source: Caselaw Access Project

author: Whiton, 0. J.

license: Public Domain

text:
    Mallory vs. Lyman and another.
    1. Contbact — Delivery.—Under a contract or chattel note by which the maker agreed to pay the payee a certain sum by a day certain, in cumbrous articles, as merchantable pine boards, with interest, without any designation,of the place of delivery, and there is nothing to show the situation or employment of the parties, it is the duty of the person who is to deliver the lumber to see him who is to receive it, and get him to appoint a place for the delivery. If the party bound to deliver is a manufacturer of the articles to be delivered, or kept them for sale, it seems that a different rule might be adopted.
    3. Guaranty. — The engagement of one who guaranties the payment of a chattel note is an absolute and unconditional one that the maker will pay it at maturity, and no demand of the maker or notice to the guarantor is necessary to charge the latter. Ten Eyek v. Brown, post, 453.
    3. Same — Evidence. — In an action on a guaranty of payment of a chattel note, the note on which the guaranty was indorsed purports to have been signed by an agent in behalf of the maker, no proof of the authority of such agent to sign the note need be shown in order that it and the guaranty may be given in evidence. The guaranty in such case creates the liability of the guarantor, which is that the person who purports to be the maker of the note will pay it. The note is resorted to merely to show the extent of the guarantor’s liability.
    (4 Chand., 143.)

      ERROR to tbe County Court for Milwaukee County.

      Mallory brought an action of assumpsit against Lyman and Grant as guarantors of the following contract:
    “ $135. For value received, I promise to pay Hiram Mallory, or bearer, one hundred and thirty-five dollars, in good merchantable pine boards, on or before the first day of June next, with interest. FRED. R. Curtis.
    “Chicago,Dec. 24, 1847. By M. E. Lyman.”
    On the back of this chattel note was the following guaranty:
    “ In consideration of one dollar to us in hand paid, we do hereby guaranty the payment of this note at maturity.
    “M. E. LymaN,
    “S. B. GrRANT.”
    The defendants pleaded the general issue and payment.
    At the trial, which was by the court, the plaintiff offered in evidence the note or contract with the guaranty indorsed thereon ; and the defendants objected that there had been no proof given of the authority of Lyman to sign the name of Curtis to the note or contract; but the court received the evidence, and no further evidence being given, rendered judgment in favor of the defendants for costs, and the plaintiff brought this writ of error.

      J. J. Pettit, for plaintiff in errox.

      Smith & Palmer, for defendants in error, contended:
    1. There was no evidence whatever before the court of the execution of the contract, or instrument offered in evidence by Curtis, or by Lyman as his agent, and no evidence of the authority of Lyman to make the contract for Curtis. This defect in the evidence is not supplied by the statute. R. S., ch. 98, § 85. 1. Because Curtis was not a party to the suit. 2. Because the contract does not purport to be signed by Curtis, but by Lyman, his agent.
    2. The instrument which forms the basis of the defendants’ guaranty in this case is not a promissory note, but a simple contract. It is not payable in money. It is not negotiable, and is not possessed of tbe requisites of a promissory note. Chitty on Bills, 182-33, Springfield ed. of 1849; Matthews v. Houghton, 2 Eairf., 377 ; Wyman v. Winslow, id., 398 ; Rhodes v. Lindly, Ohio Cond., 465; Johnson v. Baird, 3 Blackf, 153; Jones v. Fates, 4 Mass., 245 ; Seiber v. Goodrich, 5 Conn., 186; Thompson v. Sloan, 21 Wend., 71; McCormick v. Trotter, 10 Sergt. & R., 94; Collins v. Lincoln, 11 Yt., 268; Irvine v. Lovj-ery, 14 Peters, 203.
    The guaranty of the defendants is not therefore to be treated as a guaranty of the payment of a promissory note, but a guaranty of the performance of the contract by Curtis, according to its legal effect.
    3. Curtis’ contract was to deliver a quantity of “good merchantable pine boards” of the value of $135, at the time specified in the contract, at his usual place of business, and the plaintiff was bound to go there to receive them. Chipman on Contracts, 28, 29, 30; Beebe & Brother v. Moon, 3 McLean, 387.
    4. Demand of payment upon the maker and due notice of nonpayment to the guarantor of a promissory note, are necessary in order to hold such guarantor. Greene v. Dodge, 3 Ham., 430; Oxford Bk. v. Haynes, 8 Pick., 423 ; Talbott v. Gay, 18 id., 534; Gammage v. Hutchings, 23 Me., 565; Gibbs v. Cannon, 9 Sergt. & R., 196; Isett v. Hodge, 2 Watts, 128; Towns v. Farrar, 2 Hawks, 163 ; Haiolcs v. Crittenden, 2 McLean, 557; Foote v. Brown, 2 id., 369; Lewis v. Brewster, 2 id., 21; Whiton v. Mears, 11 Met., 563; McGuire v. Newkirk, 1 Eng., 142.
    5. And when a note is payable in specific articles the rule is imperative, that a demand and reasonable notice is necessary to charge the guarantor. “ On a guaranty of the delivery of flour, a demand of the article when due must be made, and a reasonable notice of failure given to the guarantor.” Beebe v. Moon, 3 McLean, 387.
   Whiton, 0. J.

We are satisfied that tbe judgment in this case is erroneous.

The contract signed by Lyman, as the agent of Curtis, bound the latter (in case flyman had authority to sign for him) to deliver to Mallory at the time fixed, good merchantable pine boards of the value of one hundred and thirty-five dollars. If the boards were not delivered, Mallory had a right to bring an action upon the contract and recover that amount in money But, it is said by the defendants that, as there is no place specified in the contract where the boards were to be delivered, the rule of law is, that they were to be delivered by Curtis at his usual place of business, and that the plaintiff was bound to go there to receive them.

Admitting this to be the correct view of the law applicable to the subject, there is nothing in the case to show that Curtis fulfilled his contract. For, if he had the right to deliver the boards at his place of business, yet it was his duty to make the delivery at the time specified. The boards were not to be delivered by Curtis when he should be requested, but “ on or before the first day of June.”

It is needless to state what would constitute a delivery or a tender of the boards, as there was no attempt in this case to prove that Curtis had made a delivery or an offer to deliver.'1

But we do not admit that this is the law applicable to contracts of this nature. There was no testimony in the case tending to show that Curtis was a lumber merchant, or manufacturer of pine boards, or had any place of business. All we know is that he agreed to deliver to the plaintiff the boards specified in the contract; and we are not aware of any better rule in regard to the delivery of cumbrous articles, where the parties have omitted to designate the place of delivery, and when nothing is known of their situation or employment, than the one laid down, by Lord Coke, which makes it the duty of the person who is to deliver the articles to see him who is to receive them and get him to appoint a place for the delivery. Co. Litt., 210, b.; see also Slingerland v. Morse, 8 Johns., 474. If the testimony had shown that Curtis was a manufacturer of pine boards, or kept them for sale, perhaps a different rule should be adopted. 2 Gfreenl. Ev., §§ 109, 110. But as the ease stands, we do not see how any other rule than the one laid down by Coke can be applied.

But it is said by the defendants, that although as between Curtis and Mallory, the former may have no defense to an action on the contract, yet they, who are mere guarantors, and are sued in that character, cannot be made liable. This supposed exemption from liability arises from the fact that there was no testimony introduced at the trial to show that any demand of payment had been made of Curtis, or notice of nonpayment given to the defendant. These, they say, are necessary in order to charge them, because, if the contract had been a promissory note, such a guaranty as the one sued upon would not have given the plaintiff a right of action against them without proof of demand and notice, and that there is the same necessity for a demand upon Curtis and notice of nonpayment to them in this case, as though the contract were a promissory note. This view of the matter regards the undertaking of a guarantor as analogous to that of an indorser — a conditional and not an absolute one,' and there is no doubt that many courts, and many of high respectability, have so regarded it. The cases cited by the counsel for the defendants in error are to the point, and were it not that courts of equal respectability have arrived at a different conclusion, we might have felt compelled to yield to their authority. The case of Brown v. Curtis, 2 Comst., 225, is an authority for these propositions: that the guaranty of the payment of a promissory note is an absolute, unconditional engagement by the guarantor that the maker of the note shall pay it at maturity; that no demand upon the 'maker or notice to the guarantor is necessary to charge the latter; and that his liability is absolute upon the failure of the maker to pay the note according to its tenor and effect. We see no escape from the reasoning by which these conclusions are reached, nor do we think the circumstance that the contract in tbis case was to deliver boards instead of money, affects tbe liability of the guarantors. They engaged that Curtis should deliver the boards to the plaintiff, and by the neglect of Curtis to comply with his contract, they became liable to pay the amount in money.

