text:
    SANDERS & HARRISON VS OCHILTREE.

      As to notes falling due on Sunday.-

    1. Where a note, upon which days of grace are not allowed.,’ is drawn on Saturday, payable one day after date, such note is payable on the Monday following, and Suit thereon cannot be commencéd on the day of the date of the note, on the ground that the day following is Sunday.
    2. But this rule does not apply where a note falls due ón & Sunday, subsequent to the next day after its date: as in-such case,- the day of payment is the day previous to that appointed for performance.
    In error to the Circuit Court of Sumter.
    This was an action of assumpsit, by the plaintiffs in error, upon a promissory note. The note was dated the thirteenth day of September, eighteen hundred and thirty-four, and was payable one day after the date. And the writ was tested the fifteenth September, eighteen hundred and thirty-four.
    The defendant pleac^in abatement, that the writ was issued before the cause of action accrued; to-■which the plaintiff'replied, taking issue to the country. And there was a verdict for the defendant.'
    It was here assigned in error, that the judgment was erroneous. And the question was raised, whether a note made payable one day after date, and dated upon Saturday, could be sued upon on the Monday following.

      Peck, for defendant in error.
    The note is dated on Saturday, and due atone day. There are no fractions of a day in law. The defendant, therefore, was entitled to an entire legal day, to make payment. — Randolph vs Cook and Pi-lis — 2 Porter, 286. Sunday is not a legal day — not a day on which money ought to be paid. — Chilly on Bills, 6 Am. from 6 Lon. Ed. 266.
    By our statute, no worldly business, (works of necessity or charity excepted,) can be done on a Sunday, under a penalty of twenty dollars. — Digest, 439. Sales of goods on a Sunday, in the ordinary course of trade, are absolutely void. And if this note is to be considered as due on Sunday, then, I think, I may with no want of authorities, insist that it is a void note. If an. act is forbidden by statute under a penalty, a contract to do it is void. — 1 Randolph’s Rep. 76. The payment of money, in the ordinary course of business, on a Sunday, is a worldly act, and is therefore forbidden by our statute. “Die autem dominico nemo mercaturam facito, id quod si egerit, et ipsa merce et triginiaprae-tera solidis mulctator.” — 1 Root. 474.
    An award published on Sunday is void. — -Stony vs Elliott, 8 Cowen, 27.
    In judicial proceedings, if a plea be demanded on a Saturday, the defendant has twenty four hours to plead, after the demand of plea, exclusive of Sunday. — Petersdorf’s Abr. vol. 14,760, note — also vol. 13, 437. Solomons vs Freeman, 4. T. R. 557.
    By parity of reasoning, ought not the defendant to have one whole day, exclusive of Sunday, to pay this note — if so, then the action was brought before the note was past due; and cannot therefore he sus--tained.
   HOPKINS, C. J.

The question presented by the assignment of error in this case is, whether a note for the payment of money which was executed on a Saturday, and payable one day after date, was due on the day of its date, or on the next Monday afterward. The note is not one, upon which days of grace are allowed. Neither party intended that the money should be paid on the day the note was made. The promise made by one party and accepted by the other, was to be performed the next day, and that day was a Sunday, on which it was not lawful to comply with the promise, or to accept the fulfilment of it. To decide that the money was due on the day of the date of the note, would be to allow an effect to the contract against the clear intention of the parties.

We are of opinion therefore, that the day for performance, was the first one after that of the date of the note, upon which the money could have been paid, without a violation of the intention of the parties, or of the law of the land. That day was the next Monday after the date of the note.

In the case of Avery vs Stewart, a majority the Court, determined that a note, payable within sixty days from the date, was due on the sixty-first day after the date of the note, because the sixtieth day was a Sunday. We concur in the opinion of the minority of the Court in that case.

Where a contract is to be performed within or at a stipulated time, or a specified number of days after date, and the day fixed for performance, is not the next day after the date and happens to he a Sunday, the contract ought to he performed the day before. This qualification of the rule, applied to this case, contains the principle applicable to negotiable instruments, and by the admission of it, the operation of the law will be uniform.

When the last of the three days of grace, allowed on negotiable instruments, is one on which it is uiir lawful to demand or make a payment, the day for performance is the second day of grace.- Where •there is any lawful day for performance, contracts .ought to be performed within the time limited.

As the action in this case, was commenced on the day the note was due, it was brought before the pause of action "accrued.

•The judgment is affirmed.

      2 Conn. R. 69.


source: Caselaw Access Project

author: COLLIER, J.

license: Public Domain

text:
    CANNON VS LOGAN.

      As to the affidavit and proceedings in attachment.

    1. It is no ground for quashing of an attachment, that the words, “absconds or secretes,” are used in the affidavit— these words form one distinct ground for an attachment, as recognized in the statute.

      2. Though, the insertion in the affidavit, or recital in the writ of attachment, of any two of the several grounds embraced in the statute, would be irregular.
    3. Overruling a motion, (made after judgment in an attachment,) to strike from the levy endorsed upon the writ, whatever relates to lands — held not to be ground for error.

      9 On. a writ of error to the Circuit Court of Sumter.
    This case in the Court below, was a proceeding in attachment. The affidavit was made by Benjamin F. Logan, who swore that William H. Cannon, was justly indebted to him, in the sum of seven hundred and sixty-two dollars, and sixty-two and a half cents; and that said Cannon absconded or secreted himself, so that the ordinary process of law could not he served upon him.

    The return upon the attachment showed a levy upon personal property, and a tract of one hundred and sixty acres of land.
    The proceedings being returned to the Circuit Court, the following entries appeared in the cause, to wit:
    “April term, 1835. — Motion by defendant’s attorney, to quash this attachment. Motion continued.
    “October term, 1836. — Cause continued.
    “April, term, 1836. — Motion to quash attachment overruled.”
    Then followed, an entry of the impannelling of a jury, and a verdict for the plaintiff; accompanied by the following statement.
    “April term, 1836. — Circuit Court. In this case the defendant moves to strike out that part of the sheriff’s return on the attachment, in this case, which shows a levy on 160 acres of land, as the land of the defendant, because the affidavit of the plaintiff, shows no sufficient grounds for a levy of the attachment on the lands of the defendant.”
    “Motion refused.”
    Cannon assigned in error—
    1. That the Court below, erred in refusing to quash the attachment.
    2. That the Court erred in overruling the motion of the plaintiff in error, to strike out of the .sheriff’s return, that part which showed a levy on the lands.

      Ellis & Peck for plain tiff in error.
   COLLIER, J.

The defendant in error, sued out an attachment before a justice of the peace of Sumter, returnable to the Circuit Court of that county. At the return term, the plaintiff moved the Court to quash the attachment, which motion being continued for several terms, was overruled.

Immediately following the rendition of the judgment, we find an entry in the record as follows:

“In this case, the defendant moves to strike out that part of the sheriff’s return on the attachment in this case, which shews a levy on 160 acres of land, as the land of the defendant; because the affidavit of the plaintiff' shews no sufficient grounds' for a levy of the attachment on the lands of the' defendant;” which motion was denied by the Court.-

No particular objection is pointed out to the attachment, in the motion to quash, nor has any been assigned in this Court. We have supposed, however, that it may haye been thought defective, because it alleges that the debtor, “absconds or secretes himself, &c.” and that it should charge, either the one or the other, positively. We are aware that this has been held to be fatal, whether rightfully or not, is now entirely immaterial.

The attachment law was revised in eighteen hundred and thirty-three, and all its various provisions embodied in one statute; the third section of which, enacts that “every judge or justice, before issuing an attachment, shall require the party, applying for the same, his agent or attorney or factor, to make affidavit in writing, that the person against whom the attachment is prayed, absconds or secretes him or herself; that he or she resides out of this State; that he or she is about to remove out of this State, so that the ordinary process of law cannot be served upon him or her; or that he of she is about to remove his or her property out of the State; and that thereby, the plaintiff will probably lose the debt, or have to sue for it in another State,” &c.

We are of opinion, that this act authorises an at-tachmeut to issue, when the debtor absconds or secretes himself, and that it cannot be objected to it, that it issues in the disjunctive — it was intended by the Legislature thus to give the remedy. It is often difficult, if not impracticable, for the creditor to ascertain whether his debtor absconds or secretes himself — he has to rely frequently upon such information as his family or friends will give him, which cannot always be confided in: hence, to allow sufficient latitude to the creditor in making his affidavit, and to prevent failures, from having mistaken the cause why the debtor is liable to the remedy, the law has very properly provided for its issuance in the alternative. That this construction is proper, is clearly indicated by the latter part of the act we have recited — every substantive ground for an attachment, follows the word that, as “that he or she, &c.” and seems to show that all the creditor is required to disclose in his affidavit, and nothing more, is thus'introduced.

The statute discloses several grounds for an attachment; and if any two of these were verified in the affidavit, or recited in the writ, the proceedings would be irregular. The affidavit and writ should disclose but one of the grounds on which the remedy is authorised, or it cannot be sustained.

