text:
    IVEY vs. SANDERSON.
    1., The statute of eighteen, hundred and twenty-eight, deñnihg-the liability of endorsers, &c. repeals,1 by implication, so much of the act of eighteen hundred and twelve, as prescribed the steps necessary to be taken by the holder of endorsed, paper, in order to charge the,indorser. It requires that a recovery shall be.sought against the maker, by suit prosecuted as soon as may be, after the maturity of the endorsed paper,, except in cases of bills of exchange, and notes payable in bank — and if such suit prove unproductive., then .-the'indor-ser maybe proceeded against. .The contract of the indorser is therefore conditional, and is an undertaking to pay to the endorsee upon the performance of the conditions imposed by the statute.
    2. It is competent for the assignee of a bond to sue his assignor,, if he has used due diligence to obtain payment from his obligor and has.failed, — but if there be no effort to coerce payment from the obligor, or some satisfactory reason furnished for the neglect to make it, the assignor cannot be-charged. — And where one took an assignment on a bond, with a knowledge that the obligor resided beyond the Unfits of the State, arid made no effort to collect the amount called for by the bond of. the obligor, and assigned no reason for his neglect so to do, — it was held, that he was not entitled in an action against the assignor to recover..
    Error to the Circuit court of Lowndes county
    Assumpsit on the endorsement of 'a bond.
    Plaintiff declared against defendant, at the Spring term of the court aforesaid, eighteen hundred and thirty-six, of a plea of trespass on the cáse, &c. for that whereas theretofore, to wit, oil the-day of December, eighteen, hundred and thirty-four, in the county aforesaid, John. Banks, William F.. Banks, Thaddeus Freshwater and Thaddeus F. Banks, made their certain instrument in writing, under their hands and seals, bearing the date, last above mentioned, and thereby then and there promised to pay to Edmund and Almond Sanderson, or order, on or before the first day of January, eighteen hundred and thirty-six, the sum of twelve hundred and fifty dollars, with interest, &c. for value received, and then and there delivered the said instrument in writing to the said Edmund and Almond, the last of whom, to wit, Almond Sanderson, is the defendant, and the sai'd defendant afterwards, to wit, on a certain day, mentioned in the writing, duly endorsed over a-nd assigned said instrument to the plaintiff, by which said endorsement he ordered and appointed payment of the said sum of twelve hundred and fifty dollars, specified in said written and sealed instrument, to be made to the plaintiff, according to the tenor and effect of the said instrument. And the said plaintiff averred that afterwards, to wit, on a certain day in January, eighteen hundred and thirty-six, when the said instrument became due and payable according to the tenor and effect thereof, diligent search and enquiry was made for the residence of the makers aforesaid of said instrument, in the county, and in divers other places, in order that suit might be commenced against them on said instrument, but that on the search and inquiry aforesaid, the rési-dence of the said makers of the said instrument, nor the makers could be found to be sued on, or to make payment of the said instrument, and he averred that the residence of the said makers was unknown, and that they the said makers, had not at any time 'made payment of the said sum of money in the said instrument specified, or caused the same to be done, or any part thereof, but so to do had hitherto wholly neglected, of which said premises, defendant afterwards had. notice. By means whereof and by force of the statute in such case made and provided, the said defendant then and there became liable to pay the said sum of money in the said instrument specified, to the said plaintiff, according to the tenor and effect thereof, and being so liable, he the said defendant, in consideration thereof, afterwards undertook, and then and there faithfully promised plaintiff to pay him said sum of money in said instrument specified, according to the tenor and effect thereof, — all of which he had neglected and refused to do, &c.
    Defendant pleaded, 1st. The general issue. 2d-, Actio non, — because the makers of the note, which was the foundation of the suit, were at the time of its execution and endorsement, and ever since living in the State of North Carolina, which plaintiff well knew at the time of endorsement, yet the plaintiff did not and would not demand payment, nor use any other means to collect the money from the makers of said note, at the time it fell clue,, or at any time before the commencement of the suit. And for a further pier, in that behalf, defendant said, that at the time of the endorsement of the said note, plaintiff specially promised to.collcct said note from the makers in North Carolina, where he knew the makers resided, and not to compel the defendant to pay the same. And for a further plea in that behalf, defendant plead fraud, and that he was defrauded in this, — that the contract between him and plaintiff was, that plaintiff should take the note without any recourse upon defendant for payment thereof: that at the time of the endorsement of said note, defendant' refused to encloi-se the same, and said plaintiff falsely and fraudulently represented to defendant, that he did not hold him- responsible, and desired defendant’s endorsement alone, to assure the makers of the note o-f his plaintiff’s authority to demand the same, which said representations were made by plaintiff, to deceive and defraud the defendant, wherefore he prayed judgment,. &c. Issues were taken on all these pleas.

      And at the Spring term, eighteen hundred and thirty-seven, came the parties and a jury, who being elected, tried and sworn, well and-truly to try the issues joined between the parties, upon their oaths said, they found for the defendant: It was therefore considered by the court, that the defendant should go thence without day, and recover of the plaintiff his costs in that behalf expended.
    The bill of exceptions stated, that on the trial, the plaintiff offered in evidence, a note in the words and figures following, to wit:
    “On or before the first day of January, 1836, with interest from the first day of January, 1835, we, or either of us, promise to pay Edmund and Almond San-derson, or order, twelve hundred and fifty dollars, for value received. Witness our hands and seals, December, 1834.
    “John Banks, [seal.]
    “ William F. Banks, [seal.] ■“'Thaddeus Freshwater, [seal.] -“Thaddeus F. Banks, [seal.]
    •“ Test, Cane C. Blount.”
    The endorsement was as follows:
    “I assign over the within to Samuel Ivey, for value received of him.
    “August the 10th, 1835.
    “ A. Sanderson.
    “ Test, William H. Talley ”
    The plaintiff then introduced a witness, who proved that the makers of the note lived in Pasquotank county, in the State of North Carolina, at the time of the endorsement of the note to plaintiff, and that he did not think they had ever been in the State of Alabama. Witness further proved, that .the makers were men of wealth, and punctual, &c.
    The defendant’s counsel introduced a witness, who proved that the plaintiff knew at the time the note was endorsed to him, that the makers were not inhabitants of this State, and was distinctly informed of their residence as before stated. This was substantially the testimony. '
    The court charged the jury, that before the plaintiff could recover of the endorser, it was necessary to prove that he had' either pursued, the maker to -insolvency, or that a demand and notice was necessary, and neither appearing in proof,'they must find for the defendant. , To the charge, the plaintiff excepted, &c.
    • And the plaintiff now assigned for error, the charge of the court as stated in the bill of exceptions, and that the court erred in rendering judgment for defendant. ' .

      E. 8. Dargan, for plaintiff in error..

      J. B. Clarke, contra. •
   COLLIER, C. J.

The plaintiff in error, brought as-sumpsit in the Circuit court of Lowndes, against the defendant, as the indorser of a bond: In the declaration, it .was admitted, that no action had been prosecuted against the obligors, and by way of excuse, alleged that though diligent inquiry and. search was made for them, they could not be found, and their residence was unknown. The defendant pleaded non assumpsit, and three special pleas, on ah of which the plaintiff took issue, but which need not be particularly noticed, as-they present no question of law for our decision. On the trial, a bill of exceptions was sealed, from which it appears, that the obligors were men of wealth and punctuality, — that they resided in Pasquotank county, ííorth Carolina, of which plaintiff' was advised at the time he became the indorsee. And further, that they had never been in this State since that time. Upon these facts, the court charged the jury “ that before the plaintiff. could recover.of the indorser, it was necessary to prove, that he had either pursued the makers to insolvency, or that a demand and notice was necessary, and neither appearing in proof, they must find for the defendant.” The jury having' returned á verdict for the defendant, and judgment being thereon rendered; the plaintiff has brought his case to this court for revision.

It seems to have escaped the notice of the parties, that the excuse alleged in. the declaration for neglecting to collect the bond of the obligors, was not made out by proof, bat was most clearly disproved on the trial, but as it was not noticed at the argument, the view we shall take of the case,, relieves us from considering it here.

The only question we propose to examine, is the correctness of the instructions given by the. judge of the Circuit court to the .jury. In order to its determination, it is proper to examine the statutes in regard to the as-signability of contracts, such as that brought to our -> view in the present case. . By the act of eighteen hun-. dred and twelve, “ concerning the assignment of bonds, notes, &c. and for other purposes;” it is enacted, that all bonds, obligations, bills single, promissory notes, and all other writings for the payment of money or any other thing, may be assigned by endorsement, &c. The as-signee is authorised to maintain any action thereon, which the assignor might have maintained previous to assignment, and the obligor or maker is allowed all payments, sets off, or discounts made, had, or possessed against his bond, &c. previous tp notice of assignment, in the same manner as if the obligee or payee had prosecuted an action instead of the assignee. And the same remedy is given to an indorsee against the indorser or . indorsers of, such paper as is allowed by law, in cases of ihlan’d bills of exchange.

The act of eighteen hundred and twenty-eight, “defining the liability of indorsers, and for other purposes,” after reciting that'much injury has boon done to the-citizens of this State,-by moans of the uncertainty of the decisions of the courts in relation to the proper time at which indorsees of bills, notes, bonds, <fcc. shall make demand, of the makers or obligors of such paper, proceeds to enact — That thereafter the remedy on bills of exchange, foreign and inland, and on promissory notes, payable in bank, shall be governed by the rules of the law merchant, as to days of grace, protest and notice. All other contracts in writing, for the'payment of money or property, or performance of any duty of whatever nature, are declared to be assignable as heretofore, and the same remedy is given to the assignee as the obligee or payee was entitled to. Provided, that suit be brought to the first court of the county having jurisdiction of the case, to which process can be made returnable against the maker or obligor; and,should the as-signee fail to bring suit within that time (without the consent of the assignor, to the delay) against the -obligor or maker, the assignor shall be discharged-.from all liability upon his indorsement. And it is further enacted, that notice of non-payment shall only be required on bills of exchange and notes payable in bank.

