author: By Mr. Justice Thornton.

text:
    TINDALL versus COLLINS, Survivor.
    Á discontinuance against a party not served 'with process, who is is. joint contractor, (in a contract not embraced by the act of 1818) is error.
    The act of 1818, authorising a discontinuance where the writis returned, “not found,” as to one or more of the defendants, does not embrace the case of a co defendant to a joint contract in writing, (not under seal,) for the'performance of work and labor.
    The statute of Jeofails does not cure the error of such a discontinuance^-espe* cialiy if the issue below was not on the merits.
    This was an action, brought by the defendant in terror, in the Circuit Court of Mobile, to recover on a joint contract, executed between Collins and his deceased partner Bebe, and Tindall and one Myers. The said Tindall and Myers had jointly contracted with Collins and Bebe for the performance of a job of work; and the action was to recover for a breach bf the agreement, which was not a covenant. The writ was issued against both Tindall and Myers, but the same was executed on Tindall only. On the trial, the plaintiff below, filed a declaration, discontinuing as to Myers, and complaining against Tin-dall as sole defendant; on which there was a judgment for the plaintiff. To reverse this judgment a writ of error was1 taken to this Court.
    StEwart, for Plaintiff. — Salle, contra.

   By Mr. Justice Thornton.

This case is brought up by writ of error, from the Circuit Court of Mobile County, to reverse a judgment rendered therein against the plaintiff in error. There are many errors assigned; to any of which, except one, it is unnecessary to advert, as that is decisive of the whole case. The assignment referred-to, is, of a discontinuance of the cause of aciion by the plaintiff. The suit is brought against the defendant Tindall, and one William Myers, to recover damages for the breach of a written contract, said to have been entered into between the defendant in error, and his deceased partner, Elisha Bebe, of the one part, and the plaintiff in error, and the said Myers of the other; which writing was a contract, for work and labor to be done by the latter, in consideration of a suin of money to be paid in the manner, and at the times specified in the contract, by the former. This instrument is averred to be under the hands of the parties only, and is not a covenant. The writ issued against both the said plaintiff in error and Myers ; and the declaration discontinues the action against Myers, on whom, it is averred, the writ was not served, and complains of the plaintiff in error, as sole defendant. By the common law, a discontinuance as to a party who was, as here, a proper co-defendant to the action, operated as a discontinuance of the whole cause.' The statute of 1818, which authorises a discontinuance where the writ is returned “ not found,” as to one or more of the defendants, embraces only actions upon bonds, covenants, bills, promissory notes, and judgments, neither of which is the contract declared on in this suit.-(See Thompson vs. Saffold, et als.) The same result would follow, if the defendants in the writ were partners in the matter of the Contract, instead of joint contractors. In that event, there could be no dismissal as to one; for, by the statute above referred to, service on one would be service on both; and the declaration should follow the writ as to the parties. The statute of Jeofails, which is relied upon to cure this defect, has been, at least, constructively decided by this Court, not to do so, éven where a material issue had been tried; (See the case of Adkins and al. vs. Allen, ) But, without that authority, we consider that the error was not cured in this case, by the trial of the issue had in. the Court below, which was on a plea in abatement to the jurisdiction, and did not involve the merits of the case.

Let the judgment be reversed.

       2 Stew. 494.

       1 Stew. 130.


source: Caselaw Access Project

author: By Mr. Justice Hitchcock.

license: Public Domain

text:
    SKINNER versus McCARTY.
    Where A and B, being sued on anote before a Justice of the Peace, A appear-» ed, and on oath denied the execution of the instrument, and judgment was rendered against B, who did not appear, but who carried the case by certiora* ri, into the Connty Court: Held, that filing declaration against B alone, did not create a discontinuance.

      Sealing is an essential requisite to constitute a perfect bond, and an instrument purporting to be a certiorari bond} but containing no seals, is void.
    In this case, the defendant in error sued Scarborough and Skinner, before a Justice of the Peace, in the county of Clarke, on a note of hand, Scarborough, under oath, denied the execution of the note — whereupon, the justice gave judgment, by default, against Skinner, who did not appear. . Skinner subsequently took the case, by certiorari, into the Connty Court of Clarke ; where, after several continuances, verdict was rendered against him. Skinner took a writ of error to this Court, and among other assignments for reversal, alleged — -
    1. That the original suit having been against two,, and the declaration being against Skinner alone, a discontinuance was thereby created.
    2. That the certiorari bond was. void for- want of the seals.
   By Mr. Justice Hitchcock.

This was an action originally commenced before Isaac Pew, a Justice of the Peace for the county of Clarke, in favor of Charles McCarty, for the use of James S. Rowland, against one Silas .Scarborough and Thomas A. Skinner, onei of the plaintiffs in error, upon a note payable to McCarty, dated the 3d October, 1829, for nineteen dollars. At the trial before the magistrate, Scarborough appeared, and under oath, denied the execution of the instrument. Skinner did not appear, and the magistrate rendered judgment against him alone, by default, for the sum of nineteen dollars eighty-sight cents, on the 28th of August, 1830. On the 29th September, 1830, Skinner applied to Sam-, uel Wilkinson, Judge of the County Court for the County of Clarke, for a certiorari, to bring the case before that Court, and “ that all further proceedings • should be stayed in the caseupon which petition, the Judge endorsed an order in the following words • “ Mr. Thomas, Saunders — You will issue a writ of cer- “ tiorari, according to the prayer of the petitioner.— “ Signed,. Samuel Wilkinson, J. C. C. C.” Upon this order, the Clerk, Mr. Thomas Saunders, issued a cer-tiorari to the magistrate, to bring up his proceedings to the County Court; and took from the plaintiff in error, an instrument having all the formal requisites of a certiorari bond, signed by the plaintiff, hut which instrument is without any seals to the signatures of the parties.

At the December term, 1830, of the County Court, the certiorari was returned, with the proceedings of the magistrate, and the plaintiff filed a declaration against Skinner, but not against Scarborough; to •which declaration, Skinner, by his attorney, pleaded í,‘ nón-assumpsit,The case appears to have been, continued to February term, 1832, when a jury was called, who are named in the record, and on motion of the defendant’s attorney, the case was continued.” At February term, 1833, the case was tried before a jury, and a verdict was had for the plaintiffs, and a new trial was granted, and the cause was continued. At the February term, 1834, the case was again submitted to a jury, and a verdict was had for the plaintiffs for twenty-five dollars and twenty cents ; and a judgment was rendered by the Court against Thomas A. Skinner, the original defendant, together with James Magoffin and James McClure, the securities in the writ pf certiorari bond,” for the amount of the vprdict, with costs of suit.

To reverse this judgment, the case has been brought, by writ of error, into this Court, and has been subr mitted, without argument, upon the following assignments.

1. That the suit was originally brought against two, and when brought by certiorari into the County Court, the declaration was filed only against one, thereby creating a discontinuance,

2. That a jury was called at June term, 1831— that no juror was withdrawn, and no verdict rendered,; thereby also creating a discontinuance.

3. That judgment was rendered against the securities in the certiorari bond, when there is no statute authorising that summary mode.

4. That the certiorari bond is void, there being no seals: and,

5. That the bond is void • no bqnd being required by the fiat of the Judge granting the certiorari.

In relation to the first assignment, it is sufficient tq remark, that the defendant, Scarborough, having (under the provisions of the statute, which authorises ,a defendant, under oath, to deny the execution qf any instrument sued on,) denied that he had executed this note, or authorised any one to execute it for him; and the'other defendant, Skinner, having failed to appear, hut let judgment go by default, the case, as to Scarborough, was properly at an end, and could only be taken up by Skinner, and consequently, the declaration could only be filed against him.

Independent of this consideration, the defendant, Skinner, by pleading non-assumpsit to the declaration, thereby waived any error there might otherwise have been in the proceedings.

In relation to the second assignment, it appears that after the jury was called and sworn, the defendant applied for and obtained a continuance. He, therefore, cannot allege the want of the withdrawal of a juror, or the want of a verdict, as error; and besides this, he had the case twice subsequently submitted to a jury, without alleging a discontinuance in the Court below.

As to the third assignment, it may be remarked, that if the bond was properly taken and executed, the second section of the act of 182G, gives to the bond the force and effect of a judgment against all the obligors, and authorises execution to be issued against them.

It is alleged in the fourth assignment, that the instrument is void as a bond, there being no seals. This objection is considered by the Court, • to be properly taken. Sealing is a distinct and substantive requisite, , to constitute a perfect bond, and without it, the instrument is not binding on the parties. For this cause, the judgment below must be reversed, and a proper judgment rendered here, against Skinner, the defendant in the original suit below.

As to the fifth assignment, whether the bond would have been void, if otherwise perfect, for the want of the fiat of the Judge in granting the certioi'ari, no opinion is necessary ; and, as the caso has not been argued, none is givern

       Aik. Dig. 283 § 137.

       Aik. Dig. 165


author: By Mr. Justice Thornton :

text:
    HENRY versus TURNER.
    One who crosses a river at a ferry in a boat not belonging to tiie owner of the ferry, and who lands by stepping from the ferryimtu’s boat, is not liable in aú action to recover the rate cf ferriage, allowed by late; however he would be re* sponsible for the invasion of the plaintiff’s franchise, or for trespass.
    This action was brought in the County Court of Bibb, to recover the rate of ferriage allowed by law to the plaintiff, Henry. The defendant, Turner, had, it appeared, crossed the river in a canoe, not belong-* ing to the owner of the ferry; and had landed, by stepping into the boat of the plaintiff. The Court be^ low, determined that the action was not sustainable \ Whereupon, the defendant took his writ of error to this Court.
    Freeman, for Plaintiff
    cited Aih. Dig. 396;
    Stewart, contra.

   By Mr. Justice Thornton :

This was an action brought by the plaintiff in etf* for, who was also plaintiff below, to recover of the' defendant an amount due for ferriage to the plaintiff, who appears to have been in possession of the ferry landing, and necessary water craft, at Center-ville, on the Cahawba river. The proof is, that the defendant, by means of a canoe, which is proven not to.have belonged to the plaintiff, nor to he one of the water craft, kept and provided for tire said ferry, crossed the river, and got out on the landing side into one of the plaintiff’s boats. The Judge who tried the cause below, decided that the plaintiff could not recover, in this action, for the ferriage; and in this, which is the only error assigned, we think he did not err. The reason which the Court below gave for this decision, adverse to the plaintiff, is not a matter 'which can be assigned, for error; and therefore, we cannot properly determine, whether that reason be a sound one or not. The restilt was correct,- for thé reason, that from the proof; however the defendant may be liable for invasion of the plaintiff’s franchise, of for trespass done by getting into his ferry boat, he was not responsible for the rate of ferriage allowed by law, as if he had been ferried over the stream in the craft of the plaintiff.

Let the judgment be affirmed.


text:
    MUNN AND GRIFFIN versus LEWIS.
    The “ County Court,'1 acting judicially, has no authority to take the acknowledgment of a deed of lands: and where the acknowledgment of a deed appeared to have been taken in open Court, and the entry thereof was transferred' from the minutes to the back of the deed, by the clerk, it was held, that such acknowledgment was void.
    The Judge or Clerk of the County Court have authority to take suck acknowledgments*, but they are independent ministerial acts, which the oiTicer before whom made, must certify on the hack of the deed.
    Leavis brought his action of trespass, to try title, against Munn and Griffin, in the Circuit Court of Madison. A portion of the testimony relied on by 'the plaintiff below, to perfect his title, was a deed of trust- The certificates on the back of the deed showed, that at the August term, 1827, of the County Coiirt of Madison, the said deed was produced in open Court, the execution thereof acknowledged, and the same ordered to be recorded, which order was transferred from, the minutes of the Court, to the back of the deed, by the Clerk, who also certified its having been recorded.
    The defendants below, objected to the reading of the deed to the jury, on the ground that it was not proved, acknowledged, and recorded, in pursuance of the statute. The Court overruled the objection, and a verdict and judgment were rendered for the defendant in error.
    The plaintiffs in error took their bill of exceptions to the decision of the Court on this point, and assigned the same in this Court.
    Hopkins, for Plaintiffs in error
    cited 1 Peters’ R. 340, 341, 342 — 2 Stem. 490
    Craighead, contra.

   By Mr. Justice Hitchcock.

This is an action of trespass, to try titles; brought by John H. Lewis against Mathias Munn and John Griffin, in the Circuit Court of Madison county, to recover possession of a lot of ground in the town of Huntsville, hi said county. ■

The suit was tried at the October term, 1832, of said Court, and a verdict was had for the plaintiff, for the lot in question, and for one hundred and seventy eight dollars and eighty three cents, for damages; for which a j udgment was rendered, and the case is brought here by writ of error.

At the trial of the cause below, the plaintiff, as part of his chain of title, offered in evidence a deed of trust, for the land in question, dated the 27th of August, 1827, purporting to be executed by Munn to James Penn as trustee, to secure one John Tayloe in the sum of six hundred and twenty-five dollars, which he was indebted to him. On the back of the deed, the following certificates appeared: “ State qf Alabama, County Court of Madison County, August term 1827. A deed of trust from Mathias Munn to James Penn, for the benefit of John Tayloe, dated 22d August, 1827, for certain purposes, and property therein specified, was this day produced in open Court, and the execution thereof being duly acknowleged by the parties thereto, the same is ordered to be recorded,” &c. — “ A copy from the minutes, Thomas Brandon, Clerk.”— “ The foregoing deed of trust was duly recorded in the office of the Clerk of the County Court of Madison county, the 29th of September, 1827 — Thomas Brandon, Clerk.” No other proof was offered, of the execution of the deed, than what appears from the above entries and certificate. The reading of this deed was objected to, by the defendants below, but the objection was overruled, and the deed was admitted as evidence, and was read to the jury; to which a bill of , exceptions was taken, and which is assigned for error in this Court.

. By various statutes which have been enacted from, time to time, in this state, from 1803 to 1823, Judges of the Circuit Court, Justices of the County Courts, Clerks of the Circuit and County Courts, Notaries Public, and two Justices of the Peace, are respectively authorised to take the acknowledgments of the parties, relinquishments of dower; and proof by subscribing witnesses to deeds and conveyances of lands, tenements and hereditaments, lying within this state; and certificates of acknowledgment or proofs, written upon or under said deeds and conveyances, and signed by the person before whom it was made, shall entitle said deed to be read in evidence in any conrt of this state, in the same manner as if the same were then and there produced and proved.

By the second section of the act to prevent frauds and fraudulent conveyances, it is declared, ''that if any conveyance be of goods or chattels, and be not on consideration, deemed valuable in the law, it shall be taken to be fraudulent within this act, unless the same be by will duly proved' and recorded. If the same deed include lands, also in such manner as conveyances of lands are by law, directed to be acknowledged and proved; or if it be of goods and chattels only, then acknowledged or proved by one or more witnesses in the Superior Court or County Court, wherein one of the parties lives, within twelve months after the execution thereof.” ' And by the third section of the act, it is declared, that “ this act shall not extend to any estate or interest in any lands, goods or chattels, or any rents-common, or profit out of the same, wdrich shall be upon good consideration, and bond fide, lawfully conveyed, or assured, to any person or persons, bodies politic or corporate.”

These are all the statutes we have, relating to the acknowledgment and proof of deeds, in this state. The term good consideration, referred to in the third section of the last recited act, has been uniformly held to be synonimous with the term valuable consideration; and as the provisions of the second section, authorising the acknowledgment of deeds before the County Court, is confined to deeds of goods and •chattels only, and requires them, when they include lands also, though upon consideration not deemed valuable in the law, to be acknowledged or proved, in such manner as conveyances of land are by law directed, it follows, necessarily, that no deed of any kind, where lauds are conveyed, can be acknowledged before the County Court. It must be done before one of the persons designated above, and a certificate on or under the deed signed by him, must accompany it, shewing that the requisites of the law have been complied with.

In this case, the acknowledgment was made before the County Court, in open Court, and the entry made on the minutes of the Court, and not on the deed. It does not purport to be the act of the clerk, and the Court as such, could not direct the clerk to make the entry, and the clerk, as such, had no right to transfer the entry to the back of the deed. It cannot, therefore, be regarded as the act of the clerk, for he may not have seen the parties when the acknowledgment was made. It cannot be regarded as the act of the Judge, as he did not sign it, and perhaps does not know that the entry has been transferred to the back of the deed. It is true, that both the Judge and the Clerk are authorised to take the acknowledgment of deeds : but, in the performance of the act, it is done in the exercise of a distinct, independent, and personal authority, upon the individual judgment and responsibility of the person before whom the acknowledgment is made, in which the officer acts ministerially, and not judicially; and when the authority is exercised, and the certificate is made, the authority itself is exhausted, and the act becomes fixed, permanent, and unalterable : it goes with the deed where-ever it goes, and is an indispensable pre-requisite to its being admitted to record. .This is the view taken in a similar case, by the Supreme Court of the United States-Elliott et al. vs. Peirsol et al.

The acts authorising the acknowledgment of deeds, though of great public convenience, are yet in derogation of the common law, taking away the right of a personal examination of the party who made, and of the witnesses who saw the execution of the deed; and therefore, they must he strictly complied with. ■

Whether a certificate, such as this, is made and signed by a person authorised to take the acknowledgment of deeds, would he a sufficient compliance with the statute, in as much as it does not state that the party appeared and acknowledged that he “ signed, sealed, and delivered” the instrument in question, but only, that the deed was produced, and “ being duly acknowledged by the parties thereto,” was, &c. is a question, though suggested in argument, not necessary to the decision of this cause, and therefore, no opinion is expressed.

The recording of the deed, and the certificate of the clerk of such record, on the deed, gives no validity to the act; and it being the opinion of the Court that the acknowledgment is void, it follows that there was error in the .Circuit Court in admitting it as evidence : for which, the judgment must be reversed, and the cause remanded.

       Aik. Dig. 88, 8

       Aik.Dig.207

       1 Peters, 340.


author: By Mr. Chief-Justice Saffold :

text:
    JOHNSON, Survivor, versus BALLEW, Adm’r.
    Á bill of exceptions must showjaffirmalively the existence of the error, of which a party complains, and the appellate Court will not presume facts which do not appear.
    When there is no ambiguity apparent, on the face of an instrument — nor any intimation given of a disclosure of a latent ainbiguity, the refusal of an inferior Court, to admit parol testimony to explain such instrument, is not error.
    It is not competent for a witness to give testimony as to Whether, a particular language used mas calculated to produce fear in the mind of one, so as to induce him to execute a paper. What that language was, must be submitted to the jury, from which their own inferences are to be drawn.
    This case was brought into the Supreme Court by writ of error from the Circuit Court of Morgan. It was an action of assumpsit, commenced by the intestate of the defendant in error, to recover for work and labor, performed for the plaintiff here, and his deceased partner. The account rendered against the plaintiff in error, was acknowledged in writing, by Johnson, to be correct, both as to prices and the execution •of the work. A verdict and judgment were rendered for the defendant in error, and by a bill of exceptions the case was brought to this Court for revision.

    S. Parsons, for Plaintiff
    contended, that there was error in the judgment below.
    1st. Because the acknowledgment was not proved by the subscribing witness.
    2d. Because the Court rejected evidence that the acknowledgment was obtained by duress.
    If the Court had admitted the evidence of duress, as offered, the same could have been perfected, if incomplete, by other testimony.
    Duress may be given in evidence under the general issue. — 1 Chitty's PI. 470.
    Craighead, contra, said
    It did not appear from the bill of exceptions, but that the acknowledgment was proved, and the items established.
    A bill of exceptions does not necessarily show all the testimony, and it was the business of the party excepting, to show, that the hand-writing' of Johnson was not proved.
    As to the duress, the party offered to prove what was the opinion of the witness, in respect to the language used, which was surely inadmissible.
    The doctrine of duress requires, that the language or-conduct should be such as would put a man of ordinary courage in fear; and the mere opinion of the witness that the language used might excite fear, was properly rejected. — 1 Blaclt. 131.
   By Mr. Chief-Justice Saffold :

Colley, in his life time, instituted an action of as-sumpsit against Johnson, as surviving partner of Moseley, and said Johnson, to recover an account against them for more than nine hundred dollars, for work and labor done and performed. Colley having died pending the suit, it was further prosecuted by Ballew, as his administrator, and being tried in the Circuit Court, on the general issue, a recovery was had against the surviving partner, from which he prosecutes this writ of error. The questions for consideration, arise on a bill of exceptions. The first of which, according to the assignments of error, is—

Was the account and acknowledgment, signed by Johnson, admissible as evidence?

The account in question appears to have been regularly stated, charging William Moseley and Harmon A. Johnson as debtors to Gabriel Colley. The account contains the various items, with the price of each, amounting to nine hundred and ninety one dollars and twenty cents; to which is subjoined the following : “ I acknowledge that the above items of work were done by Mr. Gabriel Colley; and further, believe that the price annexed to each item, is correct, as to myself individually.” — Signed H. A. Johnson — dated and attested. To the introduction of this evidence, the defendant objected; but the Court admitted it.

The main objection now urged against it, is, that it was admitted without proof of the hand-writing of the defendant. It is found true, as contended in argument, that this -fact does not appear, nor is it to be presumed. The bill of exceptions does not purport to contain all the evidence, and this exception is not shown to have been taken below. The party excepting, is required to show affirmatively the existence of the error, of which he complains. The objection relied upon below, may have been entirely different; and something in which the plaintiff in error now has not -sufficient confidence to bring it to the notice of the Court. No other available objection is apparent to the Court. The fact, that the acknowledgment was made by the surviving partner, or one jDartner alone, could not legally exclude it. The evidence was at least relevant., as conducing to prove the issue, whether the acknowledgment was absolute, or in terms of belief merely — Whether it, admitted only that the work was done, or that, together with the reasonableness of the prices. The question would have been different, if presented,- whether this evidence alone was sufficient, or whether the defendant would have been entitled to resist the force of this acknowledgment by proof of fraud or mistake in obtaining it, or of any subsequent matter destroying the justice of the demand; but no such questions appear to have arisen in the case.

2. The second assignment is, that the Court refused to permit parol evidence, to explain a supposed ambiguity in the written acknowledgment.

On this, it is sufficient to say, there is no ambiguity in the instrument, apparent on the face of it, nor any intimation given of the nature of the supposed defect, showing the object to have been, to disclose a latent ambiguity : the latter, only, is by law susceptible of explanation by parol; and the character of this instrument would scarely admit of such an ambiguity.

3. The last assignment, is, that the Court rejected evidence of the language of Colly, upon the occasion of the defendants’ signing the acknowledgment.

On this point, the .facts are, that the defendant proved Colley to have been a desperate man, and that at the time the acknowiedment was obtained, he was in a great passion; also, that the defendant knew his character, and was a timid manbnt the witness did not recollect the precise language used by Colley. The evidence rejected, was no other than the answer of the witness to the question, whether the language of Colley was calculated to produce fear in the mind of Johnson, and thereby induce him to sign the paper, not what the language was, from which the jury could have drawn their own inferences. The effect of this evidence would have been, to make the inferences or conclusions of the witness, evidence of a fact, for the government of a jury. Without further scrutiny into the legality of this evidence, this view of it alone, shows it to have been clearly inadmissible.

There was no error in the proceedings of the Court below, and the judgment must be affirmed.


text:
    McELDERY AND CHAPMAN, Ex’ors versus McKENZIE.
    Executors or administrators, by virtue of their general powers as such, cannot make any contract in their representative character, which at law, will bind the estate, and authorise a judgment de bonis testatoris.

    If an executor or administrator contracts for necessary matters relating to an estate, he does so on his personal responsibility, and the action to recover thereon, must be against him individually.
    This was an action of assumpsit, in the Circuit Court of Morgan against McEldery and Chapman, executors of Goodhue's estate. The cause of action declared on, was work and labor for the estate of Goodhue, performed at the instance of the executors. McEldery alone appeared, and plead “ non-assump-sit and set off,” and a judgment was rendered against both executors, cle bonis testatoris. On trial, the Court charged the jury, that if they believed the work and labor was beneficial to' the estate, it was chargeable to the defendants below, in their representative capacity as executors, and not to them as individuals; and that such evidence would sustain the action. The defendants below excepted to this charge, and took a' writ of error to this Court.
    S. Parsons, for Plaintiff
    Insisted, that a party making a contract with executors, but not in their representative character, must recover against them individually.
    In" this case, the contract was made with, and executed for the executors, and not for the testator: therefore, Recovery cannot be had against the executors in their representative capacity. — 4 Chitty's PI. 205.
    As it is clear the executors were liable for their contract individually, the question arises, has the defendant in error a double right- of action ?
    A contract entered into by executors individually, for the benefit of an estate, might be allowed by the Orphans’ Court on settlement; but at law, does not found a right of action against them as executors.

    Hopkins, contra

    Contended, that the services performed, were for the benefit of the estate, and it followed, that the contractors were liable to an action in their representative character.
    If the Court below, in so instructing the jury, laid down the doctrine too broad, it-is not available in error.— Wilson vs. Jackson — {Ala. Rep. 399.) ’
    If the'services rendered were for the benefit of'the estate, of course the persons rendering them ought to have their right of action against the estate, because the services might be essential, and the executors insolvent ; and but for the remedy on the estate, the services -would not be performed at all. — Cited 2 .ilenn. & Manf 55 — Chitty on Bills, 490, Note 2, — ib. 499, Note n.

   By Mr. Justice Hitchcock.

Murdoch M. • McKenzie brought an action of as-sumpsit, in the Circuit Court of Morgan county, against Thomas McEldery and Reuben Chapman, executors of William S. Goodhue, and declared against them for work and labor done by him for them as executors of said estate, at their instance and request, in and about the settlement of the estate of the said Goodhue. The declaration avers a liability, and super se assump-sit, in the common form. McEldery pleaded in short, “ non-assumpsit, and set-off,” to which there was a replication and issue, in short. The cause was tried at March term, 1833, and a verdict was had in favor of the plaintiff against both defendants, for the sum of eighty-eight dollars and fifty-five cents, and a judgment de bonis testatoris was rendered thereon. No notice appears to have been taken of the failure of Chapman to plead.

At the trial, two bills of exceptions were taken to the opinion of the Court. In the first, and only one which it will be necessary for the Court to notice, it is stated, that “itwas proved that the work and labor done, and which is sued for, was done at the request of the executors, as set forth in an account which is made part of the bill of exceptions, and which appears to be principally for posting up the books of the testator : upon which evidence the Court charged the jury, that if they believed that the work done was such as was beneficial to the estate, that, in that case, it was chargeable to them in their representative capacity of ex©' eutois, and not to them as individuals; and that such ■ evidence did sustain the action against them in their representative capacity.”

The case appears to have been treated by the plaintiffs, and the Court below, as a suit against them as-executors, and the charge of the Court directly involves the question, whether an executor or administrator, by virtue of their general powers as such, can make any contract in their representative' character, which at law, will bind the estate, and authorise a judgment de bonis iesiatoris.

This Court, in the case of Greening vs. Sheffield, at December term, 1824, where the defendant had given his note as executor, and was sued- in his representative capacity, decided, “ that in a court of law, the estate could not be charged in such a contract”— that Greening*, the defendant, though liable in an action properly brought against him in his individual character, could not be made liable in the action against him as executor. This decision is decisive-of this case : for if an executor cannot give a note to-bind the estate, he cannot make any other contract in law to bind it. The limitation which the Court, in this case, has jolaced upon the plaintiffs’ right, “ 'that he should show that the work was beneficial to the estate,” cannot affect the case. • It is a very proper inquiry, as between the executor and the County Court, when the executor presents his accounts for final settlement. But to say that the plaintiffs’ right to recover for work and labor faithfully performed, shall depend upon the benefit which the estate shall have derived from that labor, would be establishing a new principle in the law of contracts, not heretofore known.

If the executor is able to contract and bind the estate, the evidence of such contract and performance of the stipulations under it, by the plaintiff, would entitle him to recover. If he is not able to contract, except under the above restriction, then it would seem to follow, that he cannot contract at all. That an * executor or administrator can, at his discretion, em- , ploy workmen, make contracts, give notes and bonds, i ad libitum, and bind the estate, and where there are * more than one, bind all in that capacity, is a princi- * pie that seems only necessary to be stated, to be re- * jected. That an executor or administrator may con- > tract for all necessary matters relating to an estate, j cannot be doubted, but that he does so on his person- , al responsibility ; and the action to recover on such I contract, at law, must be against him individually, isff equally clear.

That there are cases in which a court of equity would charge the estate, there can be no doubt; but where the executor is living, liable to be sued, and for aught that appears, able to pay, the remedy is against him individually.

In this case, the action is against both executors : only one has pleaded. The evidence is, that the work was done at the instance of one, and which one does not appear; and the judgment is against both, and the estate is charged. So much error, in so short a case, does not commonly occur.

The judgment must be reversed; and as the action is misconceived, the case cannot be remanded.

       Ala.Rep.276.


author: By Mr. Justice Hitchcock:

text:
    WALTERS versus COMMONS.
    The United States, in providing for the survey of the public domain, established the rule, that sections of lands should be held to contain the exact quantify returned by the Surveyor-General: so, that the corners of sections fixed by such survey, cannot be removed.
    In the case of sections, the government has arranged their boundaries, marked their lines and corners, and declared die contents •, and the purchaser of an entire section takes all within those limits, be it more or less than the quantity returned by the surveyor: but in the purchase of a less quantity than a section, (as between the several holders of a section,) the contents of such several parts must be determined by reference to the entire section: and the purchaser-.of a half or quarter section, is entitled to one half or one fourth of whatever the section contains. In such case the half mile posts or corners are to ’ be placed equi-distant between tile corners of a section; for these half mile posts ave not definitively fixed by la\y, as in the ease of section corners.
    This was an action of trespass, to trj title, instituted by Walters against Commons, in the Circuit Court of Perry.
    Walters was owner of the south east quarter of section eight, in township eighteen, of range ten, and Commons claimed the east half of the south west quarter of the samé section. The whole section was found to contain six hundred and fifty two 37-100 acres, and the question raised in this case, was, in substance, whether the surveyors had the right of removing the half mile' posts, and of thus giving the plaintiff his portion of the excess in the section. The Court below, charged, among other things, that the surveyors had no right to remove the half mile stakes, if without doing so, they could give the quantity called for in the patent, though the section contained more than six hundred and forty acres. There was a judgment for defendant below, and the plaintiff having excepted to the opinion of the Court, took his writ of error.
    Ellís & Peck, for PM
    cited Story's Dig. 360, 1.
   By Mr. Justice Hitchcock:

This is an action brought by the plaintiff in error, in the Circuit Court of Perry county, to recover possession of a piece of land in possession of, and claimed by the defendant. At the trial below, a bill of exceptions was taken, which presents the following state of facts.

The plaintiff gave in evidence a patent from the United States, for the south east quarter of section eight, township eighteen, range ten, containing one hundred and sixty 70-100 acres, and, that the defendant was in possession of, and claimed the east' half of the south west quarter of the same section. He further proved, that by an accurate survey of the whole section, it was found to contain six hundred and fifty two 87-100 acres, and that to give the plaintiff one fourth of this section, it would take about one and a half acres from that in possession of, and enclosed by the defendant. It appeared, by the evidence of the county surveyor, that the half mile stake on the south line of the section was missing; but that by running a line from where he supposed it to have been, judging from the fore arid aft trees, north, to the middle of the section, and from thence east to the east line of the section, there would be found within those lines the quantity called for by the plaintiff’s patent, and that that those lines so run, would not bring the defendant within them — but that by placing the kali mile stake at the centre of the south line of the section, and thence running to the centre of the section, so as to give the plaintiff one fourth of the entire section, it would take, as before stated, one and one half acres of the defendant’s possessions.

Upon this state of facts, the Court below instrupted the jury, that if by running the line from the half mile stake, or if missing, from where it was supposed to have been, from the fore and aft trees, on the south line, north, to the middle of the section, and thence to the half mile stake on the east line of the section, the same would contain the number of acres the patent called for — that that was all the plaintiff was entitled to, though it might be less than a fourth of the section, and that in re-surveying the lands sold by the United States, in this state, the surveyors have no right to remove the half mile stakes, if without it, they can give' to the party holding the patent the number of acres called for therein, though the section may contain more than six hundred and forty acres; and though, if the section were equally divided, according to the legal sub-divisions of the United States, he would' be entitled to a larger quantity.

The correctness of this instruction, is brought before this Court for examination, and the case has been submitted without argument.

■ The titles' to lands in this state, are derived from grants by the United States, and are made under surveys regulated bylaws of the United States. By the act of 1796, providing for the sale of the lands of the United States north of the river Ohio, and which is the parent act of all our land laws, the principles upon which surveys are made, are prescribed. By the second section of that act, the lands are to be divided by north and south lines, run according to the true meridian, and by others crossing them at right angles, so as to form townships of six miles square. The corners of the townships are to be marked with progressive numbers from the beginning ; each distance of a mile between the corners shall be distinctly marked with marks different from those of the corners.— These townships are to be divided into sections containing, nearly-as may he, six hundred and forty acres, by running through the same, each way, parallel lines, at the end of every two miles, and by marking a corner on each of said lines at the end of every mile. The sections are to be numbered, respectively, beginning with number one in the north east section, and proceeding west and east alternately, through the township, with progressive numbers till the thirty-six be completed ; and the surveyors are to mark on a tree near each corner made as aforesaid, and within each section, the number of the section, and over it the number of the township in which said section may be, and all lines are to be plainly marked upon trees, and measured with chains, &c. according to a standard fixed by the act.

By an act passed the 11th February, 1805, the surveyors were required, by running intermediate lines, to subdivide the lands into sections, half sections, and quarter sections, and by that act certain principles were established, by which to ascertain the boundaries and contents of the several subdivisions.

The first principle declares, “ that all the corners marked in the surveys shall be established as the proper corners of sections or subdivisions of sections which they were intended to designate; and the corners of half and quarter sections, not marked on the said surveys, shall be placed, as nearly as possible, equidistant from those two corners which stand on the same line.”

By the second principle, each section or sub-division of section, the contents of which shall have been returned by the Surveyor-General, shall be held and considered to contain- the exact quantity expressed in the return so made; and the half sections and quarter sections, the contents whereof shall not have been .returned, shall be held and considered as containing the one half or the one fourth; respectively, of the returned contents' of the section of which- they make a part.

By this it will be seen that the corners of sections are definitively established, and cannot be altered that the half and quarter sections are not actually run ■out, but that the half mile corners are to be placed, as nearly as possible, equidistant between the corners of •sections, and that the purchaser of a half or quarter section will be entitled to the half or quarter of the returned contents of the section of which it forms a part. It so happens, however, that a section -sometimes contains more, than by the returned contents from the surveys, it appears to have-, and in some cases less. In the present case, it contains twelve 37-100 acres more, than that prescribed by law.— Where there are different owners in the same section, how is this excess to be divided ? If the half mile posts or corners are equidistant between the corners of the section, there can be no difficulty : for, by running to the exact center of the section, from each post, the parts will be equal. It is only when there is an ■error in not placing the half mile post or corner at the ' center of the line of the section, that the inequality occurs. By law, these corners are not declared to be “established as the proper corners,” as is done in the case of sections ; to disturb which would distract a whole township : but they are to be as “ nearly equidistant as possible from the corners of the section and if there is an error found in that particular, by which one person owning one half or quarter of a sec-tion, has got possession of more than the half or quarter, it is the opinion of the Court that this error can be corrected. The propriety of this distinction is obvious. In the case of sections, the government has fixed and established the boundaries, marked the lines, and designated and marked the corners, and declared the contents; and a purchaser cf a section takes it by metes and bounds, and is entitled to all within those bounds, whatever it may be : but in the purchase of a less quantity, although the government declares what the contents are, yet, as between the several holders of the section, their rights are to be determined by reference to the entire section; their boundaries are not determined by metes and bounds designated and established by the government; for as to those, there are no returns, but the same is determined by reference to the section* as before stated.

The expression in the act, that the sections and subdivisions shall be held and considered as “ containing the exact quantity expressed in the returns,” is equivalent to the expression in a deed, conveying-lands by metes and bounds, and stating the quantity of acres, “ be the same more or less.” Here, the pur-, chaser takes what is within the bounds, without reference to the exact amount there may happen to be.

From this view of the case, it follows, that the Circuit Court erred in its instruction to the jury; and, therefore, the cause must be reversed, and remanded.

       3d Vol. Law's U. S. p. 637.


author: By. Mr. Justice Thornton.

text:
    HUTCHISON, Executor versus TOLLS.

      Semble — The effect of the act of 1806, which prohibits any action from being; brought against an executor or administrator within six months from the time of proving the will or granting letters of administration — should be, to suspend for that time, the running of the statute of limitations. But,
    Where, in an action brought against an exeeptor, to recover a debt due by his testator, a replication to a plea of the statute of limitations only alleged that letters testamentary were not granted to the executor until more than two years after thetestator’s decease — Held: That this replication was bad, and was no bar to the plea; because, only averring that letters testamentary were not granted for so long a period, left the legal presumption uncontradicted, that letters of one kind or another, had been previously issued.
    This action was instituted by Tolls, in the County Court of Madison, to recover of the plaintiff in error, the amount of an account due by his testator. The defendant below, filed the- plea of the statute of ■limitations, to which there was a special replication. The action was commenced something over four years after’the death of the testator, and the replication averred that letters testamentary bad not been grant-ed until over two years after that event, — which, added to the six months during which the writ could noth® issued against the executor, it was contended, barred the action of the statute.
    The defendant below, having demurred to this replication, the same was overruled, and he took his. writ of error to this Court.
    Hopkins, for Plaintiff
    cited AiJan’s Dig. 176— 1 Stewarts Rep. 254.
   By. Mr. Justice Thornton.

This case comes up by writ of error from the County Court of Madison county, to reverse a judgment of said Court, in favor of the defendant in error; and the only error assigned, is, that the Court below erred in overruling a demurrer to a replication to the plea of the statute of limitations of three years, the action being assumpsit upon an open account, for board, &c. furnished the testator of the plaintiff in error. The replication contains the averments — that the testator departed this life in July, 1826, and that letters testamentary were not granted to the plaintiff in error, or to any other person upon the testator’s estate, until the-22d of September, 1828-; that the time from the death of the testator, to the time of his said promise in the plaintiff’s declaration mentioned, and the time from the commencement of the action, to the period of six months after the issuance of letters testamentary to the plaintiff in error, does not amount to three years; that the action was not barred before the death of testator, nor has it been barred since granting letters testamentary to the plaintiff in error. It does not appear when the action accrued, but take it as having done so, at the death of the testator, which is the most favorable supposition for the defendant in error, and four years and one month had elapsed before the issuance of the writ in this cause. The replication admits that the statute had begun to run in the lifetime of the testator. There is no provision in the statute itself, which saves the running of- it, in the ■case of the death of the person liable to the suit; and ■the general rule is well established, that when it begins, it goes on, till it operates as a complete bar: yet, I am inclined to the opinion, that the effect of the act of 1806, respecting the estates of deceased per- ■ sons, which prohibits any action from being brought against an executor or administrator, until six months ■shall have expired from the time of proving the will of the testator, or of granting letters of administration on the estate of the deceased, should be, to suspend for •Shat time, the running of the statute,of limitations. Fox, though the language .of the-statute-is, that no action shall be brought to recover any money due by open account, after the expiration of three years from the accruing of the cause of action; I feel persuaded, that the computation should he so made, as not to embrace a period, even after- the statute has begun to run, during which there was. no person potentially existing, against whom a suit could be maintained— Lex non. cagit ad impossibiliaHere, for the space of six months after probate- of. a will,, or letters of administration granted, a legal incapacity is imposed on the-creditor; the effect of'which, is, to modify the statute of limitations in such cases.. I am not prepared to say .what is the greatest length of time which may transpire in case of the intervening death of a debtor;, to be abstracted from, the reckoning of the statute ;- though I am satisfied that such reckoning should be-made without reference to the fact, that in. a certain contingency, the creditor himself could obtain, letters, of administration on the éstate. There is nd doubt that a-disability to sue, which is justly imputable-to. the creditor, would be disregarded;. as if she he- a: feme sole, and after action accrued, marry : the-period of her coverture would not be rejected, in the computation: many persons may be creditors of an estate; - who may be be wholly unworthy, if they could comply with the requisites of the law in all other respects. If a creditor die, twelve months has been adopted as a period, within which, his representative may sue for any demand due to the testator or intestate, although the statute may have commenced running in his lifetime, and would have perfected the bar within the twelve months, if he had lived; This adoption of time, in favor of the representatives of a deceased creditor, has grown up, under an equitable construction of the ■ English statute of limitations of 21st James I. see, 4, in that country, and has been recognised in our states from a view of its proptiety our statute, containing the same clause as that in 21 James I. sec. 4. For the gradual progress of this exception to the statute of limitations, till its settlement as above stated-see Salk. 424, 425-2 Strange, 907-1 Dallas, 413-1 Wash'n. 303, and 1 Stewt. 254.

If the disability to sue be created by the death of the debtor, the statute expressly continues that disability, as we have seen, till six months after probate of his will, if he left one, or after letters of administration granted on his estate. The precise time is not definitely fixed, so that it cannot vary. But if the Judge of the County Court do his duty, it cannot exceed nine months, in any case. For forty days, the appointment of any one as personal representative, is left open, to be availed by the parties entitled under the statute, according to an order of succession therein designated. If no one take letters as there author-ised, then, after delaying only as much time more, as will finish out three months from the death of the debtor, the Judge of the County Court shall commit the administration to the sheriff or coroner. Full power, however, exists, to supply a temporary representative in almost every supposable case, during the delays which are contemplated in the act. It is to be presumed, that in three months, some representative of the deceased, either executor or administrator, will be appointed ': the addition of the six months to which ■time, making nine months, may be looked upon as the period, which, by a necessary construction of the statute of limitations, as affected by the acts above referred to, may be said to be excepted from computation': though, as I have stated above, a longer time must be omitted, where, from the neglect of the Judge of the County Court, or other cause not imputable to the creditor, such longer time has .elapsed, before any one existed against whom the action could be brought. •The presumption, that in the case of the plaintiff’s .testator, the necessary appointment of an administrator was conferred' upon some one, is not rebutted by any averrment in the replication. The bar was relied upon, and should have been avoided by matter positively alleged, or at least of reasonable probability. The replication only avers that letters, testamentary, were not issued to the executor, until after two years and nearly two months had expired since the death of his testator, and insists, that this time, with the addition of the six months, should be rejected, which . being, done, would obviate the bar of the statute.

The replication is clearly defective, because only , averring that letters testamentary, were not granted for so long a period, leaves the-legal presumption un- . contradicted, that letters of administration of one kind, •• or another, had been previously issued.

Let the judgment be reversed, and the cause re•manded for further plea.

       Aik. Dig. 152

       Aik. Dig. 176, 179,$1 & 10.


text:
    HAGEN versus THOMPSON.
    Cases carried from Justices Courts into the Circuit or County Courts, by certi-orari or appeal, are triable denovo on their merits and equity; and a payment made after the rendition of a judgment by a magistrate, is available, without a special plea puis darrein continuance. - -
    . This action was commenced before á Justice of the ■Peace in Bibb county — taken to the County Court . by certiorari, - and thence by writ of error to the Oir- • cuit Court.

      The Court was requested to charge the jury, that a payment after the rendition of judgment by the magistrate, could not be pleaded, except by plea puis darrein continuance. The Judge refused to give this charge, but instructed the jury that the defence of payment was good without such special plea. To this, exception was taken, and the case, by writ of error, brought into this Court.
    Pickens, for Plaintiff.
    Martin, contra

    cited Aikiris Digest, 261,
   By Mr. Justice Thornton :

This action was commenced before a justice of the peace, and was brought into the County Court of Bibb county, by certiorari ; where, during the trial, a bill of exceptions was signed. It was then taken by writ of error into the Circuit Court; and upon errors there assigned, the judgment of the County Court was affirmed: from which judgment, a writ of error is brought to this Court.

The assignment of error here, only embraces the matter originally excepted to in the County Court, which was the refusing, and giving of instructions to the jury, as disclosed in the bill of exceptions. The charge asked, was, to instruct, that if they believed from the testimony, that the defendant had proved no payment on the note declared on,- except payments made after the commencement of the suit, and rendition of judgment by the justice of the peace, that the pleas of the defendant, pleaded in bar of the action generally, were not supported by such proof; that such defence could only be pleaded by way of plea of puis darrein continuance; and that they must, in that event, return a verdict for the plaintiff. This, the Court refused — but charged, that if they believed from the evidence, that the debt was satisfied, even after such judgment rendered, and before the cause was brought into that Court, that the defence was maintainable under the issues joined.

.After a case, from a Justice of the Peace, is brought into the County or Circuit Court, whether by appeal, nr certiorari, it is to be tried de now, as if it had originated in that Court: and the validity of the payment here sought to be established, may be tested by considering the case in that point of light. It seems to be admitted, that by a proper form of plea, this de-fence could have been availed: if it could, by any plea to the action, technically pleaded, it is admissible, we think, under the pleadings in this case; for, the act requiring the cause to be tried on its merits, according to the equity and justice of the case, upon an issue to be formed under the direction of the Court, has been often determined not to require critical accuracy in the pleadings, either as it respects the statement on the one hand,, or the plea on the other. The proceedings had before the magistrate, after the case comes up for trial, de novo, whether by appeal or cer-tiorari, are merely introductory to that trial, and may be assimilated to mesne process, in an ordinary action. Now, payment and satisfaction of the cause of action, like a release, is available, though made pending the writ.

From this view of the case, we think there is no error, and that the judgment must be affirmed.


author: By Mr. Justice Thornton:.

text:
    HUNTINGTON versus BELL, et al.
    Where executions are issued against personal property, which has been claimed by a third person, under the statute, and before the trial of the righfis determined, other executions are issued upon the same judgment, and levied upon the same property — an injunction will lie to restrain proceedings on the latter.
    This case originated in a bill for injunction, filed by Huntington against Bell, et al, in the Circuit Court of Dallas. The bill disclosed — that sundry executions had been levied on a slave of the complainant, as the property of one Miller, upon a judgment against him, and that on trial of the right of property, in pursuance of the statute, a verdict was rendered in favor of complainant, from which an appeal was taken to the Circuit Court. That before any final adjudication of the cause, three other executions were issued on the same judgment, and levied on the same slave, to restrain which, the injunction was prayed. The Court below, rendered a decree dissolving the injunction, and Huntington, by writ of error, brought the case into this Court.
    Pickens, for Plaintiff.
    The Court below, sustained the demurrer to the bill, on the ground, it is supposed, that the complainant had a remedy at law. The party, it is true, might not be left wholly without remedy at law; but the relief sought is preventive relief: it is to restrain the defendant from carrying into effect a sale, by which the complainant might sustain much injury. The kind of relief sought, is-different from that which might afterwards be obtained by way of damages from a court of law. This is one of the appropriate offices of a court of chancery,, interposing its power to give present relief, to prevent mischief, multiplicity of actions, and unnecessary litigation. Huntington only asked for a stay of injurious proceedings against him, until' a trial of the right of property could he had,, -which was then pending.
   By Mr. Justice Thornton:.

This cause is brought up by writ of error, to a decree of a chancellor, dissolving an injunction, and dissolving a bill, filed by the plaintiff in error against the defendants. The final decree was pronounced upon a demurrer to the bill, and no masons are assigned for which the decree was entered. The* matters in the bill are to be- taken as all true-; and they present a case, we think, which called forthe=aid of the protecting powers of a court of equity.

• Three executions from a justice of the- peace, on judgments rendered in favor of the defendant, Bell,, were- levied upon a negro slave, as the property of one Stephen Miller, the- defendant in said executions : whereupon, a claim to the said slave- was preferred by the complainant, according to the statute regulating the trial' of the right of property; and by the verdict of a jury, the claim was sustained, and the slave declared not to be liable to the satisfaction of the executions. It seems that an appeal was taken the Circuit Court, from the said decision of a jury, and that before any final trial of that matter, three alias Ji. fas. were issued upon the same- judgments, and levied a second time upon the same slave. The bill prays, to enjoin the defendant, Bell, from further proceedings on his said executions against the said slave, until the appeal should be finally heard, and for such other relief as might seem meet.

The statute allows a plaintiff in execution, after a a levy and claim of the property by • a third person, to issue other executions on his judgment, to be levied on other property than that claimed; but to allow the same property to he taken by such second execution, especially after a verdict that it .is not liable, would be making amere farce of the-whole proceeding under the act. We must presume that, in the dissolution of the injunction, and dismissal of the bill by the chancellor below, he was influenced by the consideration, that an adequate remedy could be pursued by the complainant in the courts of law; for, the matters disclosed in the bill evidently show a manifest abuse of legal process, greatly to the injury, of ■ the complainant. ■ ' I cannot perceive, however, any strictly legal course, by which redress could be aflorded to him. A super sedeas of. these executions, could not be effected by a prayer for that writ to a Judge of a Circuit or County Court; for that prayer is only granted, where, from an inspection of the record, it would seem that an execution had improperly issued. If the memoranda in the justice’s book could be dignified with the name of a record, which I believe has never been allowed, yet the matters which, altogether, form the ground of the relief sought here, would not appear in such a transcript. The fact, that the appeal taken to the trial of the right of property, has not yet been determined adversely to the complainant, would not appear: nor could the execution be restrained in that mode of procedure, from a particular subject: it would be either not superseded at all, 'or superseded in toto ; which last would be an injury to the plaintiff in execution, not warranted by the law. A certiorari of the case would only result in a trial de novo, which would not reach the. complaint; because, no matter which merely goes to suspend an ■execution, or to divert it from a particular subject, could constitute a bar to the action. The audita querela, has been superseded by the express decisions of this Court, if it were an appropriate remedy for the abuse of process, from a justice of the peace. The only remedy, I apprehend, which can be afforded, is furnished by the bill of injunction; to which-,, the- objection, that it relates, in cases like this, to a personal matter, and so could be compensated, by an action at law for damages, has been solemnly overruled by this. Court, as well as by other tribunals in the United-States, of the highest legal authority. It is, therefore, decreed by this Court,' that the decree below be-reversed, the- injunction be re-instated, and that the-chancellor below, make such further orders and decrees, as the justice of the case may require, not inconsistent with the principles of this opinion..


author: By Mr. Chief-Justice Saeeold

text:
    HATCH versus CRAWFORD, Admr’x.
    Ah obligation or agreement signed between two or more parties, concluding “ Gtven under our hands and seals,” and containing a seal after the name of ■ the first signer, (the other signing immediately under it,) is a scaled instrument and assumpsit is not maintainable thereon.
    - Hatch declared, in assumpsit, in the Circuit Court of 'Franklin, against Crawford, on a written agreement, signed by himself and the defendant’s intestate. The cause of action concluded, “ Given under our hands and seals,” and was signed by Hatch and Crawford, the latter immediately under the signature of the first. Following Hatch’s name, there was & seal, but none to Crawford’s. On the plea of gene-tal issue, a verdict was rendered for the defendant. In the progress of the trial, the Court below, excluded the agreement declared on, from the jury, on the .ground, that the same was a sealed instrument, and that assumpsit was not maintainable thereon. To this decision, the plaintiff excepted, and assigned the same ■as error in this Court.
    Peck, for Plaintiff.
    Although it is true, that where several covenant together to do the same thing, the seal of one may be construed to be the seal of all, yet in the case at bar the parties do not covenant to perform the same act. Their covenants are distinct and different, and they being on the same paper, cannot alter the case.
    An action of covenant, could not, therefore, be maintained on defendant’s agreement, because his agreement was not under seal.— Corny vis Dig. title Fait, 4th vol 272 — Shep. Touch. 56.
   By Mr. Chief-Justice Saeeold

The present plaintiff declared against Mary Crawford, as administratrix of the estate of James Crawford, deceased, in assumpsit. The cause of action is a memorandum of an agreement between said Hatch and James Crawford, the intestate, containing reciprocal stipulations for and against each of the parties, and concludes with these words : Given under our hands and seals, this 30th day of September, 1830” — Signed, R. Hatch — James Crawford — one name being placed directly below the other : opposite the name of Hatch, a seal is affixed, which is the only one to the instrument. The declaration contains two counts: the first being special on the agreement, as in the case of a simple contract; the second, for money lent and advanced.

The plea, was that of the general issue. On the trial a verdict and judgment were rendered for the defendant: upon which the plaintiff prosecutes this writ of error. A bill of exceptions shows, that when the plaintiff offered in’ evidence the memorandum, of the agreement as described, an objection being made to it by the .defendant’s counsel, the Circuit Court sustained the objection, and excluded it from the jury, upon the ground, that an action of assump-sit would not lie on such an instrument; the same being, in the opinion of that Court, a sealed instrument.

The exclusion of the instrument, is the cause assigned for error.

It is admitted, in argument, .that any number of parties to a contract, may use the same seal; but, it is insisted, that they must make their several and distinct impressions, especially when they are opposite parties in the contract. Reference has been made to Comyn's Digest, title Fait, 272, 273-where it is said, “ If there be. mutual covenants between A and B, -of the one part, and C and D, of the other, and B does not seal, yet covenant lies by him against C and D upon this deed; for he is made a party to the deed, and C and D covenanted with him.” Also, that where a deed is written, as if intended to be executed by two persons, jointly and severally, and it be executed by one of them only, it will bind him, though not executed by the other.

Reference has also been made to Sheppard’s Touchstone, where the principle is recognised that “ If there be twenty to seal one 'deed, and they all seal upon one piece of wax, and with one seal, yet, if they make distinct and several prints, this is a very sufficient sealing, and the deed is good enough.”

It is true, the cases here given, are slightly different in respect to the manner of1 the execution, from the one under consideration; but, they are to be regarded only as instances of informality, which affect not tlie validity of the instrument; they do not prove that there can be no other irregularities of execution, which are equally immaterial.

The true doctrine is more fully explained in Phil. Ev. 1 v. 416. There, the principle is maintained, that where it is intended that several shall execute the same deed, one may seal for the rest, with their consent, and the deed will be as binding as if every one had put his several seal. As, “ where one of two defendants, in the presence of the other, and by his authority, executed a bill of sale for. them both, the two defendants being partners in the transaction, but there was only one seal, and it did not appear whether the seal had been put twice upon the wax, the Court of King’s Bench held, that no particular mode of delivery was necessary; and that it was-sufficient, if a party executing a deed, treated it as his own.”

The principle of the decision,, in the case alluded to, appears to have rested mainly on the circumstance, that the deed had been executed by one of the parties for himself, and the other, in presence of both. This rule, is held to be applicable to all deeds at common law, and that such sealing will bind the parties, by whose authority the deed is executed. But the. rule does not extend to deeds executed under a power, where the authority must be strictly and literally pursued.

In Ludlow vs. Simons, and in MacKay vs. Bloodgood, it was ruled, that several persons may bind themselves by one seal.

In relation to the case before us, it may be remarked, that the circumstance, of the instrument having expressed the intention of both parties, to execute it under their hands and seals — of its having contained .mutual stipulations, binding both — and of its having been signed and sealed by the party of the first part; then the execution at the same time by the other party, is a sufficient indication of the intention of the second party to execute it according to his import, and to bind, himself with the same solemnity that he received the obligation of the other party. In legal contemplation, he is presumed, instead of affixing a se--eond seal, to have adopted the one already annexed.

The judgment must be affirmed.

       4 Term. ReP. 314

       2 Caine’s C. E. 1.

       9 Johns. Rep. 285.