In regard to the motion to strike from the levy, endorsed on the writ by the sheriff, so much of it as related to lands, we are of opinion, that, jf the levy thus far was unauthorised, yet in the refusal of the Court to allow the motion, there was no error. The record shows it to have been made after judgment — the judgment was upheld by the levy on the person;’!, estate, and could not have been affected by striking out ihe levy on lands — Again: the motion is one, from which neither injury or benefit could have resulted to any one. The debt- or, if his lands were not subject to the attachment, might have controlled them in the same manner, that he could have done, had no levy been made; for if it was- not warranted by the law, it gave no lien to the creditor.

Lastly — the writ of error is' sued out to reverse' the judgment; and even if there was error in refusing the motion of the plaintiff, it cannot now be noticed; because the motion and refusal were posterior to the rendition of the judgment.

The judgment of the Circuit Court is affirmed.-


author: HOPKINS, C. J.

text:
    EWING, treasurer, VS MEDLOCK.

      As to actions by a particular officer of an association.

    1. No action can be maintained by the treasurer of an'association, not incorporated, against one, upon his promise in writing, to pay money as a subscription, — the same being ■ payable to the “treasurer” of such association, alone.
    In error to the Circuit Court of Tuskaloosa county.
    George L. Medlock was summoned before a justice of the peace of Tuscaloosa county, to answer to Samuel B. Ewing, treasurer of the Jockey Club, and where a judgment was rendered against him, from which he appealed to the Circuit Court. In that Court, the plaintiff filed a statement as treasurer of the Tuskaloosa Jockey Club, claiming of defendant, the sum of fifty dollars, for the amount of his subscription to said club, due first November, eighteen hundred and thirty-five: and by the verdict of a jury, judgment was entered for the defendant.
    The plaintiff on the trial, offered in evidence to the jury, a paper, headed as follows, to wit:
    ‘‘We the undersigned, for and in consideration of the privilege of attending the races hereafter to be run over the Tuskaloosa race course, free of gate toll, do hereby agree and bind ourselves to pay to the treasurer of the Tuskaloosa Jockey Club, on the first day of November, in each and every year, for the terra of four years — the amount subscribed opposite our names. — January 23, 1834.
    Signed with others by the defendant.”
    To the introduction of this paper, as testimony, the defendant’s counsel, objected, unless it was made to appear that the Tuskaloosa Jockey Club, was an association, known to the law, and possessed the powers to sue by its treasurer. It was at the same time admitted by the defendant, that the Tuskaloosa Jockey Club, was a private association of individuals, possessing no corporate powers, whose avowed object was to improve the breed of horses, by racing: that the plaintiff was their treasurer, and that defendant had subscribed to the paper.
    It appeared that there was racing over the track in eighteen hundred and thirty-five, and that defendant could have attended, had he desired, without paying toll.
    This being all the testimony, the presiding judge excluded the paper from the jury, and that the plaintiff under it, could not recover.
    To this decision, the plaintiff excepted, and took his writ of error.

      Ellis, for plaintiff in error — Porter, contra.
   HOPKINS, C. J.

The promise upon which the plaintiff in error relied, in the Court below, to recover of the defendant, was in writing, and for the payment of money. It was not payable to any person by name, but to the treasurer of the Tus-kaloosa Jockey Club. The suit wás brought by the plaintiff in error, as treasurer of that club. The club was not incorporated, out is a private «f-roei-ation of individuals. It was admitted in the Cb-mt below, that the plaintiff in error wm; ¡he treasurer of the' club. The Court below deNrauned that this evidence did not entitle the plaintiff to recover, and upon the motion of the defendant, excluded it from the jury.

To maintain that the plaintiff has a right to the action, would be to put him upon the same ground he would occupy, if the association had been incorporated, and made capable by its charter, of suing in the name of whoever might be the treasurer of the club, upon instruments made payable to ■ the treasurer. Such a capacity to maintain an action, can be conferred by a charter only. If the money had been payable to the plaintiff by his individual name,-the right to the action would belong to him, and the description of him as treasurer of the club, would not affect the right. The only effect the description could have, would be to make him a trustee for the members of the association.

If the treasurer of the club could maintain the action, the right to the action might belong to different individuals at different times. The club may remove from office, a person who was the treasurer when such a promise was made, and appoint a successor. In such a case, the right which once belonged to one person as treasurer, would be exercised by another, without an assignment from him who was first entitled; for an assignment would be without effect, as the promise is made to no one individually.

In the case of Piggott vs Thompson, commissioners had been appointed by three, acts of three to drama certain fenlands, witn power to erect tollgales, and take tolls in the fen-lands. The tolls wove vested in the commissioners, and their suc-coisiors. They were authorised by the acts, to ap-pmnt a treasurer. They let the tolls for three years to Thompson, at one hundred and forty-five pounds per annum, and he, by his promise in writing, undertook to pay the money to their treasurer, not by his individual name, but as treasurer of the commissioners. The Court decided that the person who was treasurer, when the promise was made, could maintain no action on it: — that the right to an action belonged to the commissioners.

We are of opinion, that the Court below did not err in excluding the evidence from the jury.

The judgment is affirmed.

COLLIER, J. not sitting.

      3 Bos.& R* 146.


author: COLLIES, J.

text:
    BIRDWELL VS BOWLINGER.

      As to evidence by duplicate receipts of the land offices.

    1. A duplicate receipt of ¡be receiver of public monies, in the land offices, is evidence of title at any time before the issuance of the patent.
    2. Whether admissible, as such, after the issuance of a patent — quere.
    In error to the Circuit Court of Benton county.
    This was an action of trespass to try titles, "brought by Birdwell against Bowlinger.
    On the trial, the plaintiff, to support his action, produced in evidence, a certificate .or duplicate receipt of the receiver of public monies, for the Coosa land district, showing full payment for a particular tract of land; and which appeared to have issued under the pre-emption act of eighteen hundred and thirty-four.
    The Court below decided, that the certificate produced, was not admissible in evidence, and excluded it from the jury: to which the plaintiff excepted, and took a writ of error.

      Chilton for plaintiff in error — Phelan, contra.
   COLLIES, J.

The Circuit Court of Benton, refused to allow the plaintiff to read to the jury the duplicate receipt of the receiver of public monies, for the, Coosa land district, to shew the plaintiff’s right to recover the possession of the land described in it.

This Court, in the case of Bullock vs Wilson, decided that suca a paper was admissible to prove title in the plaintiff, at any time before the issuance of the patent. Whether it could be read for that purpose afterwards, is an open question.

The judgment is reversed, and the cause remanded.

      2 Porter’s Rep. 436.


author: GOLDTHWAXTE, J.

text:
    M'COY VS MOSS and NEWBERRY

      As to evidence varying written contracts.

    J. In an action by a vendor to recover the amount of a note, given for slaves, the bill of sale of which contains no words of delivery; the vendee cannot show by parol, that by the contract of sale,the vendor was to deliver one of the slaves, and that he failed to do so.
    On a writ of error to the Circuit Court of Chambers county.
    In this case, M’Coy declared against the defendants in error, upon a promissory note; and in de-fence, the defendants plead, First — non assumpsit: secondly — award: and thirdly — a failure of consideration. Upon each plea, the plaintiff took issue to the country; and a verdict was rendered in favor of the defendants.
    It appeared in the progress of the trial, that the consideration of the note sued upon, was the sale of two negro slaves to the defendants, under a bill of sale, in the following words:
    “The State of Alabama, Chambers county— Know all men by these presents, that I, Neely M’Coy, of the county and State aforesaid, for and in consideration of the sum of one thousand and fifty dollars in hand paid, by Wiley Newberrey, of the same place, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bargained and sold, unto Wiley Newberry, George, a man about thirty years-old, and Cindy, a woman about twenty years old; to have and to hold the above described negroes unto the said W. Newberry, his heirs and assigns, to his and their own proper use, benefit and behoof forever: Audi, the said M’Coy, nay heirs and assigns, do warrant the said negroes to be sound in body, mind and limb, and from and against all oth-er person or persons,” &c.
    The defendants, in support of their plea of a failure of consideration, offered to prove by parol evidence, that the plaintiff was to deliver a certain negro slave, to the defendants, which he did not do.This testimony, however, was objected to as vary-' ing the terms of the hill of sale, but was admitted by the Court, who refused to charge the jury to reject it from their consideration.
    It was further in proof, that defendants, by their' agent, had taken the said slave into possession in Georgia, whither he was sent for that purpose, the contract having been made in this State;, also, that the negro was left in Georgia, having escaped from said agent, and so remained.
    And the plaintiff, having excepted, took a writ of error.

      Ellis for plaintiff in error — Porter, contra.
   GOLDTHWAXTE, J.

The payment of the note' on which the action is founded, was resisted on the ground "of a failure of consideration, which is disclosed by the bill of exceptions to have been two slaves, sold by M’Coy to Newberry.

