author: GOLDTHWA1TE, J.

text:
    Lamkin, adm’r, vs. Phillips.
    1. Courts of law have for a long period taken notice of the assignment of choses in action, and afford them every protection not inconsistent with the principles and proceedings of tribunals acting according to the course of the common law,
    2. In these respects, they endeavor to apply, as far as may properly be done, the rules and doctrines recognized in Courts of Equity.
    3. Debts due to a firm, may be assigned to either of the partners ; and a note given to the assignee, for the amount due by a debtor of the firm, extinguishes his debt due the firm — therefore,
    4. Where one gives a note, for a partnership demand, after dissolution, to the administrator of a deceased partner, who, in his life time, was duly authorised to settle the partnership accounts, and to whom they had been assigned — he extinguishes the debt before due by him to the firm: and if garnisheed, as a debtor of the surviving partner, his answer ought to be, that he is in no wise indebted to the surviving partner.
    5. And if he answer otherwise, or if a liability be fixed on him, independent of his answer; the administrator of the deceased partner cannot be prejudiced by the erroneous judgment given in a case to which he is neither party or privy.
    6. If the garnishee truly state the facts, no judgment ought to be rendered against him, as a debtor of the surviving partner; and if judgment be rendered against him, it may be successfully resisted by writ of error.

      7. But if he’omit fto state the circumstances attending the extin-guishment of the partnership account, by reason of giving his note to the administrator, the fault is his own ; — and he will not be entitled to relief against the administrator.
    Error to the Circuit court of Lowndes.
    Assumpsit on a promissory note, tried before Pickens, J.
    The defence will appear in the statement below. A verdict was rendered for defendant, on which judgment was entered up.
    The following was the cause of action:
    “ One day after date, I promise to pay Jé (administrator of the estate of George Clarl or hearer, with interest from the first day of January' the sum of sixty-five dollars, for value receh%dLI3S(fLátfJ£Y. 1836. Henry M. ]
    Defendant proved that plaintiff’s intestate, and'one Henry Crocheron, had been partners in mercantile business. In January or February, eighteen hundred and thirty-six, the partnership was dissolved, and the plaintiff’s intestate purchased of said Crocheron, the entire partnership property, together with all the book accounts, and other evidences of debt: and the same were duly transferred and delivered to plaintiff’s intestate. In the month of June afterwards, plaintiff’s intestate died possessed of all the effects. His then acting administrator, the payee of the note, took said note of defendant, in liquidation of a book account, made with the partners during. their partnership — which had been assigned as aforesaid.
    Defendant further proved, that in the month of May, eighteen hundred and thirty-seven, an attachment was issued, at the instance of a creditor of the said partners, in consequence of the absconding of Crocheron, and defendant was thereupon garnisheed, and judgment upon the answer of defendant, was rendered against him in the County court of Lowndes county, for the amount of the note.
    Upon this evidence, the court charged the jury, that if they believed the facts to exist as stated — it was a good defence, and their verdict should be for defendant. To this opinion, plaintiff excepted; and the charge of the court was assigned for error.
    Cook, for the plaintiff in error.

      Cook, for the plaintiff in error.
    The defendant in error was not indebted to the defendant in attachment, at the time he was .garnisheed: long before that time the defendant in attachment had transferred his interest in the debt to plaintiff’s intestate, and it had been liquidated by note to plaintiff. A garnishee must be a legal debtor of defendant in attachment — (Aik. Dig. 213.) The writ of garnishment is a legal remedy — not an equitable one. The creditor could not, of course, recover against a garnishee, against whom the defendant in attachment himself could not, in law or equity, maintain a suit. If the fund belonged to plaintiff in attachment at all, it could only have been reached in equity, making the plaintiff in error a party.
    The remedy against the administrator of a deceased partner is in equity, but if the funds in his hands can be drawn out in this manner, the court of equity would be ousted of all jurisdiction, and the administrator would be wholly unable to make that distribution of the assets which equity requires.
    The garnishment was a legal proceeding upon the original judgment, against property and effects to satisfy the same, if an execution upon the judgment could not have been levied upon property in the administrator’s hands: so, neither could debts have been condemned in his hands upon this process for that purpose — these modes being the same in principle. The administrator is not a party to the original attachment or judgment, and can not know whether it is a proper debt or not. He can not, in this summary proceeding, avail himself of the plea of insolvency, or plane administravit. The funds in the administrator’s hands must be recovered by suit against him, and not through the medium of a suit against a surviving partner.
   GOLDTHWA1TE, J.

The judgment of the Circuit court was probably induced, by an impression, that the debt due from the defendant, to Crocheron & Clark, was incapable of being assigned to either one of the partners — and that, therefore, it was not extinguished, when he settled with, and gave his note to the administrator of Clark.

The judgment cannot be supported; because, by the assignment to Clark, he acquired the sole equitable interest in the account: this, at his death, became vested in his administrator, who was authorised to collect the money, and thus extinguish the debt; or to take a security, payable to himself, and thus vest the legal, as well as the equitable interest in him, for the benefit of those interested in the estate of his intestate. Courts of law have, for a long period, taken notice of the assignment of choses in action, and have afforded them every protection, not inconsistent with the principles and proceedings of tribunals, acting according to the course of the common law. They endeavor, in these respects, to apply, as far as may properly be done, the rules and doctrines recognised in courts of Equity. — Welsh vs. Mandeville — (1 Wheat. 233;) Andrews vs. Beecker — (1 Johns. Cases, 411;) M’Collum vs. Coxe — (1 Dall. 139;) Raymond vs. Squire — (11 Johns. 47;) Wheeler vs. Wheeler — (9 Cowen, 34.)

It is true, that no action at law, could have been brought, either in the name of Clark, or of his administrator, for the account, but the entire equitable interest, passed by the assignment; and he, in his life-time, was authorised to use the name of the firm, for its collection; and his administrator, in like manner, was entitled to sue in the name of the surviving partner, for the benefit of his intestate’s estate, on giving an indemnity for cost, if required. Suit on the account, was unnecessary, as the defendant gave his note to the administrator; and thus extinguished, in November, eighteen hundred and thirty-six, the debt before due to the firm.

When the defendant was subsequently garnisheed, in May, .eighteen hundred and thirty-seven,, as a debtor of Cocheron, the surviving partner, he was in no wise indebted to him, and was authorised, from the facts, so to answer. If, however, he answered otherwise; or, if a liability was fixed on him, independent of his answer, the plaintiff to this action ought not to be prejudiced, by an erroneous judgment, given in a cause, to which he was neither party or privy.

In the case of Colvin vs. Rich — (3 Porter, 175,) this court determined, that the maker of a note, who wad summoned as a garnishee of the payee, and who received notice of the assignment, before answer, was not protected, in a suit against him, (by the assignee,) by the payment of a judgment, rendered against him, as such garnishee. The garnishee, in that case, stated the fact of assignment and notice — consequently the judgment against him was irregular, and ought to have been contested. So, in the present case, if the defendant to the action truly stated the facts, no judgment ought to have been rendered against him, as a debtor of Crocheron, the surviving partner: and he could have successfully resisted the same, by writ of error. On the other hand, if he omitted to state the circumstances attending the extinguishment of the account, by reason of giving his note to the administrator of Clark, the fault was his own, and he would be entitled to no relief against the plaintiff.

Let the judgment be reversed, and the cause remanded.


source: Caselaw Access Project

author: COLLIER, C. J.-

license: Public Domain

text:
    WEST vs. CUNNINGHAM.
    1. The seller of property may resort to his action against the purchaser, for the recovery of such damage as he shall sustain, for the failure of the latter to complete his purchase.

      2. In such case, the recovery must be graduated, by the injury which the seller sustains,
    3. Ii the purchaser refuses to comply with his contract, the seller need n'ot continue ready to deliver the article :■ he may sell it, and sue immediately, for the damages he has sustained,— but a re-sale is not necessary to fix the liability of the purchaser.
    4. Nor is it necessary that the purchaser have notice of the time and place of the re-sale.
    6.The amount yielded at the re-sale, is not conclusive to shew the extent of this liability.
    6. The rule, that a sound price warrants sound property — unless there be a special agreement to take the property, sound or unsound — is not according to the course of judicial decision at common law; and is not the law -of this State.
    7. A bill of exceptions is not waived, by a motion for a new trial.
    8. A motion for a new trial is addressed to the discretion of the court; but the court trying a cause ought not to grant a new trial, for causes embraced by a bill of exceptions — -unless the party waive the exception.
    9. But if the primary court make no such requisition of a party moving for a new trial, but allow the exception, and overrule his motionthe appellate court cannot refuse to consider the exception.
    Error to the County court of Mobile, Case in assumpsit.

      The plaintiff brought assumpsit, in the County court of Mobile, to recover of the defendant, damages, sustained in consequence of the defendant’s refusal to receive of him, a large number of oranges, which he had purchased, and for which he had agreed to pay a sum of money, amounting to seven hundred and fifty dollars. The case was tried on the general issue.

    On the part of the plaintiff, evidence was given, to show that the agents of the plaintiff sold to the defendant, a lot of oranges, invoiced at eighty thousand, but estimated, in the sale, at fifty thousand. The contract was made about three o’clock, in the afternoon, on the deck of the vessel, on which the oranges were, and the fruit wras open to the inspection of all: further, the price stipulated, was fifteen dollars per thousand. By the terms of the contract, the oranges were to be delivered immediately; and the agents of the plaintiff gave notice to the defendant, that if he did not take away the oranges, according to his contract, they would be sold at his risk; and that they were re-sold on board the vessel, at public auction, in small quantities, to suit purchasers; that a large number of persons were present at the sale, and the amount of sales was about two hundred and sixty dollars. The plaintiff further proved, that in the opinion of a witness, who testified, the oranges would have counted more than fifty thousand, that were sound.
    The defendant introduced evidence, tending to show, that the oranges were warranted to be sound, and of good quality when he purchased them, and that they were unsound.
    On these facts, the court charged the jury, “ that there was no doubt of the legality of a re-sale of goods, on account of a former purchaser, who refuses to take goods, by him fairly purchased; but such re-sale must be made public, and public notice given, and notice thereof given to the first purchaser.” The court further charged the jury in the following words, to wit: “A sound price is a warranty for sound property, unless some special agreement be made, by which the goods or property are to be taken by the purchaser, whether sound or unsound.”
    To which several opinions, the plaintiff excepted, &c. And verdict and judgment having been rendered for the defendant, the plaintiff moved the court for a new trial; which motion having been decided against him, he has prosecuted his writ of error to this court.
    Campbell, for the plaintiff in error.