Though the statute of eighteen hundred and twenty-eight does not expressly repeal all or any of the pre-ex-isting enactments upon the same subject, yet it operates as a repeal, by implication of- so much of the act of eighteen hundred and twelve, as prescribes the steps necessary to be taken by the holder of indorsed paper, in order to charge its indorsers. Instead'of making a demand of the 'maker or. obligor, and giving notice of nonpayment, “as in cases of inland bills of-exchange,” it requires that á recovery shall be sought of them by suit, prosecuted as soon as may be after the maturity of the ■ indorsed paper. If such suit shall prove unproductive, then the assignor may be proceeded against. The contract of the indorser is conditional, and is an undertaking to pay to the indorsee; upon thq performance of the conditions imposed by the statute. , ( .

The court alluded to, by the act, in which the suit is to be brought, is understood to be some court of competent authority, exercising jurisdiction within the State. Such was the decision of this court in Woodcock vs. Campbell. In that case, the action was brought on a bond, payable “at the United States ■ Branch Bank at Nashville.” The plaintiff in error, (who was defendant below) was both the obligee and first indorser: the de-fence set up 'was, that no demand bf payment had been made at the bank, nor suit brought against the maker, as required before an indorser could be charged. But this defence was successfully countervailed in the Circuit court, by proving, that the maker had removed without the State, before the bond became due, and so continued up to the time of the trial. In ’this court, two points were mudé, — -first, that to fix the liability of the indor-ser. a demand at the bank was necessary — second, that the removal and continuance of the obligor without the State, dispensed with a performance of the condition required by the. act of ‘eighteen hundred and twenty-eight. The court say, it mar be conceded, that if the instrument sued on, was subject to be controlled by the rules of the law merchant, that a demand at the place appointed for its payment, would have been essential to charge the plaintiff in error, but the usages of that branch of the law were excluded in such a case, by the statute of eighteen hundred and twenty-eight, and the explanatory enactment of eighteen hundred and twenty-nine : And the act of eighteen hundred and thirty-t wo, which modified the law in that respect, being posterior- to the date of the bond, could not exert an influence upon the rights of the parties.

In regard to the second question, the court considered, that had the obligor remained within the State, it would have been necessary to sue him. before proceeding against the assignor; but as this had been rendered impracticable by his withdrawal, without any fault in the indor-see, the contract of indorsement had become absolute by the impossibility of performing the condition annexed, — of suing in one of our own courts.

The first question does not arise in the case before us, and it remains to inquire, how far the second is applicable to the charge of the court, upon the facts disclosed in the bill of exceptions. By the third section of the act- of eighteen hundred and twenty-eight, it is provided, (as already shewn,) that- notice of non-payment shall only be required on bills of exchange and notes payable in bank. The paper on which the defendant is sued, does not come within that section; because no particular place is appointed on its face for itg -payment. Nor does it come within the j)roviso of the second section; because the obligors resided without the State, at the time of the indorsement, and have never been within the same since that period, so that no suit could have been brought against them in any one of oiir courts. The only provision of the statute, then, that can be applied, is so much of the second section ás directs that all contracts in writing (not specifically enumerated in the first section,) for the payment.of money or property, or performance of any duty, shall be assignable as theretofore, and the assignee shall maintain such action thereon, as the assignor could have done. The mode of assignment previously authorised, was under the act of eighteen hundred and twelve, and by indorsement. Thus it is shewn that the plaintiff acquired a legal ti-lle from the defendant, to the paper in suit- — that the statute gives him an action against the maker, but is silent as to any remedy against lire indorser; we will now inquire what are the rights of such an indorsee againsi, an indorser, and what steps he is to pursue, to make them available.

Let it be premised, that there is no pretence that tire defendant practised a fraud upon the plaintiff, either in concealing truth, or suggesting falsehood; on the contrary, he advised him of the place of the obligors’ residence, .when he transferred to him their bond. The caséis, then, one of contract, unaffected 'by extraneous-circumstances. It has been seriously, questioned,- whether at common law, the mere indorsement of a note- or bond, created a contract by tbe indorser to pay ,it, if the maker or obligor did not. The Supreme court of New Jersey, in Garretsie vs. Van Ness, decided that an assignor (without fraud, deceit, express warranty, or special undertaking) of an instrument not negotiable by the law merchant, was not responsible to the as-signee, though the principal debtor proved insolvent. But in Mackie's executor vs. Davis, the Court of Appeals of Virginia, in construing a statute of that State, similar to that part of the act of eighteen hundred and twenty-eight, which applies to this case, held that the assignor of a bond is liable to the assignee, who having used due diligence to recover the money from the obli-gor, has failed to do so. And the Court of Appeals of Kentucky, in expounding an act of the Legislature of that Commonwealth, almost a literal copy of the Virginia law, re-aifirm the case of Mackie vs. Davis, —Smallwood vs. Woods, — and these cases have been followed by an unbroken current of confirmatory decisions in both States.

It will be apparent from a comparison of the statute of eighteen hundred and twenty-eight, with the statutes of Virginia and Kentucky, and the decisions of their courts upon them, that our Legislature must have had in view the law in regard to the assignment of bonds, &c. as it was understood in those States. Under this impression, it is certainly proper to draw aid from these sources of information, to lead us to a- correct conclusion. We then think it is- competent for the as-signee of a bond, &c. situated as the plaintiff, to sue his assignor, if he has used due diligence to obtain payment from the obligor, &c. and has failed. If the assignor was insolvent, so that a suit would be unavailing, its prosecution might be dispensed with; but without this or some other reasonable excuse, it could not be preter-rnitted with safety. What would be due diligence in such case, would of course be a question to be determined by the jury, under the instructions of the court, as to the law. But we .consider it Clear, upon authority, that unless there was an effort to coerce payment from the obligor, &c.-or some satisfactory reason furnished for the neglect to make it, the assignor could not be charged. ■ . ■ .

The present case is clearly distinguishable from that of Woodcock vs. Campbell. Here, (as has been already shewn) the plaintiff became the indorsee of paper, with the full knowledge that the obligors resided without the ¡State, and with distinct information of the place of their residence; so that the contract of the defendant could not have been made,, with a view to the diligence required of assignees, by the proviso of the second section of the act of eighteen hundred and twenty-eight. 'In the case cited, the obligor was living in the State at the time, of the assignment — the contract was clearly, made with a reference to our laws, and imposed upon the assignee the necessity of a suit against him. in order to charge his' 'assignor. But this condition became impossible to be performed by the removal of thó obli-gor beyond the limits of the State; an act to which the assignee had not contributed, and its performance being" placed beyond the power of the party on whom it was imposed without his default, the undertaking of the assignor was held to have become absolute.

In Smallwood vs. Woods, it'was determined under the . statute of Kentucky, that the assignee would be excused from, the employment of the compulsory process of the law against the obligor, if. he was out of the Commonwealth ; and- such absence was not contemplated by the parties at the time of the assignment — see also ' Oldham vs. Bengan; Clay vs. Johnson.

The case of Cavanauh vs. Tatum, which was cited by the plaintiffs counsel, does not oppose the principles we have laid down — see also Roberts vs. Kilpatrick.

We are therefore of opinion, that for the failure of the plaintiff to use diligence to collect the bond of the obli-gors, or to prove their insolvency, the charge of the Circuit judge to the jury was correct, so far as it held the necessity of a suit against them; and the alternative of the charge being immaterial under the evidence in the cause, the judgment must be affirmed.