For these slaves, a bill of sale was executed, using words passing a present interest, and containing a warranty, that the slaves sold, were sound and free from the claims of all persons whatever, hut, nothing is mentioned of delivery.

The defendants proved by parol evidence, that the plaintiff was, by the contract, to deliver a certain negro fellow to them, and that no delivery was made. The admission of this evidence, was objected to by the plaintiff, because, (as he insisted,) it varied the written contract between the parties, and parol evidence was incompetent for this purpose, unless it was first shewn that an agreement was made subsequent to the execution of the written contract.

The parol evidence was however admitted by the Court below, a bill of exceptions was signed, and sealed; and the judgment rendered against the plaintiff on verdict, is now sought to be reversed, because of this alleged error.

If the evidence is understood to apply to any other, than one of the slaves named in the bill of sale, there would be no doubt as to its being error to admit such evidence; but, w.e think a fair interpretation of the bill of exceptions, allows the presumption, that one of the two slaves sold, was referred to and spoken of. This being the construction which we place on the bill of exceptions, the necessity is imposed,'of considering whether the evidence admitted, was such as varied, contradicted or explained the written contract — as the rule is well understood, that parol evidence is inadmissible for any of these purposes.

The bill of sale, introduced in evidence before the jury, mentions nothing of a delivery to be made of the property sold; and unless it be an incident to alisales, it must follow, that all stipulations in reference to the mode, time and place of delivery, must be reduced to writing, if the contract itself is so evidenced, and if omitted, then parol evidence to supply the defect, would be irregular and inadmissible.

Judge Story, in his work on the conflict of laws, says: “The common law deems a sale, as between the parties, complete without delivery”—page 318.

The same eminent, jurist, in the case of Meeker vs Wilson, declares, “that by the common law, a grant or assignment of goods and chattels, is valid between the parties, without actual delivery, and the property passes immediately upon the execution of the deed;” this is also recognised as a general rule, perfectly well established in the case of Sampson vs Sumner.

In 2 Black. Com. it is thus laid down; “As soon as the bargain iS'struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods, until he tenders the price agreed on; but if he tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them. And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A sells a horse to B for ten pounds, and B pays him earnest, or signs a note in writing of the bargain, and afterwards, before the delivery of the horse, or money paid, the horse dies in the vendors custody, still he is entitled to the money, because, by the contract, the property was in the vendee.”

These authorities shew that a sale is complete without delivery; and in the present case, it being evidenced by a written contract, passing apresent interest in the slaves, sold and granted, parol evidence was inadmissible to extend or enlarge the contract, or indeed in any manner to change or modify the same.

If such proof could be admitted, a contract in .'writing might be essentiálly varied, as without words shewing a different intention between the parties, the thing sold, if presently conveyed, would without any delivery, be at the risk of the vendee; and if the parties intended to contract for the future delivery, so as to leave the thing contracted for, at the risk of the vendor, this stipulation should enter into and form a part of the contract. If a contrary rule was adopted, a written contract ■would be subject to many and various modifications. It might be insisted that the delivery was to be made at some other time or place, or under peculiar circumstances, which would materially vary, alter and explain a written contract.

It must not however be understood, that the omission of an undertaking to deliver the thing sold, by the vendor, would authorise him to withhold it from the vendee; for in such case, the latter might, after demand and refusal by the vendor, elect either to bring his action to recover the thing, or to consider the contract of sale as rescinded, and sue for the price paid. So, if a thing which had no existence, was sold, the contract of sale would be void, and the vendee immediately entitled to his action; and if the vendor had no title, the vendee might sue at once for the price paid, considering the contract as at an end, or might maintain his action on the warranty of title, express or implied.

No case can well be supposed, in which the law does not fully protect the vendee from the fraud of the vendor, and if a delivery was prevented by him, after a sale, while the thing was in existence, and under his control, he would be responsible to the vendee; but if the thing perished or deteriorated in value, without the fault of the vendor, it would be the loss of the vendee, unless it could fairly be inferred, from the contract, that it was to remain at the risk of the vendor, until a delivery was made, and the possession changed.

The judgment rendered by the Court below, must be reversed, and the .cause remanded for further proceedings.

      1 Gall. R. 419.

       17 Mass.1 R. 110.


text:
    WHITE, adm'r de bonis non, VS BEARD.

      As to contracts by an administrator on the agreements of the intestate.

      1. Where A sold lands by parol agreement, and placed the vendee in possession, and after the vendor’s death, the ven-dee executed his note to the administrator of the vendor, for the purchase money, and took the administrator’s bond for title — conditioned for the making of title, when the note should be paid, — in an action by B, the administrator, de bonis non of A, to recover the amount of the note — it was held—
    First — That in the absence of a disturbance in his possession of the lands, the vendee could not resist a recovery of the purchase money, on the ground of failure of consid.. eration.
    Secondly — That the administrator, de bonis non of A, might well maintain his action against the vendor, on his note.
    In error to the Circuit Court of Tuskaloosa county.
    The action in this case was assumpsit, brought by Abel H. White, as the administrator de bonis non of Benjamin Palmer: and the cause of action was a promissory note, made by the defendant Beard, to secure the payment of nine hundred dollars to Job Going, the administrator of Benjamin Palmer.
    A demurrer having been filed to the declaration, and overruled, the defendant plead non assumpsit and judgment was given in his favor.
    In the progress of the trial, a bill of exceptions was taken, which disclosed the facts, — that the defendant offered as evidence in his defence, a bond signed by Job Going, in the penalty of three thousand dollars,.and which, after reciting that Benjamin Palmer in his life time, had sold to John Beard, certain real estate, which was described, and placed him in the possession thereof, stipulated that Job Going, should on the final payment of two notes, described, make a fee simple title to said Beard, in and to said land: which bond, notwithstanding an objection on the part of the plaintiff's counsel, was admitted in evidence.
    The defendant then proved by the subscribing witness to the said bond, that the note, the foundation of the action, was given in part consideration of the purchase of the lands, mentioned in the said bond: and that when the said bond and note were executed, it was understood that there' was no title, or written agreement from Palmer to the defendant, although there was a bond for title, from Going to Palmer — the latter before his sale to the defendant, having purchased the lands from Going.
    The Court instructed the jury, that if they believed the facts stated, the consideration of the note' had failed; and they must find for the defendant.
    To which the plaintiff excepted, and took a writ of error.

      Crabb, Stewart and Porter for the plaintiff in error — Ellis and Pecky contra.
   HOPKINS, C. J.

In this case, the action is founded upon a note made by the defendant to Job Going, as administrator of Benjamin Palmer, deceased. On the trial of the cause, the defendant gave in evidence a penal bond, executed by the said Going on the day of the date of the note, with a condition, that the bond should be void, if Going conveyed a good title in fee simple to the land described in the condition, to the defendant, when he made full payment of the purchase money to Going.

It is recited in the condition, that Palmer, the intestate, purchased the land in his life time, of Going; that afterward, he bargained and sold it to the defendant, and delivered the possesion to him. That in pursuance of the agreement between the intestate and the defendant, the latter had made his notes for the purchase money to Going, as administrator; one payable the first of March, eighteen hundred and thirty-one, and the other the first of March, eighteen hundred and thirty-four. It was proved by a witness, that the note in this case, which was due on the first of March, eighteen hundred and thirty-four, was given for a part of the purchase money, and is one of the two notes mentioned in' the condition of the bond. It was proved by the same witness, that the parties to the bond, admitted, when it was executed, the defendant had no title to the land, and no agreement in writing for it with Palmer, who had taken in his life time, the bond of Going for a title. The land is particularly described in the condition of the bond.

After the death of Going, the plaintiff was appointed administrator de bonis non of the goods and chattels of Palmer, and brought this action to recover the sum of money due on the note.

Upon the foregoing evidence, the Court below, instructed the jury, that if they believed the facts proved, the consideration of the note had failed, and the defendant was entitled to their verdict.

The’assignments of error here, are made upon the plaintiff’s exception to the instructions, and the admission of the bond, in evidence.

It is indisputable that a personal representative-lias no interest in the real estate of his testator or intestate, and no power to sell it, unless authorised' to do so, by an order of the proper Court, made in the exercise of jurisdiction conferred by our statute-law. No such order appears in this case. The" first question to be considered is, whether the intestate did any act in his life time, which shows that he intended his interest in the land should form part of his personal property! The proofs of the defendant, are his own admissions and Going’s, contained in the condition of the bond, or proved by the witness. Such evidence would be incompetent against the heirs of Palmer, upon an application of either the administrator or the defendant, to a Court of Equity, for a specific execution of the agreement between the defendant and Palmer, hut the evidence is competent between the parties to this suit. According to the proof in the cause, Palmer, the intestate, sold the land described in the condition of the bond, by a parol agreement, to the defendant, who was put in possession of the premises by the’ vendor; that in pursuance of the agreement with the intestate, he made the note in this case, and another, for the purchase money, to Going, the administrator of the vendor. It does not appear that the defendant has ever been disturbed in the posessioa of the land, or that he has abandoned it. If the evidence be true, and it cannot be questioned in this case, and the intestate had lived until the purchase money became due, without having disturbed the defendant’s possession, he would have had a right to a specific execution of the agreement in a Court 0f Equity.

