source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    YOUNG VS FOSTER.
    1. It is now well settled, that a Court will not compel a joinder in demurrer to evidence, unless the demurrant will admit on the record, the truth of all the facts offered in evidence; and also every conclusion which the facts fairly conduce to prove.

      2. A written instrument sued on, is, under the statute, prima fa-cie evidence of the debt, or duty it imports, and the consideration of such an instrument, can only be put in issue, by a special plea, — which throws the burden of proof on| the pleader.
    3. Where one contracts to deliver a certain quantity of corn, at a certain time, a refusal to deliver apart oí the quantity, on the ground that the whole cannot be delivered at once, is not justifiable — -The parties making the contract, arc presumed to contract, in referen cc to the necessity of the'case, and the h am-bits and means of transportation common in the country.
    4. In case of a demurrer to evidence, il, [seems rto be the most correct practice, on account of its despatch, to direct the jury to assess the damages, at the time the demurrer is taken — to be imposed, in the event the demmrer is overruled. A new jury may, however, be •.impannelcd, to assess ¡the"damages, and either mode is legal!
    5. All testimony, in trials - at common law, must be delivered orally, in presence of the jury, who are to try a cause, or assess damages, except where the statute provides for the admissibility of depositions : — Therefore. the evidence spread on the record, in a case in which a demurrer is offered to evidence, can not be allowed to go to a second jury, impanneledjx» assess damages, after the demurrer to evidence is overruled.
    Error to the Circuit court of Tuskaloosa.
    This was an action of assumpsit, tried before P. Martin, J., upon an instrument in writing, of the following-tenor :•

      “ I llave sold to John Vi. Foster, seven hundred bushels of cora, whichlbiud myself In the sum of seven hundred dollars,tobe delivered in raid Foster’s boat, in the month of February, or sooner if said Foster wishes it.— Tuskaloosa, January 0, 1C33. II. W. Young.”
    The pleas were, :m.j v.V: a ml a special plea, that defendant ivas icady m-d whang to deliver the com mentioned in the clocim atices, but that the plaintiff was not ready, and couseutwg to receive it. Issues were taken to both pleas, and the case woe submitted to a jury.
    It was preved by the plaintiff, Fiat defendant said a boat was, at one time, at Young's plantation — but at what time was not proved. ri he witness proved, that at the time he said a boat vi s there, ho said it was not sufficient to contain the com; on which account, he was unwilling to deliver it. Witness proved the price of corn, at Young’s, in February, eighteen hundred and thirty-sis, to be one dollar per bushel: also, that defendant said the money hod been tendered. Witness also proved, that he knew the boat, and it was not large enough to contain the corn, named, without planking the sides: that it was a common ferry flat, and ivas worked by four hands, at the time it came for the corn. Witness was asked whether' the boat could not be planked by the hands, while It was delivering. lie said not: and that all the corn could not bo put into the boat without clanger of getting it wet; but that the boat might be planked in less than a mouth.
    This was all the testimony.
    The defendant demurred to the evidence; and the case being thus arrested from the jury, the court took an
      advisare; and oa tho ana cedí v.g (k.y oí tho tena, overruled the demurrer, and uubmiitod Oro cause to another jury, who gave the plabioUr a verdict for seven hundred dollars : and the court, notwithstanding an objection of the defendant’s counsel, ruled, that the evidence set out in the demurrer, was good Lcstlreony for the plaintiff, for the jury executing ike writ of enquiry, and without any evidence but what upj?oarod in the papers, the jury rendered their verdict.
    It was assigned in error—
    1. The court erred in overruling the demurrer.
    2. The court erred ! i sub'nULing the cause to the second jury, on the cv; f uto hied, in the papers.
    Porter, for the plu'uíiíT in or-or,
    contended—
    1. That there was a distinction between, writings which ascertained ike value oí tho duty Lo be performed; —and those which undertook lire: performance of amere duty, not stipulating aw/ pr. That in these latter, a consideration could not be presumed, from the writing itself, and therefore, should bo ascertained by evidence to a jury. That in all cases of this character, the general issue put the plakiibT upon tills proof. — (5 Stewart & Porter, 189 — 4 Tortor, 417.)
    2. That a demurrer to evidence will bring up the sufficiency of tlic pleadings. — (4 Zvhechr's Ah. 339,343.)
    3. That though a demurrer to evidence, operated as an admission of the facts, and the conclusions dcducible from them, — yet it did not admit, what the court could not determine upon. This was the amount of damages— and -these could only be ascertained by a jury, on the testimony of witnesses. Vjc demurrer only put the question to the court, whether, admitting the facts, they enabled the plaintiff to recover by law. The determination of the court, in the affirmative, only left the case where it was, when arrested from the jury — and as something was yet to he done by them to perfect the plaintiff’s claims to recovery,- -it must have been done in the manner authorised by legal principles.
    Peck, contra.
   ORMOND, J.

— It has sometimes been made a question, whether the court has power to compel a joinder in a demurrer to evidence. It is now, however, well settled, that the court will not compel a joinder, unless the de-murrant will admit, on the record, the truth of all the facts offered in evidence, and also every conclusion which the facts fairly conduce to prove. This has not been done in this case, but as no objection has been made, and as the counsel for the plaintiff has admitted the rule as stated, to be applicable to this case, we will not enter on the enquiry, whether the mere offering a demurrer to evidence, would necessarily imply such admission of facts and conclusions.

The court being, by this proceeding, substituted for the jury, the only question is, whether the issues are for the plaintiff or defendant. ]t is contended by the plaintiff’s counsel, that the consideration of the instrument, which is the foundation of the action, is put in issue by the plea of non-assumpsit. But it has been repeatedly held by this court, that the act of eighteen hundred and eleven, which provides, Hint when a cull is founded on a writing, whether under seal or not, “lire court before whom the same is pending-, ¡¿hail receive such writing as evidence of the debt or duty for which it was given,” has the effect of mailing the instrument sued on, prima facie evidence of the debt or duty it imports to be giyen for — that the consideration of such writing can only he put in issue by a special plea, and that the burden of proof will then be on the pleader — That not being the case here, the consideration of the writing is proved by its exhibition.

The issue tendered in the second plea is, that the defendant below was ready and willing to deliver the corn in the declaration mentioned, but that the plaintiff below was not ready, and would not consent to receive it.

The proof is, that'the plaintiff below had a boat with four hands, at the plantation of the defendant, for the purpose of receiving the corn. The defendant did not deliver it, because the boat was not of sufficient capacity to receive the whole of the com at one time, at least not without planking up the sides — nor even then, without there being danger of the com getting wet. The de-fence here, is founded on the supposition, that the plaintiff below was bound to receive the whole of the corn at one time, but wo cannot think this a reasonable interpretation of the contract. If, as appears to be the case here,, the quantity of com was too large to be received at one time, in the ordinary mode of transportation, the law of the contract is, that a refusal to deliver any of the corn, because only a part could be taken at one time, is not justifiable. No difficulty can arise in the application of this rule, as the parties making a contract for the purchase and delivery of such a ponderous article as corn, must be presumed to contract in reference to the necessity of the case, and to the habits and moans of transportation common in the country. The law would be the same, if the corn, by the terms of the contract, was deliverable on a particular day. In this case, the defendant in this court, had the whole month of February to receive it in. In either case, it must be delivered, if demanded, in such quantities as hy the means of transportation,common in the country, would enable the receiver to carry it away. The evidence does not stele precisely when the demand was made, but if this were important, in tire absence of any other proof, we think the jury would have been warranted in inferring, that it was during the month of February ; the more especially, as it is an admission by the plaintiff in error, who was endeavoring to excuse himself from the effects of his refusal to deliver the corn. Had the demand not been made at the proper time, he would doubtless have mentioned it, instead of relying on the excuse he did.

As the issues were all in favor of the plaintiff, the court was correct in overruling the demurrer — and as the court had no power in such a case as the present to assess the damages, it was also proper to empanncl a jury to enquire what damages the plaintiff had sustained.

The most ancient, and pcriiaps the most correct course, is to direct the jury to assess the damages at the time the demurrer is taken, to be imposed, in the event the demurrer is overruled. The practice is, however, both ways, (and either mode is legal,) but the practice of assessing the damages conditionally, commends itself on account of its superior despatch. The demurrer may be (as was the case here) held up for some time, during which the witnesses will, in all probability, be dispersed, to the delay of the cause-(See Dunn vs Newbold, Croke Charles, 143; 2 Henry Blackstone, 200 ; Cost vs Buckbee, Douglass’ Rep. 212; Humphreys’ adm’r vs West’s adm’r, 3 Randolph, 518; Tidd’s Practice, 160, 161.)

This brings us to the only point of any difficulty in the cause. The admission, by the court, of the evidence, spread out in tlie record by the demurrer, — to the jury, to show the damage the plaintiff had sustained. It is contended by the counsel for the defendant in error, that as the evidence embodied in the record by the demurrer, is the recorded admission of the defendant, it is not only admissible as evidence, but the very best evidence the plaintiff could produce. No authority is cited in support of this position, nor have the researches of the court discovered any. Wo must, then, decide it on principle. There would be great force in the argument urged by defendant’s counsel, if the testimony embodied in the record, showing the amount of the plaintiff’s damages, had any reference to the issue which the court (under the demurrer) was to try. The only fact, then, admitted on the record, having any relation to the measure of damages, is the price or value of the corn. Now, this fact had no tendency to affirm or deny the issues before the court — they were the execution of the instrument sued on, which, under the state of the pleadings, was proved by the instrument itself — and the fact of readiness and willingness on Ike part of the defendant below, to deliver the corn, and refusal by the plaintiff to receive.

