such paper, of which it had become the proprietor, save the plaintiff. That Thomas Bates agreed with the sheriff of Mobile, that he might levy the executions issued on these judgments in favor of the Banks, if the sheriff would undertake to appropriate the proceeds to their satisfaction, in preference to all other process in his hands against Roberts, or any one else. That the personal property embraced by the deed, was sold, and yielded a sum amounting to near eight thousand dollars, a part of which, the sheriff threatened to appropriate to an execution, amounting to more than twenty-five hundred dollars, issued on the judgment in the case before us, and then in his hands. The bill does not pray that the judgment may be enjoined, but only that the sheriff be inhibited from applying the proceeds of the sale of Roberts’ property, to the satisfaction of the execution thereupon issued, and that they be appropriated according to the agreement between Thomas Bates and himself.

The. judgment, then, was left in full effect by the injunction awarded, which was directed to conform to that asked for, by the bill. It was competent for the Bank to have caused the executions against Roberts and the plaintiff in error to be levied on any property of either, that might be found subject to a levy and sale. Should a judge, in granting such an injunction, have directed as a condition precedent, that the party applying for it, release all errors in the proceedings at law? By the first section of the act of eighteen hundred and sixteen, “concerning injunctions,” it is enacted, that “ no injunction shall be granted to stay an execution of a judgment at law, unless the party applying for such injunction, or to. be benefitted thereby, shall first sign and seal a release of errors in such judgment at law, and file the same in the office of the clerk of the court, in which such judgment shall have been obtained.” We think it clear, that the application brought to our view in the present case, does not come within this statute — no execution is stayed, or rendered inoperative — its vitality, as well as that. of the judgment on which it is founded, continue unsus-pended and unimpaired — while the only effect of the injunction, so far as we can form an opinion from the bill itself, is to prevent a particular fund from being diverted from its original destination.

The plea of the defendants is not sustained by the record, and if in point of fact it was, the bill of the plaintiff docs not state such a case, and contain such a prayer, as required from him a release of errors. The bar attempted to be interposed by the defendant, not being available, we are brought to consider the regularity of the judgment of the Circuit court. It is objected, that the court was not authorised to render a judgment against the plaintiff in error, because the certificate of the President of the Bank, that the debt sued for was rer ally and bona fide its property, does not appear from the record to have been shown to the court.

This proceeding was commenced by notice, as provh ded by the charter of the Bank, and can only be legal-ised, as we have repeatedly held, by the productipn of the President’s certificate. We cannot know that this has been done, unless'the record inform us. The mere fact of such a paper being copied and sent up with the transcript, does not warrant the inference, that it was received and acted on by the Circuit court — this should appear, if it were the case, in some act of the, court; and so, far as this point is concerned, the result is the same, even where the judgment is on verdict — (See Curry vs. the Bank of Mobile, 8 Porter, 360; Lea & Langdon vs. Branch Bank at Mobile, 8 Porter, 119, and Bates vs. the Planters’ and Merchants’ Bank of Mobile, 8 Porter, 99.) The consequence of which is, that the judgment is reversed, and the case remanded.


author: PER CURIAM.

text:
    BARNETT vs. GHOLSON.
    1. It is sufficient, in a declaration, to allege, that the considera- , tion of a contract to deliver property, arises from defendant’s acknowledgment of the receipt of money.
    Error to Montgomery Circuit court.
    Case on a written agreement, tried before A. Martin, J,
    Plaintiff below declared against defendant on a written agreement, for refusing to deliver corn, which defendant contracted to deliver, and for which he acknowledged, in the written agreement, he had received payment. To the declaration, there was. a demurrer, which, on the hearing, was overruled by the court. Verdict and judgment for plaintiff.
    The error assigned was, that the demurrer to plaintiff’s declaration was overruled.

      J. A. Campbell, for plaintiff in error.

      Harris, contra.
   PER CURIAM.

The objection which is urged against the sufficiency of the first count of the declaration is, as we understand it, that the consideration of the contract to deliver the corn, is stated to arise from the defendant’s acknowledgment of the receipt of money, and not from the actual payment of it. This attempt at a distinction, is more ingenious than sound. We are satisfied, that the declaration substantially alleges the'consideration of the contract to have been, the payment of the sum of money named.

This being, in our opinion, the obvious meaning of the terms used, it becomes wholly unnecessary to consider whether it is essential in declaring on a writing promising the payment of a debt, or the performance of a, duty, to allege any consideration, whatever in t.he declaration.

Judgment affirmed.


text:
      Ex parte WM. SIMONTON et al.
    1. The Supreme court does not possess original power to award a writ of habeas corpus.

    Petition for habeas corpus.

    The petitioners, by their counsel, submitted a petition to this court, in which they state, that at the Spring term, eighteen hundred and thirty-nine, of the Circuit court of Tuskaloosa county, they were severally arrested on writs of capias, issued out of that court, founded on an indictment for murder, preferred by the grand jury of that county. That the petitioners were arraigned, and each for himself pleaded not guilty, and announced themselves ready for trial, and the Attorney General being enquired of by the court, made a similar avowal on behalf of the State — notwithstanding which, they uTere remanded to, and are still confined in the jail of Tuskaloosa county.
    The petitioners further stated, that in pursuance of the statute in such case provided, they did, on the last day of the term of the court, apply thereto to be discharged on bail, which application was denied; and protesting their innocence of the offence wherewith they are charged, they pray that a writ of habeas corpus may be awarded, requiring their bodies to be brought before this court, “in order that their right to be admitted to bail, in pursuance of the statute, may be considered.”
    The counsel for the petitioners also laid before the court, a transcript of the proceedings of the Circuit court, which contained their indictment for murder, a statement of their arraignment, and plea of “not guilty and that subsequently, during- the same term, an entry was made upon the application of the petitioners to be .admitted to bail, in these words:
    “The' State of Alabama vs. Henry S. Simonton and others. — This day came Lincoln Clark, Esquire, Attorney General, as well as the prisoners, by their attorneys, and it appearing to the satisfaction of the court, that when this prosecution was regularly called, at the present term of the court for trial, the State, by the Attorney General, announced itself ready for trial, and the prisoners, in their own proper persons, also announced themselves severally ready for trial, — all the other business of the court having been disposed of, and the court about to adjourn, when the court determined, that inasmuch as the presiding judge is a relation, by consanguinity, to the person with whose murder the prisoners stand charged, the trial of said.prisoners, or any one of them, cannot proceed, but that the same be continued until the next term of this court.
    “The prisoners, by their attorneys, moved the.court, now here, for their several discharge and releasement from further confinement, on account of said prosecution, for the reasons set forth above, on each of said prisoners entering into bond and security, in such amount as said court may direct, for their several personal appearance, at the next term of this court; whereupon, the court declined to- decide upon their right to bail, for the same reason he had previously declined to preside in their trial in chief.”

      Porteé', for the petitioners.

      Attorney General, contra,
   COLLIER, C. J.

A preliminary question has been raised by the Attorney General, which must be disposed of, before we consider the merits of the application of the petitioners. It is this: Has this court the constitutional right to award a writ of habeas corpus on the case, as disclosed by the record ?