       2 Porter’s R. 456.

       1 Penn. R. 20.

       1 Wash. R. 219.

       1 Penn. R. 158.

       1 Bibb’s, R. 542

       1 Wash. R. 219.

       6 Mon. 641.

      1 Bibb’s R. 542.

       2 Litt. R. 134-5.

       4 Stew. & Por. R. 204.

       5 Stew. & Por. R. 96..


source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    BOREN, et. al. vs. M’GEHEE.
    2.A payment by the sheriff; of the sum demanded by an execution in his hands, to the plaintiff’s • attorney, for which the sheriff received an assignment of the judgment and execution, on his.own book from the attorney, made without the knowledge or consent of the defendant in the execution, is a payment and discharge of the judgment, and in law, has the same effect, and will be attended by the same results, as if made by the defendant.
    2. The authority of an attorney ceases with his collection of the money demanded by the plaintiff’s judgment, and does not authorise him to sell or tranfer any interest in a judgment, or in the note or bond on which the judgment is founded, — and therefore, his assignment of a judgment to a third person, conveys no interest to the third person.
    3. An assignment of a judgment and execution, if made in a proper manner, is not of itself notice to any one, and therefore an assignment on the sheriff’s memorandum book of executions in his hands, as the law does not require him to keep» such a book, is notice to no person, of the assignment, except the parties to the transaction.
    4. An execution issued upon a judgment which has been satisfied, but of which satisfaction no entry is made on the record,, is not void, but voidable merely.
    g A latent interest existing in the sheriff, in the avails of an execution, and not appearing on the record, will not affect a purchaser at a sale under such execution, who has no notice: of the sheriff’s interest.
    Error to the Circuit court of Montgomery county..
    Trespass, upon a sheriff’s deed, to try title. Plaintiff below declared against defendants, at the March term, eighteen hundred and thirty-six of said court: for that theretofore, he said plaintiff was possessed of a certain close, to wit, part of lots numbers two and nine, in square fifteen, in the town of Montgomery, being the north-west part of said lots, containing a certain'number of feet in front, on the court house square, and extending back to Washington street, lying in the county aforesaid ; and being so possessed thereof, the said defendants, with force and arms entered said close, and ejected and expelled him said plaintiif, from said close, and ever since had retained and kept the possession thereof, and received the rents and profits therefrom arising. The suit was brought to try titles to said close, and to recover -possession thereof, and also damages for the detention of the same, and for the trespasses thereon committed.
    Defendants plead not guilty, and issues were taken thereon to the country.
    And at September term, came the parties, and a jury, to whom the issues were submitted, and who said on their oaths, that they found the premises described in the declaration of the plaintiff', to be the property of the plaintiff, and that the defendants were guilty of the trespass, and assessed the plaintiff’s damages at two hundred dollars : — It was therefore considered by the court, that the plaintiff should have a writ to obtain possession of the premises, and that he should recover of the defendant, the sum of money assessed by the jury for his damages, together with costs.
    The bill of exceptions stated, that on the trial of the case, title was shewn to be in David Boren, one of the defendants. The plaintiff then produced an execution issued on a judgment rendered in the County court of Montgomery county, in November, eighteen hundred and thirty-four, and dated twelfth January, eighteen hundred and thirty-five,returnable to the May term of said court, eighteen hundred and thirty-five. This execution was directed to the sheriff of Montgomery county, and bore this endorsement: “Levied this on parts of lots No’s, one and ten, in the town of Montgomery, opposite the court house, known as the Montgomery Exchange, as the property of David Boren.’ After the return day of this-execution, the attorney of the plaintiff, as was ¿shewn in evidence, called on the sheriff for the money due. The sheriff paid the attorney the debt of the plaintiff, and the attorney’s fee, and received a transfer in these words: “Eor value received, I assign .this judgment and execution'to Bushrod W. Bell, sheriff.” Signed by the plaintiff’s attorney.
    This entry was made on the execution docket of the sheriff. The witness stated, that the sheriff’s fees and commissions were not settled at this time, nor was the county tax, judges costs and clerk’s fees, — and ' that defendant had paid nothing, and that plaintiff had paid him no costs at the time of the transfer. - The execution was in favor of Spyker <fe Bradford, and against David Boren, and ’upon a judgment. It was then in evidence that a new execution issued, returnable to the County court of Montgomery county, in November', eighteen hundred-and thirty-five, and that the sheriff (B. W. Bell) exposed the lots of land sued for,.to sale,, on the first Monday in September, eighteen hundred and thirty-five. No evidence was offered as to what was done under the levy made on the first execution. No objection was made to the regularity of ' the last sale, in relation to advertisements, &c.
    The defendant G-arrett, exhibited a deed from David Boren to him, after the date of-said judgment. The plaintiff became the purchaser at' said sale, and received title from the said sheriff, dated in September, eighteen hundred and thirty-five. The deed of Garrett bore date in March, eighteen hundred and thirty-five, and was prior'in point of time to the execution under which the property was sold. The witness, who testified in relation to the-payment of the execution to plaintiff’s attorney, stated the tax fee was paid to the attorney, and that he did not remember whether the. clerk’s costs were paid to the clerk or not, —that there was an unsettled account between the sheriff and him. •
    The court charged the jury, that although they might be satisfied, that the demand of the plaintiff in the judgment, under which the sale was made, was satisfied, by the payment made by the sheriff, yet if the defendant had no agency therein, and they found a portion of the costs unpaid, that the sheriff' might cause a new execution to be issued, and levy upon the property of the defendant, Boren, and sell it without the act being' void.
    The court charged the jury, that the abandonment of the,levy first made, and the seizure of-other property of the defendant in the execution, without explanation, was not sucia an irregularity as would render void the last sale.
    The court charged the jury, that although the sheriff became interested in the judgment, by the assignment of the plaintiff’s attorney, to the extent of the terms of the..said-assignment; that his interest did not vitiate the sale to the plaintiff, who had no notice thereof, and was not such a transaction as he was bound to notice.
    The court,refused to charge the jury, that if they believed that the sheriff was the owner of s^id judgment, he was incapable of executing the commands of the fieri facias, under which the property of thé defendant, Boren, was sold — because the question was abstract." ;
    The court refused to charge the jury, that the entry upon the execution docket of the sheriff, of the assignment to Bushrod W. Bell, then sheriff, wa's notice to all purchasers of .his interest in the judgment.
    To these several charges, and to the refusals of the court to charge, the defendants excepted.
    The.plaintiffs in error here assigned the. matter contained in the bill of exceptions, and prayed that the judgment might be in ah things reversed.

      Campbell, for plaintiffs in error.

      Dargan, contra.
   ORMOND, J.

This was an action of trespass, to try title to two lots of land in the town .of Montgomery, brought in the court below, by. the defendant in this court, against the plaintiffs. A bill of exceptions was taken to the opinion of the court, which shews the following factsSpyker & Bradford, at the November term, eighteen hundred and thirty-six, of Montgomery ■County court, obtained a judgment against Boren, .upon which an execution issued, returnable to the May term following, which was returned at the return term, endorsed, “levied on the lots in controversy, as the property of David Boren.” ■ The attorney of Spyker & Bradford, demanded and received from the sheriff, the debt, damages and tax fee, — -the residue of the costs were not paid. The sheriff then received from the plaintiff’s attorney, an assignment of. the judgment on the execution docket .of the sheriff, in these words: '

“For value received, I assign this judgment and execution to Bushrod W. Bell, sheriff.'
(Signed,) “A. Martin, plaintiff’s attorney.”

The defendant Boren, had paid nothing.

An ' alias ji. fa. issued returnable to the next term of the court, under which the said sheriff, Bell,-' levied and .sold the lots of land in controversy, to the defendant in this court, and conveyed the same to him by deed.- It did not appear that the defendant had notice of the payment of the judgment, or of the assignment to the 'sheriff. i; c plaintiff, Garrett, in this court, (defendant below) produced a deed from Boren to-.him, for the same lots, the; c ecution of which was subsequent to the rendition o' toe judgment, but prior in date to the deed’ from ti . :v-rvcL'i to the defendants. On these .facts, the •court cl. v the jury, tha,t although the sheriff became interested in tire judgment, by the assignment of the plaintiffs attorney to the extent of the terms of said assignment, that Ills interest did not vitiate the sale to the defendant, who had no notice thereof, and that it was such a transaction as he was not bound to notice.

The court also refused to charge the jury, if they believed that the sheriff was the owner of said judgment, he 'was incapable of executing the commands of the fisri facias, under which the property of the defendant, Horen, was sold; because the question was abstract.

And also refused to charge the jury, • that the entry upon the execution docket of the sheriff, of the assignment to tire sheriff, was notice to all persons of his interest in the judgment.

To the charge given, as well as to those refused, the defendants below excepted, and now assign the matters of law arising thereon to this court as error.

Two questions arise in this case: 1st. Can a purchaser of land, at a sheriff's sale, without notice,, be affected by the discharge of the judgment under which he purchases, by payment, no satisfaction having been entered of record.

2d. Will the interest of the sheriff in the proceeds of the sale under the execution, affect the title of a bona fide purchaser, without notice of the interest, such interest not appearing of record.

These are grave questions, and have received our attentive consideration. ' ■

Before proceeding to the examination of the question, it may be well to disembarrass the case of some matters, which were urged .by the counsel for plaintiff's.

It appears from the evidence set out in the bill of exceptions, that at the return term of the first writ of fi. fa. sued out on the judgment, the money was not made thereon; but that the sheriff himself paid the plaintiffs’ attorney, the debt, interest, and tax fee; leaving the residue of the costs unpaid. The sheriff then took from the plaintiffs’ attorney, an assignment of the judgment on bis own docket- of executions, in these words :

“For value received, I assign this judgment and execution to Bushrod W. Bell, sheriff. ■
(Signed,) “ A, Martin, plaintiffs’ attorney.”

We consider this payment by the sheriff, made, as it appears, without the knowledge or-consent of the defendant in execution, a payment and discharge of the judgment (except for the small amount of costs unpaid) and in law, will have the same effect, and be attended by the same results, as if made by the defendant.

The assignment of the judgment by the plaintiffs’ attorney, conveyed no interest whatever to the'sh'eriff. It does not appear that he had any authority to act for the plaintiff, beyond the' power delegated to him as an attorney and counsellor- at law. That authority ceased with his collection of the money, and would not at any stage of the proceedings, have authorised him to sell or transfer any interest in the .judgment, or the note or bond, on which it was founded. But if he were an attorney in fact, his assignment would convey no interest. The assignment does not purport to be in the name of the principal; but is in his own name, and for this reason it would not be a valid execution of the power. Again, the assignment, if by a lawfully authorised agent, and made in the proper manner; would not, of itself, be notice to any one; it was made on the “sheriff’s docket,” which, as the law does not require him to keep such a book, we presume must -have been his own memorandums of executions in his hands, kept in his own office. It was his own property, and it is too clear to admit of argument, -that a memorandum iff such a book as this, could not be notice to any one, but-the parties concerned in the transaction.