There remains but one other point to be considered. It is said by the defendant in error that the judgment of the court below should be affirmed, because there was no testimony introduced at the trial to prove the execution of the contract by Lyman, as the agent of Curtis, nor to prove Lyman's authority to sign the contract as such agent.. It appears by the bill of exceptions that the contract and guaranty were offered in evidence by the plaintiff, and that the former was objected to by the defendants for the reason that there was no proof of its execution, nor of Lymans authority to execute it as the agent of Curtis. It appears, further, that the question of its admissibility without the proof was not decided by the judge, he permitting it to be used in evidence, subject to the objection of the defendants, and reserving the question of its admissibility for decision afterwards. It appears further, that when the contract and guaranty had been used in evidence, the plaintiff rested his case, and that the defendants offered no testimony. Upon these facts, the judge (there being no jury) decided the case in favor of the defendants, and gave them a judgment for their costs. As the bill of exceptions fails to state how the judge ruled upon the question of the admissibility of the contract, unless by omitting to rule it out of the case, we are authorized to infer that he considered it properly admitted. But, however this may be, we are satisfied that the objections to the introduction of the contract i'n evidence are founded upon a mistaken view of the subject.

The object of its introduction was merely to show the extent of the liability of the defendants, as fixed by the guaranty. They had engaged by the guaranty that Curtis should perform the contract. It was therefore necessary for the plaintiffs to sbow wbat Curtis bad agreed by the contract to perform, because bis agreement was the measure of the liability of the defendants upon the guaranty. If the guaranty had set out what Curtis had agreed by his contract to do, there would have been no necessity for the introduction of the contract, as the plaintiff’s proof would have been sufficient without it.

It cannot avail the defendants in error to contend that it was necessary for the plaintiffs to prove the contract valid as against Curtis, and that this could be done only by showing that Lyman, the agent, executed it, and had authority to sign it for Curtis as his agent; because by the guaranty the defendants engaged that Curtis should perform it, and when the plaintiff proved what the contract was which the defendants had engaged Curtis should perform, he made out his cas & prima facie. Forman v. Slebbins, 4 Hill, 181. If our view of the law applicable to the case is correct, there can be no doubt that the plaintiff was entitled to judgment. The judgment which was rendered in favor of the defendants must therefore be reversed.


author: KkowltoN, J.

text:
    Ford vs. The State.
    1. CRIMINAL Law— Complaint. — In a complaint or indictment for a misdemeanor, a substantial statement of the offense is sufficient.
    2. Felony. — Under the statute (R. S„ ch. 141, sec. 14) defining felony, the offense of petit larceny is a misdemeanor only. Wilson v. The State, 1 Wis., 184.
    (4 Chand., 148.)
    ERROR to the Circuit Court for Winnebago County.

      Ford was convicted, before a justice of the peace, of larceny, and appealed to the circuit court, where he was tried and found guilty. He moved in arrest of judgment upon grounds stated in the opinion of the court, but the motion was overruled, and be having been sentenced, brought this writ of error

      Alvah Hand, for plaintiff in error.

      K Estabrook, Attorney General, for tbe state.
   KkowltoN, J.

Tbe error alleged in this case is, that tbe circuit court of Winnebago county erred in overruling the motion in arrest of judgment, which was based upon the following and only reason, to wit: That tbe complaint and warrant, upon which the plaintiff was arrested and tried, did not sufficiently charge the accused with any crime or offense known to the law.

The warrant follows the complaint strictly, which chai’ges “ that on the 12th day of June, in the year 1852, in the county of Winnebago, town aforesaid, certain goods and chattels, the property of the said George Montgomery, to wit: a quantity of pine lumber, inch boards and siding, of the value of twelve dollars, were feloniously taken, stolen and carried away from the possession of the said George Montgomery ; that one Simeon J. Ford, of the aforesaid county, stole the same, and prays,” etc.

It is contended for the plaintiff in error that the quantity of lumber charged to have been stolen does not appear with sufficient certainty in the complaint and warrant, nor the quantity of tbe several kinds of lumber separately ; and that it does not charge him with feloniously taking and carrying it away, and unless it does so charge, he is not charged with a crime.

It has been held, and I hold such the law to be, that in an indictment for a misdemeanor, a substantial statement of the offense is sufficient. Bilbro v. The State, 1 Humph., 534. A justice of the peace had original jurisdiction in this case, and certainly the circuit courts are the only courts in the state having original jurisdiction to try offenses of a higher grade than a misdemeanor. The revised statutes have defined what the term “felony,” as used in the statute, shall mean (R. S., ch. 141, § 14; also ch. 134, § 15) as to petit larceny, and the trial before justices of the peace for offenses like the one at bar. ■The offense charged was a misdemeanor only, and all the technicalities of an indictment need not be followed in a eomplaint before a justice of the peace. The complaint charged that an offense bad been committed, and that the plaintiff in error committed it; that certain goods and chattels bad been stolen, and .that Simeon J. Ford stole them. It is true, it does not state that Ford stole the lumber, but it states that the lumber had been stolen, and that Ford stole it. We are of opinion that the complaint charged the plaintiff in error sufficiently clear to put him on his trial, and is good as to this point. He could not be misled in this, and must have known that he was charged with stealing twelve dollars’ worth of pine lumber, consisting of inch boards and siding ; and he could plead this suit in bar to another prosecution for the same offense. Had there been two kinds of lumber stolen, to wit, pine and oak, then it would be necessary to define the value of each bind separately; but there was only one kind charged to have been stolen, which the law presumes to be common lumber. The law knows no difference in the quality of lumber of the same kind; if any difference in quality exists, it is merely arbitrary between the vendor and purchaser, according to the demand and scarcity of the kinds. As to any difference between the value of inch boards and siding, or half-inch boards, we can see no reason for any such distinction being made, so as to render it necessary to sever them in an indictment for larceny, for the stealing of both in one raft, load or pile ; nor can we see that it would be necessary to charge the number of feet of the stolen lumber in a proceeding before a justice of the peace. It might, perhaps, be otherwise in an indictment for larceny, amounting to felony. We think the complaint good, at least after verdict.

We are of opinion that the circuit court did not err in overruling the motion in arrest of judgment, and that the judgment of the circuit court should be affirmed.

Judgment affirmed.


author: WhitoN, C. J.

text:
    Ten Eyck vs. Brown.
    1. Guaranty ob1 Note. — A guaranty oí payment of a promissory note is an absolute untertaking by the guarantor that the maker shall pay it at maturity, and a demand of the maker and notice to the guarantor are not necessary to charge the latter. Upon the failure of the maker to pay it, the liability of the guarantor becomes absolute. Mallory d. Lyman et al., ante, 448.
    3, GUARANTOR — Liability oe. — The undertaking of a guarantor of payment of a promissory note is essentially different from that of the maker, and is contingent upon the failure of the maker to pay it, and he cannot be held liable as a joint maker.
    8. Same. — A contract of guaranty of payment of a negotiable promissory note is not itself negotiable, and in the absence of any statute authorizing the assignee of such guaranty to sue thereon, the action to enforce it must be brought in the name of the party to whom it was given.
    (4 Chand., 151.)
    EBBOE to the County Court for Oreen- County.
    Assumpsit brought by Brown against Ten Eyck on a guaranty indorsed on a promissory note given by one Sabin payable to one May or bearer, as follows: “In consideration of one dollar received, I hereby guaranty tbe payment of tbe within note. Jacob Ten Eyck.”
    ' At the trial the note and guaranty were offered in evidence, and they were objected to by tbe defendant for tbe reason that the guaranty was not negotiable, and any action thereon must be brought in the name of the party to whom it was given. The court overruled the objection and received the note and guaranty in evidence, and the defendant, without further evidence, rested his case. The defendant then proved by one Edson, that he purchased the note in question of Lawrence, Strong & Co., and that the guaranty in question was on it at the time, and that he afterwards sold the note to Brown the plaintiff.
    The plaintiff had judgment and the defendant sued out a writ of error.

      B. Dunwiddie, for plaintiff in error,
    contended that a guaranty of payment of a note is not negotiable, and must be sued on in the name of the person to whom it was given (Story on Notes, 638; 19 Wend, 557); that when a guaranty of payment does not contain the name of any person, and is not dated, it cannot be presumed that it was made at the same time the note was, but a person suing on the guaranty must prove that it was made to him or he cannot recover. Miller v. Gaston, 2 Hill, 188.
    6! Abbott, for defendant in error.
   WhitoN, C. J.

This case differs from that of Mallory v. Grant et al., ante, 443, though some of the principles which governed us in that case are applicable to this.