It is too clear to admit of argument, that the price or value Of the corn could have no influence in affirming or denying the propositions contained in the pleas.

If, as insisted, all the facts set out and admitted on the record, are evidence on the trial of the writ of enqui-ry of damages, they are conclusive, and cannot be gain-sayed, although when offered and admitted, it was extraneous matter, having no reference to the issues the court was to try. In its results, if such a principle were adopted, it might lead to most injurious consequences. A fact thus incautiously admitted, would operate in the nature of an estoppel. We cannot, therefore, in the absence of all authority, recognise such a principle as law.

We know of no other than the statutory exception, relating to depositions, to the common law rule, that all testimony, in trials at common law, must be delivered orally, in presence of the jury who are to try the cause, or ascertain the amount of damages.

The defendant in error, having in the court below entered a remittiter as to part of the damages assessed by the jury, the justice of the case is doubtless with him; and our leaning would be strong to affirm the judgment, if it could be done without a violation of first principles.

Let the judgment be reversed, and the cause remanded.


text:
    LEWEN VS. SMITH.
    1. Tho land system of the United States, was designed to provide, in advance, with mathematical precision, the ascertainment of boundaries; and the second section of the act of Congress of eighteen hundred and five, furnishes the rules of construction, by which all disputes that may arise about boundaries, or the contents of any section or sub-division of a section of land, shall be ascertained.
    2. When a survey has been made and returned by the surveyors, it shall be held to be mathematically true, as to the lines run and marked, and the corners established, and the contents returned.
    3. Bach section, or separate sub-division of a section, is independent of any other section in the township, and must be governed by its marked and established boundaries :
    4. And should they be obliterated or lost, recourse must be had to the best evidence that can be obtained, shewing their former situation and place.
    5. The purchaser of land from the United States, takes by metes and bounds, whether the actual quantity exceeds, or falls short of the amount estimated by the surveyor.
    6. Where a navigable stream intervenes in running the lines of a section, the surveyor stops at that point, and does not continue across the river: the fraction thus made is complete, and its contents can bo ascertained. — Therefore, where there is a discrepancy between the corners of a section, as established by the United States surveyor, and the lines as run and marked —the latter does not yield to the former.

      7. Whether this would be tho case, where a navigable stream does not cross the lines — Quere.

      Error to the Circuit court of Tuskaloosa.
    Trespass to try title, tried before Judge Chapman. The plaintiff brought his action of trespass to try titles to a portion of fractional section twenty-six, township twenty-one, range eleven, west, lying north and west of the Warrior river. The plaintiff proved, that he had for many years been in possession of that part of said fraction, lying north and west of said river, claiming title to the same. It appeared, also, that defendant was, and had been for a long time, in possession of section twenty-seven, lying immediately west of said fraction. The premises in dispute, were a small angular gore, containing about nine acres, forming a point at the north-west corner of twenty-six, and being about two chains and seven links wide at the river.
    The difficulty was, to determine the true line between sections twenty-six and twenty-seven. The plaintiff claiming the west, and the defendant the east line, to be the true one. The following diagram, copied from the original bill of exceptions, shows the situation of the lands, as disclosed by the witnesses:

      The plaintiff introduced evidence to shew that the south-west corner of said section twenty-seven, was on the south bank of the river, at a point where a certain stockade fence, running between sections thirty-four and thirty-five, terminated at the river; and proved that a straight line from that point to the north-west comer of section twenty-six, would leave the said angular gore on the east of said line.
    The defendant’s witnesses proved, that the original line, as run by the United States’ surveyor, between sections twenty-six and twenty-seven, terminated on the north side of the river.
    The court charged the jury, that if they believed from the testimony, that the corner was established, as the fractional corner, by the United States’ surveyors, it was to be considered the true corner; and that the line of the original survey was the true line. The court further instructed the jury, that the purchaser of a fractional section took it by metes and bounds, as it was originally surveyed.
    The plaintiff’s counsel asked the court, to charge the .jury, that if they believed from the evidence, the southwest corner of said section twenty-six, was at the point fixed by the plaintiff’s witnesses,' — then the true boundary line between said sections twenty-six and twenty-seven, would be a straight line from the south-west corner, to the north-west corner of said section twenty-six; which charge the court refused. The plaintiff excepted to the charge given, and the refusal to charge, and assigned the same as error.

      Peck, for plaintiff in error.

      Porter, contra.

      Porter, for the defendant in error,
    contended—
    1. That the returns of the United States surveyor, as to the lines ran, comers marked, and the contents, were conclusive; and could not be altered or varied from, by surveys subsequently made — (1 Story’s Laws U. States, 422; Walters vs Commons, 2 Porter’s E. 30.)
    2. That the lines of a section, as thus ran by the original surveyor, when a navigable river intervened, — terminated there: that a fraction line and comer were thus produced; and when ascertained, were conclusive of the lines and contents of such fraction, without enquiry as to where the opposite comer of the section was situated— (1 Story’s Laws U. G. 422 ; 2 Ibid, 961.)

   ORMOND, J.

— The question to be settled, in this case, depends on the true construction of the acts of Congress on this subject. The land system of the United States, seems to have been designed to provide, in advance, with mathematical precision, the ascertainment of boundaries, so as to dry up that fertile source of litigation, as far as practicable.

The act of Congress which contains the first conception of the system, and which is the ground-work of all succeeding acts on that subject, passed in seventeen hundred and ninety-six, prescribes the mode of surveying the public domain — (1 vol. Story’s Laws United States, 421.)

In eighteen hundred and five, Congress passed another law oa this subject. — the second. section of which furnishes the rules of construction, by which all disputes which may arise about boundaries, or the contents of any section, or sub-division of a section, shall be ascertained.

It is in these words: “The boundaries and contents of the several sections, half sections, and quarter sections of the public lauds of the United States,' shall be ascertained in conformity with the following principles, any act or acts to the contrary, notwithstanding :

“ 1. Ail the comers marked in the surveys, returned by the surveyor of the land south of the Tennessee, respectively, shall be established as the proper corners of sections, or sub-divisions of sections, which they were intended to designate; and the corners of half and quarter sections, not marked on the said surveys, shall he placed as nearly as possible equi-distant from those two corners, which stand on the same line.
“ 2. The boundary lines actually run and marked in the surveys returned by the surveyor general, or by the surveyor of the land south of the State of Tennessee, re • spectively, shall be established as the proper boundary lines of the sections or sub-divisions, for which they were intended; and the length of such lines, as returned by either of the surveyors aforesaid, shall be held and considered as the true length thereof; and the boundary lines which shall not have been actually run and marked as aforesaid, shall be ascertained by running straight lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the said boundary lines shall he ascertained, by running from the established corners due north and south, and east and west lines, as the case may be, to the water course, Indian boundary line, or other external boundary, of such fractional township.
“ 3. Bach section, or sub-division of section, the contents whereof shall have been, or by virtue of the first section of this act, shall be returned by the surveyor general, or by the surveyor of the public lands, south of the Tennessee, respectively, shall be held and considered as containing the exact quantity expressed in such return or returns, and the half sections and quarter sections, the contents whereof shall not have been thus returned, shall be held and considered as containing the one half, or the one fourth part, respectively, of the returned contents of the section of which they make part.”

The wisdom of these rules is apparent. Had they not been provided, great confusion would have arisen from the very causes which, at a hasty glance, would seem to constitute the perfection of the system. As the ori-gininal conception contemplated a division of the lands, on mathematical principles, without reference to natural objects as the termini, or tests by which to ascertain or settle a disputed boundary, it would have followed, in after time, when the corners and lines were obliterated, by accident or design, if a mistake had supervened in the original survey, that interminable disputes would have arisen about boundary lines. To prevent this, as far as possible, the law contemplates, that where the survey has been made and returned, that it shall be held to be mathematically true, as to the lines run and marked, the comers established, and the contents returned. Thus, each section, or separate sub-division of a section, would be independent of any other section in the township, and be governed by its marked and established boundaries. Should they be obliterated or lost, recourse must then be had to the best evidence, which can be obtained, showing their former situation or place.

The .question, then, in this case, is resolved into this: Is the land in dispute one of the established divisions, which the second rule provides for ? If it be, then the line actually run must govern, notwithstanding an error may have supervened in the original survey; which, however, is not shown in this case, as it does not appear that the marked line does not run due north and south, which would be its course, if mathematically correct.

It appears from the record, that the disputed line, is the boundary line of a fractional section. It is, therefore, a sub-division of a section, of which' the lines were run and marked by the United States surveyor, and returned to the land office. The line thus run and marked must be esteemed the true boundary line, in accordance with the principles here laid down. The purchasers of land from the United States, take by metes and bounds, whether the actual quantity exceeds or falls short of the amount estimated by the surveyor.

The argument most strongly urged by the plaintiff’s counsel, is, that where there is a discrepancy between the corners, as established by the United States surveyor, and the lines as run and marked, that the latter must yield to the former.