We proceed to the examination of the main question, on which the decision .must rest. ■ None of the cases cited by the plaintiffs’ counsel, maintain his proposition, that the execution is absolutely void, and not voidable merely. For it is properly conceded, that if the cxecu-lion is voidable only, tlie purchaser may defend himself under it. Cue of the caaes moat relied on by the plaintiff's counsel, la the case'of Woodcock vs. Bennett. In that case, o, judgment had been obtained against two persons — one of them died after judgment; and after Ms death, and move than a year mid a (lay- after the rendition of the judgment, and without its being revived by .scire faai n, the pi; tint Lit sued out an execution, and sold the land;'; cf the defendants. Wcodworth, justice, in delivering Ms opinion, which was adopted by the whole court, after commenting for some time; on the question of erroneous and irregular,.or void process, says: “The execution may be said to be irregular and void; for it directs, to levy on the goods and chattels of a. person not in being, and for want thereof, to bo made of his lands, which may have been held .by persons strangers to the judgment, and ignorant of the proceedings.” Again— “I apprehend the reason, why an execution is considered voidable merely, when issued on a judgment where no change of parties is required, — and that an execution is void, when issued to charge the lands, after the death of the defendant, without scire facais, will be apparent oil this further consideration — When issued after a year and a day, and the parties not changed, the defendant may or may not, at his election, raise the question of regularity. The law permits the plaintiff to issue it, and considers it regular at the time of issuing it, subject to be defeated, on the application of the defendant. If he apply before execution executed, the sale will be arrested, and all proceedings under it, cease; if he lie by, until after sale, then on the principle that the execution is erroneous process, and good until reversed, he cannot recover the goods sold; he can only call on the plaintiff for the money recovered. In the other case, the act of issuing the execution is not warranted by law. This forms the substantial distinction between void, and voidable process.” .

The rule is correctly laid down in Luddington vs. Peck, by Gould, justice. “The irregularity must be, in the process itself, or in the mode of issuing it; it cannot be irregular, when sued out according to the established course of practice.”

It is clear, that this authority will not support the position of-the plaintiffs’ Counsel. The case is materially variant from this, in one most important particular. ' The defendant in the execution'was dead; and from the plainest dictate of common justice, his lands could not be sold to the prejudice of his heirs: or, as the court intimated, of some third person claiming under him, who might never have heard of .the judgment: as little will the reasoning of the court avail. “ The term voidable, implies that there is a party wlio may avoid.” Here there was'a party, who might have avoided the process; yet he chose to lay by, until-an innocent purchaser invested his money in the land.

The case of' Jackson vs. Gadwell, was relied on by the counsel on both sides. It was a contest between the original parties to the judgment; and therefore not in. point Yet in that case, Woodworth, justice, cays,— “In the case now under.consideration, the party seeking to avail himself of the irregularity of the sale, was a defendant who stood by, ancl looked on, while his property was sold, by virtue of an execution which had been paid, as he now alleges. No effort was made on his part to stay the proceedings, or set aside the sale, either by motion to the court, or by audita querela. Had the property been .purchased by a third person, a stranger to the transaction between- the parties to the execution, I should deny the plaintiff’s right to recover.” ' ■ ■

It appears.to us .that this reasoning 'is sound, and based 911 the firmest principles.

The case of Jackson vs. Anderson, was an action of ejectment, for land purchased at a sheriff’s sale. In that case, the purchaser knew that the judgment had been previously satisfied, and the cause went off on that ground.

In his opinion, Sutherland, justice, says, — “Conkey therefore acquired no title by his purchase at the sheriff’s sale, having purchased with full knowledge that the judgment and execution had been previously satisfied and discharged; and the defendant is not estopped from contesting his title.”

In Swan vs. Saddlemire, one of the questions mooted, was the one we are discussing. The judge says, “I am strongly inclined to the opinion, that an execution, issued upon a judgment which has been paid and satisfied, is to be considered absolutely void, and not voidable; and that the purchaser under such execution, would acquire no title.” -He afterwards says, he gives no definite opinion, as it was not necessary to a decision of the cause.

The case in 7 Cowan, 1, was where there had been a previous levy, which the court held to be a satisfaction — They say, “ admitting a bona fide purchaser, without notice, could protect himself, that could not help in this case, as the purchaser had notice.”

in 7 Johnson’s It. 426, the case was- a motion by the defendant to set aside the fi. fa., the execution having been paid by the sheriff. The motion was allowed.

Fifteenth Johnson, 444, was,, a payment of the execution by the sheriff, and another levy and sale. The suit was against the sheriff.

The case referred to in 18 Johnson, 441,. was an action of ejectment to recover lands sold for taxes, which nad been paid. The court determined, that as the lien on the land was only given on default of the payment of taxes, the sale was a nullity. It Is not perceived, that this has any application to this case.

Ill Freeman vs. Ruston, a fieri facias issued, after the defendant had been- taken, and while he was in custo- , dy on a ca. sa., — held that the ca. sa. operated as an ex-tinguishment of the.lien of the judgment, and-was a satisfaction of the debt. ■ ' . •

The case of King vs. Goodmn, was similar in principle to the last. The plaintiff, after the defendant was committed oh a c,a. so — caused -his lands to be extended.

Hammatt vs. Davenport, was an action brought by the defendant in execution, against the sheriff, for selling property on an execution which had been previously satisfied, — held that there was no authority for the second levy. ■ • ■ '

We have thus-briefly stated the cases relied on by the plaintiffs’ counsel,- and we think they do not sustain the position' assumed by .him. No one of them -is precisely in point, t-hou'gh in some of them, the opinion is expressed, that in a case like the one at bar, the title of the purchaser would be sustained: In most of the cases,-the original parties to the judgment were before the court, and in these cases the decisions meet our approbation. We think that even as to the cases cited by the counsel for the plaintiffs, the weight of Authority is against him; but it cannot be denied, that there is considerable . fluctuation of opinion; the point does not seem to - have been definitely settled'in the United States; it is certainly an open question in this State, and we feel Ourselves called upon to settle it on such grounds as are warranted and sustained by analogous principles of well settled law..

In Jeanes vs. Wilkins, We find an express authority in ' favor of the purchaser at a sheriff’s sale, without notice that the.defendant in execution was then in custody on a ca. sa. It is ‘difficult to perceive on principle, any difference between a satisfaction in fact, of a.judgment, by the payment of the money, and a satisfaction-in law, by taking the defendant in custody on a ca. sa. The facts were these: a creditor having the body of his debtor in execution under a ca. sa; during the continuance thereof, the sheriff sued out a writ of fieri fiadas, and levied on a lease-hold of ninety-nine years. The lehse-hold was not sold until after the fi. fa. had expired, and then without a venditioni, exponas. The Lord Chancellor (Hardwicke) determined “that to avoid the sale and title to the defendant, it must be proved that thefi.fa. was void, and conveyed no authority to the' sheriff; for it might be irregular, and yet if sufficient to-indemnify the sheriff, so that he might justify in air action of trespass, he might convey a good title, notwithstanding the writ might be afterwards set aside. It is said, that by law, during the existence of the capias and the person in custody, a fi. fa. ought not to betaken out;' and certainly it ought not; although if the defendant dies, the plaintiff may have a new execution, as upon the statute 21, J. 1.; yet while that continues, resort cannot, be had to any other execution; and the court without putting the party to his audita querela, would (as I apprehend) set it aside on motion: But yet, that fi. fa. was not void, and the sheriff might justify taking this lease-, hold by that writ, and so may the purchaser under the sheriff who gains a title; otherwise it would be very hard, if it should be at the peril of a purchaser under a fi. fa, whether the proceedings were regular or not.”

This decision of this eminent judge, is an authority directly in point, unless it can be shown that there is a difference between a satisfaction in fact, and a satisfaction in law; a distinction which we believe does not .exist. ■

It also establishes the principle, that in such a case the sheriff might justify in an action of trespass against him., 'f'he language of the case is, — “but yet that fi. fa. was not void, and ‘the sheriff might justify the taking by this writ.” To the same effect is the case in 1 Strange, 509. Where the court issuing the process,, has general jurisdiction, an'd the process is regular on its facé, the officer is not, though the party may be, affected by an irregularity in the>proceedings — see also Savacool vs. Boughton. If, then, it -be true, that the sheriff may justify where the process is regular on its face, and the court has a general jurisdiction, — the sheriff may justify for executing a fi. fa. which has issued on a judgment which has been paid,, no satisfaction having been entered on the record: and if so, it can only be, because the process is not void, but voidable pnly. It -is true, that if the sheriff is-an actor in the transaction, conusant of the fact, he may be compelled to respond in damages to the injured party, as may also the plaintiff.

Tile question has been compared in argument to the case.of a lien., created by the-act- of the parties; and it .is insisted, that tlxe payment of the money destroys the lien; and there can be no doubt that it does. But if in the case of a satisfied mortgage or deed of trust, the mortgagor or debtor should,look on.with, folded arms, and permit a purchaser without notice, to invest his money in the subject of the trust or mortgage, would he not lose the benefit of his payment ? That this is the law, might be established by a'multitude of cases — see Green vs. Price, Taylor vs. Cole; Niven vs. Belknap.

If we should decide, that in a case circumstanced like this, a recovery could be had against the purchaser at sheriff’s sale, confidence would be destroyed in such sales, and the consequences would be most injurious. Not only would it affect the value of property so exposed, but the fair purchaser would lose his money, invested under the sanction of the tribunals of the country, — while on the'other hand, by deciding that the process is not void, but voidable only, aiid that the fair purchaser without notice, may acquire title under it’ we preserve the general symmetry of the law. The defendant, as has been already stated, lias his remedy against the plaintiff, in the execution, as well as against the sheriff, if by his conduct he has made himself obnoxious to a suit.

Can the interest of the sheriff in the judgment, (such interest not appearing of record, and being unknown to the purchaser,) affect his title to property, purchased at the sheriff’s sale?. We think it cannot. It would let in all tlie mischiefs which would be produced by declaring the process void. It is certainly true, that the sheriff has no power to pay the money due on the judgment, and keep the execution open for his own benefit. To allow such a traffic, would open a door to the- greatest aliases, and be an invitation to extortion. Armed, as he is, with the coercive power-of the law, the defendant would not deal with .him. on equal ground, and would be obliged to accede to such terms as avarice', inflamed by opportunity, and hardened by power, would be satisfied to impose. The defendant would have the undoubted right, in such a case, to arrest the process, and stop its execution; but should he decline doing so, and permit the process to he executed, it is impossible that the bona fide purchaser at the sale, without notice, should be disturbed.