In that case, we held that a guaranty of the payment of a promissory note was an absolute, unconditional engagement, by the guarantor, that the maker should pay it at maturity; that a demand upon the maker and notice to the guarantor, were not necessary to charge the latter, but that his liability became absolute upon the failure of the maker to pay it according to its tenor and effect. By applying these principles to the case before us, it appears that Ten Myclc became liable upon the failure of Sabin, the maker, to pay the note at maturity, without any demand upon Sabin, or notice of nonpayment to the defendant

But we are called upon to decide a question in this case which was not involved in that of Mallory v. Grant et al., before alluded to. In that case, the guaranty was made to Mallory, the plaintiff in the suit. In the case before us, it seems clear from the testimony, that the guaranty was not made to the plaintiff, but was made to one of the previous holders of the note. The judge states, in the bill of exceptions, that the reason why he held the defendant liable was, that he considered him a joint maker of the note with Sabin. If he was, then undoubtedly the decision of the judge was correct, and the judgment should be affirmed ; so also the judgment should be affirmed, though we should differ-from the judge in the opinion that he is a joint • maker of the note, if we should think him liable to the plaintiff upon the guaranty.

We are of opinion that he cannot be held liable as a joint maker of the note. We are aware that guarantors of the payment of promissory notes have been so held by courts of the highest respectability; but the undertaking of a guarantor of the payment of a note is essentially different from that of the maker. He does not promise that he will pay the note, but that the maker, who has agreed to pay it, and who is bound to pay it, shall perform his agreement. His agreement is absolute and unconditional that the maker of the note shall pay it, but his liability is contingent upon the failure of the maker to pay it. Brown v. Curtis, 2 Comst., 225. We do not see therefore how he can be regarded as a joint maker of the note.

Nor do we think that the contract of guaranty is negotiable. This.seems to follow, from the proposition that the guarantor of a note cannot be held as a maker or endorser; for, if the guaranty is distinct from the note, if it is merely an agreement by the guarantor that the maker shall pay it, and not that he will himself pay it, I do not see how it can be so regarded. Miller v. Gaston, 2 Hill, 188. By the common law, choses in action are not" assignable ; and if we have arrived at a correct conclusion as to the nature of contracts of guaranty, they are not made so by statute. If our view of the law is correct, it is clear that the plaintiff in error should not have been held liable in this action, as the testimony shows that the contract sued upon was not made with the plaintiff, but with one of the previous holders of the'note. The judgment must therefore be reversed.


author: Knowlton, J.

text:
    Martineau vs. McCollum.
    1. Mortgage — Transfer. —A mortgage is a mere incident to the debt and whenever the debt is assigned, it carries with it the mortgage.
    2. Same. —A negotiable note secured by mortgage transferred to a bona fide holder before due, carries the security by mortgage with it, so as to preclude a defense that would have been good as against the mortgagee. Fisher v. Otis, and note, ante, 78.
    (4 Chand., 153.)
    APPEAL from tbe Circuit Court for Dodge County.
    The case is stated in tbe opinion of tbe court.

      Collins, Smith & Tappan, for appellant.

      Jason Downer, for appellee.
   Knowlton, J.

This cause was commenced by the complainant, as second assignee and holder of two promissory notes and a mortgage on real estate, by bill for the foreclosure of said mortgage, in Dodge county circuit court. The notes and mortgage bear date April 27, 1848. The defendant and appellant, James F. McCollum, set up for a defense that the notes and mortgage (which were for the sum of $500) were obtained by duress of imprisonment. The complainant responded, and the cause came on for hearing upon the evidence of the notes and mortgage, and the testimony of several witnesses. The court rendered a decree for the amount of the notes, with interest and costs. From this decree, the defendant McCollum appealed to this court.

The only question raised in the case deserving notice is, whether a negotiable promissory note, negotiated before due, secured by mortgage, so far carries the security with it as to preclude the setting up a defense that would render the contract totally void, as between the original parties to the contract.

It is admitted by the defendant’s counsel, that in an action upon the notes by the complainant in this case against the defendant McCollum, that such defense would not be good ; but be contends, that when be seeks to enforce his remedy upon .the mortgage, that then the defense is a good one, and cites authorities where it has been so holden upon an assignment of a bond and mortgage.

Now I hold that these very authorities tend to prove that the defense is not good- as to negotiable promissory notes. The principle governing such cases is, that the mortgage is only an incident to the debt. Whenever the debt is assigned, it carries with it the mortgage as an incident to it. The mortgage does not carry with it the debt, but the debt carries with it the mortgage. Now, inasmuch as the bond is not assignable, so as to prohibit the defense of fraud or duress, which would render it void as between the original parties in an action on the bond, it follows, of course, that the same defense could be set up in a suit on the mortgage as being a mere incident to the bond or debt. Any defense that can be set up against the debt, may be set up against the mortgage, and none other. This doctrine was held in the case of Morris v. Floyd, 5 Barb., 132. See also Cooper v. Ullman, 1 Walker’s Ch., 251; Loutherin v. Mendum, 5 N. H., 420; Cray v. Jenks, 3 Mason, 520; Cutler v. Hanen, 8 Pick., 490; Porter v. Millett, 9 Mass., 101; Surut v. Horn, 1 N. H., 332.

Numerous other authorities might be cited to sustain this position. The counsel for the defendant failed produce an authority against this doctrine, and I have been unable to find one. I have not found a single case where the mortgage was not recognized as a mere incident to the debt. But it has been repeatedly holden that the mortgage could be assigned by a mere transfer of the debt, and if a promissory note, mere delivery of the note would carry the mortgage. We are of opinion that the decree of the circuit court for the county of Dodge should be affirmed, with costs.

Decree affirmed.


text:
    Philips and another vs. Sleusher.
    Executoks — Legatee. — The executors of the last will and testament of the deceased are entitled to the possession and control of property specifically devised or bequeathed by him, as against the devisee or legatee, until the estate is settled and an order made for its delivery to such devisee or legatee; although the devise or bequest was made to take effect upon the execution of a release which has been executed and delivered. Edwards v. Emm, 16 "Wis., 181.
    (4 Chand., 155.)
    EEEOE to the County Court for Milwaukee County.
    Eeplevin in the deiinet, brought by Caroline Sleusher against Philips & Williams, who pleaded the general issue with notice that they would prove that they were executors of the last will- and testament of one Graham, deceased, duly qualified as such before the commencement of the suit; that the will had been admitted to probate, and letters testamentary granted to them, and that the goods and chattels in question were a part- of the estate of said Graham, and were in their hands as such executors, and that they had a right to the possession thereof.
    It appeared at the trial that Graham devised the property in question to the plaintiff on condition that she released a claim she had against him ; that she had executed and delivered the release ; that divers other bequests were made to other persons by said Graham : that commissioners to hear and allow claims on said estate had been appointed, and that they had not reported, nor had the time limited for that purpose elapsed; that the estate was as yet unadministered, and no order for distribution of it had been made.
    The county court gave judgment for the plaintiff, and the defendants prosecuted this writ of error.

      J. Downer and L. Wyman for plaintiffs in error claimed that both at common law and by statute,
    the executors had a right to the possession and control of the property until the estate Should be settled or the property be decreed or ordered by the probate court to be delivered over to the legatees. R. S., ch. 69, secs. 1, 2, 7, 84, and 85 ; 10 Pick., 463 ; Lewis v. Smith, 12 Mass., 309 ; Goodwin v. Jones, 3 id., 514.

      M. S. & H. S. Orion, for defendant in error,
    argued that she as special legatee was entitled to the possession of the property, and cited R. S., ch. 69, secs. 34 and 35 ; 2 Jarm. on Wills, 405 i Lomax on Ex’rs, 96 ; 12 Wend., 349 ; Marvin v. Stone, 2 Cow., 788 ; Says v. Mico, 1 Bro. Ch., 118; Williams v. Cary, 8 Cow., 246 ; Rogers, v. Rogers, 1 Paige, 106.
   WhitoN, C. J.

The property which is the subject of controversy in this action, having been devised to the plaintiff be low, it is contended that she is entitled to the possession of it, at least until it shall be ascertained that it will be necessary to resort to it for the purpose of raising money to pay the debts of the deceased. But our statute is conclusive in favor of the contrary doctrine. R. S., ch. 69, secs. 1, 2, 6 and 7. It appears to us that the claim set up by the plaintiff below is entirely inconsistent with the rights and duties of the executors. They were required by law to make and return into the probate court a true inventory of the real estate, and of all the goods, chattels, rights and credits of the deceased which should come to their possession or knowledge ; and they were obliged to apply, in the first place, the goods and chattels, rights and credits to the payment of the debts, and the expenses of administration, and if they were not sufficient, then to sell the real estate for that purpose; and the seventh section of chapter sixty-nine, above referred to, expressly gives them the right to the possession of the property. We do not see, therefore, what right the plaintiff below can have to interfere with the possession of the defendants. The devise of the property to her could not free it from liability to be sold for the payment of the debts of the deceased, nor in the least affect the rights of the executors to the possession.