      Stewart, contra.
   COLLIER, C. J.-

-That the seller of property may resort to his action against the purchaser, for the recovery of such damages as he shall sustain, by the failure' of the latter to complete his purchase, is a proposition too plain to require illustration. In such a case, the recovery must be graduated by the injury which the seller sustains; unless, perhaps, where that injury is increased by his own imprudent course of conduct, in regard to the thing sold. If a purchaser refuses to comply with his contract, he absolves the seller from the obligation to continue in a situation which will enable him to deliver the article sold: whenever he shall, thereafter, change his mind, he may sell it if he think proper. In fact, a sale, if properly conducted, never can prejudice the purchaser, and would often be beneficial to the seller. Suppose the thing sold, subject to waste or to perish, immediately. — if the seller were obliged to Iceep it, the purchaser would be liable to the full amount of the purchase money; but, if allowed to re-sell them, the purchaser would be entitled to a credit, for so much as it yielded, upon the resale, and would only be charged for the deficit. Thus we discover, how unreasonable would be a rule, requiring the seller to suffer the article to perish on his hands, and run the risk of the solvency of the buyer. It is unnecessary, however, to consider at greater length,' this particular question, for it was largely examined, in the School Commissioners vs. Aikin — (5 Porter’s Reports, 169;) and in that case, the court say, “After a purchaser has absolutelj7 refused to comply with a contract of sale, the seller is at liberty to consider the contract at an end, and immediately sue for the damages he has sustained.”

In that case, the declaration disclosed the fact of a resale, and stated the difference between the first and second sale, and this was the sum sought to be recovered. The court say, further — “A re-sale was not necessary to fix the liability of the defendant for a breach of contract, and the action, in another form, could have been maintained, without showing a re-sale: it might be one mode of ascertaining the amount of damages, perhaps the best, but certainly not the only way of ascertaining the same.”

To the same effect is Adams vs. M’Mtllan — (7 Porter’s Rep. 73.) If a re-sale was not essential to the plaintiff’s right, and was not conclusive, as to the damages, to which he was entitled, it is difficult to conceive of any reason for requiring the purchaser to he informed of the time and place of re-sale. The amount yielded, at the re-sale, we have seen, is not conclusive, to show the extent of his liability, and he may, whether he have notice or not, show its unfairness; or that it was made, under circumstances, unusual, and calculated to prevent a sale, at a fair price. The contract, then, between the seller and purchaser, being at an end, in consequence of the default of the latter, he had no right to insist upon the necessity of notice: and the court erred in the instruction to the jury, on this point.

The second instruction of the judge of the County court, is entirely opposite to the course of judicial decision at common law — and though it may be defensible in ethics, or sustained by a well settled rule of the civil law, we do not feel called on to examine it further; but will content ourselves with saying, that it is adverse to the previous decisions of this court — (See Ricks vs. Dilla-hunty, 8 Porter, 000, and cases there cited.)

It was objected at the argument, by the defendant’s counsel, that under the pleadings, the plaintiff could not have been injured by the charge to the jury, however erroneous it may be in itself. We think otherwise: the first count in the declaration is well adapted to the facts disclosed in the bill of exceptions, and the instructions to the jury calculated to prevent a recovery,

The defendant’s counsel, upon the supposition that the opinion of the court might be against him, upon the .questions of law raised by the plaintiff, insists that the bill of exceptions was waived by the decision of the County court, on the plaintiff’s motion for anew trial.

In the first place, it may be remarked, that the record does not inform us for what cause the motion for a new trial was submitted to the County court, so that, for any thing appearing to the contrary, it may have been founded on causes entirely different from those embraced by the bill of exceptions. If such be the true state of fact, —and if necessary, we would intend it, — it was the duty of the County court to have entertained the motion for a new trial, without putting the plaintiff to elect the motion at the expense of waiving his exception.

But for the purpose of settling a question of practice, we will suppose that the grounds of exception, and motion for a new trial, were identical. It is said, that if a party is dissatisfied with a decision of a subordinate court, upon a point of law, he may ordinarily cause it to be reviewed in either one of two modes. 1st. He may move the court for a new trial; 2d. He may tender his bill of

exceptions, and thus put the question on record, in order that it may be examined on appeal or writ of error. But he should not, tinder ordinary circumstances, be allowed by the subordinate court to pursue both courses. If he relies on his motion for a new trial, then his objection does not appear on the record, and of course an appeal or writ of error would be of no avail. But if he have his bill of exceptions sealed, the court should not grant a new trial, on the ground stated in the bill of exceptions, for the question is then on the record, and the error, if any, may be corrected by an appellate court — (Fabrigas vs. Mastyn, 2 Wm, Bla. R. 929.) It has more recently been decided, that toe court will, in no case, grant a motion, for a new trial, when a bill of exceptions has been tendered, unless it be subsequently abandoned — (2 Chitty’s Rep. 272; S. P. Cogswell vs. Brown, 1 Mass. R. 237;) but in Reed vs. Miller, (1 Bibb’s R. 142,) it was determined, that the court have no right to require a party to withdraw his exception to their opinion, before they will entertain a motion for a new trial, presenting the same questions of law. And in Danham et al. vs. Baxter, (4 Mass. R. 79,) it was held, that the court will grant a new trial, without requiring the right of review to be waived, in a case where the court was of opinion, on the trial, from the facts shown by the plaintiff, that the law was such he could not recover, and stopped the examination of witnesses for the defendant on that ground; but the jury found a verdict for the plaintiff, against the direction of the judge.

A motion for a new trial addresses itself to the discretion of the court trying the cause, and is governed by the circumstances of the case, and those rules which have, from time to time, been adopted, as applicable to the subject. Following what we conceive to be the best established practice, we are of opinion, that the court trying the cause ought not to grant a new trial for the causes embraced by a bill of exceptions, unless the party submitting a motion distinctly waives the exception. If, however, the primary court make no such requisition of a party moving for a new trial, but allows his exception, and considers and overrules his motion for a new trial, the appellate court cannot refuse to consider the exceptions. This would be to interfere with the discretion of the primary court, or rather to determine, that it had been universally exercised, and was the subject of revi-sión — an assumption entirely indefensible.

The judgment of the County court must be reversed,, and the case remanded.


author: GOLDTHWAITE, J.

text:
    LIVINGSTON et al. vs. STEAM-BOAT TALLAPOOSA.
    1. The statutes of this State authorise the prosecution either of an appeal or writ of error, as to all final judgments and decrees of the Circuit and County courts, — admiralty cases as well as others.
    2. And, in such cases, an appeal is the most appropriate remedy, as the claimant can thus suspend the execution of the decree, both as to himself and the stipulators.
    3. At common law, stipulators may not question the correctness of a decree of condemnation.
    4. And if stipulators alone appeal, they are confined to a review of the judgment, so far only as they are themselves concerned.
    5. (The case of Richardson et al. vs. Cleaveland and Stuggins, (5 Porter, 251.) reviewed and corrected.)
    Error to the County court of Mobile, exercising admiralty jurisdiction.
    Libel of a steam-boat, for provisions and stores furnished.
    The defendant in error filed his libel in the County court of Mobile, against the steam-boat Tallapoosa, for provisions and. stores furnished the boat, at the request of the master of said boat, and the boat was attached and seized by the sheriff to answer the libel, and the parties who prosecuted this writ of error, were the individuals to whom the steam-boat was delivered, after its seizure under the attachment. They entered into the usual statutory bond, conditioned to pay such judgment as should be rendered on the libel. No claim whatever was interposed by any one in the County court, and a decree pro confesso, or rather by default, was rendered, and a judgment for the amount ascertained to be due, entered against the plaintiffs in error, as stipulators; to reverse which, they prosecuted thicr writ of error:
    The errors assigned were—
    1. That the County court had no jurisdiction;
    2. That there was no affidavit to the libel, to warrant the seizure ;
    3. There was no proof of the debt set forth in the libel ;
    4. There was no foundation for the judgment against the plaintiffs ;
    5. The debt alleged did not authorise the proceeding.
    Campbell, for the plaintiffs in error.
    Stewart, contra.
   GOLDTHWAITE, J.

If the principles of the common ' law, were to be applied to the determination of this case, it is clear, that the plaintiffs in this court, ought not to be permitted to question the validity of any judgment of condemnation rendered against the steam-boat, either in the case of default or otherwise.

In the case of Stebbins vs. Fitch, (1 Stewart, 186,) it was determined, that a garnishee would not be allowed to question the regularity of the judgment against the defendant in attachment, as whose debtor he was summoned ; and in Thompson vs. Allen, (4 Stew. & Por.184,) the same doctrine was recognized and acted upon. In the former case, however, which was prosecuted by the garnishee, it is distinctly admitted, by the court, that he might well have assigned for error, the omission of any judgment against the defendant in attachment. The rule, that bail shall not be permitted to controvert the correctness of the judgment against their principal, is familiar to all, and was recognised by this court in the case of Toulmin vs. Bennett et al. (3 Stew. & Por. 320.)

The same rules obtain in the civil law, as to stipula-tors ; and they are even extended so far, as to pronounce a judgment against each, a mere incident to the previous decree, which, if removed by appeal to another court, entirely suspends, and carries with it, the stipulation into the appellate tribunal, where the proper judgment is rendered — (McLellan vs. The United States, 1 Gall. 227; Brig Helen vs. Ogden, 1 Mason, 431.) In the latter case, it was held, that if the decree of condemnation remained unappealed from, the judgment rendered against the stipulators could not be reviewed on an appeal. In neither of these cases, however, did any question arise, which required the court to decide, if a decree against stipulators was unsupported by a previous decree of condemnation, that the parties' could in no manner review the decree against them on an appeal. Nor is any thing said of the relief which persons could have, if a decree Was rendered against them as stipulators, when, in point of fact, no stipulation was entered into.

Whatever may be the rules of the civil law in such cases, it is conceived, that in relation to them, as well as to all final judgments and decrees of the Circuit or County courts in proceedings of this summary nature, against the stipulators, our own statutes have ordained, that either an appeal or writ of error may be prosecuted.

It is true, that some inconvenience will be felt from the commingling of the practice of the admiralty, with the common law writ of error, but when the rule is once known, it can be conformed to without difficulty.

An appeal is, in reality, the most appropriate remedy; as the claimant, if one has intervened, can thus suspend the execution of the decree, both as to himself and the stipulators; as it is clear, by the practice of the admiralty courts, that this would be its effect. If the stipulators alone appeal, they must, according to the course of practice, and all the analogies of the law, be confined to a review of the judgment, so far only as they themselves are connected with it.

When the writ of error is sued out, it must be by all who are parties defendant to the decree, whether as claimants or as stipulators, otherwise, this consequence will follow, that the decree may be divided into two parts, and one writ of error sued out by the claimant, another by the stipulators, on which different judgments might be rendered, having no connection or bearing on each other. The decree, as to the stipulators, might be affirmed, when that as to the claimant might be reversed, and thus the former would be forced into equity for relief. Difficulties like these must be avoided, if it is possible to do so without offering violence to our statutes.

A practice, not very dissimilar to the one, proper to circumstances like these, has long prevailed with us, and furnishes the best rule for our guidance.

We have several statutes, authorising the courts to render a summary judgment against securities on appeal, certiorari, and writ of error bonds. In all these cases, the sureties are connected with the principals, by the judgment of the court, and it has several times been held by this court, that if after such connection by the judgment of an inferior court, a writ of error is prosecuted, it must be by all the parties, or it will be dismissed — (Caller vs. Brittain, Minor, 27; Webster vs. Yancey, id. 183; Eastland vs. Jones, id. 275; Swift vs. Hill, 1 Porter, 277.)

If a similar rule is applied to decrees like the one before us, we are at one furnished with a practice which is understood, and to which we can conform with less difficulty than to any other ; besides this, it will harmo-nise with our decisions in other respects. This was the course pursued in the case of Richardson et al. vs. Cleveland and Huggins, (5 Porter, 251,) in which the writ of error was sued out by the stipulators, one of whom was the claimant. No question was made there, however, as to the parties; but as this course was pursued in that case, it furnishes an additional reason for now adopting it.

In cases of defaults, where judgment has also been rendered against the stipulators, they can pursue their remedy by writ of error, but according to the rules before ascertained, they can only be permitted to question the validity of the judgment, so far as it affects their own peculiar condition. When the claimant is also one of the parties to the stipulation, or a decree is rendered against him, the whole can he reviewed at his instance, as was done in the case just cited; hut the writ of error must be sued out in the name of all the parties to the decree.

As this practice of sueing out process according to the course of the admiralty, to enforce liens, has very much increased, it is important that it should he established on principles which will hear examination: we therefore deem it proper to state and correct an error which exists in the opinion, as pronounced in the case of Richardson et al. vs. Cleveland & Huggins, (5 Porter, 251.) With the question determined by that case, and on which it was reversed, we remain perfectly satisfied; but we also declared, “ that the condemnation of the boat, after a stipulation had been entered into, was erroneous, as the libellants, by such a judgment, would have two remedies.” Now this consequence does not follow a condemnation merely, but only when a decree for the sale is also rendered. The condemnation, by itself, is nothing more than the declaration of the court, that the lien sought to be enforced, legally attaches to the boat, or other vessel. If, however, the decree of condemnation was followed by an order for a sale, when the boat or other vessel had been previously delivered on bail, and the statutory bond taken, such a course would be erroneous, as the lien is absolutely determined, and at an end when the bond is taken; that is, so far as the particular claim sought to be enforced is connected with it. The correction of this error is only important at this time, as it may save parties cost, by inducing them not to seek to reverse judgments merely on the formal ground, that a condemnation is decreed in connection with a judgment on the stipulation. - >

In the present case, no attempt is made to impeach the decree against the present plaintiffs, as stipulators merely; the only errors assigned are such as question the decree on grounds shewing that the steam-boat attached, was not subjected to a lien under the statutes.

As these parties are not permitted to go into such an inquiry, under the rules we have ascertained in the former part of this opinion, — the decree is affirmed.


text:
    MADDOX vs. BROWN.
    1. The omission to aver, in a general count, for money had and received — a promise to pay on request, is not matter of substance.
    2. The claim of a plaintiff cannot be defeated, on a conjecture as to the intention of the jury, in reference to their verdict — cases must be divested of doubt, to warrant a reversal of judgment.
    3. The court will not infer from the words “ pre-emption and floats,” in a contract, that they refer to á pre-emption right under the < acts of Congress; and that the contract is void, by reason of an inhibition of sale contained in those acts.
    4. The only way in which this court can receive information of the evidence offered on a trial below; is by bill of exceptions, or demurrer to evidence.
    Error to the County court of Benton county.
    Debt on bond, alleged to be lost. The declaration contained two counts. The first was on a bond conditioned to make a title to land, when defendant obtained a pre-emption for the same, which bond was alleged to be lost; and the second charged a general indebtedness, without averring a promise to pay on request. Plea— general issue. Terdict and judgment for plaintiff.
    The verdict was for five hundred dollars, the penalty of the bond: whereupon plaintiff relinquished two hundred dollars of the verdict, and judgment was entered up for the remaining three hundred dollars. ■
    At a subsequent day, defendant moved the court in arrest of judgment, and for a new trial — for the following reasons:

      Because the instrument on which the suit was brought was void;
    Because there were two judgments;
    Because the judgments did not agree with the verdict.
    The motion was overruled by the court, and defendant excepted.
    He now assigned for error:
    1. The court erred in permitting the affidavit (of the plaintiff below,) of the loss of the instrument which is the foundation of this action, as evidence to establish its loss to the court and jury.
    2. The court erred in entertaining jurisdiction of this cause, because the instrument sued on, was void per se.

    3. The court erred in rendering a judgment varying from the verdict of the jury.
    4. The court erred in rendering the judgment in this cause.
    5. The court erred in not arresting the judgment rendered upon the motion of the plaintiff in error, made in the court below.
    Martin, for plaintiff in error.
    Chilton, contra.
   GOLDTHWAITE, J.

No objections were made to the sufficiency of the declaration in the court below, by demurrer or otherwise, nor was the sufficiency of the evidence to sustain the action there questioned until after verdict; it thererore becomes material, to enquire how far the errors supposed to have been committed, can now be looked into. The statute declares, that no cause shall be reversed) arrested, or otherwise set aside, after verdict or judgment, for any matter on the face of the pleadings not previously objected to; provided, the declaration contain a substantia lcause of action, and a material issue be tried thereon — (Aik. Dig. 266.)

The declaration, in this case, contains two counts: one is framed on an instrument of writing in the form of a bond, with a condition, of which proferí is excused on account of its loss: the other is a general count, for money had and received by the defendant to the plaintiff’s use. The only defect in the latter, is the omission to aver a promise to pay on request. This omission cannot be regarded as matter of substance, especially after verdict, as the promise to pay is a mere legal inference, arising from the fact of indebtedness, and, in point of fact, has no existence in most cases.

It is supposed, by the plaintiff in error, that the jury, by the verdict returned by them, have negatived the idea, that they intended it to be general, and to be applied to both counts of the declaration; as they find for the plaintiff five hundred dollars debt, in the declaration mentioned, by way of damages, for the breach of his said contract. It is possible, that such may have been the intention of the jury, but we are not permitted to defeat the claim of the plaintiff in the court below, on a mere conjecture. If the plaintiff in this court wished to present his case for revision, it was his business to divest it of all doubt, as we cannot be expected to interfere to re-vérse a judgment, because it may possibly be erroneous.

If, however, we could pass around the verdict, and were called on to examine the first count of the declara-ration, there is nothing in it, to raise a legal presumption, that the contract stated is invalid or illegal. We cannot infer, from the terms pre-emption and floats, that this contract must refer to a pre-emption right, under some one of the acts of Congress, or that it must necessarily be void or inoperative, by reason of any inhibition of sale contained in them. If it was important to the rights of the plaintiff in error to have a decision of these questions, the precise point should have been presented in the pleadings, or on a motion to instruct the jury On the points Of law arising out of the evidence.

The same remarks will apply with full force to the' affidavit of the loss of the instrument. It may or may not have been introduced in evidence to the jury as proof of the instrument, bu't it is certain, that the only way in which this court could receive information on this subject, is by a bill of exceptions, or demurrer to evidence.

There is no error in the judgment, and it is affirmed.


author: COLLIER, C. J.

text:
    M’RAE vs. RASER.
    Í. The oniission to set forth in a declaration} the manner of payment prescribed in a contract, cannot betaken advantage oías a variance; if no question arises in the Case, upon that part of the contract.
    2. The terms “/or value received,” “ or order” or even the insertion of a specific consideration, do not at all enter into the legal meaning* of effect of a promissory note.
    3. Thus — -the omission to set out in a declaration; on á promissory note, (there being no attempt to set it out in hcec verba¡ the specific consideration; and that it might be discharged by otha ef paper, — cannot be taken advantage of as a variance!
    4. Such understanding is to be regarded as a stipulation fqr the benefit of the maker of the note; and cannot influence the payee’s right to recover the amount of the note and interest; unless discharged by the substitution of other papen
    Error to the Circuit court ofiMarengo.
    Assumpsit on a promissory note — tried before Judge P. Martin.

    The defendant in error declared against the plaintiff in the Circuit court of Marengo, and described the promissory note on which the action was founded, as one by which he “ promised to pay on or before the first day of January next after the date thereof, to the said plaintiff, the sum of two hundred and eighty dollars, for value received,” (having previously set out its true date.) The case was submitted to the jury on the plea of non-assump-sit; when the defendant in error, to sustain the issue on his part, offered in evidence a promissory note of the following tenor:

      “ On or before the first day of January, eighteen hundred and thirty-seven, I promise to pay Mr. Thomas Ra-ser, two hundred and eighty dollars, it being the purchase money for four mares, at seventy dollars each; and it is understood between Mr. Thomas Raser and myself, that this obligation for $280, may be paid by any other paper due the 1st of January next, which I may think fit to endorse. Areola, 4th June, 1836.
    (Signed,) “John M’Rae.”
    To the admission of this note, the plaintiff in error objected, but his objection was overruled, and the note read to the jury as evidence; whereupon he excepted, &c.
    Stewart, for plaintiff in error.
    Phelan, contra.
   COLLIER, C. J.

The only question raised here, is, whether the note is so described in the declaration, as to have authorised the court to admit it in evidence.

So much of the note as. sets forth an understanding between the parties, that it might be discharged by the plaintiff, by the indorsement of other paper due at the same time, must be regarded as a stipulation for his benefit. He might avail himself of it or not, at his election, but it cannot influence the defendant’s right to recover the amount of the note with interest; unless it has been discharged by the substitution of other paper, according to the terms of the contract — and this, if it was done, should have been shown at the trial. In Guyon vs. Lewis, (7 Wend. R. 26,) it was decided that the omission to set forth in a declaration, the manner of payment prescribed in a contract, cannot be taken advantage of as a variance, if no question arises in the case upon that part of the contract. Here, no question could regularly arise upon the part of the contract we are considering, unless it were at the instance of the plaintiff in error; for the defendant claims no benefit from it. The authority, then, we have cited, sustained as it is by the fitness of the thing, shows that there was no necessity to introduce and negative by the declaration, the last clause in the note — and its omisssion is, consequently, no variance.

There are two modes of declaring on a promissory note — the one by setting it out in hcec verba, the other, by stating it according to its legal effect. In the first, an omission or substitution of a word, which does not effect the substance of the contract, will be fatal — in the other, it is sufficient to'describe the note substantially, taking care that the declaration does not charge a greater liability upon the defendant, than he has incurred by his contract, — observing, however, with accuracy, its date, time of payment, &c. — (1 Chitty’s Pl. 334; 1 Sanders on Pl. & Ev. 117, el post; 1 Starkie’s Ev. 1589; Cantley vs. Hopkins, 5 Stew. & Por. R. 58; Harrison vs. Weaver, 2 Por. R. 542; Rodman vs. Forman, 8 Johns. R. 26.) And under the influence of this distinction, it has been held, that it is no variance, to describe the assignment of a bond to be for “ value received,” though the words are not found in the assignment itself; for these words, in a declaration, are only an averment of the plaintiff himself, that such was the consideration for which the assignment was made, and not an averment that the assignment was so written — (McWilliams vs. Smith, 1 Call’s R. 123.) So, the words “for value received,” in setting forth a promissory note in a declaration, are words of description, and not an averment; and if the note produced in evidence want those words, it is no variance— (Saxton vs. Johnson, 10 Johns. R. 418; see also Field vs. Field, 9 Wend. R. 394; Porter vs. Talcott, 1 Cow. Rep. 359; M’Kinley vs. Rob, 20 Johns. R. 351; and 1 Saund. Pl. & Ev. 118, and cases there cited.)

Now, in the case at bar, it seems to us that it cannot be seriously urged, that the variance between the declaration and note, is such as should have induced its exclusion from the jury. The words “for value received,” was a statement, in effect, of the particular consideration expressed in the note; yet, such description, according to the decisions cited from Virginia and New York, is not equivalent to an averment, that the words are found in the note. It may be also remarked, that the terms “for value received,” or order,” nor even the insertion of a specific consideration, do not at all enter into the legal meaning or effect of a promissory note — (Aik. Dig. s. 137, p. 283; s. 6, 328.)

The result is, that the Circuit court was correct in its decision, and its judgment is affirmed.


text:
    THE STATE vs. TRUSS.
    1. In criminal, as well as civil cases, witnesses are disqualified, who have a direct interest in the event oí a case.

      2. But the expectation of a benefit, not necessarily and legally flowing from the event of the proceeding, does not render the witness incompetent; Thus—
    3. The prosecutor, whose property has been injured, is a competent witness in an indictment ior malicious mischief.
    Error to the Circuit court of Talladega.
    Indictment for malicious mischief — tried by Judge A. Martin.

    In this case, the defendant was indicted for unlawfully, wilfully and maliciously killing four hogs, the property of John B. Tuck. Defendant plead the general issue. On the trial, the competency of the witness, who was also the prosecutor — Tuck—was objected to. The witness then, under seal, transferred his interest in the suit to the trustees of the Talladega Female Academy— who accepted of it. He was then permitted to give evidence.
    The question concerning the competency of the witness, was certified to the Supreme court for revision:

      Attorney General, for the State.
   GOLDTHWAITE, J.

The question referred by the Circuit court of Talladega county is, whether the prosecutor, Tuck, was a competent witness to give evidence against the defendant, under the circumstances disclosed by the record.

The indictment, in this case, is for malicious mischief; and the act of assembly provides, that every person offending against its provisions, shall, on conviction, be lined in such sum as the jury, trying the indictment, may assess, not exceeding fourfold the yalue of the property injured or destroyed, and imprisoned in the common jail of the county any length of time, at the discretion of the jury; which fine shall be paid to the party injured: Provided, however, that the jury may inflict one or both, of the 'penalties prescribed — (Aik. Dig. 113.)

The relinquishment, or rather, thé transfer, by the prosecutor, of his interest in the fine, to the trustees of the academy named, cannot 'change the aspect of this-case, as it is certain, if Tuck was not a competent witness previous to this relinquishment, he could not be made so, by virtue of it.

The rule is very clear, that in criminal, as well as civil cases, witnesses are disqualified, who have a direct interest in the event of the case, but this interest must be such as the law recognizes. The expectation of a benefit, not necessarily and legally flowing from the event of the proceeding, does not render the witness incompetent —(Roscoe’s Crim. Ev. 104.)

Where a statute gives a reward, or the whole or a part of a penalty to the informer, and such reward or penalty is not recoverable upon the indictment itself, but a distinct suit is necessary; then, as the conviction will not he evidence in such suit, the testimony of the party entitled to the penalty, &c., is admissible. But where the penalty is recoverable on the indictment itself, and the informer is not driven to a suit, his title to the penalty gives him such an interest in the event of the prosecution, as will incapacitate him — (King vs. Williams, 9 B. & C. 549.) The case cited, was an indictment founded on an English act of Parliament, whereby the justices are empowered to give restitution of the possession of the lands entered on by force, or holden by force, to the respective tenants thereof. The tenant entitled to restitution, was held not to be a competent witness. So, also, ih Tulley’s case, (1 Strange, 316,) a conviction for deer stealing was quashed, because the same person was both informer and witness, and entitled to a part of the penalty. In the case of the King vs. Williams, it is said that the reason why the owner, in cases of robbery and larceny, who is entitled to restitution, is permitted to be a witness, is because the words of the statute authorising the restitution, directs it, if the felon be attainted, in consequence of evidence given by the party robbed, or owner of the property.

The expectation, hope, or even promise, of a reward or pardon, is, however, not sufficient to disqualify a witness, for the reason before stated, — that it does not necessarily and legally flow from the event of the proceeding. The rule is thus laid down by Hawkins: “It has been ruled, that it is no good exception, that a witness has the promise of a pardon or other reward, on condition of his giving his evidence, unless such reward be promised, by way of contract for giving such and such particular evidence, or full evidence, or any way in the least to bias him to go beyond the truth, which, not being easily .avoided, in promises or threats of this kind, it is certain that too great caution cannot be used in making them”— (Hawk. Book 2, ch. 46, s. 135.)

If we apply these rules to the question referred,' its solution will be divested of difficulty. In the first place, it may be asked, what interest has the party injured in a prosecution like this ? It is clearly contingent, and not absolute or certain.

If the State succeeds, and a conviction ensues, it does not necessarily follow, that the party injured will be benefitted by this result, for the jury may inflict imprisonment, and omit the fine. As this may be the result of the prosecution, there is no stronger bias arising from the hope of reward, than exists in many other cases, where it is perfectly clear that the witness would be competent. No reward necessarily flows from the event of a conviction, to the party injured, and therefore, he is not within the rule, as stated.

This question, however novel with us, has been directly decided in England.

By the statute of 39 and 40 George III, ch, 39, s. 1. it is enacted, that if naval stores belonging to the crown, are found in the possession of an unauthorised person, he shall, on conviction, be deemed a receiver of stolen goods, and may be transported for fourteen years, or the judge may sentence him to he whipped, fined, and imprisoned -, a moiety of which fine, if imposed, shall go to the king, and the other moiety to the informer. It is discretionary with the judge to inflict one, or more of these punishments. On the trial of an indictment under this statute, an informer was held to he a competent witness, and Lord Kenyon, who tried the case, makes use of this language: “ The statute having given the court a power to inflict, at their discretion, either a corporal punishment, or to impose a fine, in case of conviction, and as it was only in case a fine was imposed, that the witness could expect to derive any benefit, and that was uncertain, as depending on the judgment of the court, the objection went only to the credit, and not to the competency of the witness” — (Rex vs. Cole, 1 Esp. 169.)

If the interest of the witness in that case, was uncertain, as depending on the judgment of the court, it must be so in this, depending, as it does, on the discretion of the jury.

The Circuit court very properly admitted the witness to give evidence, and though we cannot concur in its reasons, we must pronounce its conclusion to be free from error.

Let the judgment be affirmed.


author: ORMOND, J.

text:
    CULLUM vs. CASEY & CO.
    1. A protest is necessary upon the non-acceptance of a foreign bill of exchange, and is the only evidence that can be received of the fact.
    2. An averment, that the bill was presented to the drawee, and acceptance demanded, but that drawee refused to accept the same, of which defendant had notice — is a sufficient averment.
    3. An allegation, that demand of payment was made and refused, at the place of business of the payer, is sufficient.
    4. In an action against the indorser of a bill of exchange, where the indorsement was made in this State — the law of this State mrfst govern as to the rate of damages.
    5. And, in such an action, on judgment by default, nil dicit, or non sum informalus, the clerk may compute the interest without the intervention of a jury.
    Error to Mobile County court.
    Assumpsit on a bill of exchange.
    This was an action of assumpsit, brought by the defendants in error, as the indorsees of a bill of exchange.
    The plaintiff below filed a declaration, as follows:
    “ The State of Alabama, Mobile county.
    “ County court, June term, 1837. Denys Casey, Bar-zillai Ransom and Smith Spilman, co-partners, heretofore trading together under the firm and style of Denys Casey & Co., by their attorney, complain of Charles Cullum, in custody, &c, of a plea of trespass on the case, &c. For that whereas Messrs. Brown & Cawley, heretofore, to wit, on the fourth day of January, Anno Domini 1837, at Mobile, to, wit, in the county aforesaid, made their certain bill of exchange in writing, bearing date the day and year aforesaid, and thereby then and there requested Messrs. Smith & Conklin, sixty days after sight of said bill, to pay to, the said Charles Cullum, or order, $4000 QO, for value received, and then and there directed the said bill of exchange, to the said Smith & Conklin, at New York, and then and there delivered the said bill so drawn and directed as aforesaid, to the said defendant, who afterwards, and before the payment of the said sum of money, to wit, on the day and year aforesaid, at the county aforesaid, endorsed and delivered the said bill of exchange to the said plaintiffs, and the said plaintiffs aver, that afterwards, to wit, on the 10th day of February, 1837, the said bill of exchange was shewn and presented to the said Smith & Conklin, at New York, and their acceptance thereof- demanded, but the said Smith & Conklin did then and there refuse to accept the same, of which defendant had due notice; and the said plaintiffs aver, that afterwards, when said bill became due and payable, according to its tenor and effect, to wit, on the 14th day of April, 1837, the said bill was presented and shewn at the place of business of the said Smith & Conklin, and the payment of the same was then and there demanded, according to the tenor and effect of the said bill of exchange; but neither said .Smith & Conklin, nor the said defendant, nor any .one on his or their behalf, did or would pay .the same, and the said bill of exchange was then and there duly protested for non-payment; of all which, said defendant afterwards, to wit, on the day and year last aforesaid, had notice. By means whereof, and by force of the law in such case made and provided, the said defendant became liable to pay to the said plaintiffs, the said sum in the said bill of exchange specified, according to the tenor and effect thereof, and being so liable, he, the said defendant, in consideration thereof, afterwards, to wit, on the day and year last aforesaid, undertook, and then and there faithfully promised the said plaintiffs, to pay them the said sum of money in the said, bill of exchange specified. Yet, the said defendant, though often requested, has not paid the said plaintiffs the said sum of money in the said bill of exchange specified, or any part thereof, but the same to pay has hitherto wholly neglected and refused, and still does neglect and refuse, to the damage of the said plaintiffs of eight thousand dollars,'and therefore they bring their suit, &c.

      “ Jorro G. Aikin, Att’y for pl’ffs.” •
    The defendant did not appear, and judgment was entered by default against him, for the amount of the bill, with interest, and ten per cent, damages, from which the defendant below has prosecuted a writ of error to this court, and now assigns for error : ♦
    1. That the declaration does not contain a sufficient cause of action;
    2. That the judgment by default is erroneous, and should be reversed.
   ORMOND, J.

The objections made to the judgment of the court below, by the counsel for the plaintiff in error, may be thus stated:

1. That no protest for non-acceptance is averred in the' declaration;

2. The declaration does not shew a sufficient presentment for payment;

3. The judgment is for too much;

4. There was no assessment of damages by a jury.

It has long been the settled law of England, that a protest is necessary upon the non-acceptance of a foreign-bill of exchange, and that it is the only evidence which can be received of the fact. The great commercial States of New York and Massachusetts, and many other States of the Union, hold the same law. A contrary doctrine has been maintained by the Supreme court of the United States, in the case of Brown vs. Berry, and Clarke vs. Russel, (3 Dallas’' Rep.) and' in Read vs. Adams, 8 Serg. & Rawle, 356. • The weight of authority is decisively in favor of the necessity of protest, where a foreign bill is presented for acceptance, and acceptance refused, and we feel no hesitation in laying it down as the coi’rect rule.

But the question, in this case, is, whether the averment in the declaration is sufficient. The averment is, “ that the said bill of exchange was shewn and presented to the said Smith & Conklin, at New York, and their ac- ■ ceptance thereof demanded, but the said Smith & Conk-lin did then and there refuse to accept the same, of which the defendants had due notice.” This averment was sufficient, as the refusal to accept could be proved alone by the production of the protest — (See Salomons vs. Stavely, 3 Douglass’ Rep. 298.)

We are also of opinion, that the allegation of presentation. for payment, is sufficient; it is in these words 5 “afterwards, when said bill became due and payable, according to its tenor and effect, to wit, on, &c., the said bill was presented and shewn at the place of business of the said Smith & Conklin, and payment of the same was then and there demanded, according to the tenor and effect of the said bill of exchange, but neither said Smith & Conklin, nor the said defendant, nor any one in his or their behalf, did or would pay the same,” &c. The objection is, that it is not stated that the presentment for payment was in the city of New York ; but the bill is drawn on Smith <fc Conklin, of New York, and the protest states that the demand was at their place of business, and it would be a violent presumption to indulge in, that the demand was not made where they reside, or that they have more places of-business than one.

It is further insisted, that the assessment of ten per cent, damages is erroneous. This argument proceeds, on the supposition that, as the bill was payable in New York, the law of that State must govern, as to the rate of damages, of which, as this was a judgment by default, there could be no evidence. The endorsement of the plaintiff in error was in this State, and the law of this State must govern as to the rate of damages.

The objection, that the clerk could not assess the damages, is equally groundless. The act of eighteen hundred and twelve, which authorises the clerk to compute the interest without the intervention of a jury, on judgments by default dicit, or non sum informatus, has been by this court repeatedly held to extend to an action against the indorser of a note or bill — (See Malone & Co. vs. Hathaway, 3 Stewart’s R. 29, and Chapman vs. Arrington, ib. 480.)

There is no error in the judgment of the court below, and it is affirmed.


author: COLLIER, C.- J.

text:
    TOWNSON vs. MOORE.
    1. It is no objection, since special demurrers have been dispensed with by statute, that a special plea amounts to the general'issue.
    2. Where an affidavit to hold to bail is not sufficient, the requisition of bail is unauthorised, and the bail bond invalid: and to a scire facias on the bail bond assigned — a special plea, a- , mounting to the plea of nul tiel record, may be pleaded, and will be sustained.
    3. A motion to strike out a plea, is addressed to the discretion of the court, and its refusal is not revisable in error.
    4. Questions to be reviewed by the Supreme court, must be brought before it by bill of exceptions, or in some other proper manner.
    5. A plaintiff, who fails in the successful prosecution of his suit, is liable, under the statute, to a judgment for costs.
    Error to the Circuit court of Talladega.

      Scire facias on a bail bond — tried by A. Martin, 5. This was a proceeding by scire facias, in the usual form, against bail, in the Circuit court of Talladega.
    From the record, it appears that the defendant pleaded—
    1. Nul tiel record:

      2.That no sufficient affidavit had been made, to au-thorise the requisition of bail of the principal.
    The court refused, on motion of the plaintiff, to strike out the second plea, but determined there was no such record as the scire facias describes, that the affidavit to hold to bail was insufficient in law: and thereupon rendered a judgment against the plaintiff, for costs.
    The plaintiff hath prosecuted a writ of error to this court, and now assigns for error— '
    1. That the Circuit court erred in refusing to strike out the defendant’s second plea;
    2. That the court erred in deciding that the affidavit to hold to bail was not sufficient;
    3. That the court erred in sustaining the defendant’s first plea;
    4. That the plaintiff was not liable to a judgment for costs.-
    Martin, for plaintiff in error,-
    Chilton, contra,
   COLLIER, C.- J.

The objection to the second plea . must have been, that it amounted to the general issue of nul tiel record, and not, that it did not present good matter of defence; for if there was no sufficient affidavit, the requisition of bail was unauthorised, and the bail bond, of consequence, invalid. In principle, the case of Toulmin vs. Bennett & Laidlaw, (3 Stew. & Por. R. 220,) is directly in point.

But it is no objection with us, since special demurrers-have been dispensed with by statute, that a special plea amounts to the general issue — (Morgan vs. Rhodes, 1 Stew. R. 70; Dunham et al. vs. Ridgel, 2 Stew. & Por. R. 402.)

Besides, a motion to strike out a plea, addresses itself to the discretion of the court, consequently, its refusal is nót revísabíe on error — (Johnson, adm’or, vs. Wren, 3 Stew. R. 172.)

The case before us, does not present for examination, the correctness of the decision of the Circuit court, in sustaining the defendant’s pleas. If the plaintiff had desired to have these questions reviewed, he should have caused the record on which the soire facias professes to have issued, to be made a part of the record in the present case, either by bill of exceptions, or in some other proper manner. Its absence must prevent us from determining whether there is error in the proceeding below.

The plaintiff having failed in the successful prosecution of his suit, was clearly liable, under our statute, to a judgment for costs — (Aik. Dig. 261) — and the consequence is, that the judgment must be affirmed.


text:
    ARRINGTON vs. JONES.
    1. A defendant, in slander, cannot, under the general issue, give in evidence the truth of the charge, but must plead it specially.'
    2. But any facts or circumstances, which will rebut or repel the presumption of malice, are properly admissible under the general issue.
    3. And to that end, defendant, by way of excuse, may prove any thing short of a justification, and which does not necessarily involve the truth of the charge, or tend to prove it true.
    4. Therefore, where one brought his action against a defendant, for saying that plaintiff had sworn to a lie, on the trial of a certain case: — evidence of what plaintiff did swear, may be given under the general issue, in mitigation of damages,
    5. But evidence to shew that what plaintiff swore on the trial was false, is inadmissible, without a plea of .justification.
    6. And it is immaterial quo ad the admissibility of the evidence, whether the charge was perjury, in general terms, or false swearing, in a particular case mentioned,
    7. When the truth is given in evidence, it must be under a plea which will require, not only the truth of the charge to be proved: but also which will require that the corrupt intention, be either expressly proved or necessarily inferred, from the circumstances of the case.
    Error to Butler Circuit court.
    Slander — before Crenshaw, J.
    This was an action of slander, brought by the plaintiff, against the defendant in error. The words charged to have been spoken are, — <:he (meaning the plaintiff) swore to a positive lie in open court, in the case between Waters and me.” The defendant pleaded not guilty— and on the trial of the issue, the plaintiff having proved the speaking of the scandalous words charged in the declaration — the court permitted the defendant, in mitigation' of damages, to prove what the plaintiff had sworn to, on the trial of the case of Jones vs. Waters — and that the plaintiff swore on that trial, that there were two roads leading from Jones’ house to his plantation, and that he believed that a majority of the people in the neighborhood of Coleman’s gin-house, were of opinion that Jones burned said gin-house, or was some way concerned therein. And also permitted the defendant, in mitigation of damages, to prove that there were not two roads leading from Jones’ house to his plantation, and that there was but one road; and also that a majority of the people in the neighborhood of the gin-house did not believe that Jones had burned said gin-house,
    The admission of this testimony to mitigate the damages, is now assigned for error.

      Bedfod, for plaintiff in error,

      Cook, contra.
   ORMOND, J.

It has long been considered as the settled law, in actions of this description, that the defendant cannot, under the general issue, give in evidence the truth of the charge, but must plead it specially. The léading case on the subject, is Underwood vs. Parks, (2 Strange, 1200.) The case is thus stated: “ In an action for words, the defendant pleaded not guilty, and offered to prove the words to be true, in mitigation of damages, which the Chief Justice refused to permit, saying, that at a meeting of all the judges, upon a case that arose in the common pleas, a large majority of them had determined not to allow it for the future, but that it should be pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words — that this was now a general rule amongst them all, which no judge would think himself at liberty to depart from, and that it extended to all sorts of words, and not barely such as imported a charge of felony.”

This resolution of all the judges, has been assailed by the counsel for the defendant in error, as being a mere rule of practice, established by the judges in opposition to the ancient common law. But we do not understand, that in the case referred to by the Chief Justice, the judges undertook to change or alter the law, but that in that case,- it was determined what the rule of law was, and that what was doubtful before, was thus rendered certain.

It must be conceded, however, that since that day, the rule seems in some degree to have been relaxed, and that evidence has been admitted under the general issue, which does not seem consistent with the rule laid down.

Thus Eyre, Chief Justice, is reported to have said “that in an action for words, the defendant might, in mitigation of damages, give any evidence short of such as would be a complete defence to the action, had a justification been pleaded.”'

So, also, in an action brought for a libel, Sir James Mansfield permitted evidence, in mitigation of damages, that at the time of the publication, the plaintiff was generally suspected to have been guilty of the charge imputed to him in the libel.

In the case of Grant vs. Hoover, (G Munf. R. 13,) the court held, that in an action of slander, for charging the plaintiff with false swearing in a judicial proceeding, the defendant, on the plea of not guilty, might prove what the plaintiff swore to, in mitigation of damages— though he could not be allowed to prove the falsity of the words, and thus Indirectly fix the charge of perjury on the plaintiff.

So, also, in the case of Kennedy vs. Dear, (6 Porter’s R. 90,) where the imputation of perjury was in making an affidavit by Dear, as the foundation of a State prosecution against Kennedy, this court held, that the defendant, in mitigation of damages, might prove that the plaintiff himself objected to the use of the word “violent,” describing the assault and battery, but took the oath, on the justice assuring him that the affidavit was in the common form. The court say, “all the circumstances attendant on the publication of the words spoken, were matters proper to be left to the consideration of the jury, as from the circumstances, as well as from the words themselves, was the presumption of malice to be raised, or to be rebutted.” The court add: “the principle is recognised and admitted, that a defendant cannot shew the truth in mitigation of damages, but any facts or circumstances which will rebut or repel the presumption of malice, arc properly admissible under the general issue.”

The true rule, as now understood, is laid down by Marcy. justice), in the car-c of Wormouth vs. Cramer, (3 Wend. 395,)i “that the defendant, if he has not attempted to justify the charge, may pro've under the general issue, by way of excuse, any thing short of a justification, which does not necessarily imply the truth of the charge, or tend to prove it true, but which repels the presumption of malice” — (See also Root vs. King, 7 Cowen, 613.)

In this case, it appears that on a trial of a former cause, in which the present defendant was plaintiff against one Waters, the present plaintiff was a witness, and swore, among other things, that a majority of the defendant’s neighbors believed that he had burned a certain gin-house, or was some way concerned therein. It is impossible to doubt that proof of what the plaintiff swore in this respect, should have been received in mitigation of damages. It was evidence proper to be given to the jury, to deiermifie whether, in accusing the plaintiff of false swearing in this matter, the defendant was not in fact defending his own character, which had been thus assailed by the plaintiff, or whether, in making the charge, he was actuated by malice towards the plaintiff, and merely availed himself of this, as a pretext.

It follows, that there was no error in permitting proof to be made of what the plaintiff swore to. on the trial of the cause in which the perjury is charged, but in permitting the defendant to prove the evidence thus given to be false, there being no plea of justification, the court erred.

It is insisted by the defendant’s .counsel, that as t|ie charge in this case, was not of perjury, in general terms, but of false swearing in a particular case, which was named, that therefore the plaintiff had notice, and might come prepared to prove his testimony to be true. No modern authority has been cited for this distinction, and we are satisfied the distinction does not exist at this day, however it may have formerly been considered.

The law, on this doubtful and intricate subject, would be much simplified, if evidence proving the truth of the charge, when offered in mitigation of damages, could be restricted to those cases, where the words, of themselves, did not show the corrupt intention. But such a rule would, it is believed, be found, in practice, to be impracticable, and it is therefore, doubtless, that the rule has not been relaxed further than has been shewn ; and that when the truth is given in evidence, it must be under a plea which will require not only the truth of the charge to be proved, but also the corrupt intention with which the words were spoken, to be either expressly proved, or necessarily inferred, from the circumstances of the case.

The judgment of the court below is reversed, and the cause remanded for a new trial, in conformity with this opinion.


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    ABERCROMBIE vs. MOSELY.
    1. The custom of pleading the usual pleas, by merely naming . them, has prevailed too long, and been sanctioned by too many decisions, to be now overturned.
    2. [The case of Wheelock vs. Fitch, (3 Porter, 387,) was incorrectly ruled, and is not in accordance with the general course of dec ,ons.] .
    3. The court is not the tribunal appointed by law to determine the weight of conflicting evidence, — it should in all cases, be left to the jury.
    4. Where A receives the note oí a third person, as collateral security for a debt due from B, and fails to collect the note, he may recover against B, on the original debt.
    5. But the parties may stipulate, that the note shall be taken aS payment of the debt, and when this is expressly agreed on, the original liability is completely discharged.
    Error to Talladega Circuit court.
    Assumpsit — tried before A. Martin, J.
    This action is founded on a promissory note, signed by 2. B. Sims, James Abercrombie and Syivanus Walker.The declaration is against Abercrombie alone, who pleaded two special pleas, the first of which alleges a payment by Sims, of the note sued on, before the commencerq,ent of the suit; the second alleges, that Sims delivered to the plaintiff, a certain draft, or order, drawn on one Maddox, for the payment of-dollars, which was accepted by the plaintiff, in full satisfaction and discharge of the note sued on. The plaintiff filed no‘replication to either of these pleas, but the case was tried, as on an issue joined, and a verdict returned, and judgment therein ren-' dered for the plaintiff.
    In the progress of the trial, a bill of exceptions was signed by the presiding judge, which discloses, that it appeared in proof, that a note for four hundred and seventy dollars, on certain persons residing in Tennessee, had been handed to Ransom Newsom, a son-in-law of the plaintiff, who gave a receipt therefor, by which he promised to collect the amount due, or return the note when called for. It was further proved by one Maddox, that sometime afterwards, in March, eighteen hundred and thirty-seven, the plaintiff came down from Tennessee to Sims’ residence, and received from Sims, a written request or order to the witness, th.at he would pay the plaintiff one hundred and thirty dollars, and requesting that if he had not the money himself, he would borrow it from some other person: that this order or request was presented to the witness, who was unable to pay the amount. Maddox further stated, that the plaintiff, speaking in reference to this order, and the four hundred and seventy dollar note, on the person in Tennessee, said, if he could get the one hundred and thirty dollars, it ivould satisfy his demand against the defendant, and he would get the rest of the money on the four hundred and seventy dollar note from his neighbors. - The plaintiff produced in evidence, the receipt of Newsom for the said note, and also the note on the persons in Tennessee. This was all the evidence, and on this the court charged the jury, if they believed the plaintiff had received the note for four hundred and seventy dollars, and the order for one hundred and thirty dollars, as collateral security to secure the payment of the note sued on, and they should believe the note had not been collected by the plaintiff, he was entitled to a recovery in this action. But if they should believe that the note was given to the plaintiff, and received by him, as a payment of the note upon the defendant, and they should believe the persons who gave the note were insolvent, and that the money could not be made out of them, notwithstanding the agreement by the plaintiff to receive them in payment of his debt, he might resort to the original consideration, and recover thereupon.
    The defendant below prosecutes his writ of error, and here assigns—
    1. That the court erred in trying the cause without replications to defendant’s pleas;
    2. That the court erred in charging'the jury, as stated in the bill of exceptions.