By the second section of the fifth article of the constitution of Alabama, it is declared, that “ the Supreme court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the State, under such restrictions and regulations, not repugnant to this constitution, as may, from time to time, be prescribed by law : Provided, that the Supreme court shall have power to issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial and original writs, as may be necessary to give it a general superintendence and control of inferior jurisdictions.”

The exception introduced into the first part of this section, was not intended to apply to any particular provision of the constitution, but was inserted ex majore cau-tela, so as to place beyond doubt, the operation of every part of that instrument, with which the restrictive terms of the section come in conflict. In this view, it was unnecessary, for if the “ Supreme court ” was vested with jurisdiction other than appellate, in any part of the constitution, its exercise would not be considered as inhibited by the limitation imposed in the section before us. The constitution must be considered as a whole, and efficiency given to every portion of it, where it is practicable. It cannot be supposed that any clause is intended to be without effect; and such a construction is inadmissible, . unless the words require it. If there is nothing upon which the • exception can operate in other parts of the constitution, it clearly cannot enlarge the meaning of the ■proviso in the same section ; and if such be the case, it must be regarded as entirely powerless, either for the purpose of extending or limiting jurisdiction.

Had it been intended that the exception should refer particularly to the proviso, it would have been quite easy to have employed terms, thus directing its application— instead of saying, “ except in cases otherwise directed by this constitution,” the convention might have said, except in the cases excepted by the proviso to this section, or they might have used other language, so precise as not to have left their meaning to be ascertained by the uncertain rules of construction.

Let us, however, suppose for a moment, that the exception points directly to the proviso, and still it would be inoperative. There is no place we could assign to it there, that will enlarge the meaning of the section: if “except” were substituted for “provided,” there would be a mere variation of phraseology, without a change of the sense. But it is insisted, that the exception may apply to the “power to issue writs of injunction, mandamus, quo warranto, habeas corpus;” that the “ other remedial and original writs,” not specifically defined, are to be controlled as to the purpose for which they are used by the latter part of the proviso. This argument cannot be maintained upon any rule of construction, of which we are cognizant. The proviso is but an entire sentence, and the writs designated, are only named as examples, or rather to illustrate the meaning intended, more clearly, than could be done by the employment of general words. The “ other remedial and original writs,” mean writs of a kindred character, or to effect a kindred object, viz., to give to the “ Supreme court a general superin-tendendence and control of inferior jurisdictions.” That this qualification was intended to operate in restraint of all the power conferred by the proviso, we think will not admit of serious disputation. If it had been intended to distingnish between the writs expressly mentioned, and those generally referred to, language appropriate to such a distinction, could have been easily introduced, and its absence is a strong persuasive proof, that nothing of the kind was intended. In fact, the meaning of the proviso, in this respect, is so clearly indicated, that we find the entire sentence connected by the insertion of the copulative conjunction “ and,” immediately after “ habeas corpus” — had it been inserted between i( quo warranto” and “ habeas corpus,” the argument, that the proviso intended to embrace two distinct classes of cases, may have rested on higher ground.

This court, then, does not possess the constitutional power to award the writ, which the petitioners have asked for, unless it be “ to give it a general superintendence and control of inferior jurisdictions.” To bring a case within these qualifying terms, it should be shown, either that some court, or that some judge of a court, invested with authority to act in the premises, has undertaken to decide upon the case of a party aggrieved, or else without any just cause therefor, has refused to entertain the same. In the case before us, the court declined acting upon the application of the petitioners for bail, alleging as an excuse, that the presiding judge was connected by consanguinity with the individual, whom they were charged with having murdered. What was the relationship between the judge and the deceased, the record no where informs us, but we must intend it to have been such as justified the refusal.

It was argued for the petitioners, that the judge had no discretion; that it was his duty to have allowed the petitioners to have been tried, or bailed. We think this argument cannot be maintained. It is clearly competent for .the Legislature to compel a judge to forego the exercise of delicacy in such a case, and declare it his duty to sit at the trial of the man who has even killed his brother ; but a statute, to have this effect, must be so express and unequivocal, as to take away all ground for construction. A juror, related as the judge seems to have been to the deceased, would doubtless have been an incompetent trior, and shall not a judge, who may exert a greater influence upon the fate of the accused, be allowed to challenge himself, for a cause which disqualifies a juror? The question, in our opinion, furnishes its own answer.

The same cause which authorised the judge to decline the trial of the petitioners, also excused him from passing upon their application for bail. There, an exercise of judgment was necessary to determine the sums in which bail should be respectively required of the petitioners, and the sufficiency of the securities offered.

But little inconvenience could have resulted to the petitioners, by the refusal of the Circuit court to allow them bail, as they could have applied immediately to another judge of the Circuit court, at chambers, who would have been bound by duty to have considered their application. Had this course been taken, and bail been denied them, then their case would have come regularly before us, for revision upon its merits.

This not being the true state of the case, but the petitioners’ application not having been decided upon by a judge, or a court of primary jurisdiction, or a decision refused under circumstances affording no just cause for the refusal, the prayer of the petition must be denied.


text:
      Ex parte WM. SIMONTON et al.
    1. A person committed for felony, who shall not be tried at the next stated term of the court where the offence is cognizable, is entitled to be set at liberty on bail, unless it appear that the witnesses for the State could not be produced, or that the defendant assented to the delay.

      2. The word may, when used in a statute, means must or shall, in those cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure, that the power designated should be exercised.
    Motion for a writ of habeas corpus.

    The petitioners presented to the court, a transcript of the record of the Circuit court of Tuskaloosa, being the same which they laid before the court on a previous day, accompanied by a petition addressed to the honorable Peter Martin, judge of the third circuit, and praying a writ of habeus corpus, with a view to their discharge, on bail, from the jail of Tuskaloosa county. In their petition, they allege that they were indicted for the crime of murder, at the Spring term, eighteen hundred and thirty-nine, of the Circuit court of that county — that the Attorney General, as the representative of the State, and themselves, were severally ready for trial, and so informed the court; yet the presiding judge declined the trial of their case, and remanded them, for safe keeping, to their present place of confinement, though they urged to the court, at a proper time, and in a proper manner, their right to, and their readiness to give bail.
    The judge awarded a writ of habeas corpus, pursuant to the petition, on which the bodies of the petitioners were brought before him; whereupon, an order was made, disposing of the application for bail, as follows:
    “ The within application to admit the prisoners to bail on the legal ground set forth in the petition, is refused, and the prisoners remanded to jail.
    “ It is considered by the court, that the questions of law arising in this case, are novel and difficult, but doubting the legal power to refer the same, — it is, at the request of the prisoners, and with the assent of the Attorney General, referred for the revision of the Supreme Court.
    “June 13th, 1839. P. Martin.”
    Upon this state of facts, the petitioners moved this court for a writ of habeas corpus, that they might be brought up here and admitted to bail.

    Porter, for the petitionej-s.

      Attorney General, contra.
   COLLIER, C. J.

The petitioners predicate their motion for bail, upon the second section of the act of eighteen hundred and twenty-seven, entitled an act to amend an act, entitled ‘ an act for the more effectual preservation of personal liberty.’ ” That section is in these words:

If any person shall be committed for treason or felony, and shall not be tried at or before the next stated term of the court where the offence is properly cognizable, it shall be lawful for the said court, upon the last day of the term, to set at liberty such prisoner on bail, unless it appear on oath or affirmation, that the witnesses for the State, mentioning their names, could not be produced; and if such prisoner shall not be tried at the second stated term after his or her commitment, unless the delay happen on the application, or with the assent of the defendant, he or she shall be discharged from imprisonment on bail: Provided, that this act shall not be so construed, as to prevent a prisoner committed for a capital offence, from being bailed at or before the first stated term, under the existing laws.”