But it is said that the devise to the plaintiff below was conditional, and that, complying with tbe condition, sbe acquired tbe right to take possession of the property and retain it until it was ascertained that the other personal estate was insufficient to pay the debts. It appears that the devise to tbe plaintiff was upon this condition, viz : “ Further the gifts and devise by this my will to Caroline Sleusher and bequest is, upon the condition that if she shall furnish to my executors a relinquishment of all claims or demands against my estate for borrowed money, she shall receive the benefit of the aforesaid devise and bequest, otherwise to be null and void so far as regards her.” It appears further that she did comply with the condition annexed to the devise, by relinquishing to the executors all claim upon the estate for borrowed money. We do not see how this can effect the question involved in this suit. ‘

We are not determining whether it would be the duty of the executors to sell the other personal property to pay the debts of the deceased, before resorting to this, nor what would be the effect of the relinquishment of the claim for borrowed money, in case the property devised to the plaintiff should be taken to pay the debts. The simple question is, who is entitled to the possession of the property pending the settlement of the estate ? And this section of the revised statutes settles this beyond controversy.

There can be no doubt that upon the facts stated in the bill of exceptions, the executors were authorized and required to take possession of the property, and that the plaintiff cannot maintain this action. The judgment of the county court must therefore be reversed.


author: ENowxtoN, J.

text:
    Bulger and others vs. Woods and others.
    1. Practice — Assessment of Damages. — Where an issue of law as to one or more counts of the declaration has been decided in favor of the plaintiff, and an issue of fact is to be tried as to other counts, the jury should be instructed to assess the plaintiffs damages as to the former counts, the cause of action therein being established by the decision on demurrer; and as to the other counts, they should find the facts and then assess the damages if any thereon. The oath to the jury should be so administered as to require the jury to dispose of the assessment of damages as well as the issue of fact.
    2. Tenants in Common — Action Between. — As to property belonging to tenants in common, each has an equal right to its possession, and one tenant in common cannot maintain assumpsit against his co-tenants for his share or interest, unless there has been a sale or destruction of the property so held in common. Waoven v. Aller, 1 Pin., 479.
    3. Special Contract — Pleading. — Where there is a cause of action depending on a special contract, the plaintiff must declare on it specially, and the proof to entitle the plaintiff to recover must support the contract as laid. A recovery in such case can be had under the common counts, only where the plaintiff fully performed the contract on his part, and nothing remains to be done by the defendant but the payment of money. King «. Kerr, post, 464; Bradley and others v. Levy, 5 Wis., 400.
    ERROR to the County Court for Iowa County.
    Assumpsit brought by Woods, Jennings and Dunston against Bulger, Daley & Delaney. The first count of the declaration was upon a special contract in substance as stated in the opinion of the court, and to this were added the common counts in indebitatus assumpsit. The defendants pleaded the general issue to the common counts and demurred to the special count. Their demurrer was overruled, and as to this count, the defendants stood on the demurrer. At the trial of the issue on the common counts, the evidence tended to show that the defendants had worked a certain range of mineral under a contract by which the plaintiffs were to have a certain share as owners of the mining right, and the owner of the land a certain other share, and the remainder was to belong to the defendants; that a considerable quantity — from twenty to thirty thousand pounds — of lead ore had been raised by the defendants and had not been divided; that the plaintiffs, as owners of the mining right, not having received their share, this action was brought to recover for the same. There was no proof given to show that the defendants had sold the ore raised by them. The defendant’s counsel moved for a nonsuit, but the court overruled the motion, and the case was submitted to the jury, sworn i n the ordinary manner. The court instructed the jury that they should confine themselves to the issues joined in the case, and should not apply any of the evidence to the first count of the declaration, there being no issue joined on it; that it was taken against the defendants as confessed and it was not necessary for the plaintiffs to prove the contract, only the damages they had sustained by reason of its nonperformance; but as the plaintiffs had undertaken to prove it, the jury must find from the evidence that it has been proved as set forth in every material respect or the plaintiffs could not recover; that if the jury found from the evidence that the defendants agreed with the plaintiffs to wash and clean the mineral at a stipulated price per thousand, and the mineral dirt was delivered into their possession for that purpose by the plaintiffs, the defendants were bound to account to the plaintiffs for their share of the mineral, and upon demand and refusal the plaintiffs can recover in this form of action on the general counts in the declaration. Instructions noticed in the opinion of the court were asked by defendants’ counsel and refused. The plaintiffs had a verdict and judgment, and the defendants brought error.

      M. M. Oothrm and J. H. Knowlion, for plaintiffs in error,
    contended that a venire tam quam should have been awarded, or the jury should have been sworn to assess the damages of the plaintiffs on the first count of the declaration as well as to try the issues on the common counts, and they cited 1 Bur. Law Die., 965, Tit. Tam Quam; 2 Tidd Pr., 789, 722; 2 Bur. Pr. 199, 200, 255, 256; 3 Cow., 62, note a; 19 Johns., 311 ; that the court erred in its charge to the jury and in refusing instructions asked.

      Chas. & F. J. Dunn, for defendants in error.
   ENowxtoN, J.

This was an action of assumpsit brought by the defendants in error against the plaintiffs in error in the county court of Iowa county.

The cause of action was based upon a contract alleged to have been made between the parties whereby the defendants below were to work a certain range of mineral, and of the mineral raised the plaintiffs were to have a fractional proportion, the defendants a part and the owner of the ground (not a party to the record) a portion. The evidence adduced upon the trial was more or less applicable to this state of the case. The defendants demurred to the first count of the declaration which was special and pleaded issuably to the others, which were common counts. The court overruled the demurrer. The defendants stood by the demurrer. The issue of fact was afterwards tried by a jury. A verdict was given by the jury in favor of the plaintiffs under the instructions given by the court. The defendants moved to set aside the verdict and grant a new trial, which motion was overruled by the court. The defendants excepted to this decision. Judgment was rendered upon the verdict. Various exceptions were taken by the defendants to the ruling of the court during the progress of the trial, which were preserved by bill of exceptions. The defendants removed the case to this court by writ of error. Nine errors were assigned. A few of these will be considered.

Where there is an issue of law as to some counts decided in favor of the plaintiff, and issues of fact remaining to be disposed of as to the other counts, the jury should be instructed to assess the amount of damages sustained and proved by the plaintiff, as to the cause of action set forth in the counts demurred to, without finding the facte therein alleged as the basis of recovery. These are admitted by tbe demurrer. And, as to tbe other counts, they should find the facts first, and then assess the damages thereon. The oath administered to the jury should be so varied as to impose upon that body the obligation to dispose of the whole ease as above indicated. This is, in technical language, a lam quam proceeding. This rule of law was not observed in the case before us. In this there is error.

Among other things, the defendants, by their counsel, asked the court to instruct the jury as follows, to wit: “If, from the evidence, you believe that the plaintiffs owned a part, the defendants a part, and the landlord a part of the lead ore in controversy ; or, if you believe that the plaintiffs and defendants each owned a part, then you must find for the defendants, as one joint tenant, coparcener or tenant in common, cannot maintain an action ex contractu against his coparcener or cotenant.” This, as a general proposition, is sound law, and we see nothing in the case to warrant the court in refusing, as it did, to give the instruction as asked. We hold this refusal to be error.

The next instruction asked by the defendants was as follows : “ Unless you are satisfied, from the evidence, that the lead ore for which suit is brought was sold by the defendants, or actually converted to their use, you must find for the defendants ; for, if the lead ore was owned by plaintiffs and defendants, or by plaintiffs, defendants and the landlord, the possession of one of the owners was the possession of all; and this form of action cannot be maintained in any case by one part owner against another joint owner, unless there has been a positive sale or conversion of the property jointly owned.” This instruction was refused. The principles of law involved in this instruction are correct, and familiar to every lawyer, and we think were legitimately applicable to the facts developed in the case. This refusal was also an error.