His right to an execution of the contract, would be founded upon the performance by him, of a va-Inable part of the agreement, and the impossibility of placing him in statu quo by any other relief. paiq t|iaj- pc performed, was the delivery of the possession, upon which the defendant could have made a successful application for a specific execution, if the vendor or his heirs had refused^to convey according to the agreement, and the defendant had been in no default for not performing his part of it. The estate of the intestate could not be placed in statu quo, if the execution of the contract should be refused. The defendant has, we presume, as the contrary does not appear, enjoyed the possession of the premises for many years, and as he entered upon them on a contract for the purchase, no rent could be recovered.*

As the intestate sold the land in his life time, delivered the possession and died, in no default for not having performed the residue of his contract, it js a caSG) in which his administrator has the right in Equity, to the purchase money, and to a remedy in a Court of Equity, to compel the heirs of his intestate — if the case can be proved as clearly against them, as it is between the parties here — to perform the agreement, and the defendant to accept the performance of it. The right of the administrator to the purchase money, is founded upon the contract of the intestate, which shows he intended to convert his interest in the land, into personal property, and having performed so much of the contract as to acquire a right, had he lived, and been in no default afterward, to a specific execution. The right of the administrator to the remedy in Equity, is the consequence of his equitable right to the purchase money. R. H. Haynes & others vs Hall’s Executors & others, in this Court.

If the heirs refuse to convey the land, the same principle which sustains applications of heirs to a Court of Equity, to compel personal representatives to pay the purchase money of real estate, which had been purchased by testatoi’s or intestates, supports the claim of the administrator against the heirs, to a decree for a specific performance.

Neither the administrator, nor the heirs of Palmer, have been required by the agreement, to do any act since his death.’ The condition of the bond describes the land, and it is admitted in the condition, that the notes were given for the purchase money, in pursuance of the agveement between the intestate and the defendant. The effect of this admission is, that the notes were made payable at the times it was agreed between the parties to the contract,, the different instalments of the purchase money should be paid. As he did not stipulate in the bond of Going, for a conveyance of the title, until the purchase money should be wholly paid, we must presume that he was not entitled, according to his agreement with the intestate, to such a conveyance, before the payment of all the money. No other inference can be drawn from the admissions of the parties, than that the possession of the land was delivered by the intestate, and received by the defendant, in part performance of the agreement: The effect of the admissions in the condition of the bond, made by Going, and acceptedjby the defendant, is the same against the defendant, as if he also had executed the bond; and these admissions .show all the terms of a complete parol contract.

The defendant can have no right to a conveyance of the title, until he pays the whole purchase money, and while his possession is undisturbed, the administrator is in no default for not causing the title to be conveyed to him. As one part of the purchase money was payable before the day agreed upon for conveying the title, an action at law can be maintained for each instalment, without having made or tendered a conveyance of the title.

This case is not like one, where an intestate or testator, had made a parol agreement, for the sale of real estate, no part of which was so performed in his life time, as to give him an equitable right to the execution of the agreement. In such a case, the intestate had no right to an action at law, and was without any remedy in Equity, and his administrator would have no such right or remedy.

Here the intestate performed such a part of the agreement, as would entitle him, if he were alive, to the execution of it. But the right to a specific performance, is equitable in its character; and we incline to the opinion, but do not decide, that if the intestate, in his life time, had taken the note in this case, upon no other consideration than the parol agreement, and the part performance of it, a recovery upon the note might be prevented. Our statute of frauds prohibits the maintenance of an action on such an agreement. If an action for the purchase money were brought upon a parol agreement,.the action could not be maintained. Where a note for the purchase money had been made, but the agreement remained in parol, and no part of it performed, these facts, if proved, would show the note to be without consideration. Where such an agreement has been partly performed, by the delivery of the possession of the land to the vendee, who continued to enjoy it, we do not know it has ever been decided, that the vendor’s equitable right, acquired by the part performance, is a legal consideration, for a note for the purchase money, given after such performance.

But the note in this case, is supported by a legal consideration in the obligation of Going, who bound himself individually, to convey the title to the defendant. The defendant, who was in the possession of the land, had a right to obtain, upon a sufficient consideration, a stipulation for the title from any person, who was competent to contract.

As to the question which' was argued at the bar, of the right of the plaintiff to maintain the action, we think it clearly appears the note was given for a debt, that was equitably owing front the defendant to the administrator of the intestate, and that the administrator took it in his representative character. If an other person than Going had incurred the obligation, which supplies the note with a legal consideration, to induce the defendant to give the administrator notes for the purchase money, and they had been made payable to him, the right to actions upon them, after the death of the administrator, would be the administrator’s de bonis non of the intestate, to whose personal estate they equitably belonged, and to whose administrator in his representative character they were made payable. Between such a case, and the one here, we perceive no difference.

As the note was payable to Going, as administrator, it was not essential to the right of the plaintiff to the action, that it'should appear in the declaration, from the time the note had to run after its date, that it was taken upon the sale of such property, as a personal representative may be authorised by an order of a Court, to sell at public auction, upon the credit prescribed by law in such cases. There are many cases in which a personal representative may Lawfully take notes for demands existing in favor of the intestate at the time of his death. The evidence shows the note was made for money equitably owing to Going, in his character of administrator of Palmer, payable to the administrator and left uncollected by him. We are therefore of opinion, the action upon the note can be maintained by the administrator de bonis non.

We think the Court below, erred in admitting ~ the evidence, and in giving the instructions, which were excepted to.

The judgment is reversed, and the cause remanded.

COLLIER., J. not sitting.

      2 Story’s Equity 66, 82, 83, 87. Rob'ts on Frauds 148. Sugden on Vendors, 104, 105.

       1 Stew. & Por. 294. 6 Johns, Rep. 46 2 Taunt. Rep. 145.

       3 Stewart’s Rep.] 361.

      7 Johns. Rep 205. 15 Ib. 503 Comyn. on Con. 314. 2 Stark. 277. 12 Johns. 451.

       Ala. Rep. 206 2 Stew Rep. 138.

       Roberts on Frauds 144. 3 Atk. 1. 2 Story’s Eq. 96, 98, 99.


author: GOLDTHWAITS, J.

text:
    BAYLOR VS M’GREGOR & DARLING.

      Of superseding executions.

    1. Where, by a transcript appended to a writ of error, properly certified, it appeared, that a petition had been filed to supersede an execution, on the ground, that property, more than sufficient to pay off the judgment on which issued, had been levied on and sold under a previous execution, and by the returns on this latter execution, certified as part of the transcript, the facts alleged in the petition, were shewn to be true,-r-it was held — ■
    First — That it could not be objected in this Court, that the executions were no part of the transcript, unless appearing by bill of exceptions.
    Second — That the Court below, erred in quashing the su-persedeas, the case appearing to have been heard on the merits.
    In error to the Circuit Court of Jefferson.
    In this case, Walker II. Baylor, preferred a petition to the judge of the Circuit Court, setting forth— that, theretofore, M’Gregor and Darling had obtained judgment against him, for seven hundred and forty-nine dollars, and twenty-two cents, with costs, amounting to fifty-one dollars and twenty-six cents. That subsequent to the rendition of judgment, execution was issued thereon, and levied upon said Baylor’s estate, and under a sale thereof, a .sufficient amount realized to satisfy the said judgment, and leaves a balance in the sheriff’s hands, of two hundred and eighteen dollars. That notwithstanding this fact, the said M’Gregor & Darling, had caused another execution to be levied on certain slaves of the said petitioner: He therefore prayed a supersedeas A supersedeas was accordingly granted, which at the Spring terra, eighteen hundred and thirty-four, of the said Circuit Court, was dismissed; and the said Baylor took out a writ of error.
    Appended to the transcript, were copies of two executions, the first of which purported to have issued upon a judgment obtained by M’Gregor & Darling against Baylor, for the sum of seven hundred and forty-nine dollars and twenty-two cents, and costs, fifty-one dollars and twenty-six cents, and was tested the fourth day of November, eighteen hundred and thirty. Upon the execution was endorsed, notice of a levy upon certain slaves, and other property of defendant, and of a subsequent sale thereof, for the sum of one thousand and forty-seven dollars, eighty one and one fourth cents. There was also in the notice of the sale, a statement, that a portion of the estate was sold, subject to a deed of trust; and the sheriff seemed to have deducted from the amount of the proceeds realised on said sale, the amount claimed on the trust deed.
    The second execution was a venditioni exponas, and commanded the sheriff to expose to sale certain negro slaves of defendant, which had been previously levied on, and claimed by one Hall.
    The return on this last execution, showed a levy 'upon two slaves, and a supersedeas.

      Mardis for plaintiff in error — Ellis & Peck, contra.
   GOLDTHWAITS, J.