W e have been referred to the case of Carter vs Harris. The case was this: A person named Dickie, conveyed by deed to tru.fi.ees, all his estate, for the maintenance of his wife and children. At the execution of the deed, he owed one Claiborne one hundred dollars, secured by note. This note was' assigned to Harris, who was a deputy sheriff. Harris sued, and obtained judgment thereon against Dickie, and directed the clerk to assign the execution to his father. He afterwards levied the execution on o. negro, and at the sale became the purchaser himself, at about one fourth of the value of the slave. There was but one bidder present beside himself. A bill was filed by the trustees to vacate the sale.

In determining- the case, the court conclude from the evidence, that the assignment to the father was merely colorable, and at all events, that he was liable over to his father. On this hypothesis, the objection arising from his interest appearing on the record, was not removed. The decision, however, is made to turn on the fact, that the sheriff was the purchaser himself, and that the sale was not fair:

It is clear that this is not a decision on the point under discussion. It lacks the essential ingredient to make it applicable — want of notice of the sheriff’s interest.

We think, that on principle, as well as on authority, a latent interest existing in the sheriff, in the avails of the execution, and not appearing on the record, 'will net affect a purchaser at a sale under such .execution, without notice of the interest.

The conveyance of the premises-to Garrett, after the judgment, cannot affect the title of the purchaser under the execution, even if lie were a hona fule purchaser for valuable consideration, which is not shown by the record. lie can be in no better situation than his vendor.

We have not taken notice of the fact, that the execution was not entirely satisfied, there being a portion of the costs unpaid. We should be inclined to the opinion, that a small portion of, or. indeed all, the costs being unpaid, would not justify the issuance of an execution for the whole amount of the judgment. It is not however necessary to decide that point in this case.

The judgment of the court below is affirmed.

       1 Cowan, 711,

       2 Conn. R 700.

       1 Cowan, 623.

       4 Wend. 485.

       8 Wend. 676.

       4 Dallas, 214.

       16 Mass. 63.

       9 Mass. 138.

       1 Vesey, sr. 195

        5 Wend. R.

       1 Munf. 449.

       4 Munf.

       2 Johns. 573.

      4 Randolph, 199.


author: COLLIER, C. J.

text:
    HARDY, et. al. vs. GASCOIGNES & HOLLY.
    1. In a trial of the right of property between a plaintiff in execution and. a third person, it does not devolye- on the former to produce the judgment on which the execution issued.
    2. A sheriff’s return upon an execution, when made in pursuance of law, is matter of record, and in all cases, where the execution is admissible as evidence, the return is also evidence.
    3.. The statute of eighteen hundred and twenty-eight, enjoins it upon a jury, when they find property subject to execution, to find the value of each article separately; but ,tlic claimants of property levied on by virtue of an execution, have no right to complain that a jury are unable to do so, as it places them in a more favorable condition than they would otherwise be. - ■
    4, There is no statute authorising the rendition of a judgment, against a surety’for costs, in a bond, for the forthcoming of goods levied on in execution, .and claimed by a third person, —and without the authority of a statute, such a judgment is irregular. '
    5.. A verdict of condemnation, followed by a judgment, is conclusive against the right of the claimants, and all persons. claiming under them; and the question of - liability, to the sat-, isfaction of the execution, cannot be again litigated in any subsequent controversy.
    Error to the Circuit court of Wilcox
    Proceedings to try the right of property under a sheriff's levy.

      In this case, it appeared by the record, that at the September term of the Circuit court of Dallas county, eighteen hundred and thirty-three, James )$. Gas-coigne, Charles Gascoigne and William Be Forest Holly, endorsees of Thomas B. Sorrell, the plaintiffs, recovered a judgment for eighteen hundred and seventy dollars, and fifty-six cents, against Seaborn J. Sorrell, the defendant, for the non-performance of certain promises and assumptions, by the defendant to plaintiffs, made and not performed; upon which judgment, on the seventh day of October, in the same year, a fieri facias if sued, directed to the sheriff of the said county, commanding him of the goods and chattels, &c. of defendant, to make said sum of money, and also a certain sum for costs expended by plaintiffs in that behalf, and that he should have the moneys so made, to render to plaintiffs at the next term of the said court.
    And on the twenty-second of October, in the same year, the sheriff of said county, levied on sundry goods, wares and merchandise, as the property of defendant, valued by said sheriff at two thousand and ten dollars, a schedule of which was appended to the execution; when John Hardy, of the firm of John Hardy and Company, made oath, that the goods, wares and merchandise, levied on, were not the property of the defendant in the execution, but did of right belong to himself and one John Sorrell, who comprised the firm of John Hardy and Company.
    And thereupon, John Hardy, John Sorrell and P. Walter Herbert, entered into bond to the. plaintiffs in the execution, reciting, that whereas the sheriff of Dallas county, had levied a writ of fieri facias in favor of said plaintiffs, upon certain goods, wares and merchandise, as the property of Seaborn J. Sorrell, which the said John Hardy claimed as of right to belong to himself and one John Sorrell. Now, if either of the said obligors, should upon the trial of right to said goods, wares and merchandise, in the Circuit court of said county, at the next term, deliver said goods, wares and merchandise to the said sheriff, or his successor in office, whenever the claim of the right to the property aforesaid taken, should be -determined by the said Circuit court, to be liable to the satisfaction of said writ of fieri facias, then the obligation to be' void, otherwise, &c.
    And at the Spring term, eighteen hundred and thirty-four of said court, came the parties, and on motion of the claimants, for sufficient reasons, made apparent; by the affidavit of their agent and attorney in fact; Seaborn J. Sorrell, it was ordered by the court, that the venue of the case should be changed to the county of Wilcox, and that the clerk of the court .should certify the record accordingly.
    And at the Spring term, of the same year of the Circiiit court of VYilcox county, the plaintiffs in the execution aforesaid, stated upon the record, that the property levied upon was liable to their execution, and was not the property of the claimants, which they were ready to verify — which statement the claimants denied, ,and took issue.
    And at the Spring term of the same court, eighteen hundred and thirty-five, came, the parties, and a jury, who being elected, ¿be.-and sworn well and truly to try the issue joined, upon their oaths said, they found the goods, wares and merchandise, levied on by virtue of- plaintiffs’ execution subject thereto, and for want of evidence of the value thereof,‘they did not assess the value of the same. It was therefore eon-sidered by the court, that the property levied on by plaintiffs’ execution, was subject thereto as by the jury aforesaid, in manner and form aforesaid was found, and that the plaintiffs have execution, to recover of the claimants, and P. Walter Herbert, their security, the costs by them therein expended, for.which execution might issue, &c.

      And thereupon said claimants made a motion for a new trial, on the ground that improper testimony was allowed to go to the jury; also that the verdict was defective; which motion being argued and considered, it seemed to the court that the said 'motion should be sustained, and a new trial was granted.
    And-at the Fall term, eighteen hundred and thirty-six, of-the same court, came again the parties, and a jury, who being duly elected, &c. and sworn well and truly to try the issue joined, upon their oaths said, they found the goods, wares and merchandise, levied on by virtue of the plaintiffs’ execution subject thereto. It was therefore considered by the court, that the goods, wares and merchandise, levied on by.virtue of the plaintiffs’ execution should be subject thereto, and that the plaintiffs in the execution, recover of the claimants and P. Walter Herbert, their security, the costs herein expended, for which execution might issue.
    The bill of exceptions stated, that on the trial of the cause, the plaintiffs in the execution, to maintain the issue on their part to be proven and maintained, offered in evidence the execution issued in-favor of the plaintiffs against Seaborn J. Sorrell, the .defendant in execution, to the introduction of which, the claimants objected, unless or until the plaintiffs should produce the judgment upon which it was predicated, which motion the court overruled, and admitted the execution to go in evidence to the jury, without the production of any judgment, or record of any judgment, upon which it had issued. And the plaintiffs, further to maintain their part, of the issue, offered in evidence, the return of the sheriff on said execution, — to the introduction of which, the plaintiffs also excepted; which .exceptions the court overruled, and permitted said return to be read in evidence; and there being no evidence adduced to prove the value of the goods levied upon, the claimants moved the court to charge the jury, that unless they could find the value of the goods, they could not find for the plaintiffs. But the court refused so to charge, and on the contrary, charged the jury, that they might find the property subject to the plaintiffs execution, without finding the value, if no pi’oof had been adduced from which they could conclude the value. To all of which the claimants excepted, &c.
    And now at this term came the plaintiffs in error, and assigned for error:
    1. That the court below rendered judgment against P. Walter Herbert; '
    2. That the court below erred in rendering any judgment, as the verdict was not sufficient to authorise it ;
    3. That the court below erred in overruling the motion in arrest of judgment;
    4. That the court erred in giving the instructions excepted to by the claimants, and in refusing to give the instructions prayed for, as shewn in the bill of exceptions.

      Eckoards, for the plaintiffs in error.

       Aik. Dig. 169, 170.

   COLLIER, C. J.

The defendants in error having recovered a judgment' against Seaborn J. Sorrell, in the Circuit court of Dallas, caused a fieri facias to bé issued thereon, and levied upon sundry articles of merchandise in his possession. To the property thus levied on, John Hardy and John Sorrell interposed a claim according to the statute in such cases, and together with P. Walter Herbert, their co-plaintiff, entered into bond to try the right. On the trial of the right of property, the defendants in error offered in evidence, their execution on which the levy was made, to which the claimants objected, unless the judgment was first produced; but the court overruled the objection, and allowed the fi. fa., together with the return of the sheriff to be read to tha jury; whereupon the claimants excepted, &c.