Another instruction asked by the defendants and refused by tbe court was this: “ If you find from tbe evidence that there was a contract between tbe plaintiffs and defendants relative to the subject matter in controversy, that contract will control the case, and the plaintiffs are in law bound to declare specially on this contract, and prove the same precisely as laid in the declaration, so far as the terms of the contract are concerned; and if the proof does not come up to this rule, you must find for the defendants. The least variance is fatal to the plaintiffs, unless you also find that the contract so made has been fully performed by them. In that case, the plaintiffs may recover on the general counts and need not declare specially on the contract. If, however, you find from the evidence, that the plaintiffs have failed to prove a complete performance of such contract, they cannot recover under any general count, and as to such general counts, your verdict will be in favor of the defendants. And, when a special contract has been made by the parties, neither party can resort to general counts, except in cases where nothing remains to be done by the other party save the payment of money in consideration of what the party plaintiff has done for the party defendant. We are clearly of opinion that this instruction contains, in succinct form, correct law applicable to this case as presented to the jury. The refusal to give this in charge to the jury was error beyond all question.

The instructions given being directly contrary to those above mentioned must, of consequence, be considered erroneous, and the judgment must be reversed.

Judgment reversed.


text:
    King and another vs. Kerr.
    1. Special CONTRACT — Pleading. — Where a special contract is to be performed by the defendant in the action in some other way than by the payment of money, the plaintiff must declare on it specially; but if it can only be performed on the part of the defendant hy the payment of money, and has been completely performed by the plaintiff, he can maintain indebitatus assumpsit to recover the money. Bulger et al. v. Woods et al., ante, 460.
    2. Same. — Where the plaintiff made a special contract-with the defendants by which he was to haul goods for them, and for which they were to pay a specified sum in goods out of their store, and he had performed on his part and demanded his pay: Held,, that in an action to recover his pay he must declare specially on the contract, and that a count merely alleging an indebtedness in divers goods, wares, etc., to the amount claimed, to be paid out of the defendant’s store, and nonpayment, could not be maintained,
    (4 Chand., 159.)
    ERROR to the Circuit Court for Rock County.
    The case is stated in the opinion of tbe court.
    Smith, Parker & Jordan, for plaintiffs in error,
    cited 2 Hill, 603; 7 id., 388; 1 Bibb, 595; 2 Muni, 344; 3 Mon., 405; 10 Ala., 330; 1 Barb., 165; 2 Chitty’s Plead., 38; Whiting v. Sullivan, 7 Mass., 107; Worthen v. Stevens, 4 id., 449 ; 2 Denio, 145 ; 13 Wend., 287 ; 1 Chitty’s Plead., 329, 339, 340; 1 Saund., 33 ; 21 Pick., 318.

      J. R. Bennett, for defendant in error,
    cited 22 Wend., 576-585; 7 Yt., 223; Laws on Plead., 5; 5 Ohio, 349 ; 10 Mass., 287; 7 id., 329; 1 Chitty’s Plead., 346; 5 Barn. & C., 628; 6 id., 385 ; 4 Barn. & Aid., 268.
   WhitoN, C. J.

This case was brought into the circuit court for Rock county, by a writ of certiorari to a justice of the peace. By the return of the justice to the writ, it appears that the defendant in error commenced an action of assumpsit before him against the plaintiffs in error, and declared against them in one count for the carriage and transportation of goods generally. The declaration also contained another count, which is in substance as follows: “Also for that, on etc., atete., the said defendants were indebted to the plaintiff in divers goods, wares and merchandise, to wit: goods ánd chattels, wares and merchandise, of the value of fifteen dollars, to be paid to the plaintiff out of the store of the defendants, for other work and labor, care and diligence of the said plaintiff, before that time, done, performed and bestowed by the plaintiff and his servants, and with horses, carts and carriages, in and about the carrying and transportation of divers other goods for the defendants, at their special request, etc.”

The breach assigned was that the defendants, though often requested, had not paid the goods. The defendants pleaded the general issue, and a special plea. It appeared from the testimony returned by the justice, that the plaintiff proved the hauling of some goods for the defendants, for which they agreed to pay him fifteen dollars and thirty cents in goods, the agreement having been made before the goods were hauled. The plaintiff proved further that he demanded the goods of the defendants at their store, and that they refused to deliver them. Having proved these facts, he rested his case. The defendants then moved for a nonsuit, for the reason that the plaintiff should have declared specially on the contract. The justice sustained the motion, and gave a judgment against the plaintiff. This judgment was reversed by the circuit court.

The question involved in this case is one of pleading merely. The testimony established the fact that the parties had made a special contract, by which the plaintiff had agreed to haul goods for the defendants, and they had agreed to pay a specified sum for the hauling, in goods out of their store; that the contract had been performed by the plaintiff; that he had demanded the goods of the defendants, and that they had refused to deliver them. Upon these facts, there can be no doubt of the liability of the defendants. The only questions are, whether general indebitatus assumpsit will lie, and if not, whether the second count, which alleges an indebtedness in chattels, can be sustained. The authorities are almost unanimous in support of the proposition, that where a special contract is to be performed by the defendant in the action, in some other way than by the payment of money, the plaintiff must declare upon it specially. The counsel for the defendant in error have been able to find but two cases in which the contrary doctrine has been held : Clark v. Fairchild, 22 Wend., 576, and 7 Vt., 223. These decisions, however respectable the courts may be which pronounced them, can not control the multitude of cases in which the contrary doctrine has been maintained.

It is true, that however special the contract may be, if it can only be performed on the part of the defendant by the payment of money, and has been completely performed by the plaintiff, he can maintain an action of general indebitatus as-sumpsit to recover the money.

But between such a case, and one where the defendant has agreed to perform in some other way than by the payment of money, there is this difference; that in one case the obligation of the defendant to pay the money, and the right of the plaintiff to sue for and recover it, result directly from the performance of the contract by the latter; and in the other, from the performance of the contract by the plaintiff, and a refusal by the defendant to perform on his part. In the case before us, the right of the plaintiff to sue was not complete when he had performed the contract on his part by hauling the goods. Something more was necessary: a demand of the goods which the defendants had agreed to pay, and a refusal by them to deliver the goods, were indispensable.

The other count I deemed sufficient to enable the plaintiff to recover, because I thought the averment that the defendants were indebted to the plaintiffs in chattels for hauling the goods, and had refused to deliver the chattels when requested, relieved it from the objections to the first count, and because I found this mode of declaring authorized by two English cases, cited at the argument here. Earl of Falmouth v. Penrose, 6 Barn. & Cress., 385; 4 Barn. & Adol., 268.

The late editions of Chitty’s pleadings also contain a form for this mode of declaring, founded on the authority of those cases. 2 Chitty’s Plead., 38. But no American authority has been found authorizing this mode of declaring, and we are of opinion that it would be unwise to permit so great a departure from the ordinary declaration.

J udgment reversed.


author: Per Curiam. KNOWLTON, J.,

text:
    Du Bay vs. Gould and another.
    County Court — Jurisdiction.— A county court has no jurisdiction of an action in which the debt or damages claimed exceeds $500, al though the cause of action arose in the same county. Knowlton, J., dissenting.

    ERROR to the County Court for Portage County.

      Gould & Sparr brought an action of assumpsit in the county court for Portage county against Du Bay, and declared for the sum of $1,500, the price and value of logs delivered by them to the defendant, in said county.
    The defendant moved the court to dismiss the action for want of jurisdiction, the sum claimed therein exceeding the sum of five hundred dollars, but the court overruled the motion, and the defendant pleaded the general issue. Upon the trial, the plaintiffs recovered only $444.80 damages, besides costs; and the defendant brought error.

      Collins, Smith & Tappan, for plaintiff in error,
    argued that as the sum demanded in the court below exceeded five hundred dollars, the county court had no jurisdiction of the action, and cited R. S., eh. 86, sec. 2.

      Catlin, Abbott & Clark, for defendants in error:
    1. The county court has jurisdiction to an amount exceeding five hundred dollars in all civil actions, arising within the county where such court is held. R. S., ch. 86, sec. 2. 2. If the county court had not jurisdiction to an amount exceeding five hundred dollar's, yet there is not, in this cage, error, for the jury found for said defendant in error, a sum less than five •¿hundred dollars.
   Per Curiam.

The judgment of the court below is reversed for want of jurisdiction in that court.