The only question that can arise in the construction of this statute is, whether the terms “ shall be lawful,” invest the court with a discretion, to be controlled by the circumstances of every case, or whether they impose a positive duty, to be performed in every case coming within the terms of the act. By the 17th section of the 1st article of the constitution, it is declared that “ all persons shall, before conviction, be bailable by sufficient securities, except for capital offences, when the proof is evident, or the presumption great,” &c. Under this constitutional provision, it is clearly competent for the court, in a case where “ the proof is not evident, or the presumption great,” to admit to bail a prisoner charged with the crime of murder, even though it appear “ on oath or affirmation, that the witnesses for the State could not be produced.” But to determine the power of admitting, to bail, where all parties were prepared for, and the accused did not waive a right to a trial, to be a matter of judicial discretion, under the act, would involve the Legislature in the absurdity of attempting to deprive the citizen of a privilege clearly secured by the constitution; for if the court may or may not, as judgment dictates, in every case, save that lohich is excepted, admit a prisoner to bail, it is clear, that in the case excepted, the right is attempted to be taken away, without reference to the proof of guilt. Let us enquire whether, without doing violence to terms, we cannot relieve the Legislature from such an imputation.

The statute we are examining, it must be remembered, is amendatory of an act of a much earlier day. By the 6th section of the act of eighteen hundred and seven, entitled “ an act for the more effectual preservation of personal liberty,” it is enacted, “ that if any person shall be committed for treason or felony, and shall not be indicted and tried, at or before the next stated term of the court where the offence is properly cognizable, it shall be lawful for the said court, upon the last day of the term, to set at liberty such prisoner upon bail, unless it appear to them, upon oath or affirmation, that the witnesses for the territory, mentioning their names, could not be produced ; and if such prisoner shall not be indicted and tried, the second stated term after his or her commitment, unless the delay happen on the application, or with the assent of the defendant, he or she shall be discharged from imprisonment.” We have thought it proper to place in juxtaposition, the amendatory and amended act, that the difference between them might be the more readily seen. The amendment, so far as the meaning of the two acts is concerned, consists in the insertion in the act of eighteen hundred and twenty-seven, after imprisonment, the words “on bail,” and the addition of the proviso, which, so far as it is material to the present enquiry, may be placed entirely out of view.

The objection to the old law was not, that it author-ised the discharge of a prisoner on bail, who was not tried at the first term, hut it was, that it authorised his discharge at the second term without bail. That such was the fact, we are informed by our own recollection of the legislative history of the times, as well as by a comparison of the phraseology of the two statutes; and that the Legislature itself supposed, that the non-attendance of the State’s witnesses afforded the only just ground for refusing to admit to bail a prisoner, whose trial was continued at the first term against his consent, we think is indicated by the 3d section of the act of eighteen hundred and thirty-one, “ more effectually to secure trials in capital cases by impartial jurors,” which provides that “ no defendant shall hereafter be bailed in a capital case, for a failure of obtaining a jury for his or her trial.” But apart from this, we very well remember, that the construction placed upon the act of eighteen hundred and seven, was to 'allow the prisoner to give bail, where his case was continued at the first term against his consent, unless the attendance of the witnesses for the State could not be procured. The Legislature being aware, no doubt, of this construction, passed the act of eighteen hundred and twenty-seven, in reference to it, and thus impliedly adopted its correctness.

Again: The act of eighteen hundred and seven, was doubtless borrowed from the habeas corpus act of the 31 Car. 2, c. 2, sec. 7, which is as follows: “ that if any person, who shall be committed for treason or felony, plainly or specially expressed in the warrant of commitment, upon his prayer or petition in open court, the first week of the term, or the first day of the session of oyer and terminer, or general gaol delivery, to be brought to his trial, shall not be indicted sometime in the next term, sessions of oyer and terminer and general gaol delivery, after such commitment, the justices of the said court shall, upon motion in open court, the last day of the term or sessions, set at liberty the prisoner upon bail, unless it appear upon oath, that the witnesses for the King could not be produced the same term or sessions: and if such prisoner, upon his prayer, &c. shall not be indicted and tried the second term or session, he shall be discharged.” This statute, it will be observed, is mandatory in its terms; and it was so understood by Lord Chief Justice Holt, in the case of The King vs. Yates,*(1 Showers’ Rep. 186, 191,) in which he considered, that the express language of the act, could not be relaxed in favor of the King.

But it was argued for the State, that the statute of eighteen hundred and twenty-seven, does not take from the court, the right to exercise its own judgment as to the propriety of allowing bail, — that it does not command an act to be done, but merely gives an authority to do, or not to do it, as may be thought best. This argument, it is believed, is not defensible upon authority. The word may, when used in a statute, means must or shall, in those cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure, that the power should be exercised.

In Alderman Backwell’s case, (1 Vern. R. 152,) the words of the statute were, that “ he may grantyet it was held, that they imposed upon the chancellor a positive duty to grant a commission of bankruptcy, on due application and proof. In this case, the creditors had an interest in the application of the power. So, in the case of the King vs. Barlow, (2 Salk. 609; Carth. 293,) the Court of King’s Bench construed the words shall and may, as being mandatory, “ where the statute directs the doing of a thing for the sake of justice, or the public good.” In that case, the church-wardens were indicted for not making a rate or assessment under the statute of the 14 Car. 2, ch. 12, sec. 18, for the reimbursement of some constables. The statute said, that they “ shall have power and authority to make a rate,” and it was construed to be peremptory, the constables having an interest in the exercise of the power. And in The King vs. The Inhabitants of Derby, (Skinner’s Rep. 370,) it was held that may, in the case of a public officer, was tantamount to shall. The learned chancellor of New York, after reviewing these cases in the Newburgh Turnpike Company vs. Miller, concludes, that the principle to be deduced from them “is, that whenever an act to be done under a statute, is to be done by a public officer, and concerns the public interest, or the rights of third persons, which require the performance of the act, then it becomes a duty in the officer to do it” — (5 Johns. Ch. Rep. 113.) We are satisfied that the principle is correctly stated in that case, and is strikingly applicable to the statute of eighteen hundred and twenty-seven. There, the act provided for, is to be done by a public officer — it concerns the public interest; because the public are interested in the administration of criminal justice: and lastly, the rights of the petitioners themselves are concerned.

In every view in which the application has been presented for our consideration, we are of opinion, that the ' petitioners are entitled to bail, and do consequently award the writ of habeas corpus.


author: GOLDTHWAITE, J.

text:
    ROBINSON vs. WINDHAM.
    1. Under the plea of the general issue, in assumpsit on a note,— a defence of á breach of warranty of the property for which the note was given, is allowable.

