author: PER CURIAM.

text:
    HILL vs M’NEIL, survivor &c.

    1. In a declaration by a surviving co-partner, for goods, wares, and merchandise, sold and delivered to defendant, by the co-partnership, it is sufficient, {after verdict,) that the plaintiff sets out in the commencement of his declaration the character in which he sues: It may be connected wit'h his name wherever it is mentioned in the declaration.
    Error to the County court of Wilcox county.
    Assumpsit, by a surviving partner for goods, wares, and merchandise, sold and delivered to the- defendant, by the co-partnership.
    At the July term, eighteen hundred and thirty-five, of the County court of Wilcox county, the plaintiff below, filed his declaration, as follows: John McNeil, surviving partner of the late firm of Robert Martin and John McNeil, trading in partnership, under the name of Martin & McNeil — complains of Rhydon G. Hill, in custody, &c. of a plea of trespass on the case on promises, &c. For that, whereas the defendant heretofore, to wit, on the twentieth day of February, in the year of our Lord one thousand eight hundred and thirty-three, at the county of MTilcox aforesaid, was indebted to the said plaintiff in the sum of five hundred and fifty-nine dollars and eighty-eight cents, for divers ggods, wares and merchandise, by the said Martin & McNeil, before that time sold and delivered to the said Rhydon G. Hill, at his special instance and request. And also, in the further sum of five hundred and fifty-nine dollars and eighty-eight cents, of lawful money of the United States, for money, by the said Martin \S& McNeil before that time, lent and advanced to, and paid out and expended for, the said Rhydon G. Hill, at his like special instance and request-: and being so indebted as aforesaid, be tbe said Rhydon G., in consideration thereof, afterwards, to wit, on the same day and year aforesaid, undertook, and faithfully promised the said plaintiíf lo pay him the said sum of money, when he the said defendant should be thereunto afterwards requested. Yet, although often requested, the said defendant has not paid said sum of money, or any part thereof but has wholly refused; to plaintiff’s damage, &c.
    To this declaration there were four pleas filed :—
    1. Non assumpsit.
    2. Payment and set-off.
    3. Accord and satisfaction.
    4. The statute of limitations.
    To the pleas there were replications, and issues to the country.
    And at July term, eighteen hundred and thirty-six, the parties came, and there came also a jury, who, having been elected, tried and sworn to try the issue, upon their oaths, said they found for the plaintiff, and assessed his damages at two hundred and thirty-six dollars, and ninety and a half cents, it was therefore considered by tbe court, that the plaintiff recover that sum of defendant, for his damages, as by the jury aforesaid, in manner and form aforesaid, assessed, and the costs by him, about his suit in that behalf, ex pended, — for which execution might issue, the defendant to be in mercy, &c.
    ' And thereupon defendant took his writ of error, &c., and at the present term assigned, — That in the record, proceedings and judgment below, there was manifest error, in this, to wit: That,
    1. The declaration contained no cause of action against the plaintiff in error, because it charged the indebtedness to the plaintiff below, in his individual character, and not as surviving co-partner, &c.
    2. The declaration charged the promise as made to plaintiff, and not to the plaintiff as surviving co-partner,

      And for these errors, plaintiff prayed that the judgment might be reversed.

      Peck and Clark for the plaintiffs.

      Porter, contra.
   PER CURIAM.

The sufficiency of the declaration in this case is called in question, for the first time, by the assignment of errors in this court. — If, therefore, a substantial cause of action is stated therein, the objection can not prevail.

The suit is prosecuted by McNeil, as the survivor of Martin. The allegation in the declaration is, that the defendant below was indebted to the plaintiff, for goods, wares and merchandise, by the said Martin & McNeil, before that time, sold and delivered. This indebtedness could alone arise to the plaintiff, by the death of Martin; and after verdict, we must connect the statement at the commencement of the declaration, as to the character in which the plaintiff sues, to his name, wherever mentioned in the declaration.— The-averments would then be in accordance with the most approved precedents.

The judgment must be affirmed.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    M’BROOM, et al. vs. THE GOVERNOR, &c.
    1. It is a general rule, in relation to all agents who collect money under a lawful authority, that until a demand or request is made for the same, they are not liable to a suit.
    2. So, a sheriff, who is an agent appointed by law to collect money on execution, may lawfully hold it, until a demand or request is made by one entitled to receive it. He is not bound to search out the plaintiff, and tender him the money collected, or pay it intp court.
    3. Therefore, — in an action or motion against a sheriff or bis securities, to recover moneys collected by him, and which it is alleged he has failed to pay over, an averment that a demand had been made before action brought, is essential, and a defect in this behalf will vitiate the declaration.
    4. The statute of non-claim presents a complete bar to an action against an executor or administrator, seeking to recover a claim against the estate of the testator or intestate, not. presented within eighteen months after the cause of action has accrued, or within the same time after the grant of letters testamentary or of administration ; and semble a creditor or any other person interested in the distribution, has an equal right with the executor or administrator, to insist on a plea to that effect.
    5. As a general rule, in all cases of joint contract, the extinction of the liability of the principal debtor, is also the extinction of the liability of the surety: but an exception obtains when the extinction is caused by operation of law:
    6. Therefore, — in an action, seeking to recover of the sureties to a sheriff’s bond, moneys, which it is alleged were collected by the sheriff, since deceased, and which he failed, in his lifetime, to pay over, and a demand for which was not presented to his administrator within eighteen months after the grant of letters of administration, a plea setting forth the death of the sheriff, the administralionj and the non-presentation by the creditor within the eighteen months, was held to contain no legal defence to the action, and that a demurrer to it was properly sustained.
    7. Mere passiveness, also, on ¡he part of a creditor, does not discharge a surety to a sheriff’s bond, as the creditor is under no legal obligation to be active, except at the request of the surety.
    Debt on bond. This was an action of debt, founded upon a writing obligatory, made by William Me-* Broom, as sheriff of the county of Madison, in the State of Alabama, in his life-time, (who has since died, and whose present administrators de bonis non, Richard B. Purdom and Thomas McBroom, were not sued,) and the defendants, on the fourth day of November, eighteen hundred and twenty-two, — by which said writing obligatory, the said William Mc-Broom, and the said defendants, acknowledged themselves to be bound to Israel Pickens, Governor of the State of Alabama, and his successors in office, in the j>enal sum of ten thousand dollars, for the payment of which they bound themselves, their heirs, executors and administrators, jointly and severally, by the said writing obligatory, with condition annexed, that if the said William McBroom, who had been duly elected sheriff of said county of Madison, should well, diligently and faithfully perform all the duties incumbent on, him, as required by law, in his said office of sheriff of the said county — the said obligation was to be void ; which condition of the said writing obligatory, the said William McBroom failed to perform, in this, that he,, as sheriff of the said county, by his deputy, John F. Mills, collected of Allen J. Davie, a large sum of money, amounting to the sum of nine hundred and twenty-four dollars and four cents, debt, damages and interest, (besides costs,) on the fifth day of January, eighteen hundred and twenty-four, as by return on a writ of venditioni exponas, in favor of Joseph Littlejohn and Hutchins G. Burton, (guardians of W, W„ Jones,) against one Allen J. Davie, which issued from the office of the clerk of the Circuit court of the said county of Madison, and which bore date on the sixteenth day of December, eighteen hundred and twenty-three, for five hundred and four dollars, debt, two hundred and twenty-five dollars and fifty cents, damages, besides sixteen dollars and seventy-five cents, costs, on a judgment of said court, of the sixth day of September, eighteen hundred and twenty, — which said sum, &c. the said William Mc-Broom had failed to pay over to the said Joseph Little-john and Hutchins G. Burton, (guardians of W. W. Jones,) and was then due and unpaid. The wi’it was issued on the fourteenth day of March, eighteen hundred and thirty-four, and on the eighteenth day of October, eighteen hundred and thirty-six, the plaintiff obtained leave to file his declaration, in which he alleged:
    That theretofore, to wit, on the fourth day of November, eighteen hundred and twenty-two, the said defendants and one William McBroom,and one Lewis Moore, who were not sued in the action, by their writing obligatory, signed with their names, sealed with their seals, and to the court there shewn — the date whereof, was the day and year last aforesaid— acknowledged themselves to be bound to Israel Pick-ens, governor of the State of Alabama, and his successors in office, in the penal sum of ten thousand dollars, for the payment of which, they bound themselves, their heirs, executors and administrators, jointly and severally — to be paid to the said Israel Pickens, governor, as aforesaid, and his successors in office, when they should be thereunto afterwards required. Which said writing obligatory had the condition annexed, that if the said William M’Broom, who had been duly elected sheriff of the county of Madison, should well, diligently, and faithfully perform all the duties incumbent on him, as required by law, in his said office of sheriff of said county — then said obligation to be void; otherwise to be and remain in full force. And the plaintiffs in fact, said, that William McBruom, sheriff, as aforesaid, entered on the duties of said office as shei’iff of said county of Madison: to wit, on the day and year last aforesaid, and that he did not well and diligently, and faithfully perform ffil the duties iucumbent on him, as required by law, in his said office of sheriff of said county; but had failed to perform the same, in this, that the said William McBroom, sheriff as aforesaid, by his deputy, John F. Mills, on the fifth day of January, in the year eighteen hundred and twenty-four, in said county, had collected, by virtue of a writ of venditioni exponas, which had, before that time, to wit, on the sixteenth day of December, eighteen hundred and twenty-three, came to his, said M’Broom’s hands, as sheriff, and which issued from the office of the clerk of the Circuit court of the said county of Madison, on the day and year last aforesaid, in favor of said Littlejohn and Burton, as guardians of said W. W. Jones, against the effects of one Allen J. Da-vie, a large sum of money, to wit, the sum of nine hundred and twenty-four dollars and four cents, debt, damages, and interest, besides costs; — said writ having issued on a judgment in favor of said Littlejohn and Burton, guardians, as aforesaid, for five hundred and four dollars, debt, two hundred and twenty-five dollars and fifty cents damages, besides sixteen dollars and seventy-five cents, costs, — said judgment had been obtained on the sixth day of September, eighteen hundred and twenty; in the Circuit court of said county; which said sum of money, he, the said William McBroom, sheriff, as aforesaid, wholly failed and refused to pay over to the said Littlejohn and Burton, guardians, as aforesaid ; and which said sum, said McBroom and said defendants, had hitherto, wholly failed and refused to pay to said Littlejohn and Burton, guardians, as aforesaid.
    And the plaintiff averred that John Gayle had succeeded the said Israel Pickens, as governor of the .State of Alabama. By means of all which premises, the plaintiff averred, that an action had accrued to him, to demand and have of defendants, the said sum of ten thousand dollars, as above demanded. Yet said defendants had not, (nor had said William Mc-Broom, or said Lewis Moore,) paid said plaintiff said sum of ten thousand dollars, above demanded, or any part of the same; but the same to pay, the plaintiff had theretofore wholly failed and refused, and still did refuse — to the damage of the plaintiffs, three thousand dollars, — and for that sum he sued, &c.
    And on the third Monday in October, in the year eighteen hundred and thirty-six, the plaintiff came and suggested the death of Robert Walton, since the issuance of the writ in this cause; and it was order-by the court, that the same be entered of record, and .abate as to him, &c.
    And afterwards, to wit, on the nineteenth day of April, in the year eighteen hundred and thirty-seven, the defendants came and defended the wrong and injury, when, &c., and said that the said plaintiff ought not to have and maintain his said action against them, because, they said, that they, the said defendants, in and by the said bond, mentioned in the said declaration, were sureties of the said William Mc-Broom, as sheriff of the county of Madison : That since the said cause of action accrued, which was set forth in the said declaration, to wit, on the first day of January, eighteen hundred and twenty-eight, in the said county, the said William McBroom departed this life. That afterwards, to wit, on the twenty-sixth day of May, eighteen hundred and twenty-eight, administration of all and singular, the goods and chattels, rights aud credits, that were of the said William McBroum, at the time of his death, who died intestate, had been, by the judge of the County court of said county, in due form of law, granted to John F. Mills and Charles McClellen, which would fully appear by the letters of administration as aforesaid, granted by the said judge of the County court of Madison, and issued by the clerk of that court, bearing date the day and year last aforesaid, and which said letters were then shewn to the court there. That after-wards, to wit, on the eighth day of August, eighteen hundred and twenty-eight, the said administrators published in the “ Southern Advocate,” which was then, a newspaper, printed in the county and State aforesaid, a notice, requiring all persons having'claims against the said William McBroom, deceased, to exhibit the same to the said administrators, within the time limited by law, or the same would be barred ; which said notice also stated the time of granting-said letters of administration, as aforesaid : and the same notice ivas published in said newspaper, continuously, for six weeks successively, once a week, during each of the six weeks, immediately succeeding the commencement of said publication as aforesaid.
    And said defendants said, that the said supposed claim, which was set forth in the said plaintiff’s declaration, and sought to be recovered by this suit, was-not presented to said administrators, nor to either of them, within eighteen months after the same accrued, or within eighteen months after said letters of administration were granted to said administrators, or within eighteen months after the publication aforesaid;— and all this the said defendants were ready to verify : wherefore they prayed judgment, if the said plaintiff ought to have or maintain his aforesaid action, &c.

      And for further plea in that behalf, said defendants said, the plaintiff his said action ought not to have or maintain, because they said that they were, by the bond mentioned in the plaintiff’s declaration, the sureties of said William McBroom, as sheriff of said county ; that since the cause of action, for which the suit was brought, accrued, to-wit, on the first day of January, eighteen hundred and twenty-eight, said William McBroom dej>arted this life: that afterwards, to-wit, on the twenty-sixth day of May, eighteen hundred and twenty-eight, in said county, by the judge of the county court of said county, said Mills and Mc-Clellen, in due form of law, were appointed administrators of the goods and chattels, rights and credits, of said William McBroom, deceased, which would fully appear by the letters of administration of the last mentioned date, granted by said judge, and issued by the clerk of said county court, to said Mills and McClel-len, which letters were then shewn to the court: that afterwards, to-wit, on the-day of-, and within two months next after the granting of the said letters of administration, said administrators published in the Southern Advocate, which was a newspaper printed in the county and state aforesaid, a notice requiring all persons having claims against said William McBroom, deceased, to exhibit the same to said administrators within the time limited by law, or the same would be barred; which said notice stated the time when said letters of administration were granted as aforesaid, and said notice was published in said newspaper for six weeks, once a week during each of the six weeks, immediately succeeding the commencement of said publication as aforesaid. And said defendants said, that the said claim which was set forth in the plaintiff’s declaration, and by the suit sought to he recovered, was not presented to said administrators, or either of them, within eighteen months after said letters of administration were granted to said administrators, and this the defendants were ready to verify.J Wherefore, they prayed judgment, if said plaintiff ought to have or maintain his aforesaid action thereof, &c.
    To these pleas, plaintiff demurred, and defendants joined in demurrer.
    Defendants also plead performance of the conditions of the bond, and the statute of limitations; to which pleas, replications were filed, and issues taken,. &c.
    And on the nineteenth day of April, eighteen hundred and thirty-seven, the plaintiff came, and discontinued his suit as to Robert Walton, on whom process was executed, and who had since departed this life: and thereupon the parties came, and also came a jury of good and lawful men, who being elected, tried and sworn, well and truly to try the issues joined, upon their oaths, said they found for the plaintiff; and assessed his damages, by reason of the premises, to the sum of fourteen hundred and nineteen dollars and forty-two cents. It was thereupon considered by the court, that the plaintiff recover against the defendants, William Derrick and Stephen McBroom, the sum of ten thousand dollars, the penalty of the bond in the declaration specified, besides the costs in that behalf expended, &c., to be discharged on the payment of the said sum of fourteen hundred and nineteen dollars and forty-two cents, the damages aforesaid, in form aforesaid, assessed.
    Pending the trial of the cause, defendants excepted to the opinion of the court, and tendered their bill of exceptions, which they prayed might be signed, sealed and ordered to be made a part of the record in said cause, which was accordingly done, &c.
    The bill stated, that on the trial of the cause, the plaintiff offered no proof to shew that a demand or application had ever been made to McBroom for the money in the declaration charged to have been received by him; and that upon this, the defendants asked the court to charge the jury, that no action would lie against the securities of the sheriff, for moneys collected by him, as such,-until after a demand for the same had been made; which instructions the court refused to give. To which opinion the defendants excepted, and tendered their bill, See.

    On the trial of the case in this court, it was admitted by the parties, that the judgment on the demurrer to the two first pleas, sustained the demurrer, and that it should be considered by the Supreme court, as if the same judgment was shewn in the transcript.
    And the plaintiffs in error assigned for error, that in the proceedings and judgment below, the court erred:
    1. In sustaining the demurrer of defendant in error, to the two first pleas of plaintiffs in error.
    2. In refusing to give the instructions asked for, as shewn by the bill of exceptions — for which they prayed that said judgment might be reversed, &c.
    And defendant denied that there was error in the record.

      Hopkins Sf Parsons, for plaintiffs in error.

      McClung, contra.
   GOLDTHWAITE, J.

This action is debt — instituted in the Circuit court of Madison, on a sheriff’s bond, signed by William McBroom, as principal, and the plaintiffs in error, as his sureties.

The breach assigned, is the non-payment of money, collected on a venditioni exponas.

The defendants pleaded four several pleas — the two first of which are substantially the same; and shew the death of William McBroom, in January, one thousand eight hundred,and twenty-eight — administration on his estate in May, one thousand eight hundred and twenty-eight, and publication thereof as required by law; and that the claim was not preséntéef to Me Broom’s administrators, within eighteen months after the grant of administration, or within eighteen months after the cause of action accrued. To these pleas there was a demurrer, which was sustained by the Circuit court. The third plea — conditions per-formed; and the fourth, the statute of limitations: on these, replications and issues to the country; on which a trial was had, and a verdict found in favor the plain-tiff. *

At the trial, no evidence being offered by the plaintiff, to shew any demand of the money collected, the court was requested to instruct the jury, that no action could be maintained, without shewing a demand— which request was refused, and the defendants excepted. To reverse the judgment rendered against them, the plaintiffs in error have brought the case into this court; and assign, that the Circuit court erred, in sustaining the demurrer to the two pleas, and in re-* fusing to give the instructions by them requested.

It is insisted, that all claims against the estate of any deceased person, not presented to the executor or administrator within eighteen months after the cause of action has accrued, or within the same pei’iod after the grant of letters testamentary, or of administration, are extinguished, and forever barred, under the statute of non-claim ; and hence it is inferred, that as this demand was extinguished as to McBroom’s estate, it can not be enforced against the plaintiffs, who are sureties.

The statute was certainly intended to present a complete bar, under which the executor or administrator might rest, with security, and proceed to distribute the estate, according to the directions of the will,,or under the statue of distribution, and the ,creditor, or any other person interested in the distribuí tion, would have an equal right with the executor or administrator, to insist on the exclusion of all demands, not presented within the period limited. So far, then, a@- the statute referred to, has a bearing on this case, it may be considered as enacting a com- - píete bar; and if the creditor was now seeking his remedy against the estate, a similar plea to those pleaded in this case, would interpose a complete de-fence. Such has been the construction given to similar statutes, in other States.

Admitting this, as the true construction, which must be given to our statute of non-claim, we will proceed to examine whether the consequences flow from this construction, which have been insisted on, by the plaintiffs in error. The general rule, without doubt, is, that the extinction of the liability of the principal debtor, is also, the extinction of the liability of the surety ; but an exception obtains, when this extinction is caused by operation of law. The same rule attaches to all cases of joint contracts. The extinction of the contract, as to one of several joint contractors, is an extinction as to all, but the same exception must prevail.

In the case under consideration no act is alleged to have been done by the creditor, which has affected the subject matter of the contract, or which has changed the situation of the parties. He is charged, alone, with having been passive, and with an act of omission,—by reason of which, it is said, his right is extinguished, as to all of the co-obligors. We look-in vain to the terms of the contract, for a sanction to this argument,—and if supported at all, it must be from the analogies of the law.

It is said, that the surety has the right to indemnity against his principal, for any injury which he may sustain, from the contract of suretyship, and that the remedy is gone, by the remissness of the creditor. If this be so, it must arise from one of two causes : either that the surety, when he pays money on the contract, has no remedy against the estate of his principal, or because that estaté is not able to indemnify him. If these sureties should now pay this bond, their right or cause of action against the estate of their principal, could not be said to have accrued previous to the payment — until then, it was not a debt due from the estate to them- ' The contract of Mc-13 room, by this bond, is of a two-fold character.— With the creditor he engages to perform the duties of his office, and with his sureties, by implication, that he will indemnify them, against any loss which they may sustain on his account. Both engagements are equally obligatory, but they can not accrue at the same period — and that of the surety, not until the time arrives when he shall have paid money, for his liability to the creditor. From this moment his cause of action accrues, and he has eighteen months within which to enforce it against the estate of his debt- or, and it is within the very terms of the statute.

If, in consequence of the delay of the creditor to pursue his remedy against the estate of the principal clebtor, a loss has accrued, it is not perceived how this circumstance, of itself, should destroy the. obligation of the surety, any more than in any other case, where loss is the consequence of the delay of the creditor. No case has, or, as it is believed, can, be shewn, in which it has been held, that mere passiveness will discharge the surety.

There is no legal obligation tobe active, except at the request of the surety, (Eyer vs Everett ) and the circumstance that the surety can not, in cases of a su-retyship of this nature, know when a default has taken place, ought not to place the creditor in a worse situation, than if the contract was absolute, and so definite, that the surety could,'at any time, call on the principal to proceed. The law gives to the creditor the right of security; and it was for the surety to consider the uncertain nature of his responsibilities, when he entered into the engagement.- He can not now, be permitted to say that he ought to occupy a more favorable position, than he would have done, if his liability was of a, more direct and certain nature.

It is supposed that the bankrupt and insolvent laws of Great Britain, must present questions analogous to the one which arises in this case, in as much as these laws provide for the extinction of the debt due from ■the bankrupt or insolvent debtor. Accordingly, we find, on reference to. many cases, the very principles maintained, which we have declared. Soutten vs Soutten; Goddard vs Vanderheyden; Hewes vs Mott; Newington vs Keyes; Wood vs Dodgson; Moody vs King; Dally vs Wolferston.

It seems to be admitted, by the argument, that this discharge of the surety, springs out of the statute of non-claim, if at all, and did not exist at common law; and yet, by the common law, in case of a partial insolvency, the omission of the creditor to proceed against the estate of the principal debtor, would have ■worked an entire loss to the sureties, as the whole estate might have been exhausted on other liabilities; and when the surety came to enforce his claim, he might be met with the plea, of fully administered.— The case of Cope vs Smith, is conclusive to shew, that an omission to sue, would be no defence at common law, or under .the statute of Pennsylvania, which does not extinguish the demand, but merely postpones the creditor not presenting his demand.

The case of The Nashville Bank vs Campbell et al, is only distinguishable from this case, by being founded on a direct liability to pay money; and the Supreme court of Tennessee held a similar, plea to be no answer to the declaration.

But the principle does not rest on authority alone— it is supported by the ¡plainest principles of equity.— If the estate of McBroom, the principal debtor, was either wholly or partially insolvent, it could neither be just or equitable, that the creditor should lose the whole of his demand, when, under no circumstances, could he have recovered it from the estate of the deceased debtor.

In such a case, to sustain the pleas, would operate as the infliction of a penalty, — and a reward would be given to the sureties, for the omission of the creditor, to prosecute his claim.

Even in cases where a creditor has two funds, to which he might have resorted, to secure his debt, one of which could not have been reached by the debtor, or by his surety, and this one has been lost, by the wilful omission of the creditor to proceed against it; yet these circumstances do not constitute a de-fence at law. Thus, in the case of Folliot vs Ogden, the facts were, that the defendant had been attainted by the State of N. Jersey, his estate and effects confiscated, and vested in the people of that State, and, in the first place made liable for his debts, and out of which was raised a fund more than sufficient to pay them— to which fund, the plaintiff, who was a citizen of New Jersey, might and ought to have resorted. It was held, by Lord Loughborough, and the court of Common Pleas, that the only relief of the defendant was in Equity.

If it is within the power of the plaintiffs in error to shew, .that the creditor in this case, might and ought to have resorted, in the first instance, to the fund created by the deceased debtor’s estate; and that, by reason of his culpable omission so to do, a loss will be sustained by thpm, if payment is enforced against them, on. the bond, — they might, perhaps, have relief in a court of equity, to the extent of the injury, according to the principles laid down in the case of Wright vs Nutt. This case, in the facts, is similar to the case of Folliot vs Ogden, but in the court of Chancery, which sustained a bill for relief, after judgment in a court of law, on the ground that the creditor could, and the debtor could not, have resorted to the particular fund. How far the principles established by these cases, may entitle the plaintiffs in error to relief, on a proper case, is a question which need not now be examined. r '

Our conclusion is, that the pleas pleaded, present no legal defence to this action; and if the declaration was sufficient in law, there would have been no error in sustaining the demurrer to them.

But, on looking into the declaration, we are satisfied that it also is vicious. There is no allegation, that the money collected by McBroom was ever demanded from him, or from his administrators, before the institution of this suit. This Court has already decided, (Barton vs Peck, ) in the case of a motion against a sheriff and his sureties, that such an averment is essential, — und we consider it equally so, in this case.

The sheriff is the agent, appointed by law, to collect the money on executions ; but he is not bound to search out the plaintiff, and tender to him the money collected. Neither is he required by law, to pay it into court. He holds it under a lawful authority, until a demand or request is made by one entitled to receive it. We are aware that the English rule is at variance with the views as now expressed.—Dale vs. Burch; Swain vs Morland; Jefferies vs Sheppard.— But in the case of Wilder vs Bailey; the rule adopted by this court, is laid down with reference to a statute similar to our own. •, ■

The general rule, in relation to all agents who collect money under a lawful authority, is, that until a demand or request made, they are not liable to a suit. Bee Armstrong vs Smith; Judah vs Dyott; Topham vs Braddoch; Taylor vs Bates; Rathbone v Ingalls; Williams vs Storrs.

These views shew that the exception taken before the jury, for the want of evidence of demand, was unnecessary; and as no averment was made, it was unnecessary to prove the fact: but, as the averment was omitted, in the declaration, the demurrer to the pleas should have been overruled, and the declaration pronounced bad.

The judgment rendered, must be reversed, and the cause remanded; and the pleadings may be amended in the court below.

      Aikin’s Digest, 153.

      6 Conn. Rep.28 ; 15 Mass. Rep. 6: 16 ib. 179; 3 New H. Rep. 491; 13 Mass. Rep. 201; § Piek. 140.

      2 Russ. 381.

       1 D. & R. 521: 5 B. & A. 852.

      3 Wilson, 262.

      6 Taunt. 329.

       4 B. & A. 493.

       2 M. & S. 195.

       4 D. & R. 30.—2 B. & C. 558.

       3 Ib. 269,

       8 Serg. & Raul. 110.

      MS. 7 Yerger.

      1 Hen. Black. 123.

       1 Hen. Black. 136.

      1 Stewart & Porter, 486.

       3 Camp. 347.

       1 B. & B. 370.

       3 B. & A. 696.

       3 Mass. 294.

       3 Black. In. Rep. 251.

       3 Black. In. Rep. 324.

       1 Taunt. 572.

      5 Cowen. 376.

       7 Wend. 320

       6 Johns. Ch. Rep. 353.


author: COLLIER, C. J.

text:
    BROUGHTON, et al. vs. THE PRESIDENT AND DIRECTORS OF THE BANK OF THE STATE OF ALABAMA.
    1. Where notices, seeking to render a sheriff and his securities, liable for monies collected on execution, and which it is alleged he has not paid over, are returned executed, — they must be produced at return term, and the motion indicated by them, submitted, or they will be held to have spent their force and availability.
    2. A notice to the sheriff alone, under the statutes of 1819 and 1826, authorises a judgment against him and his securities,- or any one, or either of them, for monies collected on a ft. fa. and not paid over, on demand duly made.
    3. A notice, in such a case, should contain a statement of every thing to be proved, in order to a recovery.
    4. And a special demand on the sheriff, should be made, averred and proved.
    5.'Where a plea is eraséd, by drawing a pen over it, the Court will, if necessary, presume that it was done by leave of Court.
    Error from Dallas Circuit court.
    This action was commenced by notice, as follows j
    State of Alabama, Dallas County — ss.

      To Jesse C. Farrar, formerly sheriff of Monroe county, in said State, and to Leonard Scott, Abel Farrar, Joseph Nettles, senior, Nathaniel Broughton, Daniel D. Shumate, James Wade, and Daniel McIntosh, the securities of the said J. C. Farrar, for the due performance of his official duties of sheriff — Take notice- — -

      “A judgment was rendered in and by the Circuit court oil Dallas county, at the April term, one thousand eight hundred and twenty-six, of the said court, for the sum of five hundred and seventy dollars, debt, and eleven dollars and forty cents, damages, besides costs of suit, in favor of the President and Directors of the Bank of the State of Alabama, and against James Knight, Josiah Thomson and Randal Harris, which judgment was superseded — bond and security having been given for a writ of error. The said judgment was affirmed, on certificate, by the Su-> preme court of the State, at the January term, one thousand eight hundred and twenty-seven of said court, with the damages given by statute — for all which, judgment was rendered by said last mention-* ed court, as well against the said James Knight, Josiah Thomson and Randal Harris, as against Cullen C. Knight,,James D. Godbold and Ezra Hill, their sureties in the bond for the writ of error. — To satisfy all which, with the costs of the Circuit court aforesaid, an execution, or writ of fieri facias, issued from the Circuit court of Dallas county, on the twenty-first day of May, one thousand eight hundred and twenty-seven, in favor of the plaintiffs, and against the said James Knight, Josiah Thomson, Randal Harris, Cullen C. Knight, James D. Godbold and Ezra Hill, defendants in the execution — for the sum of six hundred and fifty seven dollars seventy-two cents and three fourths of a cent.
    This execution was made returnable at the October term, one thousand eight hundred and twenty-seven, of said Circuit court. It was directed to the sheriff of Monroe county, aforesaid, and commanded him to make the sum of'six hundred- and fifty-seven dollars and seventy-two and three-fourths cents, out of the goods and chattels,.lands and tenements of said defendants in the execution.
    This execution came to the hands of Jesse C. Far-xar, then sheriff of Monroe county . — -lie lias made the money thereon due ; but has failed to pay it over, as he was in duty bound to do. The following are the several items for which the execution issued, to wit, debt, five hundred and seventy dollars; damages, eleven dollars and forty cents; damages in the Supreme court, fifty-eight dollars and fourteen cents; costs, eighteen dollars and eighteen and three-fourths cents.
    At the next term of the Circuit court for Dallas county, to be held at Cahawba, on the fourth Monday of this month (September,) one thousand eight hundred and thirty, the attorney of the President and Directors of the Bank of the State of Alabama, will make a motion to the court, for judgment against you, or as many of you as receive notice, for the amount of money received by the said Jesse C. Far-rar, as sheriff, on said execution, and not paid over by him,- — -together with such damages as arc given by statute, for such his default. Dated the eighth day of September, one thousand eight hundred and thirty. The sheriff of .Monroe county will execute this notice : hand a copy to defendants, and return this notice,” &e,
    This notice was served on Abel Farrar, Daniel D. Shumate, Nathaniel Broughton and Daniel MTntosh. Defendant, Nettles, not found ; and defendants, Wade and Scott not in the county.
    The following notice was issued to James Wade, one of the defendants, in Dallas county:
    “ State of Alabama, Dallas county. To Jesse C„ Farrar, formerly of the county of Monroe, in said State, and to James Wade, one of the securities of the said J. C. Farrar, for tile due performance of hie official duties of sheriff. Take notice :- — A judgment was rendered in and by the Circuit court of Dallas county, at the April term, one thousand eight hundred and twenty-six, of said county, for the, sum of five bun™ dred and seventy dollars, debt, and eleven dollars and forty cents, damages, besides coots of su it, in favor of the President and Directors of the Bank of the State of Alabama, and against James Knight, Josiah Thomson and Randal Harris. This judgment was superseded ; bond and security having been given for a writ of er - ror, — and the said j udgment was affirmed, on certificate, by the Supreme court of the said State, at the January term, one thousand eight hundred and twenty-seven, of said Supreme court, with the damages given by statute, — -for all which, judgment was rendered by said last mentioned court, as well against the said James Knight, Josiah Thomson and Randal Harris, as against Cullen C. Knight, James I). God-bold and Ezra Hill, their securities in the bond, for the writ of error. To satisfy all which, with, the costs of the Circuit court, aforesaid, an execution, or a writ ol fierifacias, issued from the Circuit court of Dallas county, on the twenty-first day of May, in the year one thousand eight hundred and thirty-seven, in favor of the plaintiffs, against the said James Knight, Josiah Thomson, Randal Harris, Cullen C, Knight James D. Godbold, and Ezra Hill, defendants in the execution, for the sum of six hundred and fifty-seven dollars seventy-two cents and three-fourths oí' a cent This execution was made returnable at the Octo ber term,one thousand eight hundred and twenty-seven, of said Circuit court, it was directed to the sheriff of Monroe county aforesaid, and commanded him to make the said sum of six hundred and fifty-seven dollars seventy-two cents and three fourths of a cent, out of the goods' and chattels, lands and tenements of --.aid defendants in the execution.
    This execution came to the hands of Jesse C„ Far-rar, then sheriff of Monroe county * he has made the money thereon dun; but has failed to pay it over, as he was in duty bound todo.
    The following nr'-* the ‘'everfd itohis for which «he execution issued, to wit, debt, five hundred and seventy dollars ; damages, eleven dollars and forty cents ; damages in the Supreme court, fifty eight dollars and fourteen cents; costs, eighteen dollars and eighteen and three fourths cents.
    At the next term of the Circuit court of Dallas county, to be held at Cahawba on the fourth Monday in the month of September, one thousand eight hundred and thirty — the attorney of the President and Directors of the Bank of the State of Alabama, will make a motion to the court, for judgment against you, or as many of you as receive notice, for the amount of money received by Jesse C. Farrar, as sheriff, on said execution, and not paid over by him: together with such damages as are given by statute, for such the default of the said Jesse C. Farrar. Dated the eighth day of September, one thousand eight'hundred and thirty.
    The sheriff of Dallas county will execute this notice, -on such of the defendants as may be found in his county, and return the same to the next term of the Circuit court of Dallas county.”
    This notice was returned, as executed on James Wade. — None of the other parties found in the county-
    The following alias notice was subsequently issued, t© wit:—
    “ The State of Alabama, Dallas county, to wit:— To Jesse C. Farrar, formerly sheriff of Monroe county, in said State, and Leonard Scott, Abel Farrar, Joseph Nettles, senior, Nathaniel Broughton, D. Shu-mate, James Wade and Daniel M’Intosh, the securities of the said J. C. Farrar, for the due performance of his official duties of sheriff. Take notice : — A judgment was rendered by the Circuit court of Dallas county, at the April term, one thousand eight hundred and twenty-six, of said court, for the sum-of-five hundred and seventy dollars, debt, and .eleven dollars and forty cents, damages; besides costs of suit, in favor of the President and Directors of the Bank of the State of Alabama, and against James Knight, Josiah Thomson, and Randal Harris. This judgment was superseded, — bond and security having been given . for a writ of error, and tbe said judgment was affirmed on certificate by the Supreme court, with the damages given by statute : for all which, judgment was rendered by said last mentioned court, as well against the said James Knight, Josiah Thomson and Randal Harris, as against Cullen C. Knight, James D. Godbold and Ezra Hill, their securities in the bond for the writ of error. To satisfy all which, with the costs of the Circuit court aforesaid, an execution or writ offieri facias issued from the Circuit court of Dallas county, on the twenty-first of May, one thousand eight hundred and twenty-seven, in favor of the plaintiffs, and against the said James Knight, Josiah Thomson, Randal Hams, Cullen C. Knight, James D. Godbold and Ezra Hill, defendants in the execution, for the sum of six hundred and fifty-seven dollars and seventy-two cents and three fourths of a cent.
    This execution was made returnable at the October term," one thousand eight hundred and twenty-seven,, of said Circuit court. It was directed to the sheriff of Monroe county aforesaid, and commanded him to' make the said sum of six hundred and fifty-seven dollars and severty-two cents and three-fourths of a cent, of the goods and chattels, lands and. tenements of said defendants in the execution.
    This execution came to the hands of Jesse C. Fai'-rar, then sheriff of Monroe county. He has made the money thereon due; but has failed to pay it over, as he was in duty bound to do.
    The following are the several items, for which the execution issued, to wit, debt, five hundred and seventy dollars; damages, eleven dollars and forty cents; damages, in the Supreme court, fifty-eight dollars and fourteen cents; costs, eighteen dollars and eighteen three fourths cents.
    At the next term of the Circuit court for Dallas county, to be held at Cahawba, on the fourth Monday in April next, the attorney of the President and Di rectors of the Bank of the State of Alabama, will make a motion to the court for judgment against you, or as many of you as received notice, for the amount of money received by Jesse C. Farrar, as sheriff, on said execution, and not paid over by him, together with such damages as are given by statute, for such his default. This twenty-second March, one thousand eight hundred and thirty-one.
    This notice may be considered in the nature of an alias notice, a similar one having issued, returnable to last term of said Circuit court; but which appeared not to have been served on J. C. Farrar and some of his securities; and which motion was continued. Dated twenty-second March, one thousand eight hundred and thirty-one.
    The original has been executed on Abel Farrar, Daniel Shumate, Nathaniel Broughton and Daniel M’Intosh, &c. This notice was executed,by the sheriff, on Jesse Farrar, and returned,” &c.
    And at April term, one thousand eight hundred and thirty-one, the plaintiffs came, and the defendants be ing solemnly called to appear and plead to issue, came not. It was therefore considered by the court, that the plaintiffs recover of the defendants, the damages they may have sustained in the premises: but, because it was not known to the court what those damages were, thei’efore, let a jury come at the next term of this court to inquire of the damages in this case.— The case was discontinued, as against Joseph Nettles and Leonard Scott, oil whom there was no notice or' process served; and the cause was continued, &c.
    And at Spring term, of one thousand eight hundred ;sad thirty-two, the parlies came: and on motion, fbb judgment by default, in this cade was set aside, and leave was granted to defendants to plead to the merits; and that the deposition of a witness be taken, See.

    And defendant,. James Wade, came and craved, oyer of the bond, and oyer was granted, and the bond was read him, in the words following, to wit
    “ The State of Alabama, > rp “Monroe County, ) ° WI ‘
    “ Know all men by these presents, that I, Jesse C, Farrar, as principal, Leonard Scott, Abel Farrar, Joseph Nettles, senior, Nathaniel Broughton, Daniel D. Shumate, Campbell Sharp, Jamés Wade, and Da - niel MTntosh, as securities, are held and firmly bound unto Israel Pickens, Governor of the State of Alabama, and his successors in office, in the just and full sum of twenty thousand dollars, for which payment, well and truly to be made, wo bind ourselves and each of our heirs, executors, administrators and assigns, jointly and severally, firmly, by these presents. Sealed with our seals, and dated this tenth day of September, in the year of our Lord, one thousand, eight hundred and twenty-five; and of the Independence of the United Slates of America, the fiftieth year.
    The condition of the above obligation is such, that whereas the above bound Jesse C. Farrar, has been duly elected, and commissioned the sheriff for the county of Monroe, and State aforesaid. Now, if the said Jesse C. Farrar, shall well and truly perform, and faithfully discharge the duties of his said office of sheriff, as aforesaid, then this obligation to be void- — else l.o remain in full force and effect.
    [Signed.] Jesse C. Farrar. [n. s.]
    Leonard Scott [l. s]
    Abel Farrar, [n, s.]
    Joseph Nellies [L. s.]

      [Signed.] Nath- Broughton. [l. s.]
    Daniel D. Shumate, [l. s.] James Wade. [l. s.]
    Daniel M’Intosh. [u. s.]
    “ Filed in my office, by J. C. Farrar’s handing the same to me, this first day of Au- ^ gust, one thousand eight hundred and twenty-six.
    “ J. H. Draughon, Clerk.’’
    And he defended the wrong and injury, when, &c. and for plea, said, that plaintiffs ought not to be permitted to have, or maintain their action thereof against him — because, he said, that the said James Wade signed said bond for the said Farrar, as sheriff of Monroe county, upon the belief, condition, &c- and no other, that John Murphy and Campbell Sharp, whose names were in the body of said bond, should sign and seal the said bond: That he signed the said bond for Farrar, and delivered it to the said Farrar, to be delivered and offered to the County court for approval, when Murphy and Sharp should have signed and sealed the same : That the said bond was never approved in court as required by the statute,— and therefore, he said that the said deed was delivered as an escrow. Wherefore, he prayed judgment, &c.
    The said James Wade also made oath that he signed the bond, when presented to him by the said Far-rar, and that the names of Sharp and Murphy, were then in the same, as joint-obligors; and that Farrar told the deponent, that they were likewise to sign the same: That under the impression and belief and confident expectation, that they would sign the same, he delivered the bond again to the said Farrar, for their signatures, which have never been made to the bond;
      and that he never delivered or signed the same in any other manner, whatever, &c.
    To this plea of defendant, Wade, the plaintiffs demurred, and defendant joined in demurrer, and the general issue, in short by consent; and plain-
    The defendants also pleaded, non-assumpsit, nil debit, tiffs joined issue upon the pleas, in the same manner. [There seems to have been a pen drawn through these pleas. — Clerk.]
    And then said defendant, James Wade, for a further plea, came and demanded oyer of the said supposed writing obligatory, and the conditions thereof, and every part thereof, — and, for plea, said the plaintiffs ought not to have or maintain their action thereof, against him; because, he said, that he did not execute and deliver the said writing obligatory, above set forth, in said plaintiffs’ declaration, or procure it •to be done ; — and that, he prayed might be enquired of by the country, &c.
    And to this plea the said defendant also made oath, thathe signed and sealed the said bond above described, and delivered it to said Jesse C. Farrar, the principal therein, believing that John Murphy, whose name was in-the penal part of said bond, would execute the same, and to be' delivered to the County court of said county, when said Murphy should execute the same : That Murphy never did sign said bond, and that the said bond never was delivered to, accepted or approved by, the judge of the County court of said county of Monroe, — and so never was delivered by defendant, or any one, by his authority — according to the best of his knowledge and belief, &c.
    And to this plea of defendant, Wade, the plaintiffs also demurred, and defendant joined in demurrer.
    The case was then continued until the Spring term of one thousand eight hundred and thirty-four, when the demurrer of the plaintiffs, to the separate plea put in by James Wade, one of the defendants, and the matters arising under said demurrer, were considered by the court; and it was adjudged by the court, that said demurrer be sustained, and that leave be given to said Wade to amend. Whereupon, said James Wade put in the plea of non est factum, to which the plaintiffs demurred; and the cause was again heard on the matters arising on the demurrer, when it was adjudged by the court, that the said last mentioned demurrer be overruled ; and, the plaintiffs declining to plead over, or to reply to said plea, it was considered by the court, that the judgment on the demurrer be final, and that said defendant, James Wade, go thence, &c.
    On motion of plaintiffs, this-cause then came on, as to the other defendants, against whom the cause had not theretofore been discontinued, for want of service of notice: and, it being made to appear to the court, that Abel Farrar has died since the last continuance, on motion of the plaintiffs, the case was abated, as to said Abel Farrar. And, the said Jesse C. Farrar, Daniel D. Shumate, Nathaniel Broughton and Daniel M’-Intosh, on whom the notice in this case was made known, saying nothing in defence, but the motion as to them, remaining wholly undefended. And, the plaintiffs having produced sufficient evidence to the court, that the notice in this case had been duly executed on the defendants, J. C. Farrar, D. D. Shumate, Nathaniel Broughton and Daniel M’Intosh; and that Jesse C. Farrar was sheriff of Monroe county, and that Shumate, Broughton and M’Intosh were the securities of said Farrar, as such sheriff; and that while Jesse C. Farrar was such sheriff, an execution, such as described in the notice, was issued to said Farrar, and that thereon the said Farrar, as such sheriff, had levied, and collected the amount for which execution issued ; and that the money so collected, had been duly demanded of said Jesse C. Farrar, on or before the twentieth day of April, one thousand eight hundred and thirty, and not paid over by him. It was therefore, considered by tbe court, that the plaintiffs recover of the defendants, the sum of six hundred and thii’ty-nine dollars and fifty-four cents, as the amount of the debt of the plaintiffs, so collected by the said Jesse C. Farrar; as also the sum of one thousand five hundred and thirty-four dollars, their damages, at the rate of five per cent, per month, from the twentieth day of April, one thousond eight hundi’ed and thirty, when the amount collected by said Farrar was demanded of him, until the present time. It was also considered by the court, that the plaintiffs recover of said defendants, the sum of eighteen dollars and eighteen and three-fourths cents, the costs of the suit described in the notice, and which were collected by said Farrar, as also the costs of this suit — for all of which execution might issue, &c.
    Whereupon, the case was brought to this court upon writ of error, at the suit of plaintiffs in error, who, at this present term assigned for error'—
    1. That judgment was rendered against them, and in favor of James Wade, one of the defendants, in the court below.
    2. That no sufficient cause was shewn to the court below, to authorise the same to render judgment against them.
    3. That no sufficient notice was given to them.
    4. That judgment is rendered against them for too large a penalty, and does not conform with the notice of the plaintiffs below.

      Porter, for plaintiffs in error
    doubted whether the bond given by the sheriff, for the faithful performance of duty, in this case, was such as would warrant plaintiffs below, in a recovery, in this form of action — and quoted Seaman vs Dufpliey, (4 Stewart & Porter 159,) to that effect, and also Aikin’s Digest, 338. To shew that a demand for the money collected, ought to have been made on the sheriff, and alleged in the proceedings below, and also proved, before defendants could be liable, he cited, 1 Stéwart & Porter, 486 ; Ibid, 471. It did not appear that the money sued for, had been received, while the fi.fa. was alive, which was indis-pensible, to authorise a recovery. — 2 Stewart & Porter, 109 — 111. The statutes, under which the proceedings were brought, ought not to be construed in pari materia; and therefore, plaintiffs below, ought to have set forth fully which of the statutes they determined to rely upon. — Me Whorter et al. vs Marrs, Alabama Reports, 376. To shew that the statute'of limitations was a bar to the action. — Aikin’s Digest, 122, sec. 46 ; 1 Stew. Rep. 263. The notice should have issued under the seal 'of the Bank. — Ala. Rep. 23; 2 Porter’s Rep. 540.

      Clark, contra
    cited 1 Peters, 74; 5 Johnson, 160 ; 1 Pick. 500; Ala. Rep. 360; 1 Stew. 425; 2 lb. 13. There was no sufficient cause for objection to the judgment; and the objection made, was too general •to be noticed as an assignment. — Ala. Rep. 169. No discontinuance could take place. — 3 Porter, 398. A judgment by nil dicit was good, though there was no plea. There was no assignment, that there was no jury to pass upon the issues made, and therefore the act, (Aik. Dig. 272, sec. 82,) could not be made to apply. — Ala. Rep. 160, 425. Concerning the objection derived from the statute of limitations, he cited Chitty’s Con. 338, et' ante. If an appearance were entered, all obje'etions to the notice were waived. — 2 cases in 3' Stewart; 1 Porter’s Rep. 431; 1 Stew. Rep. 46.
   COLLIER, C. J.

On the eighth day of September, one thousand eight hundred and thirty, the defendants in error, by their attorney, issued two notices of like tenor — the one directed to the sheriff of Monroe, and the other to the sheriff of Dallas ; in each of which it is stated, that Jesse C. Farrar, late sheriff of Monroe, had on a fieri facias, (particularly recited,) directed to and received by him from the Circuit court of Dallas, against the goods, &c. of James Knight, and others, collected the amount required to be made by its mandate. In the notices it is alleged, that Farrar “ had failed to pay over as he was in duty bound to do,” the money thus collected.

It is further stated, that Leonard Scott, Abel Far-rar, Joseph Nettles, senior, Nathaniel Broughton, Daniel D. Shumate, James Wade, and Daniel McIntosh, were the securities of Farrar, in his official bond, and that a motion would be made against them and their principal, at the next succeeding term of the Circuit court of Dallas, to be holden on the fourth Monday in September, one thousand eight hundred and thirty, to recover a judgment for the default of the latter, in failing to pay over the money collected on the fi.fa. against Knight.

Though the sheriffs" to whom these notices were respectively directed, returned them executed — each on one or more of the sureties, yet no proceedings were thereupon had, at their return term. On the twenty-second of March, one thousand eight hundred and thirty-one, a counterpart of the previous notices was issued to, and executed by the sheriff of Monroe, on Jesse C. Farrar. At its return term in April, one thousand eight hundred and thirty-one, a judgment by default was rendered against him, and his sureties, except Joseph Nettles, and a writ of inquiry awarded. This judgment, in the spring term of one thousand eight hundred and thirty-two, was set aside, and leave given to plead to the merits.

In the record, we find the following: “ Non assump-sit — nil debit — general issue — in short by consent.— G. and Goldthwaite. Issue — Pickens Sf Calhoun, plaintiffs’ attorneys.” “ There seems to have been a pen drawn through these pleas — Clerk.”

The cause was then continued from term to term until the spring of one thousand eight hundred and thirty-four, when Wade, one of the defendants below, craved oyer of the bond and condition, and pleaded non est factum, verified by special affidavit: to which plea, defendants demurred, and their demurrer being overruled, no replication was offered, and judgment final was rendered for Wacle, and against the plaintiffs in error, for a failure to plead; and they now seek a revision of that judgment here

The notices issued in September, one thousand eight hundred and thirty, must be placed entirely out of view. They were preparatory to a motion to be made, at a term of the Circuir court, next succeeding their issuance ; and to make them available, it was necessary that they should have been produced, and the motion indicated by them, submitted to the court, even if it were intended to continue it until a future term. But no proceedings being then had, these notices must be taken to have spent their force, and could not, at an after term, furnish a warrant for the exercise of jurisdiction by the court.

The case must then be considered, with reference alone to the notice of March, one thousand eight hundred and thirty-one — which was executed on Jesse C. Far-rar. Under the statutes of one thousand eight hundred and nineteen, and one thousand eight hundred and twenty-six, a notice to the sheriff, authorises a judgment against him and his securities, for money collected on a fi.fa. and not paid over on demand duly made. The latter act goes farther, and entitles the plaintiff not only to a judgment against the sheriff, and his securities, but against any one or either of them.

In the case of Neale, et al. vs. Caldwell, it is said — • It has been heretofore determined by this court, in the case of McWhorter, et al. vs. Marrs, that notice to the sheriff is sufficient to authorise a judgment against him, and his securities, in a case of this kind.” And speaking of the act of one thousand eight hundred and nineteen, the court say — “ This statute admits of but one construction, and it is, that proof of notice either to the sheriff or his securities, is sufficient to entitle' the plaintiff to a judgment against all the obligors in the sheriff’s bond.

A notice to the sheriff, being sufficient to authorise the rendition of judgment against his securities, for a default in paying over money collected by him, let us inquire, whether the proceedings in the case at bar, be conformable to law. It can hardly be pretended, that any one of the defendants in the motion, except Wade, was before the Circuit court. It does not appear who moved to set aside the judgment by default, nor who inteiqDOsed the pleas “ non assumpsit, nil debit, and the general issued It is, however, but a just inference, that Wade was the only party who defended; inasmuch as there is nothing in the record to shew, that any one else appeared. And even if it were doubtful for whom “ non assumpsit, 8$c.” we^e pleaded, no inference could be made to the prejudice of the plaintiffs in error; as it seems from a memorandum of the clehk, that they had been erased — which, if necessary, we would presume to have been done by leave of court.

The plaintiffs then, never having appeared to contest the motion before the Circuit court, it is competent for them to object to the sufficiency of the notice, or point out other irregularity in the proceedings. The notice is intended to subsei've the two-fold purpose of bringing the party into court, and of advising him of the complaint against him. And according to the construction hitherto placed upon our statutes, should contain a statement of every thing to be proved, in order to a recovery.

The .statutes regulating motions against a sheriff, and his securities, for money collected by the former, require that a demand should be made of the sheriff, before he is liable to such a proceeding. In the case of Barton et al. vs F. and E. Peck, which was a motion against the sheriff and his securities, for the failure to pay over money collected on a fi. fa., the court remark, that “ There is no doubt, it is material to prove a special demand, and the time at which that demand was made; and wherever a demand or notice is material to be proved, it should be’averred in the declaration; it should also be averred by whom this demand was made.”

In the case before us, the notice does not state that the money was demanded of the sheriff, — nor does it contain any thing which is equivalent to such statement. And the plaintiffs not having done any act which can preclude an exception to the notice, the case just cited, is conclusive to shew, that the judgment must be reversed.

Whether, in prescribing the requisites of a notice, the court should have laid down the rule with so much strictness, as to require a particular allegation of every fact,.material to be proved, is a question which we are not inclined to consider. It is due to the certainty of the law, that we should sustain the opinions of this court, unless inconvenience or injury would result from such a course. In the present case we can discover none.

We decline examining the many other points raised in the argument, as the view already taken, disposes of the entire case.

GOLDTH WAITE, J. not sitting in this case..

       Aikin’s Dig. 1st ed. 164 and 174.

       3 Stewart’s Rep. 134.

      Ala. Reps. 376.

      1 Stewart & Porter, 486.


author: ORMOND, J.

text:
    HARSISON vs MARSHALL, for use, &c.
    Í. Where one, beneficially interested in a cause, from ignorance of the law, surrenders bis rights, he cannot hold the opposite party to a knowledge of the law, and charge him for the loss occasioned by his own indiscretion.

      2. Therefore, where a constable levied on and sold property, already bound by executions in the hands of the sheriff^ and paid over the money to the plaintiffs in the executions in the sheriff’s hands, and the plaintiffs afterwards paid the same back to the constable, under advice that his levy and sale had divested the executions in the sheriff’s hands of their lien— it was held, that the plaintiffs could not afterwards charge the sheriff with negligence, although he also was advised that the proceedings of the constable had divested the exe- ' cutions in lvis hands of their lien, and had acted under that advice.
    3, The lien of executions, in the hands of the sheriff is not divested by a subsequent levy and sale, by a constable, of defendant’s effects, notwithstanding the act of eighteen hundred and twenty-eight.

      4. The transfer of a judgment, carries with it a right to sue out execution, or to bring suit in the name of the original plaintiff ; and as any defence existing against plaintiff will be available to defendant, so any right the plaintiff is entitled to, will be available to the assignee. Therefore, — where an assignment of a judgment and execution, was made to a sheriff in the month of June, which had come into his hands in November previous, it was held that the assignment did not extinguish his liability for failing to make the money previous to the transfer.
    6. Questions that address themselves to the sound discretion of the Circuit Court, being deductions from facts, and not involving matters of law, cannot be reviewed in this court.
    Error from the Circuit court of Dallas.
    Action on the case. At the September term of the Circuit court of Dallas county, the plaintiff, who sued for the use of Peter Wyckoff, Joseph Pickens and Plugh Ferguson, declared against the defendant, for that, whereas, theretofore, to wit, at the term of the Circuit court, for the county and 'State aforesaid, which was held on the first Monday in October, eighteen hundred and twenty-nine, at-to wit, in the county aforesaid, the plaintiff, by the consideration and judgment of said court, recovered against James and Elisha Owens, and William Huddleston, their security, in their appeal bonds, ten several judgments, each for the sum of forty-five dollars, debt, and one dollar and sixty-eight cents, damages, for its detention, and six dollai’s and seventy-five cents, as fifteen per cent, damages, because of the appeals in said ten cases, having been taken for delay ; and also costs of suit, which, in and by said court were adjudged to the said plaintiff — whereof the said James and Elisha Owens, and William Huddleston, their security in the appeals, were convicted, as by the records, proceedings and judgments thereof, of said ten cases still remaining in the court aforesaid — will more fully appear.
    And the said plaintiff further says, that the said judgments being in full force, and the said debts and damages, in the said ten judgments mentioned, remaining unpaid, and unsatisfied, the said plaintiff, on the first day of May, eighteen hundred and twenty-eight, for obtaining satisfaction thereof, sued and prosecuted out of said court, on said ten judgments, certain alias writs, called fieri facias, directed to the sheriff of said county, by each of which said alias writs of executions, the said sheriff was commanded that of the goods and chattels, lands and tenements, of the said James and Elisha Owens, and William Huddleston, in said county, he should cause to be made the sum of forty-five dollars, debt, ond one dollar and sixty-eight cents, and six dollars and seventy-five cents, for damages, for the detention of said debt, and for fifteen per cent, damages; and also nine dollars and eighteen and three-fourths cents, for his costs o'f suit, to him, by said court adjudged, by each of said ten judgments ; and that he should have the said several suns of money, before said court, at the term thereof, of the first Monday in October, eighteen hundred and twenty-eight, to render to said plaintiff, &c. Each of which said ten alias writs, afterwards, and before the return thereof at the court, on the fifth day of May, eighteen hundred and twenty-eight, at, to wit, in the county aforesaid, was delivered to and received by said defendant, who then, and from thence, until and at, and after, the return of each of the said ten alias writs, was sheriff of said county, to be executed in due form of law. And although' there were then, and afterwards, and before the return of each of said ten alias writs, divers goods and chattels of the said James and Elisha Owens, and William Huddle-ston, within the county aforesaid, could, and might, and ought to have levied the said several sums of money above mentioned in each of said ten alias writs, specified and directed to be levied, as aforesaid, at ■---- to wit, in the county aforesaid, whereof the said defendant, so being such sheriff, as aforesaid, had notice there.
    Yet the said defendant, so being sheriff of the county aforesaid, not regarding the duty of his office, as such sheriff;, .but contriving, and wrongfully intending to injure, and prejudice, and aggrieve said plaintiff) in this behalf, and deprive him of the moneys mentioned in each and all said ten alias writs above mentioned, and directed to be levied as aforesaid, and of the means of obtaining the same, did not, nor would at any time, before the return of said ten alias writs, mentioned, levy them, or any of them, or any part of them, but wholly neglected and refused so to do, and therein failed and made default. By means of which, <&c-
    The second count was precisely similar, except that it charged, that defendant not only failed to levy, and therein made default, but at return term, failed, neglected and wholly refused to return the said ten alias writs, or any of them, to the court aforesaid, to wit, in the county aforesaid. By means whereof, &c.
    To this declaration, defendant plead the general issue, and put himself upon the country, &c., and plaintiff did the same.
    And at the Fall term, eighteen hundred and thirty-three, came a jury, who being duly elected, &c., on their oaths, said they found for the plaintiff, and assessed his damages at the sum 'of five hundred and thirty-four dollars and thirty cents. ’ It was, therefore .considered by the court, that the plaintiff recover that sum, and his costs, &c. — for which execution might issue, -&c.
    A motion was then made for a new trial, which being heard, it was considered by the court that a new trial should be granted, on the payment of all costs, as a condition precedent, &c.
    And at Spring term, eighteen hundred and thirty-four, the defendant came, and on the affidavits of defendant, and the deputy clerk, that defendant proposed to pay the costs, during the last term, after a new trial had been granted, and that the clerk could not furnish a bill of the costs, during that court —and that the costs had since been paid in full, — on, the motion of defendant, it was considered by the court, that the case was in court, and the cause was continued by the court, until the next term, upon the payment of all costs, by the defendant — for which execution might issue. On application to reinstate the case, by defendant, the plaintiff resisted said application, on the ground, that as the terms on which the new trial, at last term, had not been complied with, the judgment rendered at last term, was final; and that affidavits on file, shewed no sufficient reason why said judgment should be opened, and the cause reinstated; but that the affidavit of James B. Clark and Ezekiel Pickens, disclosed facts which were sufficient to remove all grounds, for the opening of the judgment : and on motion of plaintiff it was directed, that the said affidavits form a part of the. record of the case — no other evidence being offered why said judgment should be opened, and the plaintiff asked that the matters and things connected with the application and the adjudication of the court, might be spread upon the record — to which adjudication he excepted —which was granted,
    The affidavit of defendant, to reinstate the case, stated, that at the last term a judgment was obtained against him, and on the last day of the term, a new trial was granted ; and, being informed of the condition on which the new trial was granted, he immedi ; ately went to the clerk of the court, and demanded a bill of the costs, in order to pay them: that he was informed by the clerk, that he could not be furnished, with it, on account of the press of business, and also, for the reason, that the certificates of some witnesses were not filed, to complete said bill of costs: that he paid the same as early afterwards as the same was presented, previous to the present term — and held the sheriff’s receipt for the same.
    Horatio Boxley also swore, that the amount of costs was demanded immediately aftér the order for. a new trial, but that the correct amount could not then be ascertained — and therefore, deponent understood it was waived.
    The following affidavits were submitted by plaintiff:
    James B. Clark swore, that he was present at the last term, and argued the motion made by defendant for a new trial, for plaintiff: that he had not the smallest recollection “of any understanding or agreement, that the costs, imposed as a condition for granting the motion for anew trial, might be paid subsequently to that time. Affiant had more than a usual distinctness of recollection of what took place, from the fact of his being counsel for plaintiff. Defendant once told him, that Mr Pickens had agreed that the costs might be paid at Christmas, after coúrt, in which affiant acquiesced, supposing it to be so. Subsequently affiant instructed the clerk not to receive the costs, and execution for the same was issued, without the order of affiant or his client, and does not recollect any thing of the waiver, &c.
    Ezekiel Pickens swore, that if he had said or done any thing from which ah inference could be drawn, that he consented that the costs might be paid at a future time, it had wholly escaped his memory. No waiver of payment was made by affiant, &c.
    And at the fall term, of eighteen hundred and thirty-four, came ajury, who being duly elected, &c. on their oaths said, they found for the defendant. It was therefore considered that the defendant go thence, &c,
    The bill of exceptions stated, that on the trial of the case, it was proved that the executions described in the declaration, came to the hands of defendant about the first of May, eighteen hundred and twenty-eight, It was also proved, that the plaintiff in the executions had, on the eleventh of June, eighteen hundred and twenty-eight, assigned all his interest in the j uclgment and executions, as manifested by a written transfer, a copy of which is attached as part of the bill; in relation to which assignment it was proved that defendant, to whom the assignment was made, was a mere agent of Wyckoff, Pickens & Co. and obtained the assignment for them, at their request, and with their money, and immediately handed the assignment to them, and that the transaction was the purchase of the interest of plaintiff in the subject. Plaintiff offered evidence to prove that the money could have been made by the defendant on the executions, previous to the eleventh of June, eighteen hundred and twenty-eight, but by the negligence of defendant a constable had, on the twenty-third day of May, eighteen hundred" and twenty-eight, levied executions under fifty dollars on all the property of defendants, and sold the same; but the court was of opinion that no evidence could be introduced shewing a negligence previous to the eleventh of June, eighteen hundred and twenty-eight, and excluded the evidence offered.
    It was also proved, that original executions in the case described in the declaration, had issued, and came to the hands of the defendant, on the fifteenth of November, eighteen hundred and twenty-seven, and were returned, by him, “ Not levied.” It was also proved that Wyckoff, Pickens & Co. indemnified the constable, if he would pay the money made by him, over to the defendant, to be applied to the executions which came to his hands on the first day of May, and that he did so pay it over to the defendant, but that afterwards, unaer the advice that the executions in the hands of defendant, had lost their lien, in consequence of the levy of the constable, in virtue of the executions in his hands, they withdrew the indemnity— the constable having been and then was, ruled for the amount, and the money was paid back to him by the defendant. It was also proved, that the attorney who appeared to act for WyckofF, Pickens & Co., gave it as his opinion, that the executions defendant held, had lost their lien, in consequence of the levy by the constable.
    The court charged the jury, that the executions in the hands of the defendant had obtained a lien which could not be divested by the levy of the constable, notwithstanding the act of eighteen hundred and twenty-eight, in relation to liens by constables under executions, and that being the case under the facts, they should find for the defendant; to which opinions and charge, plaintiff excepted, &c.
    Copy of transfer. — I do hereby assign to Carter B, Harrison, all my right, title, and. interest, in certain judgments and executions, by me obtained, against James and Elisha Owens, as ¡Drincqoal, and James Hud-dleston security for them in their appeal bond; which judgments were rendered at the October term of the Circuit court for Dallas county, eighteen bundrecl and twenty-seven. And I do acknowledge that I received full value from him for the transfer — said transfer to be without recourse on me. Given under my hand and seal, this eleventh day of June, eighteen hundred and twenty-eight. Signed and sealed by plaintiff.
    And at this present term the plaintiff in error assigned — ■
    1. That the court erred, as shewn by, and stated in the bill of exceptions, and the executions of record,

      2. The court erred, in re-instating the cause for trial, although the condition precedent, on which a new trial was granted to defendant, had not been performed by him.

      J B. Clark, for plaintiff in error.

       Aikin’s Digest, 166.

   ORMOND, J.

This was an action of trespass on the case, brought by the plaintiff in error against the defendant in error, for negligence in failing, as sheriff, to make money on executions of the plaintiff.

At the term of the court previous to the trial of the first cause, a verdict was had for the plaintiff. The court granted a new trial, on the payment of all costs, as a condition precedent. At the succeeding term of the court, affidavits were filed by both parties; and on motion of the defendant, the court reinstated the cause on the docket.

At a trial of the cause, a bill of exceptions was taken by the jffaintiff, from which it appears — That the executions described in the declaration, came to the hands of the defendant, as sheriff, on the first of May, eighteen hundred and twenty-eight: That on the eleventh of June, thereafter, the plaintiff’, assigned all his interest in thé executions, to the defendant, who was the mere agent of Wyckoff, Pickens &-Co. in obtaining the assignment, and immediately handed it over to them, it being -on a separate piece of pa,per: That the transaction was the purchase of the interest of the plaintiff. The plaintiff then offered evidence to prove, that the defendant could have made the money on the executions, previous to the eleventh of June, eighteen hundred and twentv-eight; but that, by his negligence, a constable had levied executions on all the property of the defendant in the executions, and had sold the same. Blit, the court was of opinion, that no evidence could be introduced, shewing negligence previous to the eleventh of June, eighteen hundred and twenty eight, and excluded the evidénce. The plaintiff excepted.

It was also proved, that the executions above mentioned, came first to the hands of the defendant, as sheriff, on the fifteenth of November, eighteen hundred and ■ twenty-seven, and were returned by him, “not levied.” It was further proved, that Wyckoff, Pickens & Co. indemnified the constable, if he would pay the money made by him over to the defendant; but that afterwards, under advice, that the executions in the hands of the defendant, had lost their lien by the levy of the constable, they withdrew the indemnity and paid him back the money.

It was proved that E. Pickens, an attorney who appeared to act for Wyckoff, Pickens & Co. gave it as his opinion, that the executions he held, had lost their lien, in consequence of the levy by the constable.

The judge charged the jury, that the executions in the hands of the defendant had obtained a lien that could not be divested'-by the levy of the constable, notwithstanding the act of eighteen hundred and twenty-eight, in relation to liens on executions, in the hands of constables; and that if such were the case, under the facts, they should find for the defendant.— To this the plaintiff excepted. There was a judgment for defendant, from which the plaintiff prosecutes a writ of error to this court, and assigns these matters as error.

This court can not notice the facts stated in the record, relative to the reinstatement of this cause on the docket, in the court below. The court certainly had power to ascertain whether the condition on which the new trial had been granted, had been performed —and if not performed, whether the performance was not waived by the opposite party ; or whether he had not done all in his power-to perform it. These were all questions which the court had power to settle, which addressed themselves to the sound discretion of the court, and which being deductions from facts, and not matters of law, can not be reviewed in this court.

The questions raised on the bill of exceptions, are of a graver character. In the first charge of the jury, the court below seems to have considered, that the transfer by the plaintiff, to WyckofF & Co. of his interest in the executions, extinguished the liability of the defendant, which might have accrued from his neglect, previous to that time. But on what principle this decision can rest for support, this court can not perceive.

The right of action can not be transferred; but certainly a transfer of the judgment, (which is the substance of this transaction,) would carry with it a right to sue out execution, or to bring suit in the name of the original plaintiff; and as any defence, which existed against him, would be available to the defendant— so, any right the plaintiff was entitled to, would be available to the assignee.

It is probable that the opinion of the court was influenced by the fact that the assignment was made to the defendant himself But the record shews that he was the mere agent of WyckofF & Co., and if so, he can derive no benefit from that fact. Being the mere agent or attorney, in fact, of WyckofF, the law of the case is the same, that it would be, if the transaction had taken place between the plaintiff and WyckofF & Co., without the intervention of the defendant.— This charge of the court was therefore erroneous.

The remaining charge of the court, affirms the proposition, that according to the facts then stated, the lien of the executions in the. hands of the defendant, was not divested by the subsequent levy and sale by the constable, and that, therefore, they must find for the defendant. The opinion stated by the court, as to the lien of the executions in the hands of the defendant, is undoubtedly correct; but the conclusion which he draws from it, is as clearly incorrect.

What is the gravamen of the charge in the declaration ; it is, that bj the neglect of the sheriff to levy and make the money on the executions, the plaintiff has been injured. How is this answered, by shewing that the plaintiff has a lien on any property which the defendant in execution may possess ?

This charge is liable to the farther objection, that it is not a charge on the evidence. The evidence, set out in the bill of exceptions, shews, that Wyckoff & Co., at one time, indemnified the constable, and that therefore, he paid over the money which he had collected, to the discharge of the plaintiff’s executions; but that, believing the executions had lost their lien, the indemnity was withdrawn, and the money paid back.

' All persons are charged with knowledge of the law, and it could not be tolerated, that the person beneficially interested in a cause, should, from ignorance of the law, surrender his rights, and hold the opposite party to a knowledge of the law, and seek to charge him for a loss, caused by his own indiscretion.

Again: it appears that E. Pickens, who was acting as the attorney of Wyckoff & Co., advised the defendant that the executions had lost their lien. If Pickens were, in fact, the attorney of Wyckoff & Co., the advice thus given, is, in effect, advice given by Wyckoff & Co., and if calculated to prejudice the defendant, he is entitled to defend himself, by shewing it.

The judgment must be reversed, and the cause remanded, to be tried upon the principles set forth in ihis opinion.


text:
    HUIE vs NIXON, et al.
    1. It is competent for the County Court to set aside the claim of a father, to the wardship of his child’s estate, in favor of a stranger, if it appear that the father is unfit for the station ; and therefore, the relation of parent forms no exclusive claim to the wardship.
    2. It is good ground for revoking letters of guardianship; that they were improvidently granted, and that the Court had no jurisdiction when the letters were granted.
    Error to the County Court of Montgomery.
    This was a petition for revoking letters of guardianship. The petition stated that Polly T. Nixon was the mother of a female infant child named Martha T. Augustin, being the child of a former husband, Thomas J. Augustin, deceased : That the child was a minor, under the age of fourteen years, and entitled, as one of the heirs of Samuel Augustin, to a distributive share of his estate : That the child had resided with her mother from the time of her birth, and now resided with petitioners, who had the care and control of her, and had discharged their duty towards her, to the utmost of their power. The petition further represented, that one Josiah Huie, had made application to be appointed guardian of the minor, and had obtained such appointment, and was now exercising the rights and duties of guardian of said minor. No citation was ever issued to the mother, nor was any notice given of the application of said Huie, to be appointed guardian. The petition therefore prayed that the letters of guardianship granted to Huie might be called in and revoked, and petitioners appointed guardian of said Martha T. Augustin, in the place of Huie, and that an order should be made for him to pay over to petitioner all goods, chattels and effects in his hands, belonging to said Martha T. Augustin, and that a citation might issue to said Huie, requiring him to shew cause why the letters of guardianship should not be called in, and an account of his guardianship rendered, and petitioners appointed. Signed by Polly T. Nixon and John D. Nixon ; and accompanied with the affidavit of J. D. Nixon to the facts.
    On this petition and affidavit, a citation issued ; and on the second day of March, eighteen hundred and thirty-seven, the case came on for hearing before the Judge of the County court; and defendant moved to quash the citation, and dismiss the petition, upon the ground that no good cause of removal appeared therein ; which was overruled by the Court — and the petitioners filed their specifications.
    1. That said Polly T. Nixon was the mother, and natural guardian of the said Martha T. Augustin, and that said John I). was the husband of Polly T., and that the right of guardianship belonged to the mother, and not to said Huie ; and for these reasons, the letters should be revoked.
    2. That said Huie was not a fit and ¡iroper person to be the guardian of said Martha, because he had an interest which conflicted with the interests of Martha, and because he neither extended protection, maintenance, or support to said Martha, nor had he ever done so since his appointment.
    To the first of these specifications, there was a demurrer filed by defendant, which being argued and heard, was overruled by the Court, and defendant declining to plead over, judgment was entered against him thereon.
    The second specification, defendant moved to strike out, which motion was sustained by the court, and to which petitioners excepted ; which exception was allowed, and the point reseiwed.

      It was therefore considered and adjudged by the court, that the letters of guardianship theretofore granted to said Josiah Huie, on the estate of Martha T. Au-gustin, should be called in and revoked, and annulled from that day forth.
    And for a further reason, the court assigned, that the ward, at the time of the application of Huie for letters of guardianship, resided with the applicants, beyond the limits of this state, and was not within the jurisdiction of that court; and that the letters granted to said Huie, were granted for the purpose of aiding in the final settlement and distribution of the estate of one Samuel T. Augustin, deceased, of whom said Martha T. Augustin was an heir at law.
    And it appeared to the satisfaction of the court that Martha T. Augustin resided in Montgomery county : it was therefore ordered that John D. Nixon, and his wife Polly T. Nixon should be appointed guardians of the person and estate of Martha T. Nixon, when they should have complied with the terms of the statute, in such case made and provided.
    It was further ordered, that a citation issue to the said Josiah Huie, requiring him to appear at a court, to be holden on the second Monday in April, to make a settlement with the court, of his said guardianship.
    And in this court, said defendant came and assigned for error,—
    First: — That the mother, Polly T. Nixon, had no exclusive right to be guardian for her daughter, nor said J. D. Nixon, husband of said Polly, by virtue of his intermarriage with said Polly.
    Second: — That the appointment of said Huie, as guardian, vested the office and trust in him ; and the reason that the mother of the ward was still living, and she and her husband Nixon, applying for letters of guardianship, was no sufficient cause for removing said Huie from the office of guardian.
    Third: — That the reason given by the court for the removal, to-wit, that said minor, at the time of the appointment of said Huie as guardian, was a non-resi--dent of the county and state, is untrue in f^ct, as will appear from the record.
    , Dargan, for the plaintiff in error.

      Thorington, contra.
   ORMOND, J.

This was a petition, filed by the defendants in error, in the County court of Montgomery, praying the removal of the plaintiff in error, as guardian of Martha T. Augustin, an infant. The plaintiff in error moved the court to dismiss the petition, and quash the citation ; which being refused, the defendant in error filed the following exceptions :

1. That the said Polly T. Nixon is the mother and natural guardian of the said Martha T. Augustin, and that the said John D. Nixon is the husband of the said Polly T. Nixon: that the right of guardianship belongs to the said Polly T. Nixon, and not to said Huie; and that for these reasons, said letters should be revoked.

2. That said Huie is not a -fit and proper person to be the guardian of said Martha F. Augustin, because he has an intei’est that conflicts with the interests of said Martha, and because he neither extends protection, maintenance or support to said Martha, nor has ever done so since his appointment.

To the first specification the plaintiff in error demurred , but the court.overruled the demurrer. The plaintiff then moved the court to strike out the second specification, which motion the court sustained ; and to which defendants in error plead exceptions.— The court then proceeded to revoke and annul the letters of guardianship, which had formerly issued to the plaintiff, and appointed the defendants in error .guardians of the infant. This is assigned for error in this court.

The act of eighteen hundred and six, which autho-rises the appointment of guardians by the County court, contains a clause to the following effect: “And the said court may, for any good and sufficient cause, displace a guardian — giving such guardian fourteen days’ previous notice, by citation, to appear and shew cause why he should not be displaced.”

Under this act, a practice has grown up, after citation to the guardian, tof file specifications, setting forth particularly the causes alleged for displacing the guardian. This practice has been sanctioned by this court, and meets'our approbation.

If the facts alleged, are admitted, their sufficiency can be determined by the judge of the County court: if denied, their truth can be ascertained, on an issue made up under the direction of the court- The former course has been pursued in this case, and the matters of law arising thereon, determined by the judge.

The first specification alleges no’misconduct on the part of the guardian; but is framed on the supposition, that the mother is entitled, by law, to the custody not only of the person of her child, but also of her estate. Our statute being silent on this subject, we must inquire how this matter stood at common law. At common law, there were four kinds of guardians, to wit: In chivalry, by nature, in socage, and by nurture. Some of these draw after them, incidents of the most onerous nature, which finally were all taken away by the 12 of Charles 2 — by which all guar-dianships were turned into free and common socage. In the United States, no other guardianship ever existed, than that of free and common socage. By the law of England, the father is entitled to the guardianship by nature, which did not entitle him to the custody of the estate of the ward: the true reason of which, was, that by the law of England he never could inherit any thing from him ; but in .this State the father may inherit from the son, — tile reason of the rule ceasing, therefore the rule must cease with it. The result of this is, that the father or mother may be appointed guardian under our law, which is a guardianship in free and common socage, and gives as well the custody of the estate, as of the person of the ward.

But the first specification asserts a paramount right to the wardship for the mother — a right so absolute as to constitute the good and sufficient cause, spoken of in the statute, for the removal of the former guardian. This can not be supported, for it would, no doubt, be competent for the county court to set aside the claim of the father to the wardship of his child’s estate, in favor of a stranger, where it ajopeared that the father was unfit for that responsible station. It follows, from this, that the court erred in overruling the demurrer to the first specification.

We are asked by the defendant in error to look to other parts of the record, for the purpose of sustaining the judgment of the court below. The defendant in error is not complaining in this court, and therefore can not be heard to assign or suggest error.- But as this cause must be sent back for further proceedings, we will express our opinion on those parts of the record which may hereafter become important.

The court did not err in striking out the second exception. It does not state facts upon which an issue could be taken, but conclusions from facts which are not stated. Instead of alleging that the guardian had an interest which , conflicted with the interest of the ward, the facts themselves should have been stated, from which such supposed conflict arose. If, for example, the guardian set up an adverse claim to the ward’s lands, the facts should have been stated, with reasonable certainty, and would, doubtless, if true, be a good reason for displacing the guardian. We do not require the same certainty in this matter, as would be necessary to constitute a good special plea — but only so much precision as will enable the party to know what he is called on to contest.

It is stated by the judge, that the letters of guardianship which issued to Huie, were improvidently ■granted, and that the court had no juisdiction when the letters were granted. This is not properly a part of the record, but we feel no hesitation in saying that it would constitute a good ground for revoking the authority if it had been properly presented. It might have constituted one of the exceptions, and would thus have been directly put in issue.

As to the extent of the interest of the guardian in the wardship, or for what causes he may be removed, it would not be proper at this time, to express an opinion. We have no hesitation however, in saying, that he can not be capriciously removed. Such power is not vested in the judge of the county court, — and it would be most injurious to the ward, that it should be. It would, to a great degree, deprive the guardian of the power of exercising and enforcing those salutary restraints, which, though not agreeable to the mind' of youth, are necessary to his future well being and prosperity.

The judgment of the court below must be reversed and the cause remanded for further proceedings, not inconsistent with the principles here laid down.

      1 Stewart, 166.