author: By Mr. Chief Justice Safford : By Mr. Justice Thornton :

text:
    SEWALL versus FRANLIN, et. al.
    The bond, authorised by statute, on the replevy of property taken in attachment, must be payable to the sheriff, not to the plaintiff in the attachment.
    Bonds, voluntarily executed to civil officers, in relation to judicial proceedings, though invalid as statute bonds, may, if they contain valid and sufficient consideration, be available as Common Law bonds.
    But where a sheriff, having attached the goods of A, at the suit of B, delivered them to C. and D, who did not appear to be the agents, attorneys or factors of the defendant in the attachment, or acting under his authority ; and took •their bond, payable to B, conditioned, for the return of the goods to the said sheriff, or for the payment of such judgment as might be had in the attachment cause: in debt brought upon the bond by B, held — that the bond wa» not recoverable, either as a statute, or Common Law obligation.
    This case, was an action of debt, brought by Se-wall, against the defendants in error, in the Circuit Court of Mobile.
    The cause of action was a bond executed ¡by defendants, and made payable to the said Sewall, conditioned, for the return of certain property to one Bates, sheriff of Mobile, or for the payment of such judgment as should be rendered in a certain attachment cause, under which, the goods had been taken.
    It appeared, that Bates, the sheriff, had attached the goods, as of the property of one Stowe, at the suit of Sewall; and had delivered them to the defendants, and taken the above mentioned bond for their delivery, &c.
    It was plead by the defendants, in defence of the action, with other pleas, that the bond had been executed under the above named circumstances, and was not intended to be delivered to the plaintiff: also, that neither the said goods, or the amount of the judgment, had been demanded of the defendants, &c.

      On demurrer to the plea, the Court "below rendered judgment for the defendants, and the case was brought into this Court, by writ of error, on the question of the sufficiency of the bond.
    Goldthwaite, for-Plaintiff — Hopkins, contra.

   By Mr. Chief Justice Safford :

This was an action of debt, founded on a bond in the penal sum- of twenty-eight thousand dollars, payable to the plaintiff'; and conditioned, that whereas, said plaintiff had obtained an attachment in his-favor, against the estate of Daniel Stowe, in the sum of fourteen thousand dollars, and which had been levied by James P. Bates, sheriff of Mobile county, on certain goods therein specified; therefore, if the ob-ligors should well and truly return, and cause to be returned to the said Janies P. Bates, as sheriff aforesaid, the specified property, by him attached as afore» said ; or pay and satisfy such judgment as might be rendered in the attachment cause, then the obligation to be void, else to remain in full force. The decía» ration further avers, that afterwards, at a term of the Circuit Court, the plaintiff recovered judgment against said Stowe, for ten thousand seven hundred and eighty four dollars and three cents, on which a ,fi. fa. was sued .out, directed to the sheriff of said county, commanding him, that of the goods, &c. of Stowe, he should make the said sum of money; and on which, said sheriff returned nulla bona. It is further aver-ed, that said defendants did not return the property “ to the sheriff of Mobile county,” nor have they, or either of them; paid or satisfied said judgment.

To the declaration, as above, the defendanisplead-ed— ■. . ■

1. Nul tiel record, on which, issue was taken.

2. A special non est factum, because, the writing' obligatory, if any such there be, was placed by the defendants, in the hands of J. P. Bates, then sheriff of the county of Mobile, who had, under color of, and by virtue of his office, before then, levied said attachment upon said goods, and had taken the same from the possession of said J. T. Franklin, and that the said writing obligatory, was to be retained by him the said sheriff in his official capacity, during the pen-dency, and until the final determination, of said suit of attachment; and that the same was to be re-delivered to them, the said defendants, by the said sheriff, on their returning said goods to him: that said supposed writing obligatory never was delivered by said defendants, or either, or by any person for them, or by their authority, to the plaintiff; and that it never was intended by the defendants, or the said sheriff, that said writing ever should be delivered to the plaintiff ; that if the instrument ever was delivered by the sheriff, or by any one else, to the plaintiff, the same was without the knowledge, privity or consent of the said defendants, or either of them. They further aver, that said sheriff did not, in his life-time, nor has his successor or successors in office, or any one since his death, ever demanded of the said defendants or either, the re-delivery of said goods; nor were they ever notified by said sheriff, or his successor, or by the plaintiff, that the suit was terminated; and that no demand has ever been made by the plaintiff, or by any one else, of the amount of the supposed judgment ; and so they say the said writing is not their deed.

3. That the goods mentioned in the plaintiff’s declaration were of no value.

To the second and third pleas, the defendants demurred. The Court sustained the 2d plea, and thereupon gave judgment for the defendants ; to reverse which, the plaintiff prosecutes this writ of error.

Overruling the demurrer to the second plea, is the cause assigned for error.

The second plea contests the validity of the bond, not on the ground of illegality, or want of a good and sufficient consideration, but that it was never consummated as a bond, to the plaintiff, for the want of delivery to him by the defendants, or any one under their authority. So far as the averments of this plea are in conflict with the expressions, or legal deductions arising on the face of the instrument, I would admit, that the defendants are estopped from contesting them. To what extent the objects of the bond as disclosed by the condition, and the allegations of the declaration are irreconcileable with the facts of the plea,- I will not stop particularly to en-quire. It is, however, a fair inference that the property which it was the object of this bond to release, was in the possession of the sheriff Bates, by virtue of a levy of execution, so that without his agency or assent, or a tort upon his rights, the object could not have been effected. The presumption, therefore, is, that it was executed and delivered to him for this purpose. If then it was taken by him, why was it drawn payable to the plaintiff and conditioned for the return of the property to said Bates as sheriff? The answer would appear to be, that it was considered a statute bond taken by the sheriff in virtue of his office. Then the farther question arises, whether as the bond grew out of a judicial proceeding, was taken by the sheriff in virtue of his office, and intended as a statute bond, it can be enforced as an individual transaction, as a bond valid at Common Law, subject to recovery by action of debt; also, if thus recoverable, does the present declaration contain the necessary allegations?

These latter views of the subject are necessarily presented by the demurrer to the pleas. The principle, that a' demurrer to any subsequent part of the pleading, may be referred to the antecedent pleadings, so that the plaintiff’s demurrer to the defendant’s plea, may be visited on the declaration; and that a bad plea is sufficient for a defective declaration; is too well settled, to- require comment. Objection is urged in argument, for the defendant in error,against the sufficiency of the declaration, on the ground,, that the bond is conditioned for the return of the-property to James P. Bates as sheriff of Mobile county ; and that the breach alleged in the declaration is,that the defendant failed to return the property “ to the sheriff of Mobile county,” or pay the judgment. This discrepancy is found to exist; and it is also true,, that the declaration contains no averment -that the-property belonged to Daniel Stowe ; nor is there any . allegation that it was subject to the execution, or any-other averment from which injury would necessarily ■result as a 'consequence of a failure to return the ■ property — there is no averment that the defendants, or either, received possession of the property, or any other consideration, or adequate inducement, for- entering into the bond. The stipulation that the obli-gors would return the property, or cause it to be returned, affords no sufficient implication that they claimed any interest in it, or that they took and detained it from Stowe, or other rightful owner. Then the giving the bond by the defendants .may have been merely a gratuitous- act, A statute bond given in the manner prescribed, without consideration, oth-ér than as security, or as the means of replevying property which the party or parties are authorised by law to do, is Unquestionably valid, without scrutiny into the loss or injury accruing to the obligee, or benefit to the obligors. It is not however, contended, that this is such bond, though it may have been so-intended. . As a statute bond, it is invalid on the ground of its not having been executed by the defendant in the attachment, or any one as agent, attorney or fact°r for him according to the principle decided in Cummins and Foster vs. Gray. The same statute was in force when both bonds were given, and is equally applicable to both cases, though perhaps subsequently repealed, It is also insufficient as a statute bond, in as much as it is made payable to the plaintiff in attachment, instead of sheriff, in whose name, replevy bonds are required to be taken.

But it is contended, that this bond,- though insufficient under the statute, is valid as a Common Law bond, and that this action is sustainable upon it as-such. In support of this position^ reference is made to the case of Worsham vs. Egleston. In that case a. forthcoming bond was given for property levied upon by fi fa. The condition of the bond recited the amount of the execution, including the sheriffs' commissions; the District Court gave judgment on the bond accordingly. The Court of Appeals reversed the judgment on this ground, and rendered judgment for the true amount, excluding the commissions, to which, under the circumstances, he was not entitled. The defect in that bond, was only by way of recital in ’the condition, which was not supposed to vitiate it. Whether the bond was good under the statute, or the •Common Law, was not decided or made a question. We are also referred to Beale vs. Dawnman. There, ■debt was brought on a forthcoming bond, payable to the sheriff, instead of the creditors, as required by .statute; the plaintiff obtained judgment on the plea, •of non est factum. In the prosecution of errors thereon, it was assigned for causes. 1. That the bond, was not taken according to law. 2. That the-remedy was by motion. The Court of Appeals remarked only, that the assignments were in conflict; that the first, if true, removed the only objection to the •second; and therefore overruled both. In Johnson vs. Meriwether, a similar decision was made; judge ment was rendered, without any reasons being expressed in' support of the decision. But a main point urged in the argument was, that an earlier act which •remained unrepealed, authorised such bonds to be given to the sheriff or other officer serving the execution ; that under the several statutes in pari ma-teria, the parties were at liberty to make the bond payable to the officer, and recoverable in the action of debt; or to the creditor, and recoverable on motion. If such were the views which governed these cases, the principle has no application to the case before us.

But in Hoe vs. Tibbs, it was held, that a prison hounds bond, though void under the statute, being payable to the plaintiff instead of the sheriff, might be good at Common Law; and such the Court then understood to be a principle decided in Johnson vs. Meriwether.-Hewlett v. Chamberlayne; Scott v. Hornsley; Bell & Harrison v. Marr; Wilkerson v. McLocklin & Co.; also, Sugg v. Burgess & Davis.

In Morse vs. Hodsdon, et. al. a plaintiff in reple vin (being required to do so by the coroner to whom the writ was directed) gave his bond with security, conditioned to prosecute his said replevin to final judgment, and recover the said goods ; else the bond to be in full force. The statute required a bond with .condition only, that the plaintiff should prosecute, and also make return and paxj damages if judgment be against him. In debt on this bond, the Court held, that as it had been voluntarily given, and the obli-gors were by statute entitled to relief against the penalty on payment of the just damages, the bond in that way was no more prejudicial to them, than one with condition in due form would, have been; and that as the bond was to be considered good unless declared void by the Common Law or statute, and they knew of no law by which it was made void, it was to be considered valid. In Clap, administrator vs. Cofran, the action was debt on a bond given by a prisoner and his securities for the liberty of the Jail yard, in which, by statute, the penalty should have been in double the amount of the judgment, for the satisfaction of which he was imprisoned, but this was for a less sum. This objection being pleaded in bar, and the plea demurred to, the Court remarked, that the wrong sum was probably inserted through an error in computation and not from design. That the sheriff was liable as in case of an escape, the bond not being in pursuance of the statute, consequently no justification to the officer for permitting the liberty; yet, that the plea in bar was bad : and that the defendants could be relieved against the penalty by a judgment for the true amount of the debt.

The annotator to Saunders, maintains the following propositions. That “ a bond to save the sheriff harmless from escapes is against law; but a bond to pay money into Court at the return of a fi. fa. is good, for though it be done by colour of office, and the condition is not according to the statute, yet it is valid, the statute extending only to bonds given by or for prisoners. So a bond to save a sheriff harmless against a false return of a fi. fa. is good. If any thing is added to the condition prescribed in the act, 'which is not legal, that which is inserted against the form of the act, avoids all the rest. But if a bond be taken in a circumstance contrary to the provision of the statute that is only prescribed for the direction of the sheriff, as to take sureties, which is for his safety; or if any thing is required specially by the condition, that the act only imports, but does not literally require, such variations do not hurt.”

In Syme vs. Griffin the action was debt on a prison bounds bond, conditioned that the debtor should keep within certain prescribed bounds, until he should discharge the debt and costs, and save the sheriff harmless; when the legal condition, as prescribed, was simply, “ that he should not depart or go out of the rules or bounds of the prison to which he was committed.” In that state, is the farther statutory provision, that “ every obligation by any sheriff taken in other manner, or form by color of his office, shall he null and void; except in any special case, any other obligation is, or shall be by law, particularly and expressly directed.” The Court said the question there was, whether the conditional words in the bond in question imported a substantial condition beyond that which the law authorised? They considered such to be the effect of the superadded words; consequently that the bond was void; and that every bond taken in such manner as to induce or encourage neglect of duty in a public officer, as void by the common law.

The case of the brig Alligator, has been referred fo on the part of the plaintiff in error. That was a case of libel, in the admiralty, where the articles seis-ed, had been delivered on bail, bj order of the Court, the claimant being bound to respond to the appraised value in case of final condemnation. It did not appear that any statute existed, authorising the delivery on bond: but Judge Story, before whom the trial was had, remarked, that no doubt had previously existed respecting the right of that Court to take such bonds, or to grant judgment, and award execution thereon in the usual summary manner. He also said, whether there was any statute existing, which authorised the delivery on bond, or not, he did net think material: that it .being in a civil cause of admiralty and maritime jurisdiction, nothing could be better settled, than that the admiralty could take a jidejussory caution, of stipulation in cases in rem, and may, in a summary manner, award judgment and execution thereon. Again, it is said, a bond taken in •such case, even supposing it void as such, which he did not admit, might be good as a stipulation ; that in all cases of that nature, the security, whatever be its form, is taken by order of Court, upon the voluntary application of the party, and therefore is apud actu — that having jurisdiction of the principal cause, the Court must possess jurisdiction over all the incidents, and may, by monition, attachment, or execution, enforce its decrees against all who become parties to the proceedings. The principles of this decision, appear to have been materially influenced by the extraordinary powers of the admiralty, analagous to those of chancery, and'the fact, that such bonds, are given voluntarily, and in pursuance of an order of the Court; also by the consideration, that jurisdiction over the principal cause, and the practice of the Court in other respects, gave it jurisdiction over all the incidents. This doctrine is farther illustrated by the case of Respublica vs. Lacaze, et al. The action was debt on a bond, taken in the Court of Admiralty of Pennsylvania, in the nature of a caution or stipulation. Chief Justice McKean, in delivering the unanimous opinion of the Court, said, “ Although a Court of Admiralty could not take a recognizance, which is a bond or obligation of record, (the Court not being one of record,) yet it could take a caution or stipulation, which is usually for appearance, or to perform a decree, &c. and is in the nature of a recognizance ; that there was no positive law for declaring such a writing void, it was not given for any thing against good morals, or illegal, but for a meritorious valuable consideration ; that if the taking the writing in Court could not give it any additional sanction, so, on the other hand, it could not destroy or prejudice its legal operation; that though void as a stipulation, it was good as a contract — just as was determined in the case of Ascue vs. Hollingsworth. Further, he remarked, that an instrument'- void as a stat. staple, may be good as an obligation ; and that the case in 2 Strange, favored the principle; therefore, he thought the transaction in question might be considered as done out of Court, and that it was good and binding on the parties by the Common Raw.

From this review of authorities, it appears that bonds taken by civil officers, and in relation to judicial proceedings, though without the authority of our statute, (like bonds between individuals, under other circumstances) if they appear to have been given • on valid and sufficient consideration, such as is neither illegal or immoral, may be good as , common law bonds. This principle is farther sustained by the case of Lampion vs. Taylor There, a slave had been levied on by virtue of a fi. fa. and claimed by a third person, and by the sheriff, left in the hands of the claimant. At the request of the plaintiff in execution, the sheriff summoned a jury to try the right of property, who found in favor of the claimant. Upon this, the plaintiff executed a bond of indemnity, such as required by law, to justify the sheriff in selling the slave. The claimant refused to surrender the slave to be sold, but executed to the sheriff a bond of indemnity, against all suits and demands, for not selling the slave; all these circumstances were recited in the condition. On this bond, the action of debt was brought, the declaration stating all the facts, and averring a breach of the condition. The validity of the bond was considered, on demurrer to the declaration, in the Court of Appeals, in Kentucky. The Court adjudged the bondmfoii, on the principle that it was not taken as a consideration or inducement to the sheriff to neglect or violate his official duty, but as an indemnity for not selling when he was incapable of doing so, by reason of the claimant’s refusal to deliver the property; that it was the privilege of the sheriff to constitute the claimant, or any other, his bailee ■of the property, pending the claim, and he was not bound to anticipate this refusal to surrender, and without which he could not sell. The question was considered materialljr different from what it would have been, had the sheriff retained the possession of the slave until the plaintiff in execution had tendered his indemnifying bond, and then having the authority to sell, instead of doing so, had taken the bond from the claimant as an indemnity for his neglect of duty. That Court recognise, as a general rule, “ thatwhere-ever the consideration which is the ground of the promise, or the promise, which is the consequence or effect of the consideration, is unlawful, the whole contract is void” at Common Law. They admit some exceptions, such for instance, as an indemnifying bond to a sheriff for taking in execution property not subject to the writ; or for not selling property levied on, and claimed by such obligor. I apprehend, however, that these exceptions, if they can be considered such, rest on the doubt respecting the truc tille, and are not to be regarded as contracts for palpable violations, or neglect of duty.

In the case before us, nothing appears of record disclosing any criminal or vicious motive in the transaction, though siricti juris, the replevin by an indifferent person, was there unauthorised. The only injury that could result from the act, was; that the defendant in the attachment, or some claimant of the property, may have been deprived of their right to replevy. But as there is nothing of record shewing that the defendant was thus injured, or that •the replevy was not by his friends, and intended for his benefit; or that any other person had, or wished to interpose any adverse claim, we can not assume the facts. On the contrary, as the record does not disclose the circumstances, so as to shew what disposition was made of the property — whether it was subject to the execution, or what was the motive or inducement of the defendants for entering into the bond ; no sufficient consideration to sustain it, is either expressed or implied. It would seem, at least, that this uncertainty should have been supplied by the necessary averments in the declaration. But other views of the case, to which allusion has already been made, interpose farther obstacles to the recovery, as here sought; the most material of which, is, the discrepancy between the condition of the bond, and the breach assigned — the former being, that theob-ligors would return the goods “to the said James P. Bates, as sheriff aforesaid,” — the latter, that they did not’return them to the sheriff of the county; who, at the time of the alleged breach, must have been a different' person.- The bond was given in April, 1827: the return-of nulla bona was in April, 1831, four years subsequent — a time at which Bates, (if living, and it seems he was not,) must, by the constitution, have Been ineligible to the office. If the writing obligato-, ry,'could be viewed as a recognizance, taken by the sheriff -in the regular discharge of his office, and therefore, incident to the cause; the effect of the condition'in the bond, might only have been, to deliver the .property to the sheriff for the time being, regardless-of the individual incumbent. But viewing this instrument- in- its most favorable light, as a common law bond, the legal intendment does not apply.— When regarded as a private transaction, the individuals concerned must be considered material; therefore, an obligation to deliver property to James P. Bates, as- sheriff, does not necessarily imply, an obligation to deliver to T. L. Toulmin, as sheriff. For aúght-we-can know, Bates may have been- sheriff de facto, 'the other, de jure, at the time the bond was given; -and the former may have remained the same, and'-recéived the property as such, prior to the return oí-miMú'bona, by the latter. The obligors may have chosen in their common law bond, to-recognize Bates alone as sheriff; or to bind themselves to deliver to him, or' his personal representatives individually, and have used the designation, sheriff of Mobile county, only as descriptio persones. At least, I think (without deciding whether that would be sufficient) that the necessity, if any, for the variance between the terms of the - condition, and the breach assigned, should have been shewn and explained, by proper averments in the declaration.

These views of the case are perfectly consistent with the argument of the plaintiff’s counsel, that a. party can not be permitted to aver an intention, different from that imported by his acts, or the expressions of his deed.

Another serious objection to the recovery, in the manner and form here sought, is, that the bond is in the nature of a replevy bond, for property attached. The statute, authorising such replevy, in all cases, except one, requires the sheriff to permit it, on bond with sufficient security, as in case of special bail; the exception is in the case of absconding debtors'; in this only, is the sheriff authorised to require a bond for the return of the specific property, or the payment of the judgment. Nothing appears of record to show, that Stone, was charged as an absconding debtor: if he was not, and the sheriff had taken from him, a bond in the form of this, no doubt it would have been adjudged, oppressive, illegal, and void, as in the case of Syme vs. Griffin. If so in relation to the defendant, I should consider it no better in reference to his volunteer friend, or any indifferent person, who has been permitted to replevy. Therefore, I am of opinion, the declaration does not disclose a legal and sufficient cause of action; consequently, that the judgment below must be affirmed.

By Mr. Justice Thornton :

This was an action of debt, brought upon a bond; wkijh, from the declaration and pleas, appears to have been executed in consideration of a surrender to the defendants in error, who were also defendants in the Court below, of certain property, which had been attached by one James Bates, as sheriff of Mobile county, by virtue of a writ to him directed, at the' suit of the plaintiff, against one Daniel Stowe; the condition of which bond was, the return of the said property upon the determination - of the suit, or to pay and satisfy such judgment as might be rendered therein.

The declaration avers the determination of the suit, and the failure of the defendants to re-deliver the property to the sheriff of said county, or to pay and satisfy the judgment of the Court

The only plea, which is brought in review before this Court, contains, in addition to the circumstances’" above set forth, these further allegations, viz. that it was not intended, that the bond should be delivered to the obligee, who is the present plaintiff; that it was delivered up to him by the sheriff Bates, without the privity or consent of the defendants; that they were not notified of the determination of the suit, nor requested to deliver up the said property,-or to pay the said judgment. The illegality of the bond, on the score of its defective, or vitious consideration, is not relied upon distinctn ely, as a matter of defence. To this plea, the plaintiff demurred, and upon that, judgment was rendered for the defendants; from which a writ of error is prosecuted to this Court, and it is assigned as error, that the Court below overruled the demurrer, and gave judgment for the defendants.

The first question which naturally presents itself, is the validity of the plea, the matter of which may be comprised in two propositions :

First — that the bond is void for want of delivery; and,

Secondly — that no notice of the happening of the contingency, upon which the duties specified were to arise, was given, or demand made of compliance,

. But from the view, which I take of the case, -it'will be unnecessary to bestow any consideration upon the plea. It is very properly contended for, on the part of the defendants, that the effect of the plaintiffs demurrer, is to bring his declaration to the test; and if that be found insufficient, the demurrer should have been overruled, as it was; for, a plea, though bad in itself, is good enough for a bad declaration. Thus, then, we are led to consider the plaintiff’s declaration ; with regard to which, the main matter urged against it, is, that the bond, which is the foundation of it, will not sustain the action. The first question in- relation to the bond, is, whether it is valid as a statute bond, in pursuance of the act, authorising the replevin of property taken in attachment, which, in all probability, it was at the time intended to be. This’ question is settled in the negative, by the cases of Cummins & Foster vs. Gray and Adkins, et. al. vs. Allen, heretofore decided by this Court. The sheriff should have been the obligee in the bond, and not the plaintiff in the attachment. It was not executed by’ the defendant in the attachment, or by his agent or attorney; nor by the defendants in this suit, as claimants to try the right: and by the decision first above cited, that part of the act, which would seem to au-’ thorise the commitment of' the property so taken, to other persons, is limited in its application, to proceedings before justices of the peace; which construction of the several acts upon the subject, as they then stood atleast, we are not now disposed to disturb. The next ■ and most important enquiry in the cause is, whether the bond executed under the circumstances disclosed in the recited condition, is valid as a Common Law obligation. The surrender of the property by Bates the sheriff, which must be conceded to be the consideration of the instrument, was evidently contrary to Ms duty. It was in violation of the rights of both parties in the attachment, thus to divest himself of its control. The defendant, in that action, had a right to reclaim the property, by the execution of a bond appropriate to the nature of the case, either a bail bond, if a non-resident, or a common replevin bond, if an absconding debtor; which by the act of thesher riff, he had rendered impracticable. So the plaintiff had a right to demand, that the property should have remained impounded in his hands, until such legal warranty was furnished for his benefit. Thus then, whatever may have been the inducement, or motive in the minds of the parties between whom it was concocted, the consideration, and the effect of this bond, were, a dereliction of duty on the part of the officer, and a violation of the rights of both the parties litigant in the attachment.

A bond taken or executed against a positive prohibition of a statute, is clearly void: so if it be substantially variant from the statute, with the provisions-of which, it was intended to comply; it will be inoperative as a statute bond. But if it be not in express violation of any statute, though it may differ from it so materially as to be invalid as a statute bond, yet if voluntarily executed, it will be good as a Common Law bond, if neither the consideration, nor the promise, be in conflict with its principles. Now this bond is not expressly forbidden by any statute; nor is it taken in conformity with any. Its validity then must be tested by the principles of the Common Law. One of the best settled rules of that law is, that, wherever the consideration of a promise, or the promise itself, which is the consequence, or effect of the consideration is illegal, there the bond is void. As to what constitutes such illegality in the consideration as will avoid the contract, or agreement, it is said, that a contract is unlawful in the proper sense; if it be the object to induce the omission of something, the doing of which is a duty in the person with whom it is made. And again, in page 119 of the same thor, it is said, a contract or agreement is unlawful in the proper sense, if it be to encourage unlawful acts, or omissions; and to illustrate these rules, he puts the case of a sheriff who had levied four oxen by virtue of a writ of withernam, and returned them to the defendant, upon his bond, given to indemnify him concerning the oxen. The bond was held to be void, for that the sheriff ought to have kept the property; and _the bond was made to aid him in the violation of his duty. The general doctrine indeed is admitted, but it is contended, that in the case of a sheriff, an exception to it, has been established and recognised by reported cases, which in their principle, embrace the present, and maintain the validity of this bond. This has led me. into an examination of all the cases within my reach,, touching this matter, comprising many of a very early date, as well as of more recent adjudication. The result of my enquiries1 has been, that though there may be some apparent conflict of authorities, yet the general tenor of them is adverse' to the exception, upon the existence of which, as it seems to me, this bond can alone be sustained.

The cases are numerous to the points, that a bond or promise is void, if against a statute-: and that, though not in conformity with any statute, yet it will be upheld as a Common Lav obligation, unless in conflict with its principles. But there is a dearth of cases, comparatively, in which the question directly arises, whether a promise or bond is valid which has been taken in consideration of tlie commission, or omission of an act, by an officer, contrary to his official duty.

Of the cases above alluded to, I will take a brief review, commencing with Beanfage’s case, reported in 10 Coke. It was there held, that a sheriff may take a bond from a defendant, against whom he has a writ of fieri facias to pay the debt, at the return of the writ. In this case, the reporter says, the doubt which was conceived upon it was, upon the general words of the act of 23d Hen. VI, chap. 10. The bond was held to be valid, and not embraced by the statutory prohibition. The adjudication does fairly imply, not only that the bond was not void as being prohibited by the statute, but also that it was not void for any defect in its consideration. For although the main question was, whether the statute prohibited its execution, yet if it had been void at Common Law, it would doubtless have been so ruled. And besides, it' is expressly affirmed in the case, that it had been ruled on another occasion, that such a bond was not void at the Common Law. This case then, either recog-nises the exception to the general rule as above stated, or the consideration of the bond was not illegal. It does not appear what the consideration of this bond in- Beawfage’s case, or in the case cited in it, was. It may have been in consideration of a return of property, alread}r levied by the Sheriff in virtue of the Ji-fa. or in consideration that he would not levy; or it may have been without either, but a promise or cov-' enant, made in consideration of the existing duty or indebtedness. Now if the last mentioned were the consideration, it was indubitably legal, and as it does not appear to be otherwise, the case can not be relied upon as conflicting with the doctrine, or illustration, cited from Powell. If the consideration had been a return of property levied, to the defendant in the writ, .it would seem that even this would have been a valid consideration, and not an illegal one, as was held in 1 Salk. 32, which latter case has also been relied upon as establishing the exception of the case of sheriffs, from the general rule of law. This last case, was an assumpsit to the officer, to pay him the debt, in consideration of a return of goods actually levied. Upon demurrer, it was endeavoured to be assimilated to the case where the consideration was to permit the prisoner to escape, who was in custody on a capias; but the Court held, contra: “by the capias he is to take the body, and keep in salva custodia, and to give liberty^, is contrary to the writ: but that is now to raise the money; and the sheriff may, upon a fi.fa. sell the goods, and this is no mote in effect.” So that the principle of this decision in Salkeld, rather maintains the general rule as applying to the sheriff, than establishes the exception; for the reasoning is, that the sheriff did not transgress his duty, and therefore was allowed to recover.

In the case of Arundel vs. Gardiner, which has been relied on for the same purpose, it was held, that if a plaintiff in a writ of execution delivered by him to the sheriff, affirm to the sheriff that certain goods are the property of the defendant in the writ, liable to the execution, and require him to execute it, he shall be held liable, on a promise to execute a bond of indemnity for a seizure of the goods, notwithstanding the sheriff was a trespasser in making the levy, which was the consideration of the promise. The objection to the consideration of this promise was urged in de-fence, but “ non allocatur; for he shewing the goods, and.requiring the sheriff to do execution,. it.is reasonable that he should save him harmless; and a promise to that purpose is good enough.” That the act done by the sheriff here, which was the consideration of the promise, was a tort, and contrary to his duty, the case shews; fora recovery was had against him by the owner of the goods : and yet the reasoning of the Court will shew, that the principle of the case, is not opposed to the doctrine as laid down by Powell. The principle of the case is, that the conduct of the plaintiff in the writ, who was defendant in the case, operates as an estoppel, preventing him from taking advantage of the illegal nature of the consideration of the promise. As where A, is about to pay value for an obligation upon B, which is a forgery ; and applying to B, it is affirmed by him, that the signature is genuine; here, if sued upon this bond, B will not be permitted to defeat a recovery, by alleging the forgery; for he has induced A to take it; and it is reasonable that he should pay it. Still the doctrine would be unimpugned, that a forged bond is void in law. Subsequent to this last determination in Cro. James, in the 33d of Eliz. (Mead vs Bygott reported, in Cro. Eliz. 230,) the doctrine was settled in accordance with the general rule of the Common Law, in a case somewhat analagous to that under our consideration; both being cases of attachment, where the duty of the officer is to keep the property, or to dispose of it, in a definitely prescribed manner. One Stokes was attached by two quarters of corn, at the plaint of the defendant in the case, to whom the bailiff delivered the corn, upon a promise to save the bailiff harmless of the same. Upon assumpsit brought on the promise, in arrest of judgment it was moved, that the consideration, and the promise were against law, and void ; and so was the opinion of the Court; •“For, first, attachment cannot be of corn out of sacks — (by statute of 10 Will. III.) And secondly, if it may, it is to be kept by the bailiff; and be ought not,to deliver it out of his hands to the party plaintiff ; and so, the promise is against law and void.” Now in the second resolution in this case, the illegality of the delivery out of his hands, upon the terms disclosed, as it seems to me, is the ground of the decision.

It cannot be denied, that the custody by a bailee of the officer, is the custody of the officer himself; for it would be too inconvenient, if not impossible, to require the exclusive personal custody by an officer of all the effects, which by virtue of his office, may come into his hands; and the plaintiff in the attachment, being selected as such bailee, would make no difference in the case. But it can be no longer his custody, where, as in the case last cited, he so disposes of the property, as that he cannot reclaim it to satisfy the exigencies of justice, but relies on the bond of the bailee to save him harmless from the consequences of the illegal act of surrender. From this view of the law of the case, I have been led to the conclusion that the demurrer was properly overruled.

Reference was made by the counsel for the plaintiff, to a case in 1 LittelPs Selected cases, 273, which was pressed with much force of argument, as being decisive of the validity of the bond sued upon in this case. Upon an examination of that case, I apprehend the just extent of its authority to be, that a bailee of property to whom the sheriff has warrantably committed the custody of it, may execute a bond to indemnify the sheriff against the consequences of his, the bai-lee’s refusal to re-deliver it, when it was properly de-mandable, and unjustly detained. In this proposition there is nothing exceptionable, for the consideration was legal, and the bond only binds him to do, what without it, was his moral and legal duty. The Court, arguendo, I acknowledge, do intimate the opinion, that even if the surrender of the property to the said'bailee had been in violation of the duty of the officer, and illegal, yet that the case of a sheriff constitutes an exception to the general rule of law, and that the bond would be good. But I do not recog-nise the justness of this conclusion from the authorities which they cite to maintain it.

The judgment of the Court below must be affirmed.

Mr. Justice Hitchcock not sitting.

       June Term 1833.

       Toul. Dig.17 sec. 14

       Act of 1833, Aik. Dig. 40 § 11. id. 41. § 13

       1 Stew. 130.

       1 Call, 41.

       1 Call, 219

       3 Call, 454.

       1 Murf. 500

       a 1 Wish. R.

       1 Call, 35.

       Id, 40

       Id. 42.

       2 Stev. 509

       5 Mass. R. 314

       7 Mass. R. 98.

       1 Rep’s. 161, note 1.

         Stat. 23 Hen. 6.

       4 Hen. & M 277

       1 Gaffis. 345

        2 Dallas, 118

       Cro.Eliz.544

       Littell's seld Cases, 273

       1 Pow. 113.

       Cro. Jas. 652


source: Caselaw Access Project

author: By Mr. Chief Justice Saffold:

license: Public Domain

text:
    KOGER versus WEAKLY, et al.
    Bill filed to foreclose a mortgage on real estate, ('against several contending parties (whose rights doubtful,) dismissed on grounds,
    1st. That the mortgage secured other property, sufficient to meet the mortgage debt. [
    2d. That one of the defendants having died pendents lite, and his representatives being materially interested, no steps had been taken to make them parties.
    This bill was prosecuted by the plaintiff in error, in the Circuit Court of Lauderdale, for the foreclosure of a mortgage of real estate, executed by one Clifton, to secure the payment of a note, for two hundred dollars. It appeared, that the mortgage, also included personal property of greater value than the amount of the mortgaged debt, the balance due on which, at the time of filing the bill, was below the sum of one hundred dollars.
    Clifton had died pending the suit, and no measures, as appeared from the record, had been taken, to make his representatives parties to the bill. The Chancellor, on a final hearing, dismissed the bill, and the complainant took a writ of error here.
    The questions, as determined, appear fully in the opinion of the Court,
    Anderson, for Plaintiff.
    Hopkins, contra.

   By Mr. Chief Justice Saffold:

One of the points made in this case, involves important principles; a full investigation of which, would require an elaborate research, and a nice discrimination of the authorities.

It presents the questions, whether Clifton, as obli-gee of the title bonds, held in the lots an alienable interest; or any title or estate which was subject to his conveyance, by the separate mortgage, so as to create in Koger a lien, operative against the subsequent assignees of the bond, even with notice ? Whether, as the subsequent assignments of the bonds were founded partly on the consideration of indemnifying Sonnoner as security for the purchase money, and of effecting the payments to the company, by which the legal titles were procured to Weakley, the rule. “ qui prior est tempore, potior est jure,” and the maxims, “ Equitas sequitur legem,” and “ In cequali jure, melior est conditio possidentis,” do not protect the legal title ? Also, whether the circumstance of the title bonds (instead of being assigned to Koger) having been left by his contract in the hands of Cliff-ton, so as to enable him, on the best evidence of his continuing interest in the lots, to assign them in the customary way to a subsequent purchaser, thereby exposing him to all the mischief apprehended from sales of property, without delivery of either the articles or the title papers, does not destroy the equity which Roger might other wie have'Had? These are questions of grave import; for which reason, and because they are not indispensable to the present decision, we prefer to express no opinion upon them, and to decline a full exposition of our views on the other points of the case.

Other objections urged against the complainant’s right to relief, and which we consider sufficient to sustain this decree, are these.

From the answers and evidence in the cause, it appears that the other property contained in the mortgage to Roger, was sufficient to have , enabled him, with proper diligence, pursuant to the terms of the deed, to secure and satisfy the balance of his debt, the principal of which, appears to have been less than one hundred dollars. The record contains no evidence, as against Sonnoner and Weakly, that the bond or mortgage in favor of Koger was founded on" a valuable, or any sufficient consideration to effect the former. The answer of Clifton, did it contain an admission of the consideration (which it scarcely does) could not be regarded as evidence against his co-defendants. Also, it appears, that Clifton’s representatives are materially-interested in the subject of the suit, and that their interest must be affected'by the decree; and that after a suggestion of his death, the Chancellor ordered that the suit should be revived, in their names. Thus the suit appears to have stood, and been continued for two or three terms, during which, no steps were taken to make the representatives parties, nor is any cause shewn to the contrary.

In this state of the case, the other parties being present, the Court proceeded to a final hearing, and dismissed the hill. The reasons for the decree are not given; hut on these latter grounds alone, we think it sustainable, and therefore affirm, the decree, and adjudge the costs of this Court, as well as of the Court below, to the defendants.


author: By Mr. Justice Tiiornton!

text:
    McWHORTER versus STANDIFER.
    The decision of Chancery, upon the facts of a case, are conclusive against all parties, suing under the same facts, afterwards.
    Interest, under our statute, authorising its recovery by way of damages, is substituted for damages, at Commpn Law.
    And, semble — that if in an action of debt, no damages are laid in the declaration, yet a recovery .may be had of the interest. .
    It is not error, that in an action of debt, or assumpsit, to recover the amount cf any writing, (embraced in the statutes, authorising the calculation of interest by way of damages, for the detention of money up to the time of the rendition of judgment) that more interest by way of damages for the detention, is adjudged by the Court, than is demanded in the declaration : provided, it appears, that no more has been adjudged by way of interest, than is recoverable, by law, upon the debt, as shewn to be due, and unpaid, by the record.
    Standifer declared in debt, as the assignee of two several promissory notes executed by the plaintiff in error, as the surety of another. On the trial, had in-the Circuit Court of Lawrence, the defendant plead, in defence of the action, matters, which appeared to have been the grounds of a decree in Chancery, rendered before the issuance of the writ, in this action ; and which involved the fact, of the notes sued on, having been executed as a compromise of a controversy, then existing between the principal in the notes, and the assignor of the plaintiff. On demurrer, the Court below, held the plea bad, and thereupon gave judgment for the plaintiff. The defendant having sued out a writ of error, assigned, in this Court to sustain the same, the following matters, viz
    1. That the Court below erred in sustaining the demurrer of the plaintiff to defendant’s plea.
    2. That the judgment rendered in the cause was for a greater amount than that laid in the declaration.
    Ormond, for Plaintiff — cited 2 Sierift. 225, 70.
    Stewart, contrd.

       See Aikin’s Dig. 269.

       Ib. 269.

       See 1 Stewart, 532.

   By Mr. Justice Tiiornton!

This was an action of debt, on two promissory notes for $1250 each, executed by the plaintiff in error, as security for Hance McWhorter, to Izrael Standifer, assignor of the defendant in error, bearing interest from their date, which was the 10th of November, 1821. The judgment in the Court below, was rendered on demurrer for the defendant in error, on the 3d Monday of September, 1833. The assignment of errors, are

1. The 'Court erred in sustaining the demurrer to the plea of the plaintiff in error, and,

2. That the judgment is for a larger amount of damages than is laid in the declaration.

As to the first error assigned, in order to determine the propriety of the decision made helmv, we must take into view an agreement of record, which materially affects the question. Before the demurrer was decided, there was an agreement, that all the facts of a chancery c-aoce, heretofore, adjudicated, between the defendant in error, and Izracl Standifer, and the said Hance blefWhorier, parties to the notes now sued on, should be taken as admitted in this case. The effect of this agreement, is to constitute those facts a part of the plea. Then the facts upon which the judgment of the Court was pronounced were, that Izrael. Standifer who was the assignor of the present defendant in error, recovered a judgment against, Hance McWhorter, for a large amount cf money, in the Circuit Court of Franklin county. That before any execution issued thereon, a compromise was effected on the following terms. It was agreed, that if the defendant in that judgment would pay a certain sum of money, less than the amount of the judgment, and agree not to take any writ of error to reverse it, the assignor of the defendant in error, would not attempt to collect the same, but would outer a satisfaction of record. That in pursuance cf this agreement of compromise, the two notes now sued on were executed by the plaintiff in error as security for, arc! with said Hance McWhorter, the defendant in the compromised judgment. That satisfaction was accordingly entered of that judgment :• but that afterwards, in violation of this agreement, a writ of error was sued out to the Supreme Court, and the judgment was reversed, and rendered, for an amount greatly less, than the sum agreed to be paid at the time of the compromise. Upon this state cf facts, the Court below decided, that the demurrer was well taken; and rendered judgment for tire defendant in error. This determination of the cause, was in conformity with the decree of this Court, upon the same facts, in the case of Standifer and Mc Whorter, in 1st Stew. 532; and although that was a chancery cause, and not between the same parties, so as to be strictly res adjudícala quoad hoc, yet the principles therein determined, we think, are correctly settled, and are decisive against the plaintiff in error as to his first assignment.

We will proceed to the consideration of the second assignment of error, as to the excessive damages. The action was for $2500 debt, and the damages laid in the count for the detention thereof, were $2000. The judgment on the demurrer is for the debt declared for, and $2366 damages sustained by reason of its detention. By calculation, I find that the amount of damages allowed as interest, though greater than the sum laid in the count, are somewhat less, than the amount really due. The question raised by this assignment has never been decided by this Court; and when considered, as affected by our statutes, ascertaining the amount recoverable in all cases, as damages for the detention of money, and authorising its calculation, at the fixed rate of 8 per cent, per an-num, down to the rendition of judgment, may be said to be res integra.

It must be admitted, that the ancient rule of law, prohibits the recovery of more damages, than are laid in the declaration; and that this rule did apply, even to the action of debt, where damages were not the sole, or even the main object of the suit. When a rule or principle is clearly established by those sources from whence we derive our knowledge of the Common Law; as that Common Law is our rule and guide of decision, where no express legislation has changed it; we must adopt it, unless upon the principles of that law itself, the refusal to apply its doctrine to any given case, can be shown to be just, and proper. It is one of the wisest maxims of that system of jurisprudence, imparting the necessary flexibility to its otherwise stern, and inexorable character,that “ where the reason of the law ceases, the law itself ceases.” Let us examine the reason of the doctrine, which I admit is recognised by the books, that it is error to give judgment for more damages than are demanded in the declaration. If-Ibenot greatly deceived, the reason -wholly fails, when applied to the action of debt, at this day; at least in our State, where damages for its detention are fixed by positive law, with reference only, to the amount of the debt, and the time, from its accruing, down to the rendition of judgment; which facts, the writing which is the foundation of the action, will shew. The foundation of this doctrine is laid, in the first place upon a hypothesis, that every man who complains of an; injury, best knows the extent of it; and secondly, upon the principle, that the probata must correspond with the allegata, which hypothesis and principle, combined and followed up, result in the rule we are considering. The verdict must correspond also with the probata, and the judgment with the verdict. But every man best knows the extent of his damage-, and having declared it, no proof shall be heard to enlarge it; and by consequence, a judgment which is for more, has nothing to sustain it, and ought to be reversed. In- all cases where the action was for damages merely, and those damages had accrued prior to the commencement of the action, the application of the rule is just. Where, however, the damages were still accruing, beyond the time when the suit was brought, so that the party complaining could not possibly divine to what extent they might arrive before final judgment, but could only estimate what he had sustained when he preferred his complaint; and where a recovery was allowed to be had for the increasing damage, even though this damage depended upon, proof, which must conform to the allegata, yet I find that the rule was relaxed, and made to yield to the true .'reason of the case.

In Com. Dig. 3 v. 351, citing 1 Rol. 575, 1, 10, it is said, “ in detinue, the plaintiff may recover against the garnishee more damages, than were alleged in the declaration; because he recovers for delay after' his declaration.” The'reason why there was no relaxation of the rule in the case of debt in the debit and detinue for money, was, I apprehend, that the damages for the detention, were not only mere matter of proof, but were only recoverable down to the time of commencing the action. Then, as an estimate or judgment could, in presumption of law, at least, be formed of the amount of injury or damage sustained, (for all had accrued that could be compensated,) he was held to his own declared amount; at • least, that was the ,;maximum, and no proof could be heard óf any greater. Of course, the verdict and judgment had ro foundation as for any thing beyond that point. The reason of the rule evidently was, that the party could, in the given case, form an estimate of his damage, as it all had accrued for which .he could recover, at the time of his complaint preferred; and therefore it was proper, not to allow any proof to be heard, to carry it beyond his own demand; for on'the principle of self love, it may be safely assumed, that the estimate of ones own wrongs, does not fall short of the point, to which impartial justice would arrive. But in the first place, the recovery of damages in the action of debt, at least, where founded as hers, upon a written contract, ascertaining the amount due, &c., is no longer dependent upon any extraneous' proof whatever; no circumstances can vary them from the standard fixed by law, which is 8 par cent, per annum. So also, we have a statute authorising the recovery of interest, which is substituted for tho Common Law damages for detention, down to tho rendition of judgment; whereas those damages before tho existence of those statutes, were supposed to have all happened before tho institution of suit. Now, as the damages, or rather the substituted interest, in part, at least, depend upon circumstances not yet in existence; when the suit is brought, it is absurd to say that the party complaining, has estimated his damage, for that damage itself, to some extent, has not yet accrued. The. plaintiff in debt can, by a calculation, ascertain, to be sure, the amount due when he issues his writ, but if he attempt to anticipate, it must be all guess work; and that which may be fixed at random, may well be considered as merely nominal, and formal. In accordance with this view of the subject, it is determined, that if no damages at all are laid in the declaration, in an action of debt, yet a recovery can be had of the interest. So under the Petition and Summons Act, which applies to all cases for the direct payment of money se- ’ cured by bond, or note,- all that is necessary, is to pray judgment for the debt, and damages for the detention of the same, without specifying any amount of damage. Interest is substituted by statute, for damages at Common Law, for the detention of the debt They now admit of no proof, and require no allegation, in contracts subjected to onr own laws. Their omission altogether, or their statement, no mah ter for how much, or how little, is wholly nominal, formal, and of as little account in the balances of justice, as the appendage just below them, of John Doe, and Richard Roe, pledges to prosecute. We feel authorised from these views to decide, that, in the action of debt, or assumpsit, brought to recover an amount of money secured by any writing embraced in the statutes above alluded to, it is not error, if more interest by way of damages, for detention, is adjudged by the Court, than is demanded in the declaration,, provided it appear that no more has been adjudged by way of interest, than is recoverable by law upon the debt, as shewn to be due, and unpaid by the record.

Let the judgment be affirmed.


author: By Mr. Justice Thornton :

text:
    CALDWELL versus GILLIS, and ux.
    it a receipt in discharge of a right has been executed voluntarily and with a proper understanding, and there is no proof of fraud, mistake, or ignorance of the rights of the party executing it; thejpresumplion in favor of its validity, must prevail.
    Where it appeared that a receipt, charged to have been procured fraudulently, was the motive which induced the defendant to distribute an estate to the advantage of the complainant, and at the risk of injury to the defendant; and there was no proof of fraud in procuring the receipt; the Court refused to de» termine the receipt void and inoperative.
    This case originated in a bill in Chancery, filed in the Circuit Court of Conecuh, by the defendants in error, against the plaintiff and others, distributees, for relief, &c.

      The bill charged the defendant, as administratrix of the estate of her husband, who was the father of complainant’s wife, with having, by fraudulent representations, procured from the wife of the complainant, before his marriage, in discharge of aright she possessed in the estate of her father: also, to recover two, children, alleged to have been the issue of a slave given to the complainant’s wife, by her father.
    The answer denied the allegations of the bill, generally ; and upon a final hearing, the Chancellor dismissed the bill as to all the defendants, except the plaintiff in error, and as to her, decreed, that the balance of a judgment for which the receipt appeared to have been taken, should be paid out of the assets in her hands belonging to her intestate.
    The proof did not sustain the allegations of the bill as to the gift of the slave; nor the fact of the receipt having been fraudulently obtained; and to reverse the decree of the Court below, the defendant brought the case into this Court.
    Parsons & Cooper, for Plaintiff.
    Goldthwaite, contra.

   By Mr. Justice Thornton :

This was a bill in Chancery, filed by the defendants in error, against the plaintiff, who was the relict, and administratrix of the father of Nancy ; as also, against several others, co-distributees with the said Nancy, of the estate of her deceased father. The object of the bill, was to recover two negro children, on the ground alleged, that the father, in his lifetime, had given their mother, a negro woman named Mary, to the said Nancy: and to procure the cancelmentof a receipt which was executed by Nancy, some short lime, alleged to be only a day,) before her marriage with the said John Gilíes, to the plaintiff in error, by virtue of which receipt, a judgment against the said Sarah, as administratrix, in favor of one Muse, and by him assigned of record to the defendant Nancy, was claimed to be satisfied ; as also-for the payment of the amount due and unpaid upon the said judgment. The bill charges, that this receipt was fraudulently procured from the defendant Nancy, by false representations made to her, by the widow and co-distributees ; that the transfer of the judgment, was made to her jointly with the other distributees of her father’s estate; and that the only consideration of tho execution of it was, in the language of the bill, “ for and in consideration of the said slave Mary; heretofore charged as given to your oratrix, no other consideration whatever having been given to your oratrix for the same.”

The bill also charges that this receipt was executed without the knowledge or consent of the said John, and was in fraud of his marital rights. The answers all deny the gift of the slave Mary, by the deceased father. They also deny any fraudulent representations by which the receipt is charged to have been procured: They allege, that it was well known to Nancy, that the whole interest in the judgment, was exclusively her own, and that -it was executed upon a final distribution of the whole estate of her father, between her, and her co-distributees, for the purpose of enabling the distribution to be made as it was, by the administratrix, of the property remaining in' her hands, after the payment of all the other debts due from the estate, except the said judgment. The,proof wholly fails, to establish the gift of the slave Mary, to Nancy, by her deceased father; or to sustain the allegation of fraudulent misrepresentations inducing the execution of the receipt. The Chancellor dismissed the- hill as against all the other defendants to it, except the administratrix; and decreed the unpaid balance of the judgment, against her, to be satisfied out of the unadministered assets of her decedent’s estate. The only ground upon which this decree can be sustained, is that this receipt is a nullity; and did not discharge the judgment as it purported to do. We do not think that there is any principle of equity, which would authorise its cancelment, under the state of facts presented by the record. The presumption in favor of the validity of a receipt must prevail, unless proven to have been procured by fraud, mistake, or ignorance of the rights of the party executing it.— Even a purely voluntary receipt, like a gift executed by delivery of the thing given; is conceived to be binding against the party who fairly, and understandingly makes it. But this receipt can not be said, to be voluntary in its character. The result, from the bill and answer is, that if it was not executed in consideration of the slave Mary, as expressly alleged in the bill, it was, at least, the motive which induced the administratrix to surrender, and divide out the estate; by which distribution, thus induced, and procured, the said Nancy, not only only received more than as distributee, she was entitled to ; but a great injury might have accrued to the administratrix by this divestiture of the property; which of itself, would constitute a valid consideration.

So far as this receipt may be supposed to have been made, in fraud of the marital rights of the husband, although the bill charges that a fraud was prac-tised upon him in general terms, yet it does not-present any facts, which constitute in themselves such a fraud. To constitute a fraud upon the intended husband, some thing more must appear, than, the mere facts of the execution of the receipt without his knowledge and consent, and the subsequent marriage, before his having learned it. The concealment, or failure to communicate the execution of such receipt, is only one of the necessary ingredients in the fraud, but can not constitute it. It does not appear that he ever knew that - Muse had transferred to her, the equitable interest in this judgment, much less, that any idea was ever held out to him, that on the marriage he would be entitled to it. We therefore do not think it void on this last ground, any more than on the first. So far as the decree subjects the plaintiff in error in any way, it must be reversed, at the costs of the defendants in error, in this Court, and in the Court below.

       1 Bac.Ab.485 tit. Bar & Feme 2d Brown's C. R. 345.


author: By Mr. Justice Thornton:

text:
    HAYNES versus SLEDGE AND MAXY.
    Á writ, which appeared from the teste thereof, to have issued on Sunday, held void.
    But, ruled competent for a plaintiff by replication to a plea,< that a writ issued on Sunday/ to show facts authorising its issuance.

      Semble — that circumstances which would justify the service of process, under the statute of 1803, would likewise authorise its issuance.

    The plaintiffs below, Sledge and Maxy, declared against the defendant Haynes, in the action of trespass on the case. The defendant plead in abatement of the writ, that it had issued upon the Sabbath, and on demurrer, the Circuit Court held the plea bad, and gave judgment thereon for the plaintiff.

      The case was brought up, upon this point, from the Circuit Court of Montgomery.
    Goldtiiwaite, for Plaintiff
    Cited ? Comyn, 399 ; •2 Dye?', 183.
   By Mr. Justice Thornton:

This was an action of trespass on the case, brought by the defendants in error, who were plaintiffs below, against the present plaintiff. The only error assigned is, that the Court below sustained the demurrer of the defendants to the plea in abatement, filed by the plaintiff. The plea was, that the original writ issued on Sunday, as was apparent from its teste. The maxim of the Common Law “ Dies Dominicus non est juridicus,” as we learn from all the authorities, which we consult for its principles, expressly embraced and avoided every original process obnoxious to this objection.

There is no provision in our Constitution, or any enactment or our Legislature, which, by implication, or expressly, in the letter or spirit of it, abrogates this rule. The Declaration of Bights contains several clauses on the subject of religion; all of which have for their object, the preservation of the rights of conscience, and the security of the citizen from any violation of his civil rights, privileges, and capacities, by means of any religious testes, or ecclesiastical establishments. It is expressly said, no human authority ought in any case whatever, to control, or interfere with the rights of conscience. Now, if by express legislation, every original writ were declared void, which issued on Sunday; I could not say that such an act, was in violation of the letter, or spirit of the constitution. I -would rather incline to the opinion, that it would not be. For although a Jew, a Turk, or a religious sectarian of any conceivable faith, or persuasion, might fill the office of clerk; and the doing of the forbidden act, would be no hurt to his conscience, and a fruitful source of profit; yet, such a municipal regulation, of the functions of the office, would surely be no violation of the rights of conscience; nor unconstitutional preference, of one sect to another; nor establishment of religion by law. Then the Common Law rule doing the same thing, would be liable to no greater objection.

We do not hesitate to declare, that it is incompetent to the Judiciary, to abolish this rule of the Common Law. To decide that a writ issued on' Sunday, is valid, would be equivalent to saying, that the performance of the official duties of a large class of public functionaries, is as obligatory upon them, on this day, as on any other; for if the officer may do so, it might well be argued that he must) and we would by judicial decision, be imposing a duty upon him, contrary to the Common Law, which the Legislature have never, in this instance, thought proper to abolish.

We have a statute, making void to all intents and purposes, the service of any process on Sunday, except in criminal cases, or for a breach of the peace, unless upon affidavit made as prescribed, “ that under cover of the said first day of the week, the person liable, intends to withdraw, or escape from the State.” It would seem to me, that in those instances, where from the urgent necessity of the case, service of process is authorised, its issuance, is under the same circumstances, rendered a matter of duty; and being provided for the prevention of fraud, and iniquity, could not shock the moral, and religious sense of the community, as a general disregard of the Sabbath, assuredly would. If the writ in this case had been issued under circumstances making it an exception from the general rule, or if other facts exist, which would avoid the plea, it would have been competent to the party to have shewn it, by his replication ; and as by the decision of the Court, it was held that no such shewing was necessary, the opportunity will still be allowed for the plaintiff to do so.

Let the judgment be reversed, and thé cause remanded.

       20 Vin.Ab.62, 63, title Sunday-7 Comy, Dig. 399-3d Burr. 1598.-2 Dyer, 168.

       Aik. Dig. 440


author: By Mr. Justice Hitchcock :

text:
    COX, et al. versus COX.
    In an action against several copartners, on a copartnership debt, the notice au-thorised by the statute of 2807, providing for taking the depositions of a wi ness, about to leave the State, is good, if only served upon one partner.
    Where a commission, to take the testimony of a non-resident witness, appeared to have regularly issued, the Court held it not error, that the witness, b<$ing temporarily within the State, was examined here, and his interrogatories* taken by the commissioner.
    The answer of a defendant, to a bill, filed for the discovery of testimony in aid of a trial at Common Law, mayvbe used, by the plaintiff on that trial, or not, and if used, any other evidence consistent with the issue, is not thereby precluded.
    Assumpsit, by defendant in error, in the Circuit Court of Madison ; and the plaintiff declared a,gainst the defendants, copartners in trade, for certain goods, wares, and merchandize, before the commencement of the suit, sold and delivered. It appeared, from the writ, that it had been executed upon two of the partners, and returned non est inventus, as to one.
    In support of his claim, the plaintiff offered the deposition of a witness, which had been taken, on an affidavit, that he was about to leave the State : also, the answer of the defendants to a bill in Chancery, filed for the discovery of testimony; and the depositions of a non-resident witness, which it appeared had been executed while the witness had been on a temporary visit to the State.
    After judgment in favor of the plaintiff, defendants took a writ of error here, and assigned as causes thereof,
    1. That the notice issued to the defendants, on proceeding to take the testimony of the witness, (about leaving the State) had been served only upon one of the partners.
    2. That the plaintiff having relied on the answer of the defendants in Chancery, was thereby precluded from introducing evidence aliunde, as to the answer, or the facts therein denied.
    3. That the commission to take the testimony of the non-resident witness, had been executed within this State. ■
    S. Parsons, for Plaintiff in error
    Cited Aik. Big. 12'S — 3 Bibb’s Rep. 303 — 12 Vesey, 355 — 1 Peters’ 36J — Johns. Ch. R. 182 — 15 Johns. R. — 1 Peters’ 372.
    Hopkins, contra.

    Cited GorvonPart. 312 — Chit, on Bills, 37, 299 — 2 Marshall’s R. 615 — 3 Littett’s R. 250, 378 — 1 Stewart, 374.
   By Mr. Justice Hitchcock :

This was an action of assumpsit, brought by the defendant in error against the plaintiffs in error, as partners, for goods sold and d elivered. The writ was served upon H. and J. H. Lewis, and returned not found, as to Cox. The declaration is' against them all: they all pleaded jointly, non-assumpsit, &c. and a verdict and judgment were liad against them in the Court below.

At the trial at bar, the deposition of William B. Scruggs was read by the plaintiff, to which exception was taken by the defendants, on the ground, that notice of the time and place of taking the same, was served only on one of the defendants, J. H. Lewis.

It appears that in the affidavit, upon which the commission for taking this deposition issued, the plaintiff stated that the witness was then about to leave the State for the benefit’ of his health, and that all the defendants except J. H. Lewis, were then absent from the State. The Judge directed a commission to issue to take the deposition of Scruggs, upon the plaintiff’s giving J. H. Lewis five days notice of the time and place of taking the same, which was done, and the bill of exceptions shews, that Scruggs died soon after the deposition was taken, which was in February, 1829. The writ wras returnable in October, 1828. The pleadings were made up at the return term, and it was admitted that the firm of the defendants below, was dissolved in 1826.

By our statute, the deposition of a witness, who is about to leave the State, may be taken by the Judge where the cause is pending, provided sufficient notice of the time and place of such application has been given to the opposite party — “ or said Judge may order the Clerk of the Court to issue a commission to one or more persons to take the deposition of such witness, such notice being first given to the adoerse party, of the time and place, when and where, such deposition is to be taken, as the Judge awarding the same, shall direct.”

All depositions are taken de bene esse, and can not be read at all, if at the time of trial, the personal attendance of the witness can be had. But to prevent a failure of justice, the statute has authorised depositions to be taken in certain specified cases, leaving it to the Judge to prescribe the notice which shall be given to the adverse 'party. In this case, it appears, that the defendants were sued upon a partnership contract; that they had pleaded jointly ; that two of the defendants were out of the State, so that no notice could be served upon them ; and that the witness who was then about to leave the State, for the benefit of his health, died shortly after the deposition was taken.

Under these circumstances, we think the notice, as served, was sufficient. It being a partnership debt, the defence being joint, all were liable or none. It was not like the case of an action founded in tort when judgment might be had against one or more, and when the defence might be separate, or when it might conflict one with the other.

The expression adverse party is a collective term, arid does not necessarily imply a separate notice to each defendant; ■ and we may intend that notice to one is notice to all. We think it analagous to our statute, which authorises service of á writ to be made upon one or more partners, and declares that,; to be service upon all. The dissolution of the firm before suit brought, does not vary the case. The dé-efendants being originally, if at all, jointly liable, no subsequent arrangement between the partners ought to change the remedy of the plaintiffs. In cases of protests of bills of exchange, notice to one partner, will bind all, though after dissolution.

After the reading of the above deposition, the plaintiff read the separate answers of the defendants to a bill filed by the plaintiff during the pendency of the suit, for a discovery of testimony to aid him in the trial at law. In these answers, Cox admitted the facts charged in the bill. Hickman Lewis stated his ignorance of the facts; and John H. Lewis denied them. The answers were all read, without any objections on the part of the defendants.

The plaintiff then offered to read the depositions of D. J. Hines, and William H. Wilkinson, taken after the answers had been filed, both of which were object ed to, on the grounds,

1. That the deposition of Wilkinson, was taken-within this State, though it was applied for on the ground that he were a non resident; and,

2. That the plaintiff having read, and relied upon the answers in Chancery, of the defendants, w;as thereby precluded from taking and relying upon testimony, on the points to which discovery was sought by the bill, and which was denied by the answers.

The Court overruled these objections, admitted the testimony, and instructed the jury, that they were “ to take into consideration as well the depositions as the answers, in coming to a decision of the case.”

As to the first objection, it is sufficient to remark, that it is immaterial where the deposition was taken: the witness being a resident of another State, entitled the plaintiff to the benefit of his testimony on interrogatories; and if the witness was temporarily here, and the requisites of the statute were complied with, in filing the interrogatories, and giving the defendant an opportunity to file cross interrogatories, the commissioner had the right -to select his own time and place, where he would execute the commis. sion, and could do it as well within this State, as out of it.

Nor is there any force in the second objection.

When a party files his bill for discovery and relief, and the ground of equity jurisdiction is predicated solely upon the necessity of going into Chancery for discovery; if that fails, the bill must be dismissed; no testimony aliunde being allowed purely iii aid of the jurisdiction of the Court. But when a bill is filed for discovery of testimony, in aid of a trial at Common Law, the party may either use the answers, or not, as he chooses, and if used, it stands upon no other or higher grounds than other testimony, and any other evidence not inconsistent with the issue, may be introduced, whether it contradicts the answer or not, and the jury will weigh the whole evidence, as in other cases.

The judgment must be affirmed.

Mr. Justice Thornton, not sitting in this case.

       15 Ves. 226. Gow, 312.

       3 Bibb, 303.

       Peak’s Ev.58 3 Littell, 379.


author: By Mr. Justice PIitchcock.

text:
    FAULK versus THE JUDGE OF THE COUNTY COURT OF MONROE COUNTY.
    Suit cannot be maintained against tbe surety of an administrator, on the ad-» ministration bond; where it does not appear, that a judgment has been rendered regularly against the administrator, as such.
   By Mr. Justice PIitchcock.

This was an action of debt brought on an administration bond, against one of the securities, suggesting a devastavit by the administrator.

The declaration does not set out a judgment against the administrator as such, but declares upon a judgment rendered by a magistrate in favor of Wm. A. Stewart, against him generally, for medical attendance during the last illness of the intestate, and a return of nulla bona on the execution. There is a demurrer to the declaration, but two pleas afterwards appear, upon which, a verdict and judgment wereren dered for the plaintiff.

There are several assignments of error, one of which, only will be considered, which brings up the sufficiency of the declaration.

This Court decided in the case of Burke vs. Adkins, et ux. that before an administrator could be sued for a devastavit, there must have been a judgment de bonis testatoris regularly entered against him. This does not appear to have been done in this case, and it is conceived that a security to an administration bond, stands on as favorable ground as the administrator himself, at least. Whether, when a judgment is had, which would lay the foundation for a proceeding against the administrator, for a devastavit, without first actually fixing a devastavit judicially upon him; it would enable the party to proceed against the security in the bond, it is unnecessary to decide. The principle decided in the case above referred to, being decisive of this case, the judgment must be reversed.

       See p. 236 of this volume.


text:
    THE BRANCH OF THE BANK OF THE STATE OF ALABAMA AT MONTGOMERY versus HARRISON.
    The notice authorised by the 9th section of the act of incorporation of the Branch of the Bank of the State of Alabama at Montgomery, to a maker or indorser of a bill or note, need not be under the corporation seal.
    The summary proceeding authorised against the debtors of^uch Bank, though different from the Common Law course, is yet remedial in its character, and if substantially pursued will not be defeated by mere technicalities.
    This was a motion in the Circuit Court of Montgomery by the plaintiff in error against the defendant, on a bill of exchange. It was objected that the notice should have been under the corporate seal of the Bank, and that it was otherwise insufficient. The 'Court below quashed the notice, and the cause was brought into this Court by writ of error.
   By Mr. Justice Thornton :

This was a proceeding in the Circuit Court of Montgomery, under the 9th section of the act incorporating and establishing the Branch of the Bank of the State at that place. The notice was quashed, and judgment entered for the defendant, which is assigned 'as error. The object of the section, which gives the remedy here pursued, was a substitution of the President of the institution, for an attorney, who otherwise would have been required to be appointed, according to the peculiar mode of action by a corporation. The President for the time being, who is a public officer, is made, as to the mere mode of instituting legal proceedings in behalf of, or against the ■ Bank, the medium of actioh; thereby superseding the necessity of all those technical means, required by the Common Law, in the conduct of such litigation. Although this provision of the act of incorporation provides a summary remedy, different from the Common Law course, yet is it also remedial in its character, and if substantially pursued, should not- be defeated by scholastic criticism. The clause in the charter, after describing the cause of action, as one in favor of the Bank, &c., proceeds thus, “it shall be lawful for the President thereof, after having given thirty days notice to the maker, or endorser, as the case may be, to move the Circuit Court of the county in which said Branch Bank may be established, on producing to said Court, before whom the motion is made, the certificate of the President thereof, that the debt is really and bona fide tbe property of the Branch of the Bank of the State of Alabama, for judgment; and the Court shall proceed to render judgment accordingly.” The notice in this case conforms literally with the act. It is given by the President as such, notifying the defendant, that he will move for judgment, on a bill of exchange, which he avers is due to, and owned by the said Branch Bank. The office of the notice is to inform the party of such matter, as will enable him to make defence against the motion. Here the cause of action is particularly set forth; the property alleged to be in the Bank, and the time, and place of moving, distinctly averred. The objections urged in this case, are, that the notice does not say express!}', in whose favor the motion will be made, and that it is not under the corporate seal. When we consider, that the act required to be done by the President, that is, giving the notice, is not the act of the corporation, but of its officer; and is not by virtue of an authority, derived either mediately, or immediately from the corporation, it will readily appear, that the authenticity of its seal is not requisite. And as for. the other objection, if, by necessary legal implication any fact, is apparent in the notice, which it is important to the defendant to know, 1 would consider it sufficient. Could any one tail to know, tinder this notice, in whose favor the judgment sought against him, should be rendered? The judgment is the act of the Court, and is nothing more than the legal result, from the facts disclosed in the notice, and the act of incorporation. If the charter had expressly directed the judgment, to be rendered in favor of the President, it should be so entered; but in the absence of such a direction, it would surely be a palpable error, to render judgment, except for him, in whom the right is. I think the notice in this case is a substantial compliance with the act; that it gives sufficient information of every matter necessary to the defence, and would have authorised the hearing of the motion for a judgment.

Let the judgment be reversed, and the cause remanded.


author: By Mr. Justice Hitchcock:

text:
    HARRISON versus WEAVER.
    Where, in an action, by the indorsee of anote against the maker, the declara tion described it as payable to A. B, or order, and the note was payable a~ lone to A. B. — hold to be an immaterial variance.
    A variance in the description of a contract, which must be construed the same, whether the variance exist or not, not changing its nature ; will not be regarded.
    Weaver instituted an action of debt in the Circuit Court of Bibb, as endorsee of a promissory note. The declaration, filed in the cause, complained against the defendant, as the maker of a note, payable to one McGough or order, and by the latter, endorsed to the' plaintiff: but the note, when produced on the trial, was payable alone to McGough and not to order; whereupon the defendant moved the Court to exclude the note as evidence of the demand, because of the variance apparent in the declaration : but the Court held the objection unavailing, and judgment was entered for the plaintiff. The defendant took a hill of exceptions upon this point, and brought the case into this Court.
    Pickens & Clark, for Plaintiff.
    Goldthwaite, contra.

   By Mr. Justice Hitchcock:

This was an action of debt on a promissory note dated, 20th January, 1831, for $50, due the 8th March, 1832, made by the defendant, payable to John McGough. The declaration is in the usual form, and corresponds with the note, except that it describes it as payable to John McGough, or order — the plaintiff declares as the endorsee of the original payee.

At the trial below, the defendant objected to the note being read to the juiy on the ground of variance between it and the declaration, in describing it as payable to order, when the words, or order, were not in the note. The Court overruled the objection, and permitted the note to be read, to which, exception was taken, and which is assigned for error here.

It is a general rule, that the contract declared on, must be stated correctly, and if the evidence differ from the statement, the whole foundation of the action fails, and if the party attempts to set out the contract in hose verba, a technical variance in an immaterial matter will be noticed. But when the pleader does not attempt this particularity, it is sufficient to declare according to the legal effect of the contract.

By our statute, “ all bonds, bills single, promissory notes, and all other writings for the -payment of money or any other thing, may be assigned by endorsement, whether the same be made payable to the order or assigns of the obligee or payee or not, and the assignee may sue in his own name, and maintain any action which the obligee or payee might have maintained thereon, previous to assignment,” &c. By this statute the legal effect of a note not payable to order, is precisely the same as if payable to order, and the pleader not having attempted to describe the note in hcec verba, the objection was properly overruled.

The plaintiff in error has relied upon the case of Sebree et al. vs. Dorr. There the action was upon two promissory notes: one of the notes was for $311 31, payable twelve months after date, to the defendants, order at the Bank of Discount and Deposit of the United States, at Lexington, but it was described as a note payable generally, omitting the -time— that it was to order--r-and the place where payable; the other note was for $10,065, payable at the Office of Discount and Deposit of the Bank of the United States, without defalcation, for value received; but in the declaration there was a total omission to state where the note was payable. In relation to the first note the Court, say, “ these are all material parts of the declaration, and they are all omitted; and in relation to the latter, they say, that nothing is clearer, both upon principle and authority, than that, if the place where a note is payable, is omitted in the cleola-ration, it is fatal; there is a variance in the essence of the instrument, as declared on and proved.

Had the question in that case only presented the single point of variance, that the one under consideration does, to wit, insertion of the words or order ; and had the Kentucky statute been the same as ours, and whether it was or not, does not appear; we cannot think the Supreme Court of the United States would have decided the variance as fatal. Upon the other grounds, to wit, the omission to state the time when, and the place where, the notes were payable, the Court seem to have predicated that decision; these points are particularly noticed by the Court, and upon which there was sufficient ground for the decision of the Court.

In the case of Ferguson vs. Harwood, a variance is held immaterial, where it does not change the nature of the contract, which must receive the same legal construction, whether the words be in or out of the declaration; that is clearly the case here.

The judgment must therefore be affirmed.

       1 Chit. Pl. 334.

       9 Wheat. 558

       7 Cranch 408


text:
    OLIVER versus ATKINSON.
    The answer of a garnishee, that debtor had placed ill his possession money which he believed belonged to the United1 States, held not sufficient, uncon-troverted, to authorise a judgment.
    The plaintiff in error was summoned at the instance of Atkinson, to answer what money, goods, &c. he had in his hands of one Deweese, the debtor of defendant. The plaintiff, in his answer, acknowledged himself to- he in possession of certain monies, which the debtor had placed with him for safe keeping} and which, he, the debtor, said (and which the garnishee believed) belonged to the United States. On this answer, un controverted, the Circuit Court of Dallas rendered judgment against the plaintiff, and he took a writ of error to-this Court.
    Clark, for Plaintiff — Goldthwaite, contra..

   By Mr. Justice Hitchcock :

William Atkinson obtained a judgment in the Circuit Court of Dallas county, against A. C. Deweese, at the March term, 1832, of said Court for one hundred dolíais, and on the 20th day of August following, the plaintiff made an affidavit before a Justice of the Peace, that the defendant had no property within his knowledge whereof to make the money, but that Benjamin Mott, Charles Votey, and John Oliver, were indebted to him, &c.; upon which a summons of garnishment was issued against them. The two first answered, and admitted assets to a small amount. Oliver did. not appear. On the eighth July, 1833, a notice was served on him to show cause why a judgment nunc pro tunc, should not be entered against Mm for Ms default in not appearing to answer the summons; and at the fall term, 1833, of said Court, a judgment nunc pro tunc, was entered ; upon which a sci.fa. issued, returnable to the Spring term, 1834, of said Court. At that term, Oliver appeared and made answer, “ that in his absence from home one day, the defendant, A. C. Deweese, deposited with the wife of said Oliver $45 in silver, of which his wife informed him on his return home the same evening; and after' dark of that day, after returning home, a garnishment was served upon him. Next day he saw Deweese, and conversed with him on the subject; and he, Deweese, informed him, that the money was, public money, belonging to the United States Post Office Department, and that he had deposited it with the wife of said Oliver for safe keeping until he could pay it over. The money is still in the hands of said Oliver. He states, that he knows Deweese very well: he is poor, and has little or no money, except that which he receives as Post Master at Pleasant Hill. He believes the money belongs to the United States, and he knows of no other property,” &c. Upon this answer, a judgment was entered up against Oliver for forty-five dollars; to reverse which, the case has been brought here.

Several assignments were made; only one of which will be noticed, which is considered decisive of the case, (all the others are considered as waived by the appearance and answer of the garnishee,) to-wit: “ that the amount for which judgment is taken, is stated to be ascertained by an answer filed by Oliver, when the facts in the answer do not authorise a judgment against the garnishee.”

The statute upon which this proceeding is predicated, declares “that it shall be lawful, upon the appearance and examination of the garnishee to enter tip judgment, and award execution against him for all sums of money acknowledged to be due to the defendant, from him”

There was certainly no admission here, by Oliver, of his indebtedness to Deweese. He states the circumstances under which the money was received, and concludes by stating his belief that the money belonged to the United States. This statement being made under oath, must be taken to be true, until controverted by the oath of the plaintiff, when an issue is to be made up and tried, as in other cases.

The judgment must therefore be reversed, and the causé remanded.

       Aik. Dig. 42


author: By' Mr. Justice Hitchcock.

text:
    IVEY versus HARDY.
    la suits between a white man, and a free person of color, or of mixed blood within the third degree, where the amount in controversy is under twenty dollars, and the former is sworn, the latter has also a right to the advantage of his own oath.
    This was a suit before a Justice of the Peace of Pike county, commenced by the defendant in error. On appeal to the Circuit Court, the presiding Judge refused to allow the plaintiff in error the privilege of his own oath, (the amount in controversy being under twenty dollars) and on this point, he prosecuted a writ of error to this Court.
   By' Mr. Justice Hitchcock.

The question involved in this case, is, whether, when a white man sues a free person of color or of mixed blood within the third degree, in a case under twenty dollars, and offers his own oath to establish his claim, the defendant can be permitted to be examined on oath, touching the suit, in his own de-fence ? The Court below decided that he could not.

By an act of the Legislature it is declared that, “ if the sum claimed be twenty dollars, or under, the Justice of the Peace may at the trial of the cause, proceed to examine the plaintiff and defendant, on oath, and give judgment as to him the right of the cause may appear.” By an other act, it is declared, “ that all negroes, mulattoes, Indians and all persons of mixed blood, descended from negro or Indian ancestors, to the third generation inclusive, though one ancestor of each generation may have been a white person, whether bond or free; shall be taken, and deemed incapable in law, to be witnesses in any case whatever, except for and against each other.”

It is by virtue of the first of these recited statutes, that the defendant in error claims the benefit of his own oath against the plaintiff in error, and by virtue of the latter, that he expects to exclude the oath, which the same statute extends to the plaintiff in error.

We do not think these statutes are to be thus construed. The latter statute is restrictive of a right which would otherwise be extended to that class of persons, in common with others-must be strictly construed, and consequently, confined to cases in which they are called to testify as witnesses in the common acceptation and understanding of the term. The first statute extends a right to the plaintiff, which the .Common Law does not give. It is general in its terms: the right is secured to each party, and when the plan tiff claims the benefit of it, he must take it subject to all its conditions and consequences. It is in the nature of a summary, Chancery proceeding, when the statements on oath of each party are taken, and judgment is given according “ as the right ofthe cause may appear.” ' To give the plaintiff the benefit of this statute, and exclude the defendant from it, under the prohibition of the other, would open a door to very great frauds, and would be subversive of every principle of justice.

The judgment must be reversed, and the cause remanded.

       Aik.Dig.294

       Ib.452