      2. And in a subsequent action on the case, brought to recover for the breach of warranty, — a special plea, that the same matters had been enquired into, in the defence to the note, and judgment rendered which remained unreversed, is good.
    Error to Tuskaloosa County court.
    Case for a false warranty.
    Defendant in error sued plaintiff in the County court of Tuskaloosa county, for the false warranty of a negro man. To the declaration, plaintiff pleaded—
    1. The general issue.
    2. A special plea, that defendant and himself had exchanged negroes, and that defendant gave him a note for the difference in value of the negroes: — that he (plaintiff,) had sued defendant on the note, in which suit the matters now complained of were enquired into, and that the jury had rendered a verdict for the plaintiff in error on the note, and that the judgment on the note still remained unreversed. Plaintiff below took issue on the first, plea, and demurred to the second — which demurrer was sustained by the court. The jury found a verdict on the issue joined for the plaintiff below.
    The error assigned was, that the court sustained the demurrer to the second plea of defendant below.

      Attorney General, for plaintiff'in error.
    Phelan, contra.
   GOLDTHWAITE, J.

The judgment of the County court, on the issue of law arising from the plaintiff’s demurrer to the defendant’s plea, involves an enquiry into a principle of the common law of very universal application, though from the manner in which .it is presented in this case, it may seem, on first impression, to be quite novel. It is clear, that when a party has once submitted his claim or defence to the investigation of a court and jury, and a decision has- been made on its merits, after a fair trial, satisfactory to those who are charged with the administration of the laws, he cannot be permitted again to litigate the same matter with the same «adversary. This principle springs out of the necessity which exists, that a period should be fixed at which litigation shall cease, and,the rights of suitors be considered as settled and determined. *

It is sufficiently evident, that the termination of the first trial, when of the description mentioned, must furnish this period until the legislative power shall prescribe a different rule; as otherwise, it will be impossible to arrive at any rule, by which it can be ascertained that the ends of justice have been accomplished.

This principle usually is developed, when a suit is instituted for a cause of action which has previously received the judgment of a court of competent jurisdiction on its merits, and gives rise to the defences of former recovery or discharge, autre fois convict, attaint or acvictf and in these cases, is familiar to every lawyer; but the same principle may, and frequently must, exist in cases where a defence to an action might, and ought to have been interposed : as, if a demand has been paid, and is, notwithstanding, recovered by suit at law, the defendant, after its satisfaction, will not be permitted to recover the sum paid, because this would be to litigate a matter which is concluded by the judgment.

There is no reason why a party should be permitted to'litigate a matter which has received a judicial determination, when interposed as a defence, and should be debarred from a second trial, if he stands in the attitude of a plaintiff.

If the plaintiff in this suit, had sued the defendant on the warranty contained in the bill of sale, before the suit of the latter on the note given in exchange of the slaves, and a verdict had been rendered against him, it probably would not be contended that he might rightfully litigate the same questions, if sued subsequently on the note: or if damages in his favor had been awarded in such an action, he would not be allowed, when sued on the note, to question the correctness of the assessment of damages, however small in amount, though he might be permitted to off-set the unsatisfied judgment against Robinson, if he should afterwards bring suit to recover the amount of the note.

If these positions are correct, it is not perceived how a 'different rule can obtain, when the whole matter in relation to -the breach of warranty has been litigated, in the first instance, as a defence to the note. The principle which ought to govern the cases seems to be identical, but it must be admitted, that its application may present some difficulty, when cases of a particular description shall arise: as, in the case of a warranty of á ■chattel, for which a part of the consideration is paid, and a note given for the residue; the chattel proves to be worthless, and the warranty is broken, and this de-fence is successfully interposed to a suit for the amount ■of the note. Ought such successful defence to preclude tthe injured party from indemnification by suit on the warranty, for the amount of his injury not covered by the amount of the note ? If thus precluded, it is apparent that complete indemnity could not be attained by the sufferer; yet it is clear, if he was entitled afterwards to institute a suit for the breach of warranty, his adversary ■could not be denied the right to investigate the whole matter, and on the second trial, the jury charged with the suit, might come to a different conclusion from the' one which passed on the same matter in the previous suit, which seems to be inconsistent with the general ¡principle. We will not undertake to pre-judge such á ■case, but leave it to be determined in the-ordinary course, whenever it shall arise.

'The objection to the application of the principle, because unsound property is frequently sold by strangers, an'd persons who are unable to respond in damages, may be fully answered with the remark, that any cautious purchaser will deem it prudent to protect himself, by ascertaining the ability of the seller, before the purchase is made. The mere contingency, that loss may happen, is not a sufficient reason to introduce new, or unsettle established principles of law.-

If authority of decided cases was necessary to establish these principles, which seem self-evident, it will be found in the cases cited — (King vs. Fuller, 3 Caines, 152 ; Smith vs. Jones, 15 John. 229; Philips vs. Berick, 16 John. 136; Miller vs. Covert, 1 Wend. 487.)

We will now examine the objections which are urged against the form and substance of the plea on which-judgment was pronounced in the County court.-

It is-urged, that the record of the previous suit is not-formally vouched. It is-unnecessary to determine,-whether it was essential, in this case, to vouch the record, as-the omission of the prout paid per resordum, could only be taken advantage of by special demurrer, previous to the enactment of our statute of eighteen hundred and; twenty-four, (Aik. Dig. 277;) and as these demurrers are'abolished, the objection is not now available.- No injury in practice can ever result from this rule, because the-party can always put in issue the existence of a record,by the proper plea or replication, if necessary so to do.

To the objection, that Windham, when sued on the' note, could not properly make the defence arising out of Robinson’s breach of warranty, on the plea of the general issue, it will be sufficient- to observe, that the contrary rule has prevailed in this State, since the decision of the' case of Peden vs. Moore, (1 Stew. & Por. 71.) It is true,this case was not determined on the plea of the general issue, but in many of the cases which are cited in that case, as confirmatory of the principle decided, the identical defence arose on the general issue, under which any defence may be given in evidence, which shows that the plaintiff, ex equo et lono, is not entitled to maintain, his action. In neither this or the subsequent case of Morehead vs. Gayle, (2 Stew. & Por. 224,) was any stress laid on the form of the pleas.

As Windham was authorised to make the defence of the breach of warranty, under the plea of the general issue, when sued by Robinson, on the note given as the difference between the value of the slaves, it is not necessary to consider whether he would be permitted, if the rule was otherwise, to deny the validity in point of law, of any defence actually interposed by him, and passed on by the jury.

Our conclusion is, that the facts of the plea, if true, make out a defence to this action, and as the plea is sufficiently formal, the demurrer should have been overruled.