KNOWLTON, J.,

dissenting. As I am unable to perceive the correctness of the opinion of a majority of this court, I am constrained to give some of the reasons why I cannot concur; and, in doing so, it may not be amiss to lay down a few well established rules which govern in the construction or interpretation of statutes, which are, 1. That a court of law will not make any interpretation contrary to the express words of a statute, for nothing can so well explain the'meaning of the makers of the act as their own direct and express words, since index, animi sermo and maledicta expositio quoz corrumpit textium. It would be dangerous to give scope for making a construction in any case against the express words, when the meaning of the makers is not opposed to them, and when no inconvenience would follow from a literal interpretation. Edrich's Case, 5 Rep., 119, cited in argument; Gaunt v. Taylor, 3 Scott’s N. R., 709; Broom’s Legal Maxims, 268; Smith’s Com., 654.-2. That words ought not to be extended beyond their ordinary sense in order to comprehend a case within their object, for that would be to give effect to an intention piot expressed, nor can they be so restricted as to exclude a case both within their object and within their ordinary sense, without violating a fundamental rule which requires that effect should be given to such intention of the parties or law-making power as they have used fit words to express. Borradaile v. Hunter, 5 Scott’s N.R., 431-432; Moseley v. Motteux, 10 M. & W., 533; Broom’s Legal Maxims, 276; Smith’s Com., 654. 3. That relative words refer to the next antecedent, unless, by such a construction, the meaning of the sentence would be impaired. Comyn’s Digest, “ Parols ” (A. 14, 15); Jenk, 180; Quier's Case, Dyer, 46 b; Wing’s Maxims, 19. Again, in the interpretation of statutes, it is but seldom, if ever, that we have to interpret anything but words; hence, the term interpretation means always tbe interpretation of words. Smith’s Com., 661. 4. That a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence or word shall be void, superfluous or insignificant. 5. That a statute must be construed according to the sense of the terms and the intention of the legislature, to be gathered from the words used (Smith’s Com., 677); and, if the words used express clearly the sense and intention of the law, they must always govern.

With these rules as beacon lights to guide or direct, I proceed to an examination of the section of the, statute (R. S., ch. 86, sec. 2) presented for consideration, so far as it has any application. Ey this section it is provided that “ the county court shall be a court of record, with a clerk and seal, and shall have original jurisdiction concurrently with the circuit court, to try and determine, according to law, all civil actions arising within the county, for which such courts shall be held; and all transitory actions, although the same may not have arisen within the county, when the debt or damages do not exceed the sum of five hundred dollars.”

Now, it is obvious that the object of the legislature, in this enactment, was to declare the particular kinds of actions over which the court should have jurisdiction, and the conditions, restrictions and limitations by which definitely to mark the line of that jurisdiction; and, in so doing, they fix the boundary line by providing for a certain class of cases arising either within the particular county or without it. Whether the cause of action arises within the county or not, is the material inquiry, provided that the action is transitory in its nature. No one can fail to see that, by the first subdivision or portion of this section, a well defined jurisdiction is conferred, by words that are unequivocal and unmistakably clear, of till civil actions arising within the county for which such court shall be held. There is no qualification, limitation, or restriction either as to the amount or as to the kind of action, provided it arose within the county. That is the point to ascertain, and the only one, in order to determine whether the court- has jurisdiction over the case, and then the authority to adjudicate would be obvious, whether the action was local or transitory (actions of ejectment excepted). If the action arose out of the county, there would be no jurisdiction, although it were transitory, for the reason that the jurisdiction is here confined to cases arising within the county.

Now, can any one seriously contend, that so far, actions-arising within the county for which the court is held are not fully and distinctly provided for? This can be determined by the mere suggestion, that if the legislature had stopped at this point, the views here taken would be correct, and there would have been no room left for construction; for all minds must, ex necessitate, have understood the language alike. It remains to be seen whether the subsequent language can, in reason, affect or control the meaning of this phraseology. I humbly conceive not.

It must be borne in mind, that the legislature are next conferring jurisdiction over one of the same class of cases or actions already provided for, viz. : transitory actions, but when the action arose without the county. ' The language is, “ although the same may not have arisen within the county when the debt or damages demanded,do not exceed the sum of five hundred dollars.” Can any reasonable mind, upon reflection, doubt that the legislature was here giving jurisdiction of transitory actions arising without the county? and is there not just as little doubt, that jurisdiction had been conferred in the first instance or in the first part of the section as to all transitory actions arising within the county? Is it possible that the legislature intended to place the limit of jurisdiction at five hundred dollars to transitory actions arising both within and without the county ? If such was the intention, why in the name of common sense did they say anything about actions arising within or without the county ? No such distinction was necessary, but must be absolutely nugatoiy. If the intention of the legislature was, as a majority of this court bold, the language most clearly should have been, “ the county court shall be a court of record with a clerk and seal, and shall have jurisdiction concurrently with the circuit court to try and determine according to law all civil actions of a local character, and also all transitory actions when the debt or damages demanded do not exceed the sum of five hundred dollars.” How different is this language from that made use of. By this language no distinction is made between actions by reason of their having arisen within or without the county. Do we, by such construction, give effect to every word made use of by [the legislature? So far from it, that we actually expunge in every j ust or legal sense every thing said or contemplated as a difference between transitory actions arising within or without the county. And yet the legislature make provisions in relation to this very matter. Now, if they did not intend to make a difference as to the amount as a limit of jurisdiction between transitory actions arising within or without the county, why mention it ? Can any one divine ? Is there any sense in talking about a thing and yet mean nothing thereby ? I cannot bring my mind to any such conclusion.

According to the rules above laid down, we must take the language as we find it, and give effect to every sentence and even every word, and if by so doing we can give it effective form, so as not to convict the legislature of acting absurdly, we should do so, and we ought by no means to so construe the language, that a part thereof shall mean nothing. It is well said, that “ the fittest course, in all cases when the intention of the legislature is brought in question, is to adhere to the words of the statute, construing them according to their nature and import in the order in which they stand in the act of parliament.” Rex v. Ramsgate, 6 B. & C., 712.

The most enlightened and experienced judges have for sometime lamented the too frequent departure, from the plain and obvious meaning of the words of the act of parliament by which a case is governed, and themselves held it much tbe safer course, to adhere to the words of the statute, construed in their ordinary import, than to enter into inquiry as to the supposed intention of the parties who framed the act. Rex v. The Inhabitants of Great Bentley, 10 B. & C., 520. They are not (as the most learned members of a learned body best know) to presume the intentions of the legislature, but to collect them from the words of the act of parliament, and they have nothing to do with the policy of the law. This is the true sense in which it is so impressively repeated, that judges are not to be encouraged to direct their conduct by the “ crooked cord of discretion, but by the golden metewand of the law.” That is, “ not to construe statutes by equity, but to collect the sense of the legislature by a sound interpretation of its language, according to reason and grammatical correctness.” 1 Dwarris on Statutes, 702, 703. Now, by supplying the ellipsis in this section, it seems to me, that the intention of the legislature is unmistakable. Let us do this and see the reading. “ The county court shall be a court of record, and shall have a clerk, and a seal, and shall have original jurisdiction, concurrently, with the circuit court, to try and determine, according to law, all civil actions arising within the county for which such court shall be held; and shall also have jurisdiction, concurrently, with the circuit court to try and determine, according to law, all transitory actions, although the same may not have arisen within the county, when the debt or damages demanded do not exceed the sum of five hundred dollars.” Now, to my mind, it is clear, that by the first portion of the section, jurisdiction is conferred to try all civil actions, local and transitory, provided, the same arose within the county, without regard to the amount claimed or demanded. In fact, this is the precise reading, and it is equally clear that, after conferring this power, the intention was to confer additional power as to transitory actions arising without the county, and this latter power was limited in amount to five hundred dollars.

If tbe intention was to confer another jurisdiction by this latter provision, by what rule of interpretation can we apply the limits put upon that species of action, arising without a particular locality to the same as well as the different kinds of actions, arising within a limited region or locality, and for which provision had already been made without limit as to amount ? Can a jurisdiction once clearly given, without limitation or restriction, be taken away, narrowed, or cut down by conferring upon the same tribunal an additional power, fixing thereto a particular limit, either by the same or a subsequent enactment ? I deny it. When a court is limited in amount as to a particular thing or cause of action, how do we become informed that the legislature intended that such limitation should extend to other powers conferred ? I confess my inability to discover.

If we say that the intention was to give jurisdiction over local and transitory actions, arising within the county (excepting actions of ejectment), unlimited by any sum, and that as to transitory actions arising without the county, jurisdiction was also and only conferred when the debt or damages demanded do not exceed the sum of five hundred dollars, we should give effect to the whole language used ; and short of this we, by construction, say that a part of the language means nothing. Not being able to yield assent to the views of my brethren, I here enter my protest.

Judgment reversed.


author: By Mr. Justice Saffold.

text:
    John Whitaker vs. William Patton, Adm’r, et al.

      Error from Madison Circuit Court — Before the Hon. John M. Taylor.
    In a proceeding under the statute to subject real estate to sale by a’creditor, appearance and plea by a guardian, appointed to defend for minors interested in the lands, will cure the omission of service of a scire facias.

    It is a good ground for quashing a writ of error, if such guardian is not party to it.
    In this case, John Whitaker had ob'ained a judgment against Patton, administrator of Robinson, on which an execution had issued, and been returned mulla Iona.