Without determining what weight the argument would be entitled to, in a case where a navigable stream did not cross the lines, it is clear, that in a case like this, where a stream of that description does traverse the section, it cannot apply. It would be subjecting the survey to a test, which was not applied in the first instance, and which the law did not require to be applied. In surveying the boundary lines of a section, where no river intervened, an error caused by a deviation from the true course, would be immediately discovered, when the surveyor came to close tlic survey. But if in running any of ihe lines of a section, a navigable river should intervene, the survey stops at that point on that line, and does not continue across the river. The fraction thus made, is complete in itself, and its contents can he ascertained. This was all the law contemplated, and that it was the course pursued, appears from the field notes of the survey of this fraction returned to the land office, which we have examined, and which are as follow:

“ Beginning at the N. W. corner, thence South 73, 50, to a post on the North bank of the river, for which—N. 80, W. 0, 17, box-elder—S. 66, E. 0, 18, do. Thence, with the meanders of the river, S. 74, East, 7 ch. 50 N.-32, East 10, a.—N. 9, W. 20—N. 10, East, 22 ch. N. 4, W. 24, 50, to a poplar on the South boundary of section 23, thence West 13 ch. 70, to S. W. corner, containing 100 55-100 acres.

It follows, that there was no error in the charge of the court, and the judgment of the court below must be affirmed.


author: GOLDTIIWAITE, J.

text:
    SPEARS VS. CROSS.
    1. The magistrate issuing the warrant in a criminal prosecution, on an oatli not reduced to writing, is a competent witness, in an action of malicious prosecution against the prosecutor, to prove that such an oath was administered, and what it contained.
    2. It is not essential to the validity of a criminal prosecution, that the oath of the prosecutor should be reduced to writing, although the practice of committing the same to writing is the most approved. .
    3. If when a case is closed, there is not sufficient relevant evidence adduced to support the action, the whole may be rejected : — but before the close of the evidence, it is not the province of the court to reject any evidence offered, if the same be legal.
    Error to the Circuit court of Lauderdale.
    Malicious prosecution — tried before Lane, J. Plea, not guilty.
    The bill of exceptions disclosed the following facts. That some time within the year, the defendant applied to a justice of the peace, and procured to be issued a warrant against the plaintiff, charging him with a felony ; upon which warrant the plaintiff was arrested, and tried before a justice of the peace for commitment, when the plaintiff was acquitted, and finally discharged from the prosecution.
    On the ti'ial, the plaintiff proposed to prove, by the justice of the peace, who issued the warrant, that it had been duly issued by him. The court ruled, that such proof could not bexnade by plaintiff, until he had first produced and. proved a written affidavit, made by the defendant, before the justice of the peace, upon which the warrant issued. The plaintiff then offered to prove by the justice, that the affidavit or oath, made before him, was never reduced to writing -. — which proof the court would not permit him to make ; but ruled, that a written affidavit alone would afford the plaintiff a cause of action.
    The plaintiff in error, assigned—
    1. That the court erred in not permitting the plaintiff below, to read as evidence to the jury, the warrant, as shewn in the bill of exceptions.
    2. The court erred in not permitting the plaintiff to prove the genuineness of the warrant, as presented in the bill of exceptions.
    3. The court erred in not permitting the plaintiff to prove, by the justice of the peace, who issued the warrant, that the oath of the defendant, upon which the warrant issued, was not committed to writing.
    4. The court erred in ruling, that it was necessary, to entitle the plaintiff to a recovery, that he should produce an affidavit in ‘writing, made by the defendant, upon which the warrant issued, as set forth in the bill of exceptions.
    Marlin, for the plaintiff in error.

      Parsons, contra.

      Martin, for the plaintiff in error—cited, Randall vs. Henry—(5 Stew. & Porter, 367—Aik. Dig. 116—4 Bibb, 208—2 Starkie, 911—1 Stewart, 496—2 Starkie, 909.)
   GOLDTIIWAITE, J.

— Although it is certainly the most approved practice, for a justice of the peace or other magistrate, to reduce to writing, the oath of the party making a charge and requiring a warrant, yet it is not essential to the validity of a criminal proceeding, that the oath should be thus reduced to writing. The statute (Aik. Dig. 116, s. 13,) does not require it; and it would be a dangerous innovation to allow a defendant to shield himself from liability, for making a false or malicious charge, by any mistake or want of technical accuracy on the part of the officer appointed by the law to institute legal proceedings. The charge is recited in the warrant, and the offer was made to prove, that this identical charge was the one made on oath by the defendant. We can perceive no reason for the rejection of the evidence, unless the whole proceedings were vitiated, by the want of a written affidavit. As this is not necessary under the statute, the opinion of the court below was erroneous.

It has been argued in behalf of the defendant in error, that the warrant was rejected, because the facts necessary to make out a complete case, were not then shewn to the court and jury; and that it is essential to the correct administration of justice, that parties to suits shall be compelled to proceed in a regular manner, from the commencement, to the conclusion of the facts, necessary to make out the case or defence.

It is not perceived, that in those cases, which depend on more than one fact, that it can ever be a matter of much importance, at which end of the testimony the proof is commenced. In no case of this kind would the right of action be complete, without shewing the facts in connection with each other ; and if the evidence offered, is legal in its character, it should not be rejected, because other evidence, making out the whole case, is not yet before the court and jury. If when the case is closed, enough is not shewn to support the action, the whole body of evidence may then be irrelevant, for want of some essential part; but until that time, it is not the province of the court to reject it, if legal.

In no view which we have been able to take of the case, can the rejection of the evidence be supported.

Let the judgment be reversed, and the case remanded-


author: COLLIER, C. J.

text:
    TIPPIN VS. PETTY.
    1. Where a verdict is rendered for less than fifty dollars, air affidavit is not necessary to authorise the rendition of judgment.
    2. Where there are two is arcs presented ío a jury, and the finding s, of tire issue, for t'i; plaintiff, and an assessment of damage, &c. — the verdict will not be disturbed.
    Error to the Circuit court of Limestone county.
    Assumpsit for goods sold and delivered. Pleas, non as-sumpsit and Ihe stalnte of limitations. The verdict was in the following words: “ The jury find the issue for the plaintiff, and assess his d images at,” &c. ' Judgment accordingly.
    The plaintiff in error, assigned the following errors :
    1. The judgment was for less than fifty dollars ; and there was no affidavit of the plaintiff below, on which to authorise judgment on the verdk t.
    2. There were two issues in fact, and the finding of the jury was on one only, without specifying whether on the first or second plea.

      Me Clung, for the plaintiff in error.

      Parsons, contra.
   COLLIER, C. J.

— Two questions are raised by the assignment of errors iu this case:—

1. That the verdict is for less than fifty dollars, and there was no affular.il made, to authorise the rendition of a judgment by the Circuit court.

2. That there were two issues iu fact, and the finding' of the jury was on one only, without designating which.

In regard to the first question, it was determined by this court in Cummings vs Edmundson, (5 Porter’s Rep. 145,) that no affidavit was necessary to prevent a nonsuit, where the verdict is for less than fifty dollars. The de-, cisión, in that case, overrules the case of Carter vs. Dade, (1 Stew. R. 18) — and is considered by us, as a just exposition of the act of eighteen hundred and seven — (Aik. Dig. 269, sec. 67.)

In Moody vs. Keener, (see p. 218 of this vol.) it was decided, that where the matters submitted to a jury can be concluded from their finding, the verdict will serve as a sufficient warrant for a judgment. It is even “ proper for the court to interpret the meaning of the jury, if their verdict be susceptible of interpretation, rather than refer the issue to another jury” — (Porter vs Rummery, 10 Mass. R. 66; Jenks et al. vs. Hallet et al. Caine’s R. 60.)

In the case at bar, the jury say they “ find the issue for the plaintiff, and assess his damages,” &c. The fair and rational construction of the verdict is this, that the jury negative the defence interposed by the defendants, and find the matters in issue between the parties to be in favor of the plaintiff, and as a consequence, that he is entitled to recover damages, which they ascertain by their verdict.

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


author: COLLIDE, C. J.

text:
    CANTLEY & CO. VS. MOODY.
    1. Whore the sheriff returns a writ, issued against three defendants, “ executed,” tile court will intend that it was executed on all the defendants.
    2. An objection that the initial of the first name of a defendant is merely set out, and not his name at length, can only be made available by plea in abatement, disclosing his true name.
    Error to the Circuit court of Tuskaloosa county.
    Assumpsit on a bill of exchange, tried before Chapman, J. In this case, the writ was sued out against three defendants, as late co-partners, and returned by the sheriff, “ executed.” In the writ and declaration, the name of one of the defendants was set out as “S. H. Page.” The recital of judgment was, that on the trial, the parties came, by their attorneys, and defendants saying nettling, judgment was rendered for plaintiff. To reverse this judgment, the writ of error was taken, Plaintiffs in error assigned for error —
    1. That the writ and declaration shew that defendants were not, at the institution of the suit, a partnership : and the judgm-wt nos a.yurnvt them by nil (licit, as such partners--when it doe-; not appear that the process was executed against them all.
    2. There was no such declaration against Page, sued as a defendant, as would authorise a judgment against him.
    Porter, for plaintiffs in error.

      Moody, coni ra.

      Porter, for plaintiffs. There was no declaration against Page, one of the defendants.—(1 Chitty, 2 Ed. and note.) Nor was there a presentment to the drawee for acceptance.—(Act of 1807, sec. 4—proviso; Aik. Dig. 328, sec. 3.)
   COLLIDE, C. J.

— The errors assigned in this case, we think are not available. Upon looking into the record, we find the writ is returned, “ executed,” by the sheriff, and must intend that it was executed on all the defendants below, as all were entitled to service before the Circuit court could legally have rendered its judgment.

In regard to the objection, that the first name of Page, one of the plaintiffs in error, should have been set out at length, and not merely the initial, we think it not well taken. The objection, at most, could only be made available by plea in abatement, disclosing his true name.