      Chilton, for plaintiff in error.
   GOLDTHWAITE, J.

The first assignment of errors presents a question which deserves some consideration, and is not without its importance on the course of practice. It is obvious to all who have had any connection with business on the circuits, that pleas are frequently put in at the moment of trial, and when it is greatly inconvenient to members of the bar to reply specially. Hence has arisen, in a great measure, the custom which has obtained so extensively, of pleading the usual pleas by merely naming them. It is to be regretted, that this laxity of pleading was ever countenanced by the court, but it has prevailed too long, and been sanctioned by too many decisions, to be now'overturned. If the parties to a cause will consent to this course of pleading, perhaps no very evil con sequences will flow from it. Another effect, however, of this hurried mode of pleading, is, that in many, perhaps the most, of cases, which are tried on the circuits, no regular issue is ever formed, unless insisted on by the counsel engaged in the cases. It is always within the power of the defendant or plaintiff, to require .the pleadings to be in the regular form, and they can respectively claim judgments of non pros, or default, if the regular steps are omitted. With this right completely in their power on the circuit, it is unjust that parties should be permitted, after atrial, as if an issue was in fact made up, and submited to the jury, to reverse the judgment for the want of a replication or rejoinder. Thus much would not have been said on this point, if it were not that this court, in the case of Wheelock vs. Fitch, (3 Porter, 387,) had sustained the precise exception' taken by this assignment. We are now satisfied that case was incorrectly ruled, and that it is not in accordance with the general course of our decisions on similar questions, as we have always been actuated by the most earnest desire to divest the practice of the courts, of those technicalities which so often tend, when carried to extremes, to the prostration of justice.

The defendant, in this court, insists that there is no error in this case, even if it is admitted, that the charge of the court cannot be supported,-as the evidence before the jury warranted no other finding than the one ascertained by the verdict.

It is true, the evidence is very unsatisfactory to induce the conclusion, that the note and order were given by Sims, and accepted by Mosely, as an absolute satisfaction of his demand. . There are many and strong circumstances in the case, as shewn by the evidence, to rebut any such conclusion, but ve cannot say that some parts of the evidence are not sufficient, in point of law, unexplained and not contradicted by other parts, to authorise the inferen e, tlu'tthe note was received under an agreement, that it should be in part satisfaction. _ Thus the witness, Maddox, states, that the plaintiff informed him, if he could get the one hundred and thirty dollars from the witness, it would satisfy'hi.s demand, against the defendant, and he woidd get ike rest of the money on the four hundred and seventy dollar note, from his neighbors. It is true, that when this declaration is weighed against the fact, that no receipt was taken, expressing the terms of the settlement, and the evidence of the original debt was retained by the plaintiff, that the presumption arising from this conversation is perhaps destroyed; yet the court is not the tribunal appointed by the law to determine the weight of evidence — it should, in' all such cases be left to the jury to determine. We must, then, look into the charge, as given, and see if it can be supported.,

It naturally is divided at two points; the first, that if the plaintiff received the notes and order as a collateral security, and they were not collected, he was entitled to a recovery in this action ; the second, that if the note was given to the plaintiff, and received by him as á payment of the one due from the defendant,’yet, if the persons from whom the money was due, were insolvent, and the money could not be made from them, then, notwithstanding the agreement of the plaintiff to receive it in payment of his debt, he might resort to a suit on the original consideration, and recover thereon.

The first branch of this charge contains a proposition too clear to require any illustration to support it. It is the recognised and admitted doctrine of all the cases— (Chitty on Bills, 203, note 1 — where all the American cases are collected.) The second proposition cannot be sustained to the extent laid down, by the Circuit court. A bill of exchange, or promissory note, given for a precedent debt, is not a payment, unless it be so expressly agreed by the parties, but it is competent for the parties to stipulate, that it shall be so taken, and when this is expressly agreed on, the original note or liability is completely discharged. In the case of the New York State Bank vs. Fletcher, (5 Wend. 85,) it is said by Judge Marcy, “ that negotiable paper is not payment of a pre-exist-ing debt, unless it is expressly agreed to be accepted as such. I take the law to be, that it is payment, if expressly accepted as such, whatever be the grade of the pre-existing debt.” So, also, in Davidson vs. the Borough of Bridgeport, (8 Conn. B. 472,) the converse of the rule is correctly stated, that the mere giving, for an antecedent debt, of a note or bill which turns out to be unproductive, is not an extinguishment of.such debt, in the absence of any agreement to receive it as payment.

In this case, the Circuit court directs the jury, that even if the noté was given and accepted as a payment, notwithstanding such agreement, if the parties were insolvent, the plaintiff might resort to the original consideration, &c. This charge was not called for by the evidence disclosed, and might have, and was sufficient to, mislead the jury, from the true question for their determination, that is, whether there was any agreement lohat-ever, to accept the note and order, as a payment and satisfaction of the debt due to the plaintiff.

For the.error of this charge, the judgment of the Circuit court is reversed and remanded.


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    PEIRCE vs. HILL.
    1. When a defendant justifies, under a writ, or other authority, he should set it out substantially and-particularly in his plea — ■ general allegations are not sufficient.
    2. A levy made on Sunday, is void by statute, and does not divest defendant’s title to the property levied on.
    3. And detinue will lie to recover property levied on, on Sunday.
    4. Detinue lies in every case, where the owner prefers recovering the specific property, to damages for its conversion, and no regard is had to the manner in which defendant acquired possession.
    Error to Jefferson Circuit court.
    Detinue — tried before Chapman, J.
    The plaintiff in error brought an action of detinuei in the Circuit court of Jefferson, against the defendant, for the recovery of a horse. To which the defendant pleaded—
    1. Non-detinet;

      2. That as a constable, and by virtue of sundry executions, he levied on, aud sold the horse,'With the detention of which he was charged.
    To the second -plea, the plaintiff replied, that the defendant levied on and took possession of the horse, on the Sabbath, or first day of the week; whereupon, the defendant demurred-and his demurrer being sustained, and a verdict and judgment having been rendered against the plaintiff, — the plaintiff prosecuted his writ of error to this court.

      W. K. Baylor, for plaintiff in error.

      Peck, contra.
   COLLIER, C. J.

The plaintiff insists—

1. That the second plea of the defendant is bad :

2. That if the plea is good, his replication is a sufficient answer to it.’

1. Upon principle,-it would seem clear, that when a defendant justifies under a writ, or any other authority whatever, he should set it out substantially in his plea. And it is not sufficient to allege generally, that he committed the act complained of, by virtue of a certain writ, or other warrant, but he must show particularly, at whose instance it issued, the time when, &c. — (Co. Lit. 283, a 3 Mad. R. 137,138; Mathews vs. Cary, 1 Salk’s R. 107, 108 ; Lamb vs. Mills, 4 Mad. R. 378 ; Com. Dig. Pl. (E. 17.) Unless the process is described in the plea, how can the plaintiff know what he will be required to disprove, or how can he frame his replication understandingly ?

In the present case, the plea alleges that the defendant, as constable, by virtue of sundry executions, Spc., levied o?i¡ Sj'c. The plea is obviously insufficient, as a plea of justification, because of the generality of terms, and the demurrer to the replication should have been visited upon it.

2. By the *thi¡rd section of the act of eighteen hundred and three, “ for the suppression of vice and immorality}” (Aik. Dig. 440,) it is enacted, that “No person or persons upon the first day of the week, called Sunday, shall serve or execute, or shall cpuse to be served or executed}.any writ, process, order, warrant, judgment, or decree, (except in criminal .eases, or for a breach of the peace,) but the service of every such writ, process, order, warrant,judgment, or decree, slnill be void to all intents and pcm poses whatsoever :■ and the person or persons so serving or executing the-mipe, shall be liable to the suit of the party aggrieved, and to answer damages to him for the doing thereof, as if he.or they had done the same without any writ, prdtess, order, warrant, judgment, or decree.”' The section contains a proviso, which authorises the ser-> vice of process on the person, under certain circumstance es, but as it can have no influence upou the case, it need not be more particularly noticed.

The part of the act we have quoted, is so similar in its terms to the statute of the 39 Car. II, ch. 7, s. 6, as to leave no doubt that it was copied from that statute— (Watson’s sheriff, G2; 7 vol. L. Lib.) Under that act, it has been held, that the mere service of process on a Sunday, is void; and where a person has been arrested or servdd with process on a Sunday, the arrest or service is wholly void, so much so, that no waiver by the party can cure the irregularity. So, if the defendant or his goods be in the custody of the sheriff, the court will set the execution aside, or discharge the defendant-out of custody on motion — (Taylor vs. Phillips, 3 East’s R. 155; 5 T. R. 25; 6 Mod. R. 95.)

The levy, then, being void, because i¡t \^as made on Sunday, did not divest the plaintiff^title, and it was unnecessary for him to reply to so much of the plea, as alleged a sale under the levy. It wasnno.ugh for the plaintiff to state matter, which avoided%he defendant’s justification, and for that purpose his replication was sufficient. »„

Upon the hypothesis that the iaw is for the .plaintiff, upon both the points made by hiln, the counsel for the defendant has argued that the action of detinue is not an appropriate remedy in the case diseased by the-record. The second plea being out of the way, there is nothing to distinguish the present from ^.ordinary action of de-tinue. We will, however, with*#view td*foreclose further controversy on the point, consider the objection made by the defendant’s counsel.

The action of detinue is defined in the old books, as a remedy founded upon the delivery of,goods by the owner to another to keep, who afterwards refuses to re-deliver them to the bailor. And it is said, that to authorise the maintenance of the action, it is necessary that the defendant should have come lawfully into the possession of the chattel, either by delivery to him, or by finding it. Hence it was, that the wager of law was permitted, and grew out of the confidence reposed in the bailee — -(Fitz-N. P. 323; 3 Bla. Com. 152.) In fact, it was once understood to be the law, that detinue does not lie where the property had been tortiously taken; because, as it was said, the plaintiff’s right of property was divested by the trespass — (Selw. N. P. tit. Detinue, where Bro. Ab. 'Deti-nue PI. 52, is cited.) The reason assigned for this limitation upon the action of detinue as a remedy, is very unsatisfactory, and most clearly a non-seqidtur. Neither our law, nor the English common law, will allow one man to wrest from another his property by force, or against his consent, so as to vest the title in the taker.

Upon principle, it must be very unimportant in what manner the defendant’s possession commenced, since the gist of the action is the wrongful detainer, and not the original taking — (3 Black. Com. 152.) And such seems to be the law upon authority — (Vide Sir W. Jones, 173; 1 Chitty’s Pl. 112.) It is incumbent upon the plaintiff to prove'property in himself, and possession in the defendant — (2 Stark. Ev. 493; Burnley vs. Lambert, 1 Wash. R. 308 ; Burton vs. Brashear, 3 Marsh. R. 278 ; 1 Saund. on Pl. & Ev. 434, 435, 436.) In Johnston and wife vs. Pastern, (Cam. & Norwood’s R. 464,) the Supreme court of North Carolina say, that at present, the action of de-tinue is applied to every case where the owner prefers recovering the specific property, to damages for its conversion, and no regard is had to the manner in which the defendant acquired the possession.

From the facts admitted by the pleadings, it appears that the defendant took possession of the plaintiff’s property tortiously, and in a manner expressly forbidden by law. True, the defendant alleges that he subsequently sold the horse, in virtue, and as a consequence, we suppose of the wrongful seizure. These facts, it is conceived, do not constitute a bar to the action — for if the levy was void, all proceedings under it, must be alike invalid, and could not divest title.

Again — The plea does not allege that the sale took place before action brought — so that we are relieved from the necessity of enquiring whether the defendant’s possession at the commencement of the action, was necessary to entitle the plaintiff to recover; as well as from considering whether the defendant’s possession having begun in wrong, it was competent for him afterwards to have made a valid levy upon the property, without first restoring it to the plaintiff’s possession.

Our conclusion from the case as presented, is, that the judgment must be reversed, and the case remanded,


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    ULMER vs. AUSTILL.
    1. Commissioners appointed to take the testimony of an absent witness, act under the authority of the court, and are invested with power to administer the necessary oath, and their certificate that such oath has been administered, is prima facie evidence of the fact, and must be conclusive; unless it be shewn that they have disregarded their duties, or violated the trust reposed in them.

      2. The action of the commissioners, to be effectual as an execution of delegated authority, must be within the period designa- ■ ted in the notice given under the directions of the clerk.
    3. The party praying the commission, must give notice to the adverse party, of the time and place ordered by the court, judge, justice or clerk, when and where the commission is to be executed.
    4. The party wishing to take the deposition, cannot extend the time to more than one day: but if the commissioners are unable to conclude the examination, they may continue if from day to day.
    5. Where a day is fixed for taking a deposition, the opposite party need attend only on that day.
    6. The acknowledgment of service of the notice of the examination of the witness, imposes no obligation on the adverse party, which would not arise from its execution by an authorised officer.
    Error to Dallas County court.

      Indebitatus assumpsit. The questions which arose in this case, were confined to the execution of a commission to examine an absent witness.
    At the trial of this cause, before the County court of Dallas, the plaintiff offered to read in evidence, the depo- ■ sition of a witness, taken under the third section of the 'act of the twenty-third of December, eighteen hundred and thirty-seven. The clerk of the County court made an order on the back of the commission, that the party applying for it should give the defendant, or his attorney, ten days notice of the time and place when and where it was to be executed. Notice was given on the seventh of May, that the commission would be executed at the office of R. E. B. Baylor, in Mobile, on the third Monday of May, eighteen hundred and thirty-eight, between the hours of nine A. M. and six P. M. — if not on that day, he-tween the same hours on any of the three next succeeding days. This notice was in writing, and its service acknowleged by the defendant’s attorney. The commission was executed at the proper place, between the hours of nine A. M. and six P. M., on the twenty-fourth day of May, eighteen hundred and thirty-eight, the twenty-first of the month being the third Monday. The caption of the deposition, states the commissioners named in the commission, in pursuance of it, had caused the witness to come before them, at the time and place before named, he being of lawful age, and first duly sworn: then follows the deposition, to which is appended the following oath:
    “The State of Alabama, Mobile'county and city, ss.
    “ This day personally appeared before me, Charls A. Henry, a justice of the peace -in and for the county and city aforesaid, Nathaniel J. Mussie, [the witness,] whose name was signed in my presence to the within deposition, and made oath that the facts contained in such deposition are true, so far as they came within his own knowledge, and he believes them to be true, so far as derived from others. Nath’l J. Mussie.
    “Sworn to and subscribed before me, this 24th May, 1838. Charles A. Henry, J. P.”
    The comissioners then certify what was previously stated in the caption, as to the time and place, of execu-. tion, and that the witness was duly sworn, and subscribed his name to the deposition in^their presence. -
    To the reading of this deposition, .the defendant objected, on the following grounds:
    1st. That the notice of taking of the said deposition, was not such as is required by law.
    2dly. That the deposition ought to have been taken on the third Monday in May, eighteen hundred and thirty-eight, which was the twenty-first day of said month, and not on the twenty-fourth day of said month, as stated in the caption.
    3dly. Because it did not appear from the certificates annexed, [to the deposition,] that the witness was sworn according to law, to give evidence. The County court overruled the objection, and admitted the deposition, to which the defendant excepted. A judgment being rendered against him, he now prosecutes his writ of error to this court, and seeks its reversal, on account of the supposed error, in admitting the deposition.

      J B. Clark, for the plaintiff in error.

      Phillips, contra.
   GOLDTHWAITE, J.

The last objection taken to the deposition, 'will be first examined.

It is, by no means, improbable that the oath which is signed by the witness, and certified by the justice of the peace, was the only one taken by him. This, if so, would be sufficient to exclude his testimony, as that is not the oath which the law requires to be administered; but the court below was not authorised to arrive at such a conclusion, in opposition to the certificate of its commissioners. They state that the witness was duly sworn, and it may be, that another and a legal oath was administered to the witness, by them, or in their presence. The commissioners appointed to take the testimony of an absent witness, act under the authority of the court; they are its officers, and by it, are invested with authority to administer the necessary oath; .their certificate that such oath lias been administered, is prima facie evidence of the fact, and must be conclusive, unless it is clearly shewn, that they have disregarded their duties, or violated the trust reposed in them. As nothing of this kind was made to appear by extrinsic evidence, and as it cannot be inferred from their return to the commission, the deposition is not obnoxious to objection on this accouut.

The other objections, depend on the construction. of the act of assembly, prescribing the manner of taking the depositions of absent witnesses. Oath being made to any judge, justice, or clerk of the court, wherein the suit is depending, of the existence of a cause, for which a deposition is allowed to be taken, such judge, justice, or clerk, is empowered to issue a commission, to one or more persons, to take and receive the deposition of the witness. The party praying the commission, is to give such notice to the adverse party, of the time and placej when and where such comission is to he executed, as the court, judge, justice or clerk shall think proper: and the adverse party shall have liberty to cross-examine any witness whose deposition shall be so taken — (Aik. Dig. 126, s. 1.)

In the present case, the commission does not instruct the commissioners as to the time within which they are to cause the witness to come before them; they are empowered to act generally, but their action, to be effectual as an execution of the delegated authority, must be within the period designated in the notice -given under the directions of the clerk. It is obvious, if the party wishing to take the deposition, can extend the time to more than one day, then the designation of time, might be of no benefit to the adverse party, as the information that the action of the commissioners would take place on any day of a particular month or week, in most cases would be purely vexatious.

We do not wish to be understood as intimating that the course .pursued in this case was unreasonable or vexatious ; on the contrary, we think such a practice would be highly convenient, if authorised by the act, as it would frequently save parties the trouble of suing out a new commission, or giving a second notice, when disappointed in the attendance of his witnesses on the day named. The designation of place, is not more specific in the notice required, by law, than of time; yet, none would suppose a notice sufficient, which designated more than one place of executing the commission.

The adverse party was informed, that this commission would be executed on the third Monday of May, and if the deposition was not then taken, it would he, on any of the three next succeeding days. He was bound to attend alone on the day first named, as the designation of the others was unauthorised, either by the act of assembly or the order of the clerk. If the commissioners found themselves unable to conclude the examination on the day named, their authority for that cause, would not have ceased, but they might have continued the examination from day to day until finally closed.

The acknowledgment of service of the notice, imposed no obligation on the party or his attorney, which would not have arisen from its execution by an authorised officer. The party had no means in his power, of restraining any action under the commission directed by the plaintiff, and his only course was to attend to the examination, if made on the appointed day.

We have not thought it important to advert to the decision cited from Hay woo'd, (Kennedy vs. Alexander, 1 vol. 25,) because the statute under which that court acted, is not given by the reporter, and we are unable to judge how far it corresponds or differs from our own, — but if made with reference to one similarin terms, we could not yield our own convictions to a nisi prius adjudication.

Let the judgment be reversed and remanded.