The only question which requires the consideration of this Court, is, whether the writs of fieri facias and venditioni exponas, with their returns, which appear in the record, are properly a part of it. If they are, the decision made by this Court, in the case of Baylor vs Scott, must gov-era. If these writs are not a proper part of the record, the judgment of the Court below is not shewn to be erroneous.

These writs are certified to this Court, by the clerk of the Court below, as a part of the proceedings in the cause; but we are now called on to reject and discard them from our notice, because they were not set out in a bill of exceptions.

Whenever a judgment is sought to be satisñed, or a writ of execution quashed or superseded, for matters which are intrinsic to the cause, and which appear of record, it would seem to be wholly unnecessary to spread out, by a bill of exceptions, facts which must appear in the proceedings, and which form a part of the entire case. A motion to supersede or quash an execution, or to enter satisfaction on a judgment, is one incidental to the cause; and if any decision thereon is sought to be reversed, the record of the cause, or such parts as may be necessary to shew the action of the Court, may well be certified; and if sufficient is not sent up to explain the judgment of the inferior Court, the defendant in error can always protect himself from injury, by applying for a certiorari.

When a motion incidental to a cause, is depen-dant on facts, which do not appear of record, a party and always have the advantage of revising the judgment of the Court, by setting them out in a bill of exceptions, which becomes a part of the record.

The case before us, seems to have been heard on the merits; which could only take place by having the record before the Court.

The writ of supersedeas was properly sued out, on facts which are supported by the record, and should not have been quashed.

The judgment must be reversed and remanded, with instructions to the Court below, to quash the writ of venditioni exponas.

       2 Porter 315.


text:
    MOORE VS ANDREWS & BROTHERS.

      As to proof of entries in a merchants booh.

    1. In an action to recover upon an account, for goods sold and delivered, particular items of that account cannot be proved, by evidence, that the articles were sold and delivered by'a clerk who is absent from the State.
    In error from the County Court of Madison.
    This was an action of assumpsit against Moore, for the value of goods, wares and merchandise, sold and delivered: and under the plea of non assumpsit, verdict and judgment were rendered for the plaintiffs.
    On the trial, the plaintiffs, by their clerks, M’Clellan, Moore and Giron, proved that they had sold and delivered to the defendant, all the articles specified in an account, (which was the cause of action,) except one item, which had been charged by a former clerk, who was not present, but was proved to have been in the State of Tennessee.
    On objection to the sufficiency of the proof of the item, charged in the hand writing of the absent clerk, the Court charged the jury, that if they thought it right from all the evidence, they might infer that the whole account was just, and find accordingly.
    To which the defendant excepted.

      Argued by S. Parsons- for the plaintiff in error— Robinson, contra.
   COLLIER, J.

The defendants in error sued the plaintiff, in the County Court of Madison, and declared for goods sold and delivered, money lent and advanced, and money paid, &c.

On the trial, the defendants proved a portion of their account, by shewing that some of the goods charged, as sold and delivered to the plaintiff, were charged on their books in the hand writing of a former clerk, then in Tennessee. To the admission of this evidence, the plaintiff in error excepted, and here assigns the same as error.

The bill of exceptions does not inform us that this, witness does not reside within the State, and rather authorises the conclusion that he does, as it speaks of him as now in Tennessee, and again he is mentioned as absent. We, however, lay no stress upon the want of precision in the bill of exceptions, in this particular; for though the non-residence of the witness, had been conclusively shewn, we should yet think that the testimony was improperly admitted. We are not aware of any adjudged case, unless it be influenced by a statute, in which it has been hidden, that the entries of a clerk, in the books of his employer, are allowed to go to the jury in an action to recover for goods, sold, &c. unless a foundation be first laid by shewing his death. His temporary absence from, or even removal without the ■State, are not sufficient to authorise the entries to jje used as evidence. Under such circumstances, our laws afford ample means for obtaining his testimony by deposition.

In Kennedy vs Fairman, proof of the hand writing of the plaintiff’s clerk, who made the entries, and had afterwards gone abroad, was ruled not to be evidence to support an action for goods sold and delivered.

The rule which allows of this description of secondary evidence, is one, resulting ex necessitate, viz: the impracticability of procuring better proof, and should be confined within proper limits.

In argument, it has been attempted to assimilate the proof of private entries by third persons, to the proof of hand-writing of a subscribing witness to a paper, when absent from the State. The mere temporary absence of a subscribing witness, will not be sufficient to let in proof of his hand-writing; in such case the party should continue, to await his return.

One reason, and the chief, why secondary evidence in the case of the subscribing witness, where he resides without the reach of the process of the Court, is allowable, is the great danger of losing the instrument attested, if sent abroad to be proved by deposition. This reason has no application in the case at bar; it was both convenient and proper to have shewn by the deposition of the absent witness, that he sold and delivered the articles charged on the books, in his hand-writing, and then to have proved his hand-writing, by a witness present.

In some of the States, statutes have been enacted, facilitating -the proof of merchants, and other. book accounts, and many of the decisions rest on these statutes. In this State, the admissibility of proof in such cases, depends upon the common law rules of evidence.

The judgment is reversed, and the cause remanded.

HOPKINS, O. J, not sitting.

      1 Hayw. 458.

      1 Greenleaf’s R. 57,


text:
    DERRICK VS MORRIS.

      As to a general charge of a Court.

    1. Where a plaintiff declares in several counts, and a Court is requested to give the jury trying the. cause, a general charge — such charge, if given, will be applied, in error, to any count which will sustain it.