The judgment of the County court is reversed, and the suit remanded for further proceedings.


text:
    THE MAYOR, &C. vs. EMANUEL & GAINES.
    1. A judgment will not be reversed for a misdirection by the judge to the jury, if it appear that the party complaining could not have been injured by the error.
    Error to the Circuit court of Mobile.
    Trespass to try title, before Pickens, J.
    This was an action of trespass, brought by the plaintiffs, against the defendants, in the Circuit court of Mobile, to try the title to, and recover the possession of a certain lot of ground, .situate and being in the city of Mobile.
    The plaintiffs predicated their claim upon an act of Congress, of the twenty-sixth of May, eighteen hundred and twenty-four, entitled “ an act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city.” The terms of that act, so far as material to the plaintiffs’ case, are as follows: “ Be it enacted, &c. That all the right and claim of the United States, to the lots known as the hospital and bake-house lots, containing about three-fourths of an acre of land, in the city of Mobile, in the State of Alabama ; and also all the right and claim of the United States, to all the lots not sold or confirmed to individuals, either by this or any former act, and to which no equitable title exists in favor of any individual, under this or any other act, — between high-water mark and the channel of the river, and between Church street and North Boundary street, in front of the said city, be, and the same are hereby vested in the Mayor and Aldermen of the said city of Mobile, for the time being, and their successors in office, for the sole use and benefit of the said city forever.”
    The plaintiffs having given in evidence a map of the city, and proved its adoption by the authorities of the corporation, then showed that the premises in question were situate, in May, eighteen hundred and twenty-four, and previously, between Church street and a street south of Adams street, and below both high and low-water marks, and the channel of the river.
    The defendants offered in evidence, a grant from the Spanish authorities, which is attached to the bill of exceptions, — and claimed title under that grant. Without pretending to set it out, it will be sufficient to say, that it is the same grant which made a part of the record in Hagan et al. vs. Campbell et al. (8 Porter, 9,) and the legal effect of which is there settled by the opinion of the court.
    “ The court charged the jury, that if the place in controversy was, subsequent to the admission of this State into the Union, below both high and low-water mark, then Congress had no right to grant it; and if defendants were in possession, the plaintiffs could not oust them by virtue of the act of Congress.
    “ That the grant to Forbes extended to high-water mark, and that if the place claimed was between high-water mark and the channel, in front of the grant, and had been reclaimed by defendant, then the plaintiff could not recover in virtue bf the act of Congress, and this notwithstanding the reservation of the right of way, specified in. the confirmation of the grant to Forbes.”

      Hale and James Martin, for plaintiffs in error.

      Steioart, contra.
   COLLIER, C. J.

The Spanish grant, under which the defendants claimed title, was confirmatory, and in extension of a British grant, made in seventeen hundred and sixty-seven. By the latter, was embraced the land to high-water mark only, while the former conveyed to its grantee, the intervening space between high-water mark and the channel of the river — (Hagan et al. vs. Campbell et al. 8 Porter, 9.) In the second instruction, then, the Circuit court erred in charging the jury, that the grant to Forbes extended to high-water mark.” Whether there is error in the first instruction, we do not propose to enquire, since it is clear, that the plaintiffs could not have been prejudiced by the instructions to the jury, as they were not entitled to recover. It has been repeatedly decided by this, as well as other appellate courts, that a judgment will not be reversed for a misdirection by the judge to the jury, if it appears that the party complaining could not have been injured. Now, in the case before us, the plaintiffs could claim nothing under the act of Congress: there was no vacant space between high and low-water mark; all had been “ sold and confirmed ” to Forbes, so that it is perfectly immaterial what view may have been taken of the case, in the charge given by the Circuit court to the jury.

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


text:
    ADAMS vs. MOORE.
    1. On a plea of non est factum by a defendant, sued as the endorser of a promissory note, other proof is required to charge defendant, than his admission of the factum of his signature as joint maker.

      %. The maker of a note is a good witness, in an action by the endorsee against an endorser, to shew that defendant is not liable.
    Error to Mobile County court.
    Assumpsit, against an endorser.
    It appeared from the bill of exceptions, that when this suit came on for trial, the writ and declaration could not be found. Their absence was waived by the defendant, who admitted himself properly in .court, and that the declaration was in the usual form, charging him as the endorser of a promissory note. The pleas of the defendant are found in the record, but only one is important to be considered in connection with the decision of the County court. There is a denial of the making or signing any endorsement of the note mentioned in the declaration. It is verified by a special affidavit, and issue is joined to the country. To prove the issue, the plaintiff introduced a note, in which the name of the defendant is written only on the face, and under the names of Wheeler & McCormack. This note is thus set forth in the bill of exceptions :
    “$116. Mobile, May 6th, 1835.
    “ Four months after date, we promise to pay J. F. Adams, or order, one hundred and sixteen dollars, for value received, negotiable and payable at the office of discount and deposit Bank of the United States.
    “Wheeler & M’Cormack,
    “ J. F. Adams.”
    The only name on its back was that of Wm. Moore. It whs duly presented, and due notice of non-payment given to the defendant. The County court permitted this note to go to the jury, as evidence of the defendant’s endorsement, without any further proof. The defendant then offered to read in evidence, the deposition of James Wheeler, whereby he proposed to prove that the note was not made by the said defendant, nor by any person authorised by him: that the signature, Wheeler & M’Cormack, affixed to the note, wás made by one Levi C. M’Cormack, without the knowledge or consent of said Wheeler, and was given to fay said M’Cormaclds debt to the plaintiff: that the said Wheeler never had any other connection with the said M’Cormack, than in the building of a house, upon a covenant in which they were jointly bound, and which did not extend to any thing else: that the building of the said house did not require the making of promissory notes: that he, the said Wheeler, had never authorised the said M’Cormack to affix his name in any manner whatever to promissory notes, or any thing else: that the defendant, at that time, had signed a few promissory notes of the said Wheeler, as his security, but had never, to his knowledge, incurred any responsibility for the said M’Cormack, and that both the signing the deponent’s name, and the procuring the defendant’s signature, was a gross fraud of the said M’Cormack. This deposition, the County court refused to permit to be read, for the reason, that Wheeler was a party to the note, and could not be allowed to impeach it.
    The defendant excepted to these decisions, and now seeks to review them by writ of error-.

      Allcln, for plaintiff ia error.
   GOLDTHWAITE, J.

It may be admitted, that the plaintiff in error could be charged as the endorser of this note, admitting it to have been made by Wheeler & M’Cormack, payable to him, by writing his name on the face of it, immediately under, the signature of their names; but such is certainly not the prima fade intendment of the note, in the condition it was when offered in evidence.' As it then appeared, it was the joint note of Wheeler & M’Cormack, and Adams, payable to Adams, or his order, and could only receive existence as a legal obligation, from the endorsement or assignment of the latter. If the plaintiff below intended to charge Adams as an endorser, it was incumbent for him to show that the signature purporting to be his, was made after the signature of the note by Wheeler & M’Cormack, and with the intention of transferring the legal interest to another. If these facts had been shown in evidence, we cannot say that Adams might not be chargable as endorser, though it would at this time be manifestly improper to pre-judge the case, even on such a state of proof. On the issue to the plea of non eslfactiim, it was manifestly improper to admit the note, as evidence of Adams’ endorsement, without further proof.

We presume the County court must have considered the affidavit of Adams, appended to the pleas, as in evidence before the jury, in which affidavit the factum of' the signature is admitted; but even if such had been the case, no legal inference could arise from any fact stated by him, that he was liable at law as ah endorser.

The County court also erred in Rejecting the deposition of Wheeler. It is true, a great portion of the’ evidence contained in this deposition, was of a character wholly irrelevant to the question at issue,- büt it contains thé statement,- that this note was given by M’Cormaek to Moore,- to pay a debt due from the former to the latter.This Was evidence applicable to the issue formed,- and showed that the note came into Moore’s hands, not from Adams',- btit from M’Cormaek. The mere fact, that a witness is a- party to a negotiable paper, does- not disqualify him.- Such is the established law in this State —(Griffin vs. Harris, January Term, 1839.)