The court charged the jury, that it was competent for them, if the evidence authorised it, to find the property claimed, subject to tile execution of the defendants, though they might not be able from the preof, to find the value of each article of property; to which charge, the claimants also excepted, &c. And the jury found the property liable to the satisfaction of the execution, without finding the value of each article separately; and thereupon a judgment was rendered, condemning the property to its satisfaction, and against the claimants and their surety for the costs. To revise which judgment, all of them now join in the prosecution of a writ of error to this court.

In regard to the first question arising upon the bill of exceptions, it was determined in Carlton et. al. vs. King, that in a trial of the right of property between a plaintiff in execution, and a third person, it docs not devolve upon the former to produce the judgment on which the execution issued — that between them, the production of the execution is sufficient. If the execution be admissible, we cannot conceive why the sheriff’s return should be excluded; for when made in •pursuance of law, it becomes matter of record, and as such, is clearly evidence. Besides, the legislature having made a copy qf the execution and sheriff’s return, evidence where a contest arises in a different county than that where the judgment is rendered, impliedly declare the admissibility of the original.! The decision of the court on this point is, then, free from objection.

It is true, that the statute of eighteen hundred and twenty-eight, enjoins it upon the jury as .a duty in all cases, when they shall find the property subject to the execution, to find the value of each article separately. But to determine how this provision of the act shall he expounded, we must have a regard to the old law, — the mischief and the remedy. Now, by the old law, if property was condemned upon the trial of the right, and was not delivered to the sheriff, the bond was to have the force and effect of ■ a judgment, and on notice and motion, execution was to be awarded against the claimant and his sureties. The mischief was this:'though the property might not be worth one-tpnth of the amount of the execution, — or though every article but one, (and that of very little value)' was delivered to the sheriff’, yet the claimant and his surety were bound fo .satisfy the execution. The remedy proposed, was the prevention of such injustice, by adjusting the liability of the claimant and his surety, with a strict regard to the value of the property claimed, and not delivered. , The statute then, was for the boneiit of claimants and their sureties ; yet by the- repeal of the pre-existing law, its observance is made still more beneficial to the plaintiff in execution. ' For unless the jury affix a valuedp each article of property, upon a failure to make delivery to the sheriff, the plaintiff would not be allowed, on-motion, to obtain a judgment for the default; because it. would not appear by the judgment, how much he. should recover. And this proceeding, being exclusively prescribed by statute, which provides the mode of admeasuring the extent of the claimants liability, no other means of ascertaining this, would be allowable. . Thus it appears, that the plaiptifís in error have no right to complain, that the requisition of the statute was not complied with; for instead of injury, it places them in a more favorable condition. Had the value.been assessed, they would, have been compelled to make it good, but now they are only liable for costs on the . judgment against them.

A verdict of condemnation, followed by a judgment, as in the present case, must be taken as conclusive against the right of the claimants, (and all claiming under them) and they would not be allowed to litigate the question of its liability, to the satisfaction of the execution, in any controversy afterwards arising.

We have considered the verdict and judgment only as they relate to the proceeding under the statute. If the property levied on, he not returned to the sheriff, in obedience to the undertaking of the claimants and their surety, it is competent for the plaintiffs in execution to sue an action at law upon the bond, and recover damages for the breach of the condition.

We have no statute authorising the rendition of a judgment against a surety for costs, (in a case of this kind) directly upon the return of the verdict of the jury. And without the authority of a statute, there can be no pretence for maintaining the regularity of such a judgment.

For the error in this particular, the judgment must be reversed, and rendered here against the proper parties.

       1 Stew. & Por. 472.

       Aik. Dig. 170.

       Aik.Dig. 169, 170.


text:
    BENSON vs. CAMPBELL.
    1. A judgment by default, without a declaration, is bad on error, — nevertheless, if the only objection shewn by the record, is the want of a declaration, the cause will be remanded, that the plaintiff may obtain leave to perfect the pleadings, and a trial be had upon the merits.
    o. Under the attachment laws, a plaintiff must shew that the defendant is indebted to him in a sum of money past due, or else in a sum of money to be paid at a future timé. Therefore, where a writ of attachment states that plaintiff is security to a draft drawn on T. and L. for defendant, which he will probably have to pay, or on which suit will have to be brought in another state, — it cannot be sustained.
    Error to the Circuit court of Autauga count}?.
    Attachment issued by a magistrate. On the twenty-third of Juiy, eighteen hundred and thirty-six, a writ of attachment issued from a magistrate of said county, returnable to the Fall term of the Circuit court, which alleged that plaintiff had complained to the magistrate, that he was security to a draft drawn on Turner and Lewis, for defendant, in the sum of nine hundred dollars, and that defendant was about to remove himself out of the (State; so that the ordinary process of law could not be served upon him, and that thereby the plaintiff would pi-obably have the draft to pay, or suit would have to be brought for the same in another State; and the plaintiff having given bond and security according to lav?, and having made oath that the attachment was not sued out for the purpose of vexing and harassing the defendant, the officer was commanded to attach the estate, &c. And the sheriff of Autauga county levied the attachment on sundry goods and chattels of defendant, which goods and chattels were replevied; the defendant and two others as sureties giving bond, conditioned for their forthcoming at the termination of the suit, or to pay and satisfy the judgment that should be rendered by the Circuit court.
    And at the Spring term of the same court, eighteen hundred and thirty-seven, came the plaintiff, and the defendant being solemnly called, came not, but made default. It was therefore considered by the court, that the plaintiff' should recover of defendant, the sum of nine hundred dollars, the damages in the declaration mentioned, together with the cost, in that behalf sustained, for which execution might issue.
    From which judgment a writ of error was taken, returnable to this court, and at the present term, the defendant came'and said there was- error, in the record, in this:
    1. That the Circuit court erred in rendering the judgment final in said cause, without the intervention of a jury;
    2. That there was no declaration, or other statement of the cause of action in the record;
    3. That the affidavit, if there was one, was insufficient to found the attachment upon;
    4. That there was no bond ;
    5. That there was in reality, no affidavit, and no attachment; .
    6. That the plaintiff, by his own shewing, had no cause of action, at the time the attachment was sued out.

      Edwards,, for the plaintiff in error.

       Aik. Dig. 37, 38 and 39.

   COLLIER, C. J.

The defendant in error sued out an-attachment, under the hand and seal of. a justice of the peace of Autauga, returnable to the Circuit court of that county, against the plaintiff. The indebtedness of the plaintiff in error to the defendant, is charged in the writ of attachment, as follows:

“ That he (defendant in error) is security to a draft drawn on Turner & Lewis, for William H. Benson, in the sum of nine hundred dollars.”

No declaration was filed in the Circuit court, and judgment was rendered against the defendant in the attachment, by default.

In Wheeler et. al. vs. Bullard, we decided that a judgment by default, without a declaration, was bad on error. That decision being an authority for the reversal of this case, we have only to inquire what judgment should be rendered. If the only objection shown by the record, was the want of a declaration, we should certainly remand the cause, that leave might be obtained to perfect the pleadings, and a trial be had upon the merits. But the attachment is so defective in itself, that no declaration corresponding with it, would authorise a recovery.

Under our attachment laws,, a plaintiff must show that the defendant is indebted to him in a sum of money past due, or else in a sum of money to he paid at a future day.

In the case at bar, the writ does not disclose an indebtedness by the plaintiff in error to the defendant, but merely a possibility that the former will be indebted to the latter — a possibility depending upon a contingency, which may never happen — the dishonor of a draft, for the payment of which, the.defendant was a surety. Now, as the writ of attachment shows that the defendant was not entitled to the remedy he adopted, and as he can only make it availáble by the assent or waiver of the plaintiff, (which we are not authorised"to presume) the case cannot be remanded. That a surety, circumstanced as was the defendant, is entirely remediless, we do not pretend to say. We think the law was compé-tent to aid him, and only determine that his case does not entitle him to proceed by attachment under ike statute.

The judgment is-therefore reversed.

GOLDTHWAITE, J. — Not sitting.