The judgment is affirmed.


text:
    CASEY VS. CLEVELAND, et al.
    1. A plea which begin;» in bar, though it may contain matter in abatement, aud conclude properly, will be considered a plea in bar, and final, judgment be given oil it.
    2. The act of the legr!ature, which di chivos, that all demurrers shall have t!io ellhc* of yu..ral demurrers, was not intended to apply to demurrers to ih.atory pleas.
    Error to the Circuit eotrt of Talladega county.
    Assumpsit on a promissory note, tried before Judge Martin. Plaintiffs below declared in assumpsit on a promissory note, lo whffh defendant plead (in bar) that he was a “permanent Atinen and freeholder of Coosa county,” &c.
    Plaintiffs demurred to the plea, and the demurrer being sustained, judgment was rendered for the plaintiffs. The pica, it will he perceived, is contained at length in the opinion of the cxrrL

      Pack, for plaintiff in. error.

      William B. Marlin, contra.
   ORMOND, J.

— To an action on the case on a promissory note, the plaintiff in this court, ÍUedm plea in the following words:

" Micajah B. Casey,
ads.
“Cleveland & Stub ble fold, use, efcc.
“Comes the defendant, Micajah hi Casey, in Ms proper person, and says that the .said Joseph. Cleveland and William Stubblefield, who sue to the use, &c. ought not to have and maintain their aforesaid action against him, in manner and form, Ac. For this, that lie says, at the time of the issuance of the said writ, he was, and ever since that time hath been, and yet is a permanent citizen and freeholder of Coosa county, and not subject to be sued in Talladega county; wherefore, he prays judgment,” Ac. — all of which he is ready to verily.

To this plea, there was a demurrer.

The court sustained the demurrer, and rendered judgment for the plaintiff below. From this judgment, a writ of error is prosecuted to this court.

The subject matter of this plea would certainly have been" suuleical to abate the action, if it had been well pleaded. Hut according to the well established rules of pleading, it is not a good plea in abatement. A plea which begins in bar, though it may contain matter in abatement, aud conclude properly, will be considered a plea in bar, and final judgment be given on it — (2 Saunders’ R. 209, note 1; Littell’s Select Cases, 269.)

That is precisely the predicament of this plea. It does not, at the commencement, seek to postpone the action, or give a better writ, but denies the right of the plaintiff to maintain his action. This stamps its character as a plea in bar; and though it afterwards proceeds to set out matter in abatement, it must, by the rules of law, be treated as a plea in bar. The reason of this strictness in regard to picas in abatement is obvious; — it is against the policy of the law to encourage defences which do not go to the merits of the cause, but only serve to promote litigation.

It is, however, contended, that the act of the legislature disallowing special demurrers, will protect this plea, as the defect is only in its form. But as it was not, necessary to demur specially, to reach such a defect as this in a plea in abatement, it follows that the statute has no influence on it.

The act of the legislature, which declares that all demurrers shall have the effect of general demurrers, was not intended to apply to demurrers to dilatory pleas;— as that would defeat the object in view: which was to discourage defences which merely served to delay the proceedings, without reaching the merits of the cause,

Let the judgment be affirmed.


author: GOLDTHWAITB, J.

text:
    REID VS. BRASHER, et al.
    1. In all cases where a suit is dismissed, on motion, for an alleged want of security for corb, ilia reasons for granting the motion, should appear of rccoul, that it may be seen that the case is within the provisions oí the statute.
    2. It appears, that it is within the legitimate powers of a court, to require additional security for corisin all cases, where security can be required in ího first instance.
    Error to tlic Circuit court of Shelby county.
    ' The writ of error, in this tunc, was brought to reverse an order dismissing the suit of plaintiff below, for failing to comply with a previous order of court, requring additional security for costs.
    An action of debt was brought on a bond given by defendants, conditioned, in the eveut of a certain contingency, to pay a sum of money to plaintiff, and security for costs given. During the pendency of the suit, an order was obtained, that additional security for costs should be given by plaintiff, or his suit be dismissed, and at a subsequent term, the additional security not having been given, the suit was accordingly dismissed.
    The bill of exceptions stated, that on the case being called for trial, defendants produced the following order, made at the previous term, to wit:
    “ James B. Held,
    vs.
    “ Thomas H. Brasher, et al.
    “ Spring term, 1837. Ordered by the court, on motion of the defendants, that additional security for the costs of this suit, he given by the first day of the next term of this court, or this suit be dismissed.”
    And it appearing to the. court, now here, that no additional security for costs had been given, the defendants moved the court to dismiss the case. Plaintiff objected to the dismissal of the case, and offered to shew, that the securities for costs, heretofore given in the case, were, the one a resident citizen of Shelby county, and the other a citizen of the county of Talladega, and were so at the last term of the court. The objection was overruled, and the cause dismissed, on the ground that the court was of opinion, that it could not reverse the order made at the last term, or refuse to carry it into execution, — to which plaintiff excepted, &c.
    Plaintiff in error assigned, that the court below erred in sustaining the motion of defendants, to dismiss the suit for the want of additional security for costs, and dismissing the suit as stated in the bill of exceptions.
    Peel:, for plaintiff in error. The only power which the courts have to require security for costs, (except when bail is required,) is given by the act of eighteen hundred and seven — (Aik. Dig. 262.) When security has once been given under the act, the party has no right after-wards to ask, nor the court power to require, new or additional security to be given.
    Again — Security for costs, is in the nature of bail. To the sufficiency of such security, a party may perhaps except, and require the security to justify — but this could only be done at the first court. If not done then, the party would be considered as accepting the security, and could not afterwards be allowed to object. See the rule relating to bail — (Aik. Dig. 51.)
   GOLDTHWAITB, J.

— When the writ, in this suit was issued, security for the costs appears to have been given, and as this is necessary in no case where bail is not required of the defendant, we infer that the plaintiff was a non-resident. At a subsequent term, an order was made for the plaintiff to give additional security for costs, by the first day of the next term, or the suit to be dismissed. No security having been given under this order, the court at the ensuing term dismissed the cause, notwithstanding it was then shewn on the behalf of the plaintiff, that the sureties for costs were residents of this State; the court conceiving itself bound by the previous order.

We have no doubt but that it is within the legitimate powers of a court to require additional security for costs, in all cases where security can be required in the first instance, as otherwise, the object and intention of these very salutary statutes might be defeated; but no cause ought to be dismissed, except in cases clearly warranted by the statutes.

The previous decisions of this court on this subject, are somewhat inconsistent. In the case of Reid vs. Carson, (Minor, 17,) it is held, that when a suit is dismissed, because security for costs is not given, enough ought to appear on the record, to shew the jurisdiction and authority of the court under the statute, — -that it should appear that the plaintiff resides without, and the defendant within the State.

In the case of Miller vs Thompson, (2 Stewart, 470,) the court seem to have held, that it was unnecessary for any reason to be shewn for the order, and that it would presume that sufficient proof was made previous to granting the same. In neither case, however, was this point necessarily involved in the questions before the court.

Considering the question as not settled by authority, we think that in all cases where a suit is dismissed in this summary manner, the reasons should appear of record, iir order that it may be seen that the case is within the provisions of the statute. We do not conceive that any difficulty will arise from thus regulating the practice: as the motion is always made at the instance of a defendant, he can, if entitled to dismiss the cause under the statute, always shew to the court, and cause to be spread on the record, the reasons for the exercise of this summary jurisdiction.

Let the judgment be reversed, and the cause remanded.


text:
    GARNER VS. GANTT.
    1. Ail acknowledgment'of the service oí a writ/ is not such service of process, as will bring one into court, or authorise a judgment by default. But where defendant appears, by attorney, and permits judgment to be had, without interposing a plea, or making any^defence, — it will not afterwards be disturbed.
    Error to the Comity court of Tuskaloosa comity.
    This was an action of debt, brought on an instrument under seal. ■ On the back of the writ, there was indorsed these words: “ I acknowledge legal service of this writ, July 1st, 1837.” (Signed by defendant.)
    The entry was — At June term, 1838, came the parties, by their attorneys, and defendant saying nothing in bar or preclusion of plaintiff’s action, — it was considered by the court, that plaintiff recover, <fcc.
    Plaintiff in error, assigned — that there was no such service of process, on defendant, in the court below, as would bring him into court, or authorise judgment; for which cause, plaintiff prayed that judgment might be reversed.
    Porter, for plaintiff,
    said — There was a want of jurisdiction over the defendant below, if not brought into court, in the mode authorised by law : And as the recital in the entry was the mere act of the clerk, the court would not presume, from the statement, that the •parlies came, — that one of those parties was the defendant. It was much more reasonable to presume, that this was a common entry, used by the ministerial officer — than to allow it to give jurisdiction over one, who, (as the proceeding by which [¿only he could be brought into court showed,) was not in.

      Peck, contra.
   ORMOND, J.

— The'"writ, in this case, was returned without being executed by the sheriff, but with an acknowledgment of legal service by the defendant. It is now assigned for error, that there was no such service of process on the defendant, as would bring him into court, or authorise a judgment.

The position assumed by the counsel would be undoubtedly correct, if the judgment had been by default. But the record shows, that the defendant appeared, by his attorney, and permitted the judgment to be had; without interposing a plea, or making any defence. The judgment is therefore affirmed.


text:
    GILLASPIE, et al. VS. WESSON.
    1. Where one undertakes to contract as an agent, and so contracts as to impose no legal obligation upon his principal — the agent is personally responsible.
    2. In order to relieve a person assuming to act as an agent from personal responsibility, it is necessary that he should have been authorised to act, and that the credit should have been given to the principal — and there is no difference between the agent of an individual and the government.
    3. And the signature of persons so contracting, without authority, as officers of the militia, in the public service, is merely a descriptio personarum.

    4. An agent, when sued upon a contract made by himself, can only exonerate himself from personal liability, by shewingbis authority to bind those for whom he has undertaken ; — and it is not for the plaintiff to shew the want of authority of the assumed agent: the agent, if he affirm his authority, must prove jt.
    5. The statute of this State, which authorises a discontinuance, in a case of defendants sued jointly, and who are not served with the writ, does not require that the declaration shall make a literal disclosure of the cause of action. It may be shewn by the indorsement on the writ, or the proof given at the trial, and it is quite enough if the cause of action appear from the writ, to be such as the statute designates, and the declaration be such, as to admit it in evidence.

    6. If process, in assumpsit, issue upon a note againsffthe maker, a declaration for money had and received, &c. will be sustained by the introduction of the note : so, a count, in debt, on a promissory note, charging, that defendant, purchased, from plaintiff, ahorse, at a given price, to be paid on a day certain, will be sustained by the production of a note in writing, to that effect.
    Error to the Circuit court, of Lauderdale.

      Debt, on. a written instrument, given for the purchase of a horse, tried before Lave. .1.
    One of the defendants sued in this case, not being served, plaintiff discontinued as to him, and declared against the other three. To the declaration, defendants plead the general issue, and a special plea, setting forth that they were officers of the militia, ordered into service by the State Executive, against the hostile Creek Indians, and that the horse was purchased to meet the emergency, and on account of the government of the United States. To the special plea, there was a demurrer; which being sustained, judgment was rendered on the remaining issue for the plaintiff.
    The bill of exceptions stated, that the only evidence offered to sustain the action, was the written instrument, which was objected to by defendants, and the objection overruled. Defendants then requested the court to charge .the jury, that upon the issue of fact, upon the testimony, they must find for the defendants which the court refused ; and charged .the jury, that the writing was sufficient to charge the defendants personally : to which opinion, defendants excepted, &c.
    Plaintiffs in error, assigned—
    1. The court erred in admitting the instrument set forth in the bill of exceptions, as evidence.
    2. In refusing the charge requested by defendants below.
    3. In giving the charge excepted to.
    4. In sustaining the demurrer to the plea.
    5. In suffering such an oath to be administered to the jury.

      6. In rendering judgment for the plaintiff below.
    7. In rendering judgment final on the demurrer.
    8. In not holding the plaintiff’s demurrer, (below,) to be a bar to his declaration.
    Hopkins, for the plaintiffs,
    argued — that the plaintiffs in error bought the horse of defendant, for the Creek campaign. They made the purchase, as officers in that service, for the government, and were not personally bound- — (1 Cranch, 345.) The supreme executive power was vested in the governor — (Aik. Dig. 218) — who was commander in chief of the army and navy, and militia of the State, and was to act in the service of the United States — (lb. 219, sec. 6.) To take care that the laws were faithfully executed — (lb. 219, sec. 10.) Congress have power to call forth the militia — (lb. 308, sec. 14, 15,) It is the duty of the governor to call forth the militia, to repel invasions, &c. — (Aik. Dig. 309, sec. 3.) He cited also, Martin vs. Mott, (12 Wheat. 19.)
   COLLIER, C. J.

— The defendant in error caused to be issued, a writ, in debt, against the plaintiffs and William W. Garrard, returnable to- the Circuit court of Lauder-dale. The writ was executed on the plaintiffs, and returned not found, as to Garrard.

In his declaration, the defendant, inciting that process had not been executed on Garrard, as to him, discontinued his action, and declared against the plaintiff's in three counts. In the first two, tire cause of action is stated to be a “ written undertaking,” entered into on the twenty-fourth day of May, eighteen hundred and thirty. six, by whioh tho plainfifis and Garrard promised to pay the defendant, \\/ tho i wenty-ilfth clay of December next thereafter, the stun of seventy-five dollars, in consideration of a horse sold the former by the latter.

The third count charged the plaintiffs, together with Garrard, of having purchased from the defendant, on the --- day of-, eighteen hundred and thirty-six, a horse, at the price of seventy-five dollars, to be paid on the twenty-fifth day of December next thereafter.

The plaintiffs in error pleaded — I. Nil debet; 2. A special pica, in which it is drcuwscantially alleged, that the executive of A inhuma, did, on the sixteenth day of May, eighteen hundred and thirty-six, make a requisition on Major General iVUcrsoa, for-companies of mounted infantry, to act against the hostile Indians belonging to the Creek tribe, with the least possible delay. That to enable a compliance with the requisition of the executive, Major General k .itemo:;, did on the-day of the same month, by .hie •.widen order, directed to Brigadier General Garrard, (commanding the second brigade of his division,) by which be required him to furnish, so soon as practicable, tv. o companies of mounted infantry, for the purpose designated in the order of the executive. And that in raising the quota of mounted men required of the second brigade, it was absolutely necessary to purchase some horses. To meet that emergency, and for no other cause, the plaintiffs, with Gar-rard, as officers of that brigade, did purchase the defendant’s horse, raid give him a certificate of purchase. The plea then concludes with a verification.

To the second plea, there was a demurrer, which being sustained, the case went to the jury on an issue to the first, and a verdict was found for the defendant in error.

On the trial, a bill of exceptions was taken by the plaintiffs in error, from which it appears, that the only evidence offered, was a writing of the following tenor :

“Brigade Head Quarters, )
Florence, 24th May, 1836. )
“We have purchased of Claibourne W. Wesson, one horse, at the price of seventy-five dollars, which horse we have purchased on account of the United States, for volunteers now ordered to the Creek nation, as mounted infantry, from the second brigade of the militia of Alabama,. to act against the hostile Creek Indians, — said sum to be paid by the twenty-fifth day of December next.
W. W. Garrard,
Brig. Gen’l 2d Brigade.
I. W. Gillaspie, Col. Com.
Michael Waíduof, Capí.
J. W. Powers, Lieut.”

The admission of this evidence was objected to by the plaintiffs in error, but allowed to be read to the jury. The court being moved to instruct the jury, that upon the testimony, they must find for the plaintiffs in error, refused to do so, and instructed the jury, that the “ writing sued upon was sufficient to charge them personally.”

Two questions have been made for the plaintiff's :

1. Is not the declaration defective, and should not the demurrer to the second plea have been visited upon it.

2. Does tlie declaration or the written evidence read to the jury, disclose a personal liability by the plaintiffs in error?

First — Each count contains a sufficient cause of action. It is, however, insisted, that as the third count set forth a liability not embraced by the statute, which authorises a discontinuance against a defendant not served with process, the defendant in error, by ceasing to prosecute his suit as to Garrard, discontinued the action as to the plaintiffs. The statute referred to is as follows:

“Whenever a writ shall issue against any two or more joint and several obligors, covenanters or drawers, of any such bond, convenant, bill, or promissory note, or against two or more of the defendants to any such joint judgment, it shall bo lawful for the plaintiff or his attorney, at any time after the return of said writ or an alias writ, to discontinue such action against any one or more of the defendants, on whom such writ or alias writ shall not have been executed, and proceed to judgment against any one or more of said defendants on whom said writ shall have been executed, or proceed to issue an alias or pluries writ, at his election.”

It will be observed, that the writ in the case before us, (as appears by its indorsement,) issued against the plaintiffs and Garrard, as the joint makers or “ drawers” of a “ promissory note.” The statute does not require that the declaration should make a literal disclosure, of the cause of action, as it may be shewn by the indorsement on the writ, or the proof given at the trial. It is quite enough, if the cause of action appear from the toril to be such as the statute designates, and the declaration be such as to admit it in evidence. If process issue, ia assumpsit, upon a note, against the mu’xr, a declaration for money had and received, &c. would bo sustained, by the introduction of the note. So, in the ease before ns, the third count might be made out, by the evidence that was offered.— There was then, no error in not sustaining the demurrer to the declaration.

Second. — Talcing, as strictly true, every thing stated in the paper read to the jury, and there is no pretence for saying that the plaintiffs were government agents. Conceding that the first of the promisors was a brigadier-general of tlie second brigade of the militia of the State — the second, a colonel — the third, a captain — ■ and the fourth, a lieu tenant; that the second brigade had its head quartern at Florence ; that the purchase of the horse was made, on account of the United States, for volunteers ei dared, as mounted infantry, to be marched to the Greek nation, to operate against the hostile Creek Indians; — and yet it will not appear, that the plaintiffs contracted as agents, or that the defendant was to look alone to the justice of the government for pay. It is well known, that the organization of the army of the United States does not permit the militia officers of a State, upon a requisition for troops from the War Department, to purchase such supplies as they may deem proper, or even indispensable. The-only duty devolving upon them in such an emergency, is, to comply with the order making the requisition, either by accepting volunteers, or making a draft where a sufficient number cannot be found willing to offer their services. When the troops thus raised are placed under the cont-rol oribe mili Un«Moer.; o- Me s.nMrnl government,then, and not uoo: ter, decs Me <4 ty erd authority of au officer of supplies, acting m.uor M..¿ govu-ameat, directly commence.

In order lo rol i.-ve a w assuming to act as an. agent, from personal res» ousILúliíy, it ia necessary that he should have been authorised to act, and that the credit should have been given to the principal; and there is no difference between the agent of an individual, and the government.—(Daseabury vs. Ellis—3 Johns. Cases, 70 Perkins vs. The Washington Insurance Company—4 Cowen's R. 659; see also. 13 Johns. R. 1; 3 Caine’s 69—1 Cowen's R. 513; 12 Johns. R. 444; 1 Cranch’s R. 345.) Co, if a pwmu a: Wmtahos to contract, as an agent, anti so ooatvm te as to impose no legal obligation upon his principal, he, Mm self, is personally responsible. (Mott vs. Hicks—1 Cowens. R. 513; Sutherland’s opinion, and cases cited by him.) t

But, if the plaintiffs did not intend to assume a personal liability, why do they stipulate with the defendant, that “ said sum (is) to be paid by the 25th December nest ?” No appropriation had then been made to defray the exponeos of tiro CVeeic campaign; and it was quite uncertain whether any would be made by the day the defendant was to be paid, hi view of this circumstance, as well as an absence of nil proof showing the plaintiffs’ authority, wo are constrained to consider their signatures as officers of the militia, as merely a descripiio person anan.

In Taft vs. Brewster, (9 Johns. R. 334,) the defendants executed a bond by the style of the “ iTrustees of the Baptist Society of the lorn. of Richfield.” The court held, that the bond was given in their individual capacities; and that the addition of trustees, &c. was a mere description of the persons. (See also, Thatcher vs. Dinsmore—5 Mass. R. 299; Foster vs. Fielder—6 Mass. R. 58; Wilkes, et al. vs. Back—2 East’s R. 142; White vs. Cuyler—6 T. R. 176.)

Again: We think it dear, from an examination of the authorities, that an agent, when sued upon a contract made by himself can only exonerate himself from personal liability, by showing his authority to bind those for whom he has undertaken. It is ■ not for the plaintiff to show his want of authority by proof — by the contract, the defendant has affirmed it, and it is incumbent upon him, according to a well settled rule, to prove it—(1 Cowen’s R. 536, by Sutherland, J.)

The facts disclosed in the special plea, do not, according to the principles we have laid down, constitute any available answer to the action ; and the contract imposing a persona] charge on the plaintiff, the demurrer was rightfully sustained.

The result of our opinion is, that the procedings in the Circuit court are regular, and its judgment must be affirmed.


author: ORMOND, 7.

text:
    THE STATE VS. WELCH.
    1. An admission, byfa defendant, -in a criminal case, is strong evidence of guilt — but it is not conclusive. He may shew that it originated in mistake, or explain it by circumstances.
    2. A confession,' unless it be an admission, by plea, is merely evidence to be determined by a jury.
    3. A bet is a wager, and the betting is complete, when the offer to bet is accepted The placing of money, or its representative, on the gaming tab’e, is such an offer; and if no objection be made by the player or owner of the table or bank, it is an acceptance of the offer, and the offence against the statute is complete, a'though from any cause whatever, the game should never be played out, and the stake be neither lost or won.
    Error to the Circuit court of Cherokee county.
    Indictment for betting at a gaming table — tried before Martin, J. The defendant, in this case, was indicted for betting upon a gaming table, called “Jim Crow,” and plead non mlpabilis. The jury returned a verdict of guilty.
    On the trial of the cause, it was admitted by defendant, that if any betting at a gaming table could be proved, it was at a gaming table called “ Jim Crow.” On the part of the State, it was proved, that the defendant was seen betting checks on a table, called and known as an A B C table. On the part of defendant, it was proved by a witness, skilled in matters of this kind, that there is not known any gaming table, called “ Jim Crow,” and that he never heard of a table by that name. Defendant asked the court to charge the jury, that if they believed f.om Ihe iatlmony, tin; belling clouc hy ¡defendant, was at v\.. C b.bL.y- iüoy ought to find for the defendant, uolwilhsuaiding the ndmission above mentioned; — which ir.e court declined, and said ho would charge the jury the reverse of that proposition.— Defendant also flesh e.J. the court to charge, that If the jury believed from the iusluLeny. that defendant look up his het, before it wvs won or lost, that ho was not guilty, which the court also d.-chnofl; and charged the jury, that it was not necessary that the event upon which the bet was made should be determined, to produce guilt ; and further, that if the jury believed, that money or any other valuable was 1 tel, or hauarded, although tire same Was not won or losh — dcibii.Lint was guilty as charged.

      William S. Mari!for plaintiff in error.

      Attorney-General, contra.
   ORMOND, 7.

— The court erred in refusing to give the first charge moved for. A confession, in a criminal case, unless it be an admission by plea, is evidence merely to be determined by the jmy.

It appears that there was a varhvn.ee between the confession of the defendant, and the testimony produced by the State, as to the name of the table at which the gaming took place. An admission by a defendant, in a criminal case, is strong evidence of Iris guilt; but it is not conclusive. He may show that It originated in mistake, or explain it hy circumstances.— (See the authorities collated in 3 Starlcic oil Evidence, 1’. 46.)

It was the duty of the coarl to have charged on all the testimony, leaving the jury to determine the result. But the only construction which can be put on the charge, is, that the court instructed the jury, that they must reject the evidence offered by the State, and find the defendant gnilty on his confession.

A bet is a wager ; and the betting is complete, when the offer to bet is accepted. The placing of money, or as in th s case, which is as its representative, on the gaming table, is such an offer; and if no objection be made by the player or owner of the table or bank, it is an acceptance of the offer, and the offence against the statute is complete — although from any cause whatever, the game should never be played out, and the stake be neither lost or won. The offence which the act designed to punish, is betting, not the winning or losing.

Let the judgment be reversed, and the cause remanded.


text:
    ST. JOHN, SURV. VS. O’CONNEL, SURV. for the use, &c.
    1. No objection can be takon, in point of law, to a declaration in trover, against joint traders, for the wrongful conversion of notes or other property: and the joint effects of the copart-nership, are jointly chargeable with the reparation of the injury.

      2. Generally, a defendant, in trover, will not bo permitted to give in evidence the answer, made by him, to a demand of the plaintiff, of the chattel, the subject ofsuit.
    3. Such evidence, though it might be legal..m itself, would not be generally admissible, upon the rule, that a party may not give in evidence, in his own favor, his /own declarations.
    4. Though it would seem, this rule \/ould have exceptions :— , as, where, in trover — upon a demand, by an agent, the party ; insists upon the production of the agent’s authority, and declines a delivery, because the authority is not shewn ;• — there, ; such refusal would not amount to a con version : and evidence . of the excuse for the nou-eompliance with the demand, though coming from the defendant, wou’d be admissible. ¡Seats,— if the defendant asserted a title to the chattel.
    5. In such case, by informing the court of the nature and purport of the defendant’s rep y, if proper testimony, it will be allowed by the court.
    6. Questions of practice, upon the maxim, stare decisis, will be rarely disturbed by the court.
    7. Records of proceedings in courts of judicature, are only admissible as evidence between parties and privies, and the principle which exc'udcs judgrno: ts i/i.er alios, excludes also executions, and the returns upon them.
    8. An illegal assumption of ownership, an illegal using or misusing, or a wrongful detention of a personal chattel, will amount to a conversion, in trover.

      9. And, a temporary conversion will render a defendant liable; for a conversion which has once taken place, cannot be cured.
    10. Though a re-delivery, after a conversion, might go in mitigation of damages: Thus — •
    11. Where one puts notes m the hands of another, to indemnify him against certain "liabilities — when those liabilities are discharged, the party depositing the notes has a right to claim their return, or the proceeds of the notes, if collected.
    12. Where one puts notes in the hands of another, as collateral security, 'for a specific purpose, aud the bailee puts it beyond his power to return the notes, when the purposes for which they were pledged are satisfied — he is justly chargeable for their conversion; and,
    13. The amount expressed upon the face of the notes, with interest from their maturity, up to the time of the conversion, and then interest on the aggregate from that time to the verdict, is the measure of damages.
    14. The existence of a former debt, due the pledgee, does not authorise him to detain the pledge for that debt, when it has been put into his hands for another purpose : unless there is a just presumption, that such was the intention of the parties.
    Error to .the Circuit court of Mobile.
    This was an action of trover, against the plaintiff in error, tried before Chapman, J. in the Circuit court of Mobile. The declaration averred the conversion of two promissory notes. To this the defendant demurred; and his demurrer being overruled, the case went to the jury upon the general issue, when a verdict was returned for the defendant in error, to the amount of the notes, charged to have been converted, with interest.
    On the trial, a bill of exceptions was sealed up by the Judge, upon the application of the plaintiff in error. — • From which it appeared, that on the fourteenth of July,. eighteen hundred and thirty-two, the plaintiff, and his then partner, with a view to their indemnity against the consequences of the indorsement of a large amount of paper of the defendant, and his then partner, to mature in January and February thereafter, received from them a transfer of negroes and otherjlproperty. After describing the property transferred, and the paper indorsed, the instrument proceeded, “ If the above described paper be paid at maturity by the acceptors and drawers, and by Messrs. O’Connel & Brer an, the above mentioned collateral security is to bo given up — otherwise, to be considered as our property from this date, according to the tenor of the transfers, and to be used by us as such, for our benefit. As an additional security for these indorse-ments, Messrs, O’Connel <fc Brenan are to transfer to us. notes and acceptances of country names of unquestionable responsibility, to the amount of ten thousand dollars, payable at any time within the period of February next ensuing.”
    On the ninth of August, eighteen hundred and thirty-f two, as shewn by a receipt of the agent of Messrs. St. John & Leavens, Messrs. O’Connel & Brenan transferred to them a note made by F. & C. McLemore, on the thirteenth December, eighteen hundred and thirty-one, for the payment of two thousand one hundred and thirty-two dollars and seventy-two cents, to B. Gordon & Co. or bearer, on the first day of January -next thereafter, and another note made by Curry, Jackson & Co. on the twentieth March, eighteen hundred and thirty-two, for the payment of nine • hundred and fifty-nine dollars and ninety-five cents, to B. Gordon or bearer, on the first day of January, one thousand eight hundred and thirty-three.
    It was in proof, that the paper of Messrs. Q’Connel & Brenan, was met by them at maturity, and was advanced on by Messrs. St. John ch Leavens, wiio were fully refunded their advances, interest and commissions, by the former, in August, eighteen hundred and thirty-three.
    It was also shewn, that the agent of O’Connel & Bre-nan demanded of St. John & Leavens, the notes of the Messrs. UIcLemorcs, and of Curry, Jackson & Co., which they refused to deliver up. On the cross-examination of this witness, who was introduced by the defendant in error, he was asked what answer St. John & Leavens made to the demand of the notes ; but that question was objected to by the party introducing the witness, and the objection sustained by the court; whereupon, the plaintiff excepted, &c.
    Testimony was also given to the jury, tending to shew that the Messrs. McLsmores were solvent in eighteen hundred and thirty-three, and so continued up to the time of this trial, though they may have been insolvent in eighteen hundred and thirty-two.
    A witness deposed that he was acquainted with Curry & Jackson, whom lie supposed to compose, in part, the firm of Curry, Jackson & Co. and though he did not know particularly the extent of their resources, he considered them solvent, and would, at any time since his acquaintance, have credited them.
    No evidence was given, of the consideration of the notes in controversy.
    The plaintiff in error then proposed to offer to the jury, records of two suits and recoveries of judgments, in the District Court of the United State.?, for the Southern District of Alabama, in the name of J. D. Beers &> Co. — the one against if. & C. NcLeiuore, and the other against Curry, Jackson fy Co. These transcripts were offered to show that the notes now in controversy had been sued on, and were now in the custody of the law, and were merged in judgments at the time of their demand by the agent of the defendant; and also to show, that fieri fa-cias’ had issued on the judgments, and been returned by the marshal, nulla bona. 1 lie court rejected the transcripts, as containing records of suits between other parties.
    It was further shown by the plaintiff, that they had not transferred, for value, the notes in question, to J. D. Beers &, Co. — that that house having an interest in the business of St. John <fc Leavens, suits were caused to be brought in their names, us citizens of another State, in order to a speedy collection through the agency of the District court. It was slated by a witness for the plaintiff, that J. D. Beers & Co. being partners of St. John & Leavens, the latter assumed to control the judgments in their names, and that the collection, when made, was for the benefit of St. John & Leavens — that it was true St. John & Leavens had no letter of attorney under seal, but claimed the authority to conduct the business “ by virtue of the co partnership.”
    The plaintiff also proposed to show, that at the time of the demand of the notes in controversy, St. John & Leavens were the holders of, and jointly interested in, a bill drawn on the nineteenth day of June, eighteen hundred and thirty-two, by B. Gordon & Co., on O’Connel & Brenan, and accepted by the latter, for thirty-eight hundred and sixty-four £9 100 dollars, at nine months date. This bill was still in their hands, ready to be produced — and that the other partios to it were all insolvent — nil which was rejected by the court; whereupon., the plaintiff excepted, &c.
    The plaintiff further proved, that St. John & Leavens had expended several hundred dollars in costs, ¿be. in attempting to collect the notes in dispute, yet there was no proof that they even demanded those expenditures of O’Connel & Brenan, or gaye to them or their agent any notice of the claim at the time, before, or since they were refunded their advances.
    The court instructed the jury, — if they believed that O’Connel & Brenan had fuliy re-paid to St. John & Leavens, the principal, interest and commissions advanced by them on the papers which were intended to be secured by the notes in controversy, that they were entitled to a return of these notes. That the plaintiff could not retain for any other debt — and that the reimbursement of St. John & Leavens, tlieir advances, &c. placed the defendant in the same situation lie would have occupied, had O’Connel & Brenan paid their liabilities with promptness, and saved the necessity of any advance for their benefit. That a previous transfer of the notes, and the fact that they had been put in suit, did not excuse their delivery to the defendant or his agent.
    The defendant requested the court to instruct the jury, “that if they believed the acceptances were not paid at maturity, that according to the contract, the notes became the property of St. John & Leavens, and that they could, then transfer them, or sue on them, or dispose of them as their own; mul that if in such case they were responsible to the plaintiffs, it could not be in trover, but must be in another form of action; and that if money was due them in August, eighteen hundred and thirty-three, from O’Connel & Brcnan, which they were willing to pay unconditionally, they might receive it without compromitting tlieir rig]its, and that it would not change the nature of the remedy, and that the plaintiffs could not, in such case, maintain trover” — all which was overruled. And the court further instructed the jury, “ that the measure of damages, was the amount of the notes and interest,” up to the time of the trial.
    To all which decisions of the court, whether in instructing, or refusing to instruct the jury in the admission or rejection of evidence, the plaintiff excepted, &c.
    To reverse the judgment, it was here assigned in error—
    1. There was no cause of action shewn by the writ and declaration of plaintiff below, inasmuch as trover cannot be maintained by one for the use of another.
    2. The court erred in overruling the demurrer of the defendant below, and should have sustained said demurrer, and given judgment for the defendant thereon.
    3. The court erred in the several decisions made; in the admission and rejection of evidence; and in giving the instructions, and in declining to give the instructions asked for by the defendants below.

      Thornton, for the plaintiff in error. ¶

      Campbell, contra.
   COLLIER, C. J.

— The arguments at the bar have presented these points:

First — As to the sufficiency of the declaration.

Second — The propriety of the refusal by the court, to permit the plaintiff to ask the defendant’s witness, what answer St. John <fc Leavens made to the demand by witness, of the notes in dispute.

Third — Was the transcripts from the District court, evidence to show an excuse for the non-delivery of the notes by St. John & Leavens, or to prove the insolvency of the makers, by the marshal’s return of nulla bona ?

Fourth — Were O’Connel & Brenan entitled to a return of the notes of F. & C. McLemore, and Curry, Jackson &. Co., upon the re-payment by them to St. John &, Leavens, of the advances upon the paper, these notes were pledged to secure?

Fifth — Did the fact of having put the notes in suit in the names of J. D. Beers & Co., amount to a conversion —if so, what should have been the measure of the defendant’s damages ?

Sixth — Could St. John & Leavens retain the notes to satisfy any other demand, they might have against O’Connel & Brenan ?

First- — We do not discover any available objection to the declaration, in charging St. John & Leavens, as partners. To authorise a recovery, it is only necessary to show that the conversion complained of, was a transaction in the course of the partnership dealings, or in the conduct of the affairs of the concern. Suppose property be placed in the hands of warehouse-men or factors (who are co-partners) for a particular purpose, and instead -of giving it its appointed destination, they wrongfully detain it, or illegally assume an ownership,' — are not the joint effects justly chargeable with the reparation of the injury sustained by the owner ? And how are these effects to be reached, where there are other partnership creditors, unless a recovery shall be had against them, as joint traders or dealers 1 The declaration is certainly unobjectionable in point of law — the right to recover on it, must depend upon the proof.

Second — The precise question embraced by the second point, was made in Dent & Cade vs. Chiles’ adm’r—(5 Stew. & Por. 383.) In that case, the plaintiffs in error, who were defendants in the court below, were sued in trover, for the alleged conversion of slaves. On the trial, the plaintiff introduced a witness, who proved a demand by him, of the slaves of the defendants, previous to the commencement of the suit; whereupon the defendants offered to prove by the same witness, the reply which they made to the demand. But this was refused by the court, on the ground, that to permit the defendants declarations at the time of the demand, would be to enable them to make evidence for themselves.

The plaintiff further proved, that at the time the demand was made, the defendants omitted to deliver the property sued for — whereupon, the defendants proposed to prove by the same witness, the reasons stated by them for their failure to comply with the demand — hut this was also denied, for the same reason that caused their first proposition to he refused. This’court affirmed the judgment of the inferior court, — considering that though the evidence sought to be elicited might be legal in itself, yet the question was not properly framed. It is stated, as a general rule, that “ a party is not authorised to give his own declarations in evidence, in his own favor,”— though it is not denied that this rule has its exceptions-If, upon a demand of propoity by an agent, the party insists upon the production of the agents authority, and declines a delivery, • because of its non-production, here there would he no evidence of a conversion, and the excuse for a compliance with the demand, though it come from the defendant himself, would he admissible to show that no wrong was imputable to him. But if instead of offering an excuse for yielding to the demand, the defendant had asserted a title, spoken of its origin, &c. his response would not he evidence. A mere demand of property, which is a duty imposed by the law upon a party, to entitle himself to an action of trover, against one whose possession is rightful, could not, with propriety, draw forth such an answer. If the law were otherwise, most defendants would he careful at the time of a demand, instead, of offering an apology for their conduct, to furnish evidence of their title, — and plaintiffs be often prejudiced by the performance of what is, in many cases, an indispensable pre-requisite to the prosecution of their rights.

In the case cited, the court say, “ If the reply was such as made it an exception to this rule, and amounted to a reasonable qualification of the refusal, the party wishing the advantage of such an exception, should have shown it. By informing the court what the nature and purport of that reply was, if proper testimony, the court would have been hound to allow it to go to the jury. It is the court’s province to guard, the jury from the reception of illegal testimony, lest it should have an influence, notwithstanding it may be afterwards withdrawn from them: and the practice is to take the opinion of the court on the admissibility of testimony, any ways doubtful, before offering it to the jury. If improperly rejected by the court, the party injured has his remedy in the revising court.”

In the case at bar,' the court was not informed of the facts expected or desired ■ to be proved by the witness, and the question framed accordingly; but a mere general question proposed, to which the answer might have disclosed either legal or illegal testimony, depending upon the character of the reply to the demand of the notes. The case cited is direct to the point, both in its facts as well as principles, and as it settles a question of practice, even were we dissatisfied with it, we should yield sufficient homage to the maxim of stare decisis, as to accord to it its full influence.

Third — The records of the suits, judgments and executions, by J. D. Beers & Co. vs. F. & C. McLemore, and J. D. Beers & Co. vs. Curry, Jackson & Co. were properly rejected. It is an established general rule, that records of the proceedings in courts of judicature, are only admissible as evidence between parties and privies. In Chapman vs. Chapman, (1 Munf. R. 398,) it was determined, that the record of one suit cannot be used as evidence in another, on the ground, that the defendant and one of the plaintiffs in the latter suit, were parties to the former, and that the same point was in controversy in both —another plaintiff, and the person under whom both plaintiffs jointly claimed, not having been parties to the former — (See further as to this point, Bond vs. Ward, 1 Nott & McC. R. 201; Carmack vs. Commonwealth, 5 Binney’s R. 184; Duval et al. vs. Green, 4 Har. & J. 270 ; Harwood vs. Rawling’s heirs, Ibid, 126: So in Burgess vs. Lane, et al. 3 Greenl. R. 165;) — it was adjudged that a verdict and judgment arc not admissible evidence to show a co-partnership, even where that fact was expressly put in issue by the pleadings, where the action in which such evidence is offered is not between both the parties to the former suit. But it is needless'to multiply authority to this point, for it rests upon a cardinal principle of natural justice, which maintains that no man shall be bound by an act or admission of another, to which he was a stranger. A different rule would often be promotive of the severest injustice, by making a party responsible for a result, against which he could have made no defence; from which he could not appeal, and which may have been superinduced by the negligence of another, or else by fraud or collusion. This reasoning will apply with all force to the return by the marshal of nulla bona, to the executions, (even conceding such a return to furnish any evidence of insolvency.) It is competent for the plaintiff in execution to gainsay, by motion, the truth of that return, and upon an issue being made up, to submit to a jury, the ascertainment of its falsity; and if untrue, to fix a personal liability upon the officer returning the execution — A stranger is not entitled to such a proceeding, and though the return be un-authorised in fact, he cannot question it. By analogy to the principle which excludes judgments inter alios, the executions and their returns are. nfiko inadmissible.

Fourth—3t. John & Leavens received of O’Connel & Brenan the notes in controversy, to indemnify them against the const queaces which might result from their endorsements of the paper of the latter; and though there may have been no express stipulation to return the notes, yet the law tacitly annexed an undertaking to the contract of the parties, that so soon as O’Connel & -Bre-nan relieved SL John 6f Leavens from their liability, or refunded to them all advances,with interest,&c. — that then the latter would re-dcliver to the former these notes, unless they had sooner collected them; and that if a collection should be made, that St. John & Leavens would account for the proceeds. The stipulation in the contract, by which it is agreed, that if the paper of O’Connel & Brenan should not bo paid at maturity “ by the accepters and drawers, or by Messrs. O’Connel & Brenan,” that the collateral security given at the time of the contract, was to be considered as the property of St. John &■ Leavens, from the date of the contract, “ according to the tenor of the transfers,” and be used by them as such for their benefit, — does not extend tolhfi notes in controversy. These notes were received afterwards, under this provision in the contract: “As an additional security for these endorsements, Messrs. O’Connel £/ Brenan are to transfer to us notes and acceptances of country names of unquestionable responsibility, to the amount of ten thousand dollars, payable at any time within the period of February next ensuing.” Now, there is certainly not the slightest pretence for saying that these notes were to become the properly of St. John 4° Leavens, upon the failure of O’Connel & Brenan to meet their paper at maturity. Such an idea is even excluded by the express terms of the contract, which tay the employment of these words, “the above mentioned col id oval . iriiy” dearly limits the first stipulation we have recited, to the property designated in the contract.

There was no forfeiture of the notes eifected by operation of law, upon the failure of G’Conriel & Brenan to discharge their paper as it fell duo; and St. John & Leavens, if they were under such an impression, certainly did not think of claiming a forfeiture, else why did.they render their account to O’Connei fy Brenan, and receive the amount of it from their agent'? The purposes .for which the notes were placed in the hands of Sí. John & Leavens, having been fully answered by the reimbursement to them of their advances, O’Counel & Brenan had a right to demand them.

Fifth — There are a variety of acts, which, in point of fact, will amount to a conversion of a personal chattel, though the first taking was lawful. An illegal assumption of ownership — an illegal using or misusing — or a wrongful detention, are all satisfactory indicia of a conversion — (1 chit. Pl. 140, 141.) And a temporary conversion will suffice to render a defendant liable; for a conversion which has once taken place cannot be cured; therefore, if one man take another’s horse and ride him, and afterwards return him, yet trover will He, and the re-delivery will go only in mitigation of damages— (Countess of Rutland’s case, 1 Roll’s Ab. 5, (e.) pl: So in Wyatt et al. vs. Blades, (3 Camp. R. 395,) Lord Ellenbo-rough decided that a sheriff who had talced the goods of a bankrupt in execution, after a secret act of bankruptcy, and removed them, though lie had not sold them, was liable to an action for their conversion without a previous demand. And it has been held, that if a man, against the owner’s consent, make use of a thing found or delivered to him, it is a conversion—(Cro. Eliz. 219 ; 3 B. & A. 687.) In Baldwin vs. Cole, (6 Mod. 212,) Lord Holt determined that the assuming to oneself the property in, and right of disposing of, another man’s goods, is in itself a conversion; and this judgment of Lord Holt was approved by the King’s Bench, in McCombie vs. Davies, (6 East, 537.)

In what other light can the act of St. John & Leavens be viewed, in placing the notes in dispute beyond their control, than a conversion; — -beyond their control, we say, for whatever may have been their intention in suing these notes, or the opinion of their witness of the extent of their powers over the suits, it is clear, that in point of law, the interest in the judgments must be regarded as in J. D. Beers & Co. A Court of Equity might possibly divest this interest, but a Court of Law would consider it paramount. St. John & Leavens, it may be remarked, do not appear, from the proof, to have been partners of J. D. Beers & Co., but that house was merely interested in the business of St. John & Leavens. In this view, it is apparent, that St. John & Leavens have transcended the authority'conferred by their contract — have exercised an unauthorised control over the notes in dispute, by placing it beyond their power to return them, when the purposes for which they were pledged we're satisfied; and upon the authority we have cited, are chargable with their conversion.

The records from the District court being out of the, way, there was no proof of the inability of F. & C. McLemore, or Curry, Jackson & Co. to pay their notes — but the evidence went "rather to show the solvency of both those firms. Under these circumstances, the measure of the damages was the amount expressed upon the face of the notes, with interest from their maturity up to the time of their conoerniou, and then interest on the aggregate from that time to the verdict — (See Mercer vs. Jones, 3 Campbell’s R. 476; Wilson vs. Conine, 2 Johns. R. 280; Shotwell vs. Wendover, 1 Johns. R. 65; Cortelyou vs. Lansing, 2 Caine’s cases, 200; Fisher vs. Prince, 3 Burr. 1363; Hunt’s adm’r vs. Fuller, 2 Bla. Rep. 902.)— Whether a different rule would apply, or how it should be modified, in cases where the maker of a bill or note which has been converted, is insolvent, is a question involving some important considerations, and we consequently leave it to be decided, when it shall arise in judgment.

Sixth — The remaining point embraces the question as. to the right of St. John & Leavens to retain the notes, placed in their hands, after the purpose for which they had received them was answered, on the ground that O’Connel & Brenan were indebted to them on another account. The law, on this point, is so clearly stated by Mr. Justice Story, that we Will content ourselves with a quotation from that learned author, and a reference to-the cases which sustain him — (Story’s Bailment, 205.)— He says: “If there are any subsequent accessorial engagements, which either tacitly or expressly, arc by the parties intended to be attached to the piedge, the pledgee. lias a title and right of possession eo-extensive with the new engagements. But the mere existence of a former debt due to the pledgee, does not authorise him to detain the pledge for that debt, when it has been put into his hands for another debt or contract, unless there is some just presumption that such was the intention of the parties. The rule, in such cases, strictly applies, that the contract is to govern the rights of the parties. Modus elconventio vincunt legem.”—(See also, 2 Vern. 691; Jarvis vs. Rogers, 15 Mass. R. 389, 397, 414; Green vs. Farmer, 4 Burr. R. 2214; 6 T. R. 258; 7 East’s R. 224; 2 Kent’s Com. 454; Prec. Ch. 419; Story’s Eq. 300; 2 Ves. 372.) In the case at bar, there is no pretence for inferring the assent of O’Connel & Brenan, to the retention of the notes by St. John & Leavens, to secure any other liability but those embraced by the written contract of the parties.

In regard to the expenditures made by St. John &• Leavens, in the payment of costs, &c. in endeavoring to collect the notes in controversy, inasmuch as these must have been made,in aid of the suits or judgments in favor of J. D. Beers & Co., O’Connel & Brenan are not chargeable with their reimbursement; because the conversion was previously complete.

We think there is no error in the record, and the judgment is therefore affirmed.