The declaration,- if in the form admitted by the agreement of the defendant, must charge Wheeler & M’Cormack' as the makers of the note,- and the testimony of' Wheeler could be used by the endorser’, to show he was not liable as such, without coming Within the influence of Ross vs. Wells, (1 Stew. 13:9,) in which this court held,that one maker of a note is not a competent Witness to invalidate itl-


text:
    BURNETT, WILROY & CO. vs. MAXEY.
    1. On a trial of the right of property, the plaintiff in execution cannot complain, that the verdict in his favor does not ascertain the value of the property in dispute.

      2. The verdict of a jury is presumed to conform to the evidence, unless the contrary appear from the record.
    3. Where the jury omit to find the value of the property in controversy, if it is not returned to the sheriff, in obedience to the condition of the bond of the claimant, the plaintiff in execution may prosecute an action at law, and recover damages for the breach.
    Error to Morgan Circuit court.
    Trial of the right of property, before Lane, J.
    This was a proceeding in the Circuit court of Morgan, to try the right of property under the statute, to three slaves. On the trial, the jury found the slaves subject to the execution of the plaintiffs in error, but did not ascertain by their verdict, the value of each, as required by law, or the aggregate value of all. The court rendered a judgment on the verdict, condemning the property to the sátisfaction of the execution, and against the claimant (the present defendant) for costs.
    The plaintiffs now object to the proceedings in the Circuit court, on the ground, that the verdict is too defective to sustain the judgment.

      Robinson, for plaintiffs in error.
   COLLIER, C. J.

In Hardy et al. vs. Gascoignes & Holly, (6 Porter, 447,) the precise question presented by the assignment of error, was made and decided at the instance of the claimant. In that case, the court determined that the claimant had no right to complain, that the statute which requires the jury to find the value of each article separately, had not been complied with; for instead of being injured, he was placed in a more favorable condition. Had the value of the property been assessed, he would.have been obliged to make it good, but being merely found subject to the execution, he was only liable for the costs of the proceeding, to try the right.

It is difficult to conceive of any course of legal reasoning, which allows the plaintiffs to question the regularity of their own judgment. They were the plaintiffs in execution, in the Circuit court, and if they desired to avail themselves of the benefit of the remedies offered by the statute, they should have shown at the trial, the value of each of the slaves, or if proof was adduced to that point, and the jury, notwithstanding, omitted to declare by their verdict, their respective values, they should have sought a new trial. The presumption is always indulged, unless the reverse appears, that the jury have done their duty, by conforming their verdict to the evidence. There, is nothing .in the record to inform us, that the verdict is not such as the proof required, and the intendment in favor of its correctness, would acquire force, if necessary, from the omission to move the Circuit court for a new trial.

But the plaintiffs cannot be ultimately prejudiced by the generality of the verdict; for if the slaves be not returned to the sheriff, in obedience to the condition of the • bond of the claimant and his sureties, it. will be compe■tent for the plaintiffs to cause an action at law, to be brought upon the bond, and’ recover damages for the breach — (Hardy et al. vs. Gascoignes & Holly, 6 Porter, 454.)

The judgment qf the Circuit court is afffrmed.


author: GOLDTHWAITE, J. — The

text:
    BLANN vs. CHAMBLISS.
    1, A reeord is evidence of the facts recited, only between the immediate parties to it, or privies in fact or in law-
    Error to Autauga Circuit court.
    Assuumpsit, tried before Harris, J,
    The plaintiff, Blann, declared in the common counts in assumpsit, against the defendant, Chambliss, and to make out a prima fade case of money paid on his account, offered in evidence the exemplification of a judgment obtained by one Hasket, against him, the said Blann. The declaration, which is shewn in this exemplification, recites, that Chambliss, on the twentyminth August, eighteen hundred and thirty-three, made his promissory note, payable to the said Blann, or bearer, for two hundred dollars, which note Blann endorsed to Has-ket, who sued Chambliss, who pleaded non-assumpsit, payment, set-off and partial failure of consideration, on which issues were joined, and a recovery had against Chambliss for only .fifty-four dollars and forty cents. The declaration then alleges, that Chambliss successfully de* fended the suit in the manner aforesaid, and that the defences which were allowed by the jury on the trial, were defences against the note, in the hands of Blann, Before his endorsement of the same to Haskit; by reason of which, he (Blann) became liable to pay Haskit the difference between the sum recovered of Chambliss, and the amount of the note. This declaration also contains the money counts. The exemplification also shows a trial on the plea of non-assumpsit, a verdict and judgment in favor of Haskit against Blann, for two hundred and fifty-two dollars. This exemplification was rejected by the Circuit court, and Blann excepted; and the error assigned is, that the court erred in not admitting this as evidence.

      Edwards, for plaintiff in error,

      Clark, contra.
   GOLDTHWAITE, J. — The

exemplification was evidence of nothing but the facts, that a suit was commenced by Haskit against Blann, and that it was determined in the manner shown by it. All records, to this extent, are evidence, but no record can be evidence of the facts recited, except between the immediate parties to it, or privies in fact or law — (1 Starkie, 191, and cases there cited.) Chambliss was neither a party or a privy to the suit described in the exemplification offered in evidence, but if he was a privy in law, he is also shown to have been the successful litigant in the suit recited, and it is difficult to conceive how any right of action could arise from these facts, in favor of Blann, against him, as it shows a determination of all the matters which could have been litigated between Blann and Chambliss, if the former had sued the latter on the note. Blann was the assignor of the note, and when the suit of Hasket against Chambliss was determined, he stood in the attitude of a privy in law, and was equally bound with Hasket by the decision, and could never litigate ' with Chambliss the same matters. In this aspect, it is clear, that so far from showing a prima facie liability in Chambliss, to account to Blann for money paid, the record would seem to induce an opinion directly contrary. If the first count of the declaration set out in the exemplification had been omitted, the judgment would then appear to have been rendered on the money counts, on which issue the endorsement of Blann, with the necessary evidence to charge him as endorser, might have induced the recovery, but even in such a case, the record would not be evidence, in a suit against Chambliss, either of the fact that he had made the note, or that Blann had endorsed or paid it.

It may be remarked, in addition, that it does not appear from any part of the record, that Blann has ever satisfied the judgment obtained by Hasket against him, a fact which it would be necessary to establish, in order to make Chambliss responsible to him, if the note remained the property of Hasket.

The record was not admissible in evidence, to show a liability from Chambliss to the plaintiff, Blann, and as it was offered for this purpose, was properly rejected, it not being accompanied with other evidence to make out a liability in the defendant.

The judgment is affirmed.


text:
    LOWE & WEAVER vs. DERRICK.
    1. An attachment will not be quashed for a defective bond, unless plaintiff decline on an opportunity afforded, to substitute one that is sufficient.
    Error to Madison County court.
    Attachment. — The error assigned, in this case, was that the court below, on motion, quashed the attachment for a defect in the bond.
    Hopkins, for plaintiff in error.

      McChmg, contra.
   COLLIER, C. J.

It is conceded by the counsel for the defendant in error, that the opinion of the court, at its present term, in Alford vs. Johnson, is decisive to show the judgment of the County court is erroneous, but he insists that the attachment bond does not conform to the act of the twenty-third December, eighteen hundred and thirty-seven — (Acts of 1837, p. 62.)