       Vide Aik. Dig. 37, 38 and 39.


author: GOLDTIIWAITB, J.

text:
    THRASH vs. JOHNSON.
    1, Under the statute authorising .the form of action as a substitute for the action of ejectment, and the practice, which has grown up under it, a declaration for trespass qaare clausum fregit, which contains no averment of title, or assertion that the action is instituted to recover possession of, and try titles to, the lands described — may be allowed.
    2, An assignment by an instrument not under seal of lands purchased of the United States, the evidence of which purchase, is the certificate of final payment by the assignor to the receiver of public moneys in the land office, is not sufficient to sustain an action of trespass by the assignee.
    Error to the Circuit court of Chambers
    Trespass to try title. The plaintiff, Johnson, complained of defendant, Thrash, in a plea of trespass quare clausum fregit — for that defendant, on the day mentioned, and on divers other days and times, between that day and the day of the commencement of the action, with force and arms, &c. at to wit, in the county aforesaid, broke and entered the close of said plaintiff, lying and being in the county aforesaid, and being a certain piece, parcel or allotment of land, to wit, the south east quarter of section number twenty-nine, in township number twenty-three, and in range, number twenty-eight, and then and there, to wit, in the county aforesaid, on the day and days mentioned, and in and on the said plaintiff's close, cut down, killed, burned and otherwise destroyed a large number of oak, pine and other trees, to wit, two hundred trees, of great value, to wit, of the value of four hundred dollars, which were then and there growing and being, and also destroyed, cut down, prostrated and burnt, the underwood, bushes, grass, herbage, pasturage and other growth, the produce of and growing out of and appertaining to the said close, of great value, and also then and there destroyed the remaining timber of the said close, then and there yet being, causing the same to be converted into buildings, and enclosures liable to rot, and greatly encumbered the said premises therewith, and converted the same to his Own use, without the leave or license .of, and against the will of the said plaintiff for a long space of time, to wit, from, the day of the first trespass, until the commencement of the suit, thereby greatly hindering, preventing and putting it out of the power of the said plaintfF to have the use, benefit, and enjoyment.' thereof, in such manner as he might and otherwise would have had : And also for that, the said defendant, on a certain other day and at divers times and" days, between that day and the day of the commencement of the suit, with force and arms, &c. broke and entered a certain, other close of plaintiff, situate, lying and being in tbe county aforesaid, and being a certain piece, parcel or tract of land, to wit, the east and west halves of the south east quarter of section number twenty-nine, in township number twenty-three, and in range number twenty-eight, and took and retained the possession thereof, without the leave or license, and against the will' of the said plaintiff, and prevented and hindered the said plain-» tiff, from having the possession and occupation thereof, and continued to prevent and hinder him said plain tiff from having the possession thereof, and'kept him out of the possession thereof for a long space of time and during that time took, had and received to the use of him the said defendant, all the issues, rents, profits, emoluments, benefits and privileges, growing out of, the said close of said plaintiff, last described, being of p-reat value, to wit, of the value of four hundred dollars; and also on the said close, cut down and converted to his own use, divers oak and other .trees, and trod down and destroyed all the grass and bushes then growing on the same, being of' great value, to wit, of the value of three hundred dollars, whereby the said plaintiff not only lost the issues and profits growing out of the said last described close, as well as the .timber, grass and bushes thus destroyed, but was'deprived of the use and means of cultivating the same, by reason of the wrongful occupation of the same by the said defendant. And also for that, defendant on another day, and at divers times and days, from that to the commencement of the suit, with force and arms, &c. broke and entered, a certain other .close of said plaintiff, situate, lying and being in the county aforesaid, being a certain piece or parcel of land, to wit, the south east quarter of section number twenty-nine, in township number twenty-three, and in range number twenty-eight, and ejected, expelled and amoved him said plaintiff, from his possession and occupation thereof,' and kept and continued him the said plaintiff, so expelled and amoved for a long space of time, and during that time took, had and received to the use of him said defendant, all the issues and profits growing out of said close, being of great value, whereby said plaintiff, during all the time aforesaid, not only-lost the issues and profits accruing from his said last described close, but was deprived of the use and means of cultivating the same, to wit, in the county aforesaid. And other wrongs and enormities to him then and there did, to the great damage of plaintiff and also contrary to the provisions of the statute in such case made and provided, and against the peace and dignity of the State, &c.
    To this declaration, there was filed by defendant a plea in abatement, to wit, that the endorsement on the copy writ served on defendant, described the action as brought to recover possession of the south east quarter of section twenty-nine, township twenty-three, and range twenty-seven, which plea was verified by the affidavit of defendant. Defendant also suggested to the court, that he, the defendant, and those persons whose estate he had in the lands sued for in the action, had enjoyed adverse and peaceable possession of the lands,for more than-three years nextbefore the commencement of the suit: and that he and the persons whose estate he had in the lands, had made permanent and valuable improvements on the lands, during the time they had enjoyed adverse ¡possession of said lands. To the pleas, there were replications and issues to the country.
    And at the April term, eighteen hundred and thirty-seven, came the parties, and a jury of good and lawful men, who being elected, &c. on their oaths said, they found for the plaintiff one hundred and fifty dollars, as his damages for the detention of the land in the declaration mentioned, and possession of the land and premises: It was therefore considered by the court, that the plaintiff recover of the defendant, the sum •so assessed by the jury, together with the land and premises, and also his costs in that behalf expended, for which execution might issue, &e.
    Before the case was submitted to the jury, a bill of exceptions was preferred, which stated, that on the trial of the cause, the plaintiff produced and read to the jury, a certificate and an assignment thereon, in the following words, viz:

      “ Pre-emption Act, 1834. ~)