      2. Though, it seems, that where a Court is requested to confine its charge to some one particular count, if the charge is not proper in reference to such count, it might be error.
    This was an action of covenant, by Morris, for the use of another, against Derrick, in the County Court of Madison. The plaintiff below, declared:
    “ For that whereas, heretofore, to wit, on the sixth day of August, eighteen hundred and thirty, at, to wit, in said county, by certain articles of agreement, made and entered into between the said William Derrick of the first part, and the said Benjamin R. Morris of the second part; which said articles of agreement signed by the defendant, (by the name and description of William Derrick,) and signed by the plaintiff, (by the name and description of B. R. Morris,) and sealed with the respective seals of the defendant and the plaintiff, and bearing date the day and year last aforesaid, the plaintiff now brings here into Court — the defendant agreed to employ and did employ, the plaintiff to oversee and overlook the hands that the defendant should place under the plaintiff, upon the plantation where the defendant formerly resided, joining the land of William Moore, sen’r. and Mrs. Davis, &c. &c. for the year, eighteen hundred and thirty-one,,at -to wit, in said county; and by which articles of agreement, the plaintiff, for the consideration therein mentioned, did covenant, promise and agree, to and with the defendant, to discharge the duties of a good, vigilant overseer, to attend to the business of the defendant, upon the farm above mentioned, and to the discharge oí the duties customary for overseers to perform, to the best of his skill and knowledge, for the year eighteen hundred and thirty-one; and the defendant, in consideration of such services of the plaintiff, to he rendered as an overseer, as aforesaid, for the said year of eighteen hundred and thirty-one, did by said articles of agreement, stipulate and agree to give the plaintiff two hundred dollars in cash, to be paid the twenty-fifth day of December, eighteen hundred and thirty-one; one thousand weight of pork, to he paid the first of January, eighteen hundred and thirty-one; corn sufficient to supply the family of said plaintiff in bread, during the year eighteen hundred and thirty-one; corn sufficient to feed the cows and hogs of said plaintiff, for said year: also, two acres of land, which said plaintiff was to have rent free, to sow wheat upon; also, a beef to be worth ten dollars; and also, one barrel of salt, to be paid at the commencement of the year eighteen hundred and thirty-one; as by said articles of agreement, (reference being thereunto' had,) will more fully appear; and the plaintiff in fact saiib, that ' said articles of agreement, being so made as aforesaid, he, the said plaintiff, did, upon, to wit, the first day of January, eighteen hundred and thirty-one, at-to wit, in said county, enter upon the plantation mentioned in said articles of agreement, and was then and there received into the actual service of the defendant, to serve him as an overseer, upon the terms mentioned in said articles of agreement; and the plaintiff avers, that he remained and continued in the faithful discharge of his duties, as an overseer, upon the plantation mentioned in said articles of agreoment, from thence until the-day of-, eighteen hundred and thirty-one, when the defendant, without any just or probable cause, whatsoever, and against the will of the plaintiff, dismissed and discharged him, said plaintiff, from acting as overseer for said defendant, as aforesaid, and refused to permit or suffer him* said plaintiff, to perform the duties of an-overseer, upon said plantation, mentioned in said articles of agreement, to wit, at - in said county; and the plaintiff, in fact, further saith, that although du- ' ring his actual service as overseer, as aforesaid, he did discharge the duties of a good, vigilant overseer, and did attend to the business of the defendant, upon the farm above mentioned, and did discharge the duties customary, for' overseers to perform, to the best of his skill and knowledge, and did do and perform all things in said articles of agreement, mentioned on his part and behalf, according to the tenor and effect thereof, and would have done so, and continued to have done, had he not been prevented by the defendant, io wit, on the day and year aforesaid, at • -vii, in said county; yet protesting that the defendant has not performed or fulfilled any thing in said articles of agreement contained, on his part and behalf to be performed and fulfilled; he, said plaintiff, in fact saitb, that although said sum of two hundred dollars, stipulated to be paid to the plaintiff, in said articles of agreement, has long since become due and payable, yet the defendant, hath not paid the same, but the same, or any part thereof, to pay to the plaintiff, he, said defendant, hath hitherto wholly failed and refused ; and the plaintiff further saíííi, that the defendant, hath not as yet paid to said plaintiff, one thousand weight of pork; nor hath he paid to the plaintiff, corn sufficient to supply the family of said plaintiff in. bread,, during the year eighteen hundred and thirty-one; nor hath he paid to the plaintiff, corn sufficient to feed the cows and hogs of said plaintiff, for said year; nor hath he, said defendant, given or allowed to the plaintiff, two acres of land, rent-free, to sow wheat upon; nor hath he paid to the plaintiff a beef, worth ten dollars; nor hath he paid to the plaintiff, one barrel of salt; but the same or any thing, or any part of any thing before mentioned, to pay, give or allow to the plaintiff, he, the said defendant, hath hitherto failed and refused, although the defendant was, to wit, on the seventeenth day of January, eighteen hundred and thirty-one, at the residence of said defendant, in said county, requested and required by the plaintiff, to pay the same, according to the tenor and effect of said articles of agreement. And whereas, also heretofore, to wit, on the sixth day of August, eighteen hundred and thirty, at ———, to wit, in said county, certain other articles of agreement were made and entered into, between the defendant of the first part, and the plaintiff of the second part, bearing date the day and year last aforesaid, which said last mentioned articles of agreement, sealed with the respective seals of the defendant and the plaintiff, and signed by the defendant, (by the name and description of William Derrick,) and Signed by the plaintiff, (by the name and description of B. R, Morris,) the plaintiff now brings here into Court, and which are in the words and figures following, to wit:
    “Articles of agreement entered into this August, the sixth, the year of our Lord, one thousand eight hundred and thirty, between William Derrick of the first 'part, and Benjamin R. Morris of the second part, both of the county of Madison, State of Alabama, witnesseth : TSjat the said William Derrick, hath agreed to employ, and by these presents, does employ, the said B. R. Morris, to oversee and overlook the hands, that he, the said William Derrick, shall place under said Morris, Upon the plantation where the said Derrick formerly resided, joining the land of William Moore, sen. and Mrs. Davis, &c. &c. for the year eighteen hundred and thirty-one: And the said Derrick, does hereby stipulate and agree to give the said Morris, two hundred dollars in cash, to be paid the twenty-fifth day of December, eighteen hundred and thirty-one; one thousand weight of pork, to be paid the first of January, eighteen hundred and thirty-one; also, corn sufficient to supply the family of said Morris in bread, during the year eighteen hundred and thirty-one, (1831;) also, corn sufficient to feed the cows and hogs of said Morris, for said year; also, two acres of land, which the said Morris is to have rent-free, to sow wheat upon; also, the said Derrick, agrees to give said Morris a beef, to be worth ten dollars; and also, one barrel of salt, to be paid at the commencement of the year 1831, for and in consideration of the services of the said Morris, to be rendered as an overseer, for said year of 1831, The said Morris on his part does agree, and by these presents, does bind himself to discharge the duties of a good, vigilant overseer, to attend to the business of said Derrick, upon the farm above mentioned, and to discharge the duties customary for overseers to perform, to the best of his skill and knowledge, for and in consideration of the above mentioned consideration of two hundred dollars in cash, com for hogs and stock, one beef, two acres of land, and one barrel of salt, to be paid and arranged according to the time and times above specified. For the faithful compliance of this, our contract, we bind ourselves, our heirs, assigns, executors, &c. -&c. forever, as witness our hands and seals, the day and year above written.
    “william derrick, [l. s.]
    “b. r. morris, [l. s.]
    “Test, r. 3. kelly.”
    “And the plaintiff in fact saith, that the said last mentioned articles of agreement, being so made ,and entered into, he, said plaintiff, did, upon, to wit, the first day of January, eighteen hundred and thirty-one, at ——-to wit, in said county, enter «pon the plantation mentioned in said last named articles of agreement, and was then and there received into the actual service of the defendant, to serve him as an overseer upon the terms specified in said .last mentioned articles of agreement; and the plaintiff avers, that he remained and continued in the faithful discharge of his duties, as an overseer, upon the farm specified in said last mentioned articles of agreement, from thence until, and upon the —— day of-, eighteen hundred and thirty-one, when the defendant, without any just and probable cause whatsover, and against the will of the plaintiff, dismissed and discharged him, said plaintiff, from acting as overseer for said defendant, and refused to permit or suffer him, said plaintiff, to perform the duties of an overseer upon said plantation, specified in said last mentioned articles of agreement, to wit, at-, in said county, and the plaintiff in fact, saitfa further, that although, during his actual service as overseer, as aforesaid, he did discharge the duties of a good, vigilant overseer, and did attend to the business of the defendant, upon the farm last above mentioned, and did discharge the duties customary for overseers to perform, to the best of his skill and knowledge, and did do and perform all things, in said last mentioned articles of agreement contained, on his part and behalf, according to the tenor and effect thereof, and would have so done, and continued to have done, had he not been prevented by the defendant, to wit, on the day and year last aforesaid, at-, to wit, in the said county: Yet protesting that the defendant has not performed or fulfilled any thing in said last mentioned articles of agreement contained, on' bis part and behalf to be performed and fulfilled, he, the said plaintiff, in fact saith, that said defendant hath broken his covenant so made, as aforesaid, in this, that he has not as yet paid to the plaintiff, said sum of two-hundred dollars, specified in said last mentioned articles of agreement, nor hath he paid to the plaintiff, the one thousand weight of pork, the corn, the beef and salt, mentioned therein ; nor hath lie, said defendant, given or allowed to the plaintiff, said two acres of land, rent-free, in said last mentioned articles of agree meet specified ; but the same or any part thereof, he, said defendant, halhbitheito wholly failed and. refused to pay to the plaintiff.
    “And whereas also, heretofore, to wit, on the sixth day of August, eighteen hundred and thirty, at-, to wit, in said county, certain other arti - cles of agreement were made and entered into between the said defendant of the first part, and the said plaintiff of the second part, bearing date the .day and year last aforesaid, and which said last mentioned articles of agreement, sealed with tlnq respective seals of the defendant and the plaintiff, and signed by the defendant, (by the name°and description of William Derrick,) and signed by the plaintiff, (by the name and description of IX K. Morris,) the plaintiff now brings here into Court, wherein and whereby, the defendant agreed to employ, and did employ the plaintiff, to oversee and overlook the hands that the defendant should place under the plaintiff, upon the plantation where the defendant formerly resided, joining the land of William Moore, sen. and Mrs, Davis, &c. the, for the year eighteen hundred and thirty-one, at-, to wit, in said county; and by which said last mentioned articles of agreement, the defendant stipulated and agreed to give the plaintiff, two hundred dollars io. cash, to be paid the twenty-fifth day of December, eighteen-hundred and thirty-one; one thousand weight of pork, to be paid the first day of January, eighteen hundred and thirty-one; also, com sufficient to supply the plaintiffs family in bread, during the year eighteen hundred and thirty-one ; also, corn sufficient to feed the cows and hogs of the plaintiff, for the same year; also, two acres of land, rent-free, to sow wheat upon; also, a beef, to be worth ten dollars; and also, one barrel of salt, to be paid at the commencement of the year eighteen hundred and thirty-one, for and in consideration of the services of the plaintiff, to be rendered as overseer, for said year of eighteen hundred and thirty-one; and the plaintiff on 'his part, by said last mentioned articles • of agreement, agreed and bound himself to discharge the duties . of a good, vigilant overseer, to attend to the business of the defendant, upon the farm above mentioned, and to discharge the duties customary for overseers to perform, to the best of his skill and knowledge, for and in consideration of said sum of two hundred dollars in cash, corn for hogs and stock, one beef, two acres of land, and one barrel of salt; (the articles above mentioned,) to be paid and arranged, according to the times and terms specified in said last mentioned articles of agreement: Yet the plaintiff avers that the defendant hath not as yet, paid to the plaintiff, the said sum of two hundred dollars, or given or allowed to the plaintiff, any or either of the articles enumerated in said last mentioned articles of agreement, but to pay the plaintiff the same or any párt thereof, he, the said defendant, hath hitherto wholly failed and refused, and so the plaintiff in fact, saith, that the defendant, (although often requested so to do,) hath not kept his said several covenants, mentioned in the several counts of this declaration, but hath broken the same, and to keep the same with the plaintiff, hath hitherto wholly neglected and refused, and still doth neglect and refuse.” &c.
    The pleadings to this declaration, (under a special practice,) consisted of an agreement to allow any matters to be given in evidence, going to show a defence. And, upon the verdict of a jury, a judgment was rendered for the plaintiff.
    A bill of exceptions having been taken, the particulars of which appear in the opinion of the Court, the defendant took a writ of error.