By the first section of that act, it is enacted “ that the condition of all bonds, executed by all persons suing out original attachments, shall, and is hereby declared to be, to prosecute such attachment with effect, and pay the defendant all such damages as he or she may sustain, by the wrpngful or vexatious suing out of such attachment, as the same is now provided for by law, to be found in Aikin’s Digest, sec. 3, under the title of attachments.” This provision seems to us so explicit, as scarcely to admit of controversy, that it was the intention of the Legislature to repeal so much of the 6th section of the act of eighteen hundred and thirty-three, as prescribed the condition of the bond, and to fe-enact the 3d section, which Requires a bond with the condition materially variant.

The bond, in the case before us, is dated on the third of December, eighteen hundred and thirty-eight, and its legal sufficiency is of course to be determined by the act of eighteen hundred and thirty-seven. The condition is a copy of the form given by the 6th section, which will be seen by a reference to Alford vs. Johnson-, does not impose upon the securities so extensive a liability, and is not, consequently, so beneficial to the defendant in the attachment, as the condition required by the 3d section of the act of eighteen hundred and thirty-three. The bond, then, is defective, yet the defect did not authorise the judgment of the County court, by which the attach¡ment and proceedings therein were quashed, unless the plaintiffs in error had declined on an opportunity having been afforded them to substitute a sufficient bond— (Lowry vs. Stowe, 7 Porter, 483..)

The judgment is reversed, and the case remanded, that such proceedings may be had in the premises as are indicated by this opinion.


author: GOLDTHWAITB, J.

text:
    OWEN’S adm’rs vs. ASHLOCK.
    1. "Where plaintiff puts defendant in possession of á draft for money, to secure him as endorser on a note,- and plaintiff after-wards pays the note and releases the liability of defendant as endorser — defendant is not liable to plaintiff in an action for money,- unless the actual receipt of money on the draft,- or its equivalent, is shewn.-
    Error to Mobile County court.-
    Assumpst, for money had, &c.
    The' questions involved in this case, arise from exceptions- taken at the trial, in the progress of which,- it ap-^ peared that OWen, the intestate, in the month of February, eighteen hundred and thirty-six,- endorsed a note for' three thousand dollars, for the accommodation of Ash-lock, the plaintiff below, which note was discounted by the Branch of the Bank of the State of Alabama at Mobile, the proceeds being received by the said Ashlock* who, in order to secure Owen against the endorsement, delivered to him an order for the same sum, drawn by the Mayor and Aldermen of the city of Mobile, upon their treasurer, payable to Ashlock. The note was afterwards arranged by Ashlock with the Bank, so that Owen was discharged from liability as endorser. The note was not produced, nor its absence- in any way accounted for. This being all the evidence adduced on the trial, the defendants .below asked the County court to exclude it from the jury, because the- note was- the best evidence, and •ought, as they insisted*- to have been produced, or its absence accounted for. The court refused to exclude th© evidence, and the defendants excepted. They then asked the court to charge the jury, that to entitle the plaintiff to recover, he ought to have proved the collection of the order by Owen in his life-time, or by the defendants, since his death, the appropriation of it to his or their use, or that he had demanded the order of Owen in his lifetime, or of the defendants, since his death. This the court refused, and instructed the jury, if they believed Ashlock had satisfied the Bank, and thereby discharged Owen, as endorser, then, if the order had been delivered to Owen, to counter secure him, as before stated, they ought, without further proof, to find for the plaintiff. To the refusal to charge as requested, and to the charge, as given, the defendants also also excepted.

      J. A. Campbell, for plaintiff in error.
    Stewart, contra.
   GOLDTHWAITB, J.

The motion of the defendants below, to reject the evidence then before the jury, seems to have been made under a misapprehension of the effect of the proof. The contract for the pledge of the order, does not appear to have been in writing. If the note had been introduced in evidence, it would not have established this contract, nor in any manner explained the transaction between Owen and Ashlock. Neither would it have evidenced the contract by which the Bank discharged the former from his responsibility as endorser, as the evidence before the jury did not prove that the discharge was by matter in writing on the note. There was, then, no reason, in this case, to suppose that the note, if produced, would have shown any of the facts connected with the issue, in a more perfect manner than was shown by the parol evidence. Indeed, the production of the note, would have established no fact whatever, connected with this controversy. There was, therefore, no error in refusing to reject the evidence, because of the non-production of the note endorsed by Owen.

The delivery of the order drawn by the Mayor and Aldermen of the city of Mobile, on their treasurer, constituted, under the circumstances of this case, a simple pledge, which Owen or his personal representatives were authorised to retain until their liability on the endorsement was discharged, and in that event only, had Ash-lock a right to receive it back. Even when the liability ceased, no obligation to pay the amount of the order, was incurred by Owen or his personal representatives, unless the money was actually received by them. If Owen, in his life-time, had converted the order to his own use, he would have become liable in another form of action, or he might have been held liable for the money which came to his hands, but the mere discharge of the liability of Owen on his endorsement, did not impose on him, or his personal representatives, the liability to answer to Ashlock for the amount of the order.

The charge requested by the plaintiffs in error, was less favorable than they might have asked for, as it is questionable if they could be accountable, in this form of action, unless the actual receipt of money, or its equivalent, was shown.

For the error in refusing the charge asked for, the judgment of the County court must be reversed, and the Case remanded.


author: ORMOND, J,

text:
    NEWELL vs. TURNER.
    X. The vendee of real estate, may rescind a contract, where there was a defect of title in the vendor, — the offer to rescind having been made as soon as the defect was discovered, and no conveyance having been made.
    Error to-Franklin Circuit court.
    Assumpsit on a written agreement for the sale of land, tried before Coleman, J. Yerdict and judgment for plaintiff belowi
    The defence set up, was a defect of title in the vendor. It appeared from the bill of exceptions, that the court charged the jury, that “ although they might believe from the evidence, that the plaintiff represented to the defendant, while they were making the agreement for the sale and purchase of the lots and buildings, that the lots contained land which was proved not to form any part of them, it gave the defendant no right to abandon and rescind the said agreement, and avoid the payment of the purchase money, unless the jury believed also from the evidence, that the plaintiff knew when he made such representation, that it was untrue,” To which charge, defendant below excepted, and now assigns the same for for error.
    Hopkins, for plaintiff in error.
   ORMOND, J,

The question presented on this record, is whether a vendee of real property can rescind a contract, the vendor having represented at the time of the sale, that the enclosure around the lots, which were the subject of the contract, contained the lots he was selling, ■when in fact, the enclosure included a part of the public street and common, on which a portion of the dwelling house, and all the out houses were situated, the offer to rescind, having been made as soon as the fact was discovered — and no conveyance having been made.

It is a general rule, that when a vendor gives a false description of the estate, in a material matter, the vendee may rescind the contract at law, where no conveyance has been made — (Sugden on Vendors, 211, and cases there cited.) The English books are full of cases, in which a purchaser has been compelled to receive the property and execute a contract, where there had been a misdescription as to a part of the property purchased, the vendor making compensation. But a different rule prevails where the defect of title is in a lot sold entire, as in such case, the defect goes to the whole estate, and a specific performance will not be enforced — (Roffey vs. Shallcross, 4 Maddox, 227, and Dalbey vs. Pullen, 3 Simons, 29.) In this case, the defect was material, and inherent in the thing sold; a portion of the dwelling house is not on the land purchased by the defendant in error; the defect, therefore, goes to the whole estate.

But it is supposed by the court below, in this case, that the rule is confined to cases where the representation was fraudulently made. It is material to consider, that in this case, it does not appear that any conveyance has been made to the property, and although in a case where the contract was fully executed, a Court of Chancery might not interfere, where no fraud had intervened, but leave the parties to their remedy, on the covenants entered into between them; a different rule prevails where the contract is unexecuted — (B’k of Columbia vs. Hagner, 1 Peters, 465.) The injury to the purchaser is the same, whether the representation was made falsely, or in good faith: in either case, the purchaser does not get what he stipulated for — and without his fault, for the rule is confined to cases where the purchaser could not by inspection, or by reasonable enquiry, ascertain the truth of the statement.

In the case of Oldfield vs. Round, (5 Vesey, jr. 508,) Lord Rosslyn said he could not help a purchaser, who did not choose to enquire. In that case, a meadow was sold, without notice of a foot-way round it, but as it could have been discovered by inspection or enquiry, it was not a latent defect. Here the defect was a latent one: it does not appear from the record, that it could have been discovered by inspection, and although a survey would have disclosed the condition of the lot, such extreme diligence cannot be exacted. The rule is thus concisely laid down by a recent writer: “ If the misde-scription goes to the whole estate, and is such that the purchaser, with ordinary care, could not have discovered the error, and was, at all events, not previously acquainted with it, then the court will not enforce the contract” —(Atkinson on Marketable Titles, 100.)

The principle determined here was, in effect, decided by this court, in the case of Killough vs. Wade, (3 Stewart & Porter, 431,) where a vendee was not allowed to resist a recovery on the note for the purchase money, for want of title in the vendor, “ there being no effort made to place the vendor in statu quo by a return of the premises.” Let the judgment be reversed, and the cause remanded.'


author: ORMOND, J.

text:
    SAYRE, CONVERSE & CO. vs. THE BANK OF MOBILE.
    1. The judgment on a Bank notice, must disclose, that the instrument sued on, was negotiable and payable at the Bank.
    Error to the Circuit court of Mobile.
    ' Motion on a notice from the Bank, tried by Harris, J.
    There were four cases between the same parties, similar to each other, which were severally brought up on error. Judgment for defendants in error.
    The error assigned, was the insufficiency of the judgment and record.

      J. A. Campbell, for plaintiffs in error.
   ORMOND, J.

This was a motion in the court below, against the plaintiffs in error, as the endorsers of a bill of exchange, upon which the Bank obtained judgment.

The judgment of the court below, does not disclose that the bill was negotiable and payable at the Bank of Mobile, or that, if payable at any of the other Banks in Mobile, the Bank acquired property in the bill subsequent to the thirtieth of June, eighteen hundred and thirty-seven. These facts sufficiently appear in the notice, but that is not made a part of tlje record. The judgment must therefore be reversed, on the authority of the case of Joseph Bates, jr. vs. The Planters’ & Merchants’ Bank, (8 Porter, 99,) and Henry S. Levert vs. The Planters’ & Merchants’ Bank, (8 Porter, 104,) and the cause remanded for further proceedings.


author: GOHDTHWAITE, J.

text:
    MOFFITT & BURNS vs. BRAGG.
    I. In all cases where the sum sued for exceeds twenty dollars, a ■declaration or statement must be filed.
    Error to Mobile Circuit court.
    Appeal from a justice of the peace. Judgment for ■plaintiff below.

      'Craighead, for plaintiffs in error.
   GOHDTHWAITE, J.

The assignment of error, of the omission of a declaration, or statement of the cause of action, is found to be supported by the record.

In appeal cases, where the sum in controversy exceeds twenty dollars, it has several times been decided by this ' court, that a declaration or statement must be filed— (Martin vs. Price, Minor, 68; Gayle vs. Turner, id. 204; McAlpin vs. Pool, id. 316; Roland vs. Roden, 1 Stewart, 266.)

As this error is decisive of the case, we do not deem it important to examine that which questions the legality of the contract found among the papers connected with the case, the more especially, because it does not appear that this question was raised in the court below.

Let the judgment be reversed, and the case remanded.


text:
    NORWOOD & CHAMBERS vs. RIDDLE.
    1. An acknowledgment of the service of process endorsed on the' writ, is not proved by showing it to have been in the' hands of ■ the officer to whom it was directed — such officer should, by his return,- have affirmed the genuineness of the acknowledgment.
    2. The Supreme court cannot allow a discontinuance,- where none Was entered or attempted in the court below,
    Error to Jackson County court.
    Assumpsit on note.
    The defendant in error sued the plaintiffs on a promissory note, by petition and summons- returnable into the County court of Jackson. The process was directed “ to any coroner,” &c. who returned the same with the following endorsements thereon, viz :
    “ I acknowledge service of the within writ. Feb. 6th, 1838. Henry Norwood.”
    “Received the same day issued, and executed on John G. Chambers, by handing a copy of the within. Feb. the 6th, 1838. . Daniel M. Martin, Coroner.”
    The petition and summons, from a note made at the first of it, appears to have issued on the fifth February, eighteen hundred and thirty-eight.
    Neither of the plaintiffs in error appeared in the County court, and a.judgment by default was rendered against them. They now assign for error, that the record does not show that process had been served on Norwood.

      Hopkins, for plaintiff in error.
    Robinson, contra.
   COLLIER, C. J.

In the case of Welch, adm’or, vs. Walker et us. (4 Porter’s R. 120,) this court decided that the mere endorsement on process of an acknowledgment of service, without proof of the genuineness of the signature of the defendant, will not authorise a judgment. In that case, it did not appear that the process had been in the sheriff’s hands, and in their opinion, the court say, “ if the writ appeared to have been received by the sheriff, such a return as the above might be considered as his return; but the mere appearance of the acknowledgment by the defendant, of his name on the back, is not prima facie evidence of the fact.” The generality of the terms employed by the court, may seem to authorise the conclusion, that the acknowledgment would be sufficiently proved by the endorsement of the sheriff, stating the reception of the process by him, though he had not vouched its genuineness by his return of service. We are sure that such was not the opinion of the court: the court .meant to be understood as saying, what they afterwards said in Rowan vs. Wallace, judge, &c. — (7 Porter, 171.) That where a writ went into the hands of the sheriff, and service was acknowledged by the defendant, and so returned by the sheriff, no further proof was necessary.

In the case before us, it is insisted, that as the acknowledgment of service appears to have been made by Norwood, subsequent to the receipt of process by the coroner, it should be intended that it was made under his inspection. Now, the date is not conclusive, to show the time of the acknowledgment — it may have been written before or after; nor by any just course of reasoning, is the fact of the process having been in the coroner's hands, evidence sufficient to show, that the acknowledgment was made by Norwood — If the fact were so, the coroner should have certified its truth by his return. In the absence of proof, the judgment was unau-thorised.

It is argued for the defendant, that if the judgment be unauthorised, it may be reversed, and rendered against Chambers, and a discontinuance here entered as to Nor-wood. This argument, we think, is not well founded. The manner in which this court is organised, requires it merely to review the judgments, &c. of inferior courts, &c. — it cannot allow the defendant to discontinue his suit here, as to one of the plaintiffs in error ; no discontinuance having been entered or attempted in the County court, that court was in no default, and consequently, such an application does not come within the revisory jurisdiction of this court.

The judgment is reversed, and the case remanded.