    Receiver's Office at Montgomery, Ala. >
    No. 4583 — April 25th, 1836. J
    “Received from Eli Naron, of Chambers, the sum of one hundred dollars and thirty-four cents, being in full payment for the west half south east quarter of section number twenty-nine, in township number twenty-three, of range number twenty-eight, containing 80 27-100 acres, at one dollar and twenty-five cents per acre. $100 34.
    “ N. E. Benson, Receiver,
    Land Office, Montgomery.
    “Endorsement — For value received, I, Eli Naron, of Chambers county, do hereby assign, transfer and set over, unto Willis Johnson, of Chambers county, all my right, title,' claim and demand, to a tract of land purchased by me on the 25th April, 1836, as per Receiver’s receipt, No. 4583, designated as the west half of the south east quarter of section number twenty-nine, in township number twenty-three, of range number twenty-height,,situate in the district of lands subject to sale at Montgomery, and request that a patent may be issued to said Willis Johnson, his heirs or assigns.
    Witness my hand, this twenty-fifth day of June, 1836.
    his
    Eli ixj Naron. mark.
    “Acknowledged befo-reme, 25th day of June, 1836.
    . “ Thomas F. Nolan, J. P.”
    The plaintiff proved the hand writing of N. E. Benson, the receiver of the land office, and also proved by Nolan, the subscribing witness, that Eli Naron executed the assignment on the day therein mentioned. The defendant objected to the reading of the/e paper's, but the court overruled the objection. The plaintiff did not prove any demand of possession, or any notice to the defendant to quit, previous to the bringing of the action. The defendant proved, that he had been in possession of the land before it was entered. The'defendant prayecl the court to charge the jury, that the assignment from Naron to the plaintiff was void, and that as no demand of possession, or notice to quit, was proved, the plaintiff Was not entitled to recover damages for the detention and occupation of the land by the defendant, except from the time the action was commenced: which charges, the court refused to give, but charged the jury that the assignment was valid, and that the plaintiff was entitled to recover damages for the detention and occupation of (said land, from the date of the assignment from Naron to the plaintiff.
    And the plaintiff-in error here assigned for error, the exceptions contained in the bill as above set forth.
    Peck, for the plaintiff in error, said
    The declaration in this case, alleges no title in the plaintiff below, neither does it allege that the action is brought to try titles and recover possession; and it is confidently insisted, that for these defects in the declaration, the verdict and judgment for possession must be held erroneous. If the court below had rejected as surplusage, that part of the verdict which related to possession, and had rendered judgment only for the damages, the question would have been a different one. It is only-necessary to refer to Bacon’s Abridgment (Title Ter diet, N.) to show that the court will reject that part of a verdict, which finds a thing that is not in the issue. . The case of Ervin vs. Ferguson, 1 Stewart’s Rep. 37, is likewise in point: the complaint alleged a forcible detainer, and the verdict found an unlawful detainer, and it was held that the verdict was not responsive to the issue, and therefore bad. It is conceived that there would be no 'greater absurdity in a jury’s finding a defendant guilty of the offence charged in an indictment, and likewise of another of-fence of greater magnitude, when the indictment only charged one single offence, and then for the court to proceed to pass sentence for both offences, than there would, he in sustaining the judgment for possession in, this case. The statute which created the action of trespass to try titles, provides that the plaintiff shall endorse on his writ, that the action is brought as well to try titles, as to recover damages. It is silent as to the form of the declaration, but it cannot be contended, that by complying with this requisition of the statute, the form of the declaration is thereby rendered immaterial. If this was so, why have any declaration at all? But the authorities are abundant, that the declaration is an amplification of the writ; that it must set forth, with legal certainty, all the facts, which in point of law, constitute a cause of action in the plaintiff. A plaintiff may sue out his writ generally, and declare as executor, but he cannot sue out his, writ as executor; and declare generally; he may narrow, but he cannot widen the demand specified in the writ.
    Here we do not complain of the variance between the writ and declaration; wo admit they had a right to claim less in their declaration than they did in their writ; hut we hold that by filing a declaration merely for damages, and without alleging any title in the plaintiff below, they have abandoned their claim to possession; and the jury and court had no authority to jump over the declaration, 'and take the writ alone, as the basis of their proceedings. It is remarkable, that the declaration does no where say one word about trying titles. In the commencement, it says, “Willis Johnson complains of Valentine Thrash in a plea of- trespass quare clausum fregit. ' The declaration in the case of Simmons vs. Au-gustin, was drawn by an eminent and experienced pleader. In one count; it was alleged that the plaintiff was seized in fee simple; in another, that she was seized in her demesne as of fee) and in all the counts, it was averred that she sued as well to try titles, as to recover possession and damages; and after the jury came into court, their verdict was altered by the order of the court, so as to find the title in the plaintiff. It is believed that these things are regarded by the bar, as matters of substance, and have long been so regarded in the older settled parts of the State.
    The statute of eighteen hundred and tw.enty-four, providing that no defect in the pleadings, not previously objected to, shall set aside a judgment, provided there is a substantial cause of action contained in the declaration, cannot apply to this case; because the declaration is good as far as it -goes, and if the verdict and judgment had not gone further than the declaration, we might not have any cause of complaint. I do not contend that it is necessary, in all cases, to aver that the plaintiff is seized in fee simple, or in his demesne as of fee. It has been determined in this court, that a present right of entry and possession is sufficient to maintain the action of trespass to try titles, and if a plaintiff were to allege in his declaration, that he had a title which gave him a present right of entry and possession; it might possibly be held sufficient. But when he alleges no title at all, it would seem to be perfectly clear, that a judgment for possession cannot be sustained. But upon the supposition that I am wrong in this position, the absence of any averment in the declaration, that the action was brought to try titles or recover possession, is a more fatal defect. If this judgment for possession is sustained, how shall a man know when he is sued' for possession, and when he is only sued for damages 1 How shall he know wheii to bring his title papers, and when not to do so ? Certainty in declarations, is said to be necessary for three reasons: 1st. That the defendant, knowing what he is called upon to answer, may be able to plead a direct and unequivocal plea: 2d. That the jury' may be able to give a complete verdict upon the issue: and 3d. That the court, consistently with the rules of law, may give a certain and distinct judgment upon the premises. In this case, if the court and jury had confined their inquiries to the matters embraced by the declaration, the question whether the plaintiff was entitled to the possession of the land, was not in issue; and if this judgment is affirmed, the rule that certainty is necessary, as well as the reasons for that rule, may be considered abrogated, as far as the action of trespass to try titles is concerned. It will be borne in mind, that no plea but the pica of not, guilty, is filed in this case. If the plea of liberum tenemmitum had been filed, there would have been greater plausibility in contending that the issue was on the title; but if this plea had been filed, it would have availed nothing, because it is a good plea in ’an ordinary action of trespass quare clau-sum fregit: — The suggestion of adverse possession, filed by the defendant below, is not a 'circumstance from which the Supreme court can’judicially know, that the issue was on the title; because the Supreme court, if it presumes that the defendant offered evidence in support of his suggestion, must presume that the court below rejected that .evidence as irrelevant. But suppose lie did offer it, and failed in proving it, — and suppose further, that the suggestion of adverse possession is taken by tile Supreme court as conclusive evidence that the defendant below thought he was defending an action of trespass to try titles, and that the court and jury were laboring under the same erroneous impression: Does this in any degree alter or enlarge the issue formed by the' pleadings? That issue was guilty or not guilty of a trespass quare clausum fregit. There is a case cited in 7 Bacon’s Ab. 22,' taken from 3 Leon, 80, called Kepy’s. case, where the jury found the issue for the plaintiff, but also found “ that the estate for life reserved to the defendant, was without impeachment of waste,” which would have been a good defence, if it had been pleaded; but the court said “that as the defendant did not avail himself of the privilege of being dispunishable of waste by pleading it, the jury (it not being in issue) had nothing to do therewith; for which reason, that which is found concerning it, ought to be rejected as surplussage.” In the case cited, the omission was on the part of the defendant; in the case before the court, it is on the part of the plaintiff. In both cases, the jury found what was not in the issue; and it is believed that there is not only as great, but a greater necessity for plaintiffs to set forth every máterial'fact in their declarations, than there is for defendants to embrace all their matters of defence in their pleas. - The fact that the plaintiff's evidence of title is set out in the bill of exceptions, cannot cure the defect in the declaration, because the declaration, the verdict and the judgment, all embrace a whole quarter section, when the bill of exceptions sets out a title to only a half quarter section. Other reasons might be mentioned, but this is deemed sufficient. It is admitted, that many defects may be cured by a verdict, and that if a good title is defectively described, it is cured by a verdict; “but if the plaintiff wholly omits to state his title, there is no room for pre-sumptiou"’ — Douglass’ It. 683. A verdict does not cure a mistake in the nature of the action — Marine Ins. Com. of Alexandria vs. Young — 1 Crunch, 332. “The omission of alleging a matter in the pleadings, which is essential to the action, is never cured by a verdict, — 7 Bac. Ab. VcrcUct, X. I have noticed tlio case of Moore vs. Coolidge, in 1 Porter’s Hep. 280, in. which it is said that the proper remedy in .that case, would have been a motion for a new trial in the court below, and perhaps it will be “doing sufficient homage to the maxim, stare decisis P to acknowledge the authority of that decision, when another case of precisely the same nature shall arise; but if the jury had given a verdict in that case, for more damages than were laid in the declaration, or if in addition to the verdict for the money, they had gone further, and found that the defendant had converted to his own use, a negro belonging to the plaintiff, it is hardly presumable, that the Supreme court would have sustained the judgment, even if it had “ bedn rendered in strict pursuance of the verdict.”
    But admitting that the declaration contained every essential allegation, it is earnestly contended that the verdict is defective, because it does not And the title in the plaintiff. A verdict which does not find the matter in issue expressly and with certainly is had. In an action of this kind, the title is nearly the only thing that is in-issue ; hut the jury found for the plaintiff the possession, and not the title. He that holds a bond for titles, is in most cases equitably entitled to possession, at least would be in the opinion of most petit juries; and yet a bond for titles would not be a sufficient title to recover upon in an action of this kind. Suppose a jury in a capital case were to find 'that the prisoner should be hung; would the court take it upon itself to pass sentence?
    But the assignment from Naron to defendant in error was void, because the act of Congress of twenty-ninth May, eighteen hundred and thirty, declares all assignments before the issuance of patents to be so. The act passed nineteenth June, eighteen hundred and thirty-four, revives the act of eighteen hundred and thirty, and provides that it shall remain in force two years; and the assignment from Naron hears date within the two years. The act of eighteen hundred and thirty-two, is not (as has been supposed) revived by the act of eighteen hundred and thirty-four. This act (1832) only relates to persons who had taken pre-emption rights under the act of eighteen hundred and thirty, and it would he a most strained and latitudinous construction, to say that “the revival of the old pre-emption law is to be considered as embracing the provisions engrafted thereon by the act of eighteen hundred and thirty-two.” The act of eighteen hundred and thirty-two does not extend to any subsequent act which Congress have or may pass; and the presumption upon which this law was enacted, was, that the danger of injustice or oppression contemplated by the old law, had by that time ceased — McElyea vs. Hay ter, 2 Porter, 153. ' But suppose that by'an equitable and far-fetched construction, it is admitted that the provisions engrafted upon the old law by the act of eighteen hundred and thirty-two, are to be considered as revived by the act of eighteen hundred and"thirty-fourf if the Supreme court, in the case cited above, has correctly interpreted the intention of Congress in passing the act of eighteen hundred and thirty-two, their intention and presumption was, that in two years, the preemption claimants had been sufficiently informed of their rights, to he placed beyond the reach of speculators; why not then, give to pre-emption claimants under the act of eighteen hundred and thirty-four, the term of iioo years to become informed of their rights? This construction seems fairly dedueible, from the fact, that the act of eighteen hundred and thirty-four, expressly provides that the old law shall remain in force iioo years. It is also insisted that the assignment should have been under seal, because it is believed to be a principle of the common law, that no legal interest in real estate can pass by writing not under seal; and although the statute making certificates evidence of title in certain cases, uses the word assigns; that word must mean such an assignment as would he valid to pass an interest in lands at common law. It will be remembered, that the bill of exceptions shows that the evidence of title offered by the plaintiff below was objected to, and the objection overruled by the court.

      Aik. Dig. 265, s. 41.

   GOLDTIIWAITB, J.

The endorsement on the writ discloses, that this action is brought to recover possession of, as well as to try titles to, the land alleged to have been trespassed on.

The declaration is in the usual form for a trespass quare clausum fregit, and contains no averment of title; nor is the assertion made therein, that the action is instituted to recover the possession of, and to try the title to, the land described. Thrash, to this declaration, pleaded not guilty; and on the trial, a verdict was returned by the jury in favor of the plaintiff Johnson, “for one hundred and fifty dollars damages, for the detention of the land in the declaration mentioned, and possession of the land and premises.” On this verdict, judgment was. rendered for the recovery of the damages assessed with the land and premises.

One of the assignments of error, questions the regularity of this form of proceeding, when applied to a suit for the recovery of land, and it is insisted that the declaration does not disclose such a state of facts as will authorise the court to render a judgment for the recovery of the land. It is. true,, that independent of the statute authorising this form of action as a'substitute for the action of ejectment, this verdict and judgment would be irregular;' hut under the statute, and thé practice^ which, has grown up in relation to it, a different rulé must prevail. The act of assembly directs the plaintiff to endorse on the writ in an action of trespass, that the suit is brought as' well to try title, as to recover damages, and is silent as to the form of the declaration. We understand that in many sections of the State, the form of declaring pursued in this case has been cust'omary, and we do not feel warranted now to abrogate this practice, as no inconvenience can arise from allowing it. The objection, that parties will not be informed by the pleadings of the true issue formed between them, is more specious than sound, for the defendant’ is advised by the endorsement on the writ what he is required to defend, with much more certainty, than he was by the declaration in the action of ejectment. This- assignment of error cannot avail the party. .,

On the trial of the cause, a bill of exceptions was sealed by the court, from which it appears that the title of the plaintiff below had its- foundation in a certificate of final payment, issued by the receiver of public moneys at Montgomery, and shewing the purchase of the land in controversy, by one Eli Naron, from the United States, and. an assignment of the land, by an instrument not under seal to Johnson.

In this aspect, the case is precisely similar to the one of Ansley vs. Nolan, decided at this term, and on its authority, the judgment of the Circuit court must be reversed, and as the plaintiff may have some other and different title to the land than is now disclosed, the case is remanded for further proceedings.

It will he perceived, that we have not adverted to one of' the positions assumed by the plaintiff in error, to wit, that the assignment of a pre-emption right before the issuance of a patent for the land is void under the act of Congress. We do not consider this question as arising out of the evidence before the court below, and therefore the expression of any opinion on it would be a departure from the usual practice of this court. Before this question can be raised, it must appear with certainty and precision, that the title to the land was derived from the United States under the act of Congress referred to.

       Digest, 265, s. 41.