    Whitaker filed a suggestion, under the statute, averring, that a large real estate had descended to the heirs of Robin* son; and a sci. fa. issued thereon to Patton, and to the heirs.
    They all pleaded jointly, that Patton as administrator, had made a report, &c. to the County Court. The record did not show the report, or its character; but the Court overruled a demurrer tendered to this plea, which was here assigned for error. ■ The record shows, that the clerk of the court had been made guardian, ad litem, to the minor heirs of Robinson ; but it does not appear that the sci. fa. had been served on him. He, however, had appeared and pleaded.
    ,S. Parsons, for Plaintiff.
    .McClung, cernirá.

   By Mr. Justice Saffold.

This is a proceeding under statute, to subject the real estate of L. Robinson, deceased, to the payment of a judgment, obtained against Patton, administrator of his estate, by Whitaker, on which an execution had issued, and been returned, “no property found.” Whitaker filed, in the Circuit Court of Madison county, where this judgment was had — a suggestion of the facts against'the said administrator and the heirs of his intestate — alleging, that Robinson died seized of a largo real estate, situate in Madison county, and that it had descended to Panihie iilobinson, widow and relict of said'deceived, John ¡¡¿sbr'sci» Martha Robinson, William RcMnsoiq Chowy ^ .wi tori, v/Lib of Modah Morion, and Fanny Di::hr:/r.í¡í, xrife of John .hichercoD: also stating the subsequent death of Cherry Norton, Wl that Rodah Horton held as tenant by the curtesy j that the persons above mentioned, os tease to whom the estate descended, were the children and hetrs of Robinson; and that the administrator had not applied to the County Court for a sale of the lands,, in order to pay off the debts of his intestate ; that such sale was necessary, and therefore prayed a scire facias, accord ing to the statute, against the administrator and the heirs, requiring them to shew cause why the said real estate should not be subject to execution. Afterwards, on the 28th September, 1828, the writ of sci. fa. was accordingly issued, stating the facts as above suggested, and praying an order of sale for the aforesaid purposes. The original sci. fa. not having been served on all the defendants, an alias issued, and by means of the two, service was effected on the defendants. None of the persons, however, named as “ the children and heirs of the deceased,” were personally served with process : nor is it any where suggested that they .were infants or minors: but the sci. fa. .vas executed on I|or-ton, as guardian of the hei"c of L. If Robinson, in April, 1829, Und a.lciv.crd.j, in ¡.he i’’o\ c..l w 'NotíÚ/.j, on motion, the court mg chkcfi ú .-1, b'-t ■- ’ whircrcef, to be guardian, cd t/hrg to Jchma the sth. f, m appears, that the administrator, and the Ipko, fc/ ISrui» the guardian of the latter, pleaded to the sdre fadas^ that the administrator had made to the county court, a report — (but which report, the transcript states, is not on file, in the clerk’s office, nor is it set out or defined in the plc{i.) The plea then > proceeds with an averment, that the said suit, in said report mentioned, was still pending, and undetermined, and concludes with a verification, &c. To this plea, the plaintiff demurred, which was overfuled, and judgment given for defendants.

The plaintiff now assigns for error, that the pica contains nothing in bar of the s ice facias, and that the court erred ' in overruling the demurrer. It is not contended, that the plea contains any matter constituting a bar to the remedy sought by the scire facias; indeed, (without the report, referred to in it,) it neither avers or defines any thing, from which we can infer the nature of the defence intended to be set up. But, it is insisted, on the part of the defendants, that, admitting the plea to be insufficient, the scire facias is defective also, in not averring that the children of the intestate, (who, by the subsequent order of the court, are represented by guardian,) were minors, and that the plaintiff’s demurrer should be visited onhis own defective pleading; that the scire facias being thus insufficient, the judgment was, therefore, properly rendered for the defendants.

These proceedings are understood to have been had, un¿}er tjie statute of 1828. That act authorises a judgment .. creditor, in a case like this, to file a suggestion in the clerk’s office, of the facts ; setting out the names of the personal re-, presentatives and heirs, and to sue out a scire facias thereon, against such executor or administrator and heirs, to show causé, &c. Nothing is expressed in that act, respectingthe necessity of shewing, either by the suggestion or the scire facias, whether the heirs be infants or adults ; but, according to the rules of justice, and by legal analogy, particularly % comparison with the1 statute of 1822, the record must, in some way, show the fact of infancy, if it exist, as well as the names and condition, in other respects, of the heirs or .devisees: and, if equally incompetent to represent themselves, they must have the aid of one who is. The section of the statute, last referred to, prescribes the mode of proceeding, by án executor or administrator, to obtain authority to sell real estate, for the payment of debts, or to make more equal distribution among the heirs and devisees, &c. This is directed to be, by petition to the county court, setting out, among other things, the names of the heirs or devisees, and particularly stating, which are of age, and which are infants or femes covert. In as much, however, as the latter statute, under which this proceeding was had, does not express the same requisition, as a judgment creditor is not presumed to have, as ’intimate knowledge of the facts of infancy, as the personal representative, and as it may. be inferred, that the Circuit Court had before it a legal showing, whether or not these heirs were infants, before' making the appointment of a guardian, ad litem, to defend them, we are of opinion, that the defect, if any, in the suggestion and scire facias, has been cured,

The question, however, does not depend alone on this view of the case. The' person thus appointed to defend as guardian,, appeared and made defence, by pleading in bar to the scire facias, whereby he has waved any objection that otherwise might have been urged by him for the want of service of process on the minors, or as to any uncertainty respecting the fact of their being such.

We should, therefore, be inclined to reverse and rem’and the cause, but for a defect in the writ of error, which has attracted our notice; it is, that the guardian of these supposed minors, on whom devolved the most valuable interest in contest, is not a party to the writ of error — so that his wards are entirely unrepresented in this court; for which, unless terms be agreed on by the parties, the writ of error must be dismissed.

       Aik. D. 156 s. 17.

       Aik.D.g-16.


author: By Mr. Justice Thornton :

text:
    David Bradford vs. William Hilliard.

      jError from Madison Circuit Court — Before the Hon, John White.
    Whore a summons is issued by a Justice of the Peabe, describing the cause of action, sued on as a “promissory note,” and on an appeal it proves to be a writing under seal or “bond,” such variance is not fatal. The statute of 1817 cures the defect.
    This was a case brought 'before a justice of the peace, to recover an amount due on a single bill. Judgment was given' against the defendant, and an appeal taken to the Circuit Court. The summons issued by the justice, set out 'the cause of action as being a debt due on a “promissory note.” The statement filed in the Circuit, Court, described the cause of action as a “bond.” On the trial of the cause, the defendant, craved oy®r, and a writing obligatory, under the hand and seal of the defendant was produced. The defendant, on the production of (his instrument, refused to plead, alleging variance, in that, the cause of action mentioned in the statement, and offered in evidence, was not that, on which the, original summons had issued. The court sustained the defendant, and non-suited the plaintiff.
    An exception being taken to the opinion of the court, the same was here assigned for error.
    S. Parsons, and ¡
    Hopkins, for Plaintiff.
   By Mr. Justice Thornton :

This cause originated by warrant, before a justice of the peace, in which, the instrument of writing sued on, was described as a promissory note. From the judgment of the - justice, an appeal was taken by the defendant to the Circuit Court of Madison county, where a statement was made out by the plaintiff, according to the practice under the act regulating appeals from justices of the peace, and the instrument sued oil, described as a bond or writing obligatory. Objection was made by the defendant, to the statement of the plaintiff’s cause of action, for this variance in the description of the instrument, as set out in the warrant and statement. The court sustained this objection, and for want of a sufilci-x ent statement, rendered judgment for the defendant. The ( only question arising in the record, is, whether in making up the issue for trial de novo, the plaintiff could allege as’hiS cause of action, a debt due by bond, when the warrant demanded the debt as due by promissory note. If, when a case is brought, by an appeal from a magistrate to the cir-euit or county court, the warrant, &c. is to be considered as a writ; and the statement of a plaintiff preparatory to an issue,' as a declaration, and the same rules of pleading are applicable to each; even then, according to the case of Byum and Hcill, decidedby this court, the defect would not be stantial.' But the extensive influence of the act of 1817, which directs the court, before whom appeals from justices shall be brought, to proceed to try the same according to the justice and equity of the case, without regarding any defect in the warrant, capias, &c. is considered, to embrace and cure all defects like this. The justice and equity of the case are certainly on the side of the plaintiff; for whether it be a bond or note, without sbme plea to the merits, the defendant ought to be made to pay, it, and it being a bond, as the record shews, the plaintiff could not introduce it in evidence, so as to obtain a judgment without describing it as such in his statement of the grounds of action. Let th© judgment ba reversed, and the cause remanded.