      M’ Clung for the plaintiff in error — Stewart & Thornton, contra.
   COLLIES, J.

The defendant in error, declared against the plaintiff in three several counts in covenant. The two first of which, treat the covenants set out, as containing dependent stipulations. The third, considers them as independent, and charges a breach in the non-payment of two hundred dollars — a sum agreed to be paid to the plaintiff below, for his wages-as an overseer, for the year eighteen hundred and thir? y -one, and in the failure to supply certain provisions, &c. acóordkíg to the terms of the covenant and agreement.

The Judge of the County Court of Madison, (from whence this case comes,) sealed a hill of exceptions on this trial, in these words : “Be it remembered, that on the trial of this cause, the evidence proved that plaintiff remained in the employment of the defendant, about one month of the year eighteen hundred and thirty-one.- There was contradictory evidence as to the circumstances under which said Morris abandoned the business of said Derrick; whereupon the counsel for plaintiff, moved the Court to instruct the jury, that the covenants were independent, and that it was not necessary for said plaintiff, to prove that he had served said defendant as overseer, as set forth in said covenant.To this charge, defendant objected, but the charge was given by the Court, as asked, to which defendant, by his counsel, excepted, ” &c.

The questions of law arising upon the bill of exceptions, are here assigned as error.

Our understanding of this cause, does not impose upon us, the duty of examining the technical and (in many instances,) the scarcely discernible distinctions between dependent and independent covenants. Where there are several counts in a declaration, any one of which, authorises a general charge, asked of a Judge to the jury,- if given, it will be applied to that count; if upon no other principle, upon that which intends every thing in favor of judgments, which the pleadings or the law warrant.

Had the plaintiff m error have desired it, he could have required the Judge to confine his charge to some one particular count, and if not legitimate under that, it might be error. But if not thus re’ stricted, it will apply ip the entire declaration, and will be legalised by showing one count under which it was proper.

That the charge objected to, was authorised by the third count, we think clear, as that count assumed, that the covenants in the agreement sued on, were mutual and independent, and the opinion of the Judge, as expressed to the jury, went no farther.

This view of the case being decisive of it — the judgment is affirmed.

HOPKINS, C. J. not sitting.


text:
    HALL VS M’HENRY.

      Construction of the act of 1807, upon the subject of indemnifying bonds to sheriffs.

    1. Where a plaintiff in execution fails or refuses, on the application of a sheriff, to give a bond of indemnity, as directed by the statute of 1807, and the sheriff has reasonable doubts whether the right in property levied on, be in a defendant, — such sheriff cannot be compelled to receive the bond of a co-defcndant, a surety, and sell the property.
    Oa a writ of error to the Circuit Court of Shelby county.
    In this cause, an action of trespass on the case, was prosecuted by Hal], the plaintiff in error, to recover damages of BÍHenry, for the refusal of the latter to sell as a sheriff, certain property levied on under an execution issued against one Royster, and the plaintiff as his surety. The plea was not guilty, upon which a verdict was rendered for the defendant..
    The plaintiff, in support of his action, proved that he was the surety of Edward Royster, in the suit of John and Margaret Martin, administrator and administratrix vs Edward Royster and plain-, tiff, theretofore decided in that Court — [the same cause recited in the declaration in this case.]
    The plaintiff further proved that defendant, MTIenry, admitted, some days before the levy was made on Royster’s negroes, or rather, slaves found in the possession of Royster, that plaintiff was the surety of Royster, and that it would he hard for plaintiil to have the debt to pay.
    Plaintiff further proved by Thomas H. Brasher, that he, Brasher, acted as the agent of plaintiff, on the day appointed for the sale of the slaves, and ealled upon the defendant, to know of him, if he would receiye a bond of indemnity from him: that defendant replied, he would not — that the plaintiffs in execution, alone had a right to indemnify him ; and that he could not receive a bond from any one else. Brasher stated that he made the application to indemnify defendant, in good faith, and had he consented to receive a bond, he would have executed it. Brasher’s solvency was admitted.
    It was further proved by the plaintiff, that defendant after the hour of four o’clock, which was more than ten days after notice given on the day fixed for the sale, returned the slaves into the possession of Edward Royster, who, a short time thereafter, ran the negroes out of the country.
    The plaintiff proved further, by the witness, Brasher, as also by the records of the said Court, that plaintiff, T. B. Hall, paid eight or nine hundred dollars of the judgment in the case of Martins vs Royster and plaintiff, above referred to.
    The defendant proved that the property levied on, to wit, the two slaves, were claimed by persons, other than Royster; some of whom, resided in Royster’s family; that public opinion was divided as to whom they did really belong; that some said .they were Royster’s property, while others said, they thought the property belonged to the adverse claimants.
    Defendant further proved, a notice to the plaintiff, and that the Martins refused to execute a bond, as required by said notice.
    Plaintiff proved the slaves to have been in the possession .of Royster, more than twelve months previous to the levy, and to have been worth from six to eight hundred dollars.
    Upon these statements of facts, the Court am, other things, instructed the jury, that, arose, whether the property levied on, the defendant in execution, Royster, oiv party, the sheriff had a right to require < tiffs in execution, a bond, with surety' demnity; and in the event of a failure bond, within ten days after a requisition might deliver up the property to the party from whose possession it was taken: — that this doubt should not he .merely ideal or imaginary, but a doubt founded upon such a state of facts or circumstances as would well induce the belief that the right to the property was in another, than the defendant in execution.
    The Court further instructed the jury, that the law which authorised the sheriff to make the requisition for security, where the right of the defendant in execution was doubtful, was intended for the benefit of the sheriff; and that the law. authori-sed the sheriff to make the application to the plaintiff in the execution, and to discharge the property if the bond of indemnity was not given within the time prescribed by the statute, and that the sheriff was not required to receive a bond from the co-defendant in the execution, though he was but a surety — such bond, if received by the sheriff, would doubtless, be a good common law bond, but one on which he could have no remedy, until he had actually been injured by a recovery against him; and then he should prosecute a suit according to the ordinary forms of law — while on a bond executed by the plaintiff in execution, the remedy would be summary.
    To all which the plaintiff excepted, and prosecuted a writ of error.

      Chilton for plaintiff in error — 'Peels contra.

       Aikin’s Digest, 167-sec. 43.

   HOPKINS, C. J.

This was an action of trespass on the case. The proof upon the trial of the cause was, that'the defendant in error, who was defendant also in the Court below, had before the commencement of the action in this case, levied an execution in favor of John and Margaret Martin, against one Edward Royster and the plaintiff in error, upon two slaves, as the property of Royster. That it was doubtful to whom the slaves belonged, as they were claimed by other persons than Roy-ster; and public opinion was divided on the question, whether Royster or the other claimants owned the property. The defendant in error, required the plaintiff in the execution, to indemnify him in the mode prescribed by our statute law, for the sale of the slaves, and they refused to do so. That after the lapse of more than ten days from the time he applied to-the plaintiffs in the execution to indemnify him, he delivered the slaves to Royster, from whose possession he had taken them, when he made the levy of the execution: That the plaintiff in error was the surety of Royster, for the debt for which the execution issued, and the defendant knew he was surety before the levy was made: That after the possession of the slaves was restored to Royster, he ran them from the country: That the plaintiff in error afterward paid eight or nine hundred dollars, on the execution — a sum which was about equal to the value of the slaves, and that while the sheriff had the possession of the slaves, the plaintiff in error, offered to give him a bond for his indemnity, if he would sell. The sheriff refused to accept a bond from the plaintiff, on the ground that the plaintiffs in execution, were the only persons from whom he could take such a bond.

The material parts of the charge of the Court below, to the jury were, that the sheriff had the right to requite a bond, with securiry for his indemnity, from the plaintiffs in the execution, and if they failed to give him such a bond, within ten days after he required it, lie might deliver the property to the party, from whose possession he had taken it; but the doubt of the sheriff", as to whom the property belonged, which would authorise him to restore the property to the party from whose possession it was taken, upon the failure of the proper party to give a bond oí indemnity, must be founded upon such facts or circumstances, as might well induce the belief, that the right to the property was in another person than the defendant in the execution. The Court also instructed the jury, that the sheriff was not required to receive a bond from a co-defendant in. the execution, who was a surety only for the debt.

The. instructions of the Court were excepted to by the plaintiff.

The course which the defendant, as sheriff, pursued, was the one which the act of eighteen hundred and seven prescribes for sheriffs, in such a case.*

The act of eighteen hundred and eleven, which requires sheriffs to levy executions that-issue against principals and sureties, on the property of the principal first, provided the surety makes an affidavit that he is surety, does not affect the act of eighteen hundred and seven, and would have no effect in favor of the plaintiff, if he had made such an affidavit as the act prescribes. Although such an affidavit may be made, yet if after a levy, there be a doubt as to the principal defendant’s right to the property, the sheriff is entitled to the benefit of the course provided by the act of eighteen hundred and seven. An affidavit, if made, creates a duty on him, to levy upon the property of the principal first; but after a levy made, under any circumstances, be is not bound to sell, if there be a reasonable doubt as to the right of the defendant in the execution to the property. The object of the act of eighteen hundred and seven was, to indemnify sheriffs against recoveries or suits, in favor of the right owners or claimants of property, which is sold in virtue of executions. The act gives sheriffs a right to demand of the plaintiffs in executions, bonds on which they may rely for indemnity from Iho conacquencco of acts in selling property,' which may afterward he proved to have been traspasses on the rights of others ; and a Court ought not to decide that such a right may be satisfied, by a bond of any other person, than the plaintiff in the execution.

We think there was no error in the instructions of the Circuit Court.

The judgment is affirmed.

COLLIER, J. not sitting.
      Aildn’s Dig. 167.


text:
    THE STATE OF ALABAMA VS WILLIAMS.

      Points as to the selection of grand jurors.

      As to the method by which to take advantage of defects in the selection of grand jurors.

    1. The ast of 1826,

       which requires the Courts, where jurieshave not been drawn and summoned as directed by law, to impannel a jury, instanter, — gives no authority toa Court to summon persons, from whom a grand jury may be drawn.

      2. The act of 1836, upon the subject of drawing a grand jury, repealed so much of the law, previously enacted, as related to the selection of grand jurors by the clerk and sheriff, under the act of 1811.

    3. A sheriff, since the passage of the statute of 1836, has no authority to summon grand jurors, except they have been selected by the clerk and himself as directed by that act.
    4. A grand jury, summoned in any other mode than that directed by the act of 1836 nave no authority to find an indictment; nor will the act of a Court, in causing such a jury to be impannelled, supply the defect as to their selection.
    5. The objection, that grand jurorsjhave not aeen selected and summoned as required by law, may well be taken by plea in abatement to the indictment.
    6. A grand jury, summoned under the provisions of the act of 1811, have no authority to find an indictment, preferred against a prisoner since the enactment of the statute of 1836.

      On points reserved as novel and difficult. From the Circuit Court of Madison.
    Williams was indicted in the Circuit Court of Morgan county, from which county the venue was changed to Madison, for the offence of horse-stealing. The indictment was prefered at March term, eighteen hundred and thirty-six, and was found by a grand jury, composed of thirty-five persons, summoned under a writ of venire facias, issued and signed by the clerk of the Circuit Court of Morgan county, directed to the sheriff, and dated the tenth day of December, eighteen hundred and thirty-five. The list contained the names of thirty-six persons, only thirty-five of whom were returned as summoned.
    The defendant, on his trial, at the October term, eighteen hundred and thirty-six, plead the following plea, to wit:
    “And the said John F. Williams, in his own proper person, comes into Court here, and having heard the said indictment read, saith, that this honorable Court ought not to take cognizance of the said supposed offence, in the said indictment specified, because, protesting that he is not guilty of the same, nevertheless, t' e said John F. Williams, saith, that at the last March term of the Circuit Court of said county of Morgan, the grand jurors who found said indictment, were drawn by lot from a venire of thirty-five jurors, who had been summoned to attend said Court as jurors; and this he, the said John F. Williams, is ready to verify. Wherefore, lie prays judgment, if this honorable Court now here, will or ought to take cognizance of the indictment aforesaid; and that by the Court here, said indictment may be quashed, and he, said defendant, dismissed, and discharged.”
    A demurrer to this plea, was sustained, and on the plea of not guilty, the defendant was convicted; but judgment was suspended for the decision of this Court.

      M Clung for the prisoner — The Attorney General, contra.

       Aikin’s Digest, 298, §24.

       Ibid. 2 Ed. 624.

       Ibid. 1 Ed. 296, §6.

   HOPKINS, C. J.

On the tenth day of December, eighteen hundred and thirty-five, a venire faci-as was issued by the clerk of the Circuit Court of Morgan county, commanding the sheriff of that county, to summon thirty-six men, who are named in the process, to attend the next term thereafter, of the Circuit Court of Morgan, to serve as jurors. At the time the process was issued, the law required the Judge of the ' County Court, the commissioners of revenue, the clerk-of the Circuit Court, and the sheriff, to select in the mode prescribed by law, from the list of free-holders and house-holders, which had been previously returned to the clerk, by the sheriff, such persons as a majority of these officers, might deem qualified to serve as jurors. From the whole number of persons thus selected, and summoned by the sheriff to attend the Court, and who may attend it, a grand jury, for the term, consisting of not less than thirteen, nor more than eighteen, is to.be drawn by lot. The residue of the persons summoned, the law requires to serve as traverse jurors,

If these officers fail to select persons to serve as jurors, such persons may be chosen under the act of eighteen hundred and eleven. Where jurors have not been drawn and summoned in the manner prescribed by law, or do not attend, the Court may direct the sheriff to impannel a jury instanter, of such persons as are by law qualified to serve on juries; and may from day to day, impannel juries of the by-standers, for the dispatch of the business before the Court.

The power given by the statute to a Court, is to enable it to obtain juries to try causes then in Court, and not to summon persons from whom a grand jury may be drawn, to inquire of offences, make presentments, and find indictments.

On the ninth of January, eighteen hundred and thirty-six, a statute was enacted, and took effect from its passage, which requires the clerk of the Circuit Court, and the sheriff of each county, under the superintendence of the Judge of the County Court of their county, to select from the whole number of persons qualified to serve on juries, twenty-four persons best qualified, in their opinion, to serve on the grand jury ; which persons so selected, it is made the duty of the sheriff to summons as grand jurors. So much of the statute law, that had been previously enacted, as required the persons who might be summoned by the sheriff, to serve as grand jurors, to be drawn by lot by the officers áppointed to ascertain who should be summoned, was repealed by the act last mentioned, and such of the persons .summoned to serve on the grand jury, as shall not he placed on the same, are made liable to serve on the petit jury.

The indictment against the defendant, was found by a grand jury impannelled from the persons who were summoned by the sheriff, in virtue of the process of the tenth of December, eighteen hundred and thirty-five. These facts were averred by the defendant, in a plea in abatement, which he pleaded to the indictment. To the plea, the counsel for the State, demurred. The Circuit Court sustained the demurrer, but referred the question arising upon it, as novel and difficult, to this Court to be decided.

The truth of the plea in this case, appears as well from the record as from the affidavit of the defendant, and the legal effect of the demurrer, as an admission by the State.

Before the act of January, eighteen hundred and thirty-six, the sheriff had no authority to summon any other persons to attend the next term of the Circuit Court of his county, than such as had been selected, in the mode prescribed by law, by the Judge of the County Court, commissioners of revenue, the clerk of the Court, and him,self. Since the act of January, eighteen hundred and thirty-six, his authority to summon persons to serve as grand jurors, is limited to such persons as have been selected by the clerk of the Circuit Court and himself, for the purpose, under the superintendence and inspection of the Judge of the County Court. The sheriff derives his whole . authority to summons persons to serve as grand jurors, from the selection of such persons by the proper officers, and if no such selection be made, he has no authority to summon any man to serve as a grand juror.

It cannot be ascertained, whether any man of the grand jury, by which the indictment in this ease was found, would have been selected by the proper officers, as one of the twenty-four -persons, which they were authorised to choose, as best qualified in their opinion, to .serve on the grand jury.

Persons summoned by a sheriff, to attend a Court as jurors, but not drawn and summoned, in the manner prescribed by law, are not competent to serve on a petit jury, unless they be summoned again, by a direction of the Court to the sheriff to summon jurors. Men impannelled as grand jurors, who wfere not selected and summoned to serve for the purpose, are as destitute of authority to inquire into offences and find indictments, as if they had voluntarily appeared in Court, and offered their service as grand jurors. The act of the Court in impannelling the grand jury, did not supply the want of authority in the sheriff to summons the persons who were placed upon it.

As to the question, whether the plaintiff in error ought not to have made his objection to the jurors, at the time they were impannelled, we are of opinion, that where men are without authority, no person is bound to appear and except to their want of authority to inquire into his conduct.

In the case of The people vs M’Kay, the Supreme Court of New York decided, that an indictment found by a grand jury, impannelled of persons who liad not been summoned in the mode prescribed by the law of that State, could not be sustained, and the judgment upon it was arrested, on a motion by the prisoner, after his conviction.

We are of opinion, the judgment on the demurrer, in this case, ought.to have been for the defendant.

Let the judgment be reversed, and the defendant remain in custody, until he be discharged by due course of law.

      Aikin’s Dig. 296, 298.

       Aikin's Dig. 298.

      Aikin’s Dig. 624, 2 Ed.

      18 Johns. Rep. 212.