       1 Stew. 17.

       Aik. D. 261.


text:
    Gabriel Moore vs. Burwell Harton.

      Error from Madison Circuit Court — Before the Hon. JoHJV M. Taylor.
    In debt on a penal bond, given to enjoin, a judgment, the jury may assess the costs of the judgment in damages, though the same are not specified in the condition of the bond.
    The judgment in such action may be entered either for the amount of the penalty, to be discharged by the sum- assessed by the jury; or for the amount of the damages.
    An injunction bond, conditioned “ to be in force if the injunction be dissolved,” is valid as to form.
    This was an action of debt, brought in the Circuit Court of Madison county, against Moore, the plaintiff in error, a* surety to an injunction bond. ' The penalty of the bond was twelve thousand dollars. The condition recited, that Har-tón, the defendant in error, had obtained a judgment against one Scales for $567, and likewise a judgment against one Phillips, the debtor of Scales, by process of garnishment: that Scales had obtained an injunction which restrained Har-tón from collecting the aforesaid sum on either judgment. The only condition was, that the obligation should be in full force, if the injunction should be dissolved. The declaration averred, that Hartón recovered the sum of $46 57as costs ii the action against Scales, and $18 75 as costs in t^he garnishment against Phillips. The breach assigned, was ihe non-payment of the sum named in the condition of the bond, and of these costs. After oyer craved, tfte defendant below demurred, which demurrer was overruled. The defendant below refusing to plead, a writ of enquiry was executed and the jury included in the assessment o,f damages, tht costs before mentioned. The court gave judgment accordingly.
    Moore took a writ of error to this court, and assigned foi error—
    1st. The decision of the court overruling the demurrer.
    2d. The rendering of judgment for the whole amount fount by the jury as damages, part of that amount being the costs of the enjoined judgments, which costs were not specified in the condition of the bond.
    3d. The judgment being for a sum less than the penalty oí the bond, when it should have been for the penalty, to hi discharged on the payment of the damages assessed.
    Hopkins, for Plaintiff in error,
    Hutchison, contra.
    The bond is peculiar. It is a penal obligation with condition reciting the injunction of a recovery.against the principal obligor, and condemnation against,hijs garnishment, and not to be void, as is usual, on payment of the money suspended on the event of the dissolution of injunction ; but to be in fores, if the injunction should be dissolved. Yet it is valid. In Britain, when a pecuniary judgment or decree is enjoined, the money is brought into court, to abide the determination on the bill, the chancellor himself protecting the creditor. Here a security is substituted. And in Alabama, ' the statutes defining equity jurisdiction anterior to the bond, though they had not prescribed, had pre-supposed such substitute, and the power to direct it. Thus the chancellor, in dissolving an injunction, might award six per cent, damages, if he deemed it dilatory. If prior to the injunction, the officer had collected the whole or part, and had not paid over to the creditor, he was directed to pay it back to the debtor, if he obtained injunction, and on the dissolution of the injunction, the ' reditor should not have execution until he gave bond to refund, if the complaining debtor should get relief. These, tacitly indicated a delay, judicially occasioned, and a security of some sort, other than a payment in court, af-orded to him, delayed. The act of 1828, which followed the * bond in question, recognises an injunction bond as a known security, by converting it into a statutory judgment, and de-, daring the measure of liability on it. The uniform practice •of requiring a bond, instead of payment in court, arose out of an obvious dictate of justice. 1 When the power of the chancellor to bring a judgment into scrutiny, was to be exerted, and that too, on an ex parte showing — when delay was thence inevitable — when a total insolvency of the complaining debtor might intervene; — and when the safety of the fund, by deposit in court was to be omitted, it was plain that the creditor’s claim should be ultimately secui ed, and the loss, vexation and expense of the delay and litigation, compensated, if it should be found, that in conscience, as at law, the complaint against the demand was unfounded. Equity then, apart from legislation, demanded a security, and just such security as the declaration asserts the bond in question to be. If it had not been based on a fiat, or had been variant from the fiat given, that should have been pleaded. As therefore, nothing intrinsically wrong, or prohibited, was at its origin, and as there was nothing to limit the chancellor’s power in requiring it, but justice, if the recovery upon it cannot be made to transcend justice, it must be valid. What then was recoverable on it, on the dissolution of the injunction ? The whole penalty ? That is its liberal import, indeed, but surely not its legal effect. It is a penal bond. It mentions a judgment delayed, that is of less amount than the penalty. Beyond the amount of the judgment, which would include the interest and costs, together with the costs of the chancery suit, and the damages to be awarded for delay, the penalty could not be enforced, and was never intended to be recovered. Its very nature and function were to cover a less amount than the penalty. There was a pre-existing statute, regulating recovery on a penal bond ; and this bond, if not within its letter, was within its spirit. The debt actually due, with interest and the costs of the judgments enjoined are all that are demanded in the declaration, for breach of the condition of the bond. No damages for delay were awarded; and as the costs of the chancery suit liad not accrued, eo nomine, at the dissolution of the injunction, those were not claimed. The measure of recovery, therefore, was correctly assumed by the pleader. If the obligor had been put to oyer of the condition, what would he have pleaded ? What performance, what matter of avoidance ? The fact was otherwise. That no damage had been occasioned by the equity suit ? Such was not the matter expressed, and beside, the fact was different. No such indefinite security was intended, and the security given, though it did not expressly declare that the penalty should be void on the payment of the amount of the judgment, yet, as the delay of the judgment is expressed as the cause of the injunction, and' as has been shown, the payment of its amount and the Costs, ought to extinguish tho penalty ; and moreover, as less cannot satisfy justice, it was not error to overrule the demurrer to the declaration. The declaration avers, " that the costs of the original suit, and of the garnishment, were involved in the injunction, and it was proper to include ’ them. That there was error in the judgment, because it did not give and take away the penalty in the same sentence, might have been debatable six centuries ago.
   By Mr. Justice Thornton :

This was an action of debt upon a penal bond, or bond with a condition annexed, executed by one Henry Scales, and the defendant in error, as his surety, as a condition precedent, prescribed by a chancellor before enjoining certain judgments in behalf of the defendant in error. The plaintiff has assigned as error in the proceedings below—

1st. The overruling his demurrer to the declaration.

2d. Giving judgment for the whole amount found by the jury as damages, part of that amount being made up of '.costs recovered in the enjoined judgments, which costs; were not specified in the condition of the bond.

3d. The judgment being for a less sum than the penalty of the bond, when it should have been for the penalty, to be discharged by the payment of the damages assessed.

The demurrer is contended to have been well taken, on account of the illegality of the bond, which by oyer granted, is spread upon the record. The bond is said to be void, because it is considered to have full force and effect, if the injunction be dissolved, and this would enable suit to be brought upon it, and nominal damages recovered, though the amounts of the judgments enjoined had been paid before the7 bringing of the action. In this argument, the premises are, that nominal damages, carrying the costs, might be recovered by suit on the bond, though prior to its institution, the judgments enjoined had been discharged. I do not consider it very material how this may be, as, even if granted, the conclusion drawn, viz: that the bond is void, does not follow. At this day, under the united influence of that ‘ spirit of emancipation from the shackles of technical rules, which generally prevails, and of our act of 1824, like the 8 and 9 of William, 3d c. s. 1, regulating proceedings on penal bonds. I would not readily admit, that even nominal damages could be recovered, if before the institution of suit on the bond, the money vvhich it was intended to secure, had been paid. I would incline to consider the bond as wholly discharged in such case. It is in truth, and substance, like a bill single to pay money, which if paid anterior to suit brought, though after breach of the promise, would, at this day, be successfully resisted, even as to costs, if afterwards put in suit. But if it were not so, and nominal damages could be recovered, yet I cannot conclude, that therefore, the bond would be void. The bond sued here, is not a statute bond, whose form or substance is prescribed. It is one taken in pursuance of an order of the chancellor, who imposed its execution asa condition, precedent to the arrest and suspension of execution upon the judgments recited in the bond. The features of this bond, which is the creature of the chancellor, may Le fashioned after his own sense of equity, and if it contain an onerous or oppressive condition, leading to the consequences contended for, yet we could not undertake to declare it void for that cause, when sued against, the ob-ligors. 'The chancellor imposed its execution, as the terms upon which the plaintiff’s judgments were to ho suspended. The defendant accepted them, and cannot now bo permitted for the cause alleged, to avoid the indemnity so afforded. Having determined the bond to lie valid, the next question presented, and which is raised by the second assignment cf error, is as to the amount of damages found by the verdict, and adjudged to the plaintiff. A true understanding of the nature and office of the bond, will conduct us to a correct conclusion upon this subject. The office of the bond is to furnish a complete security to the plaintiff in the enjoined judgment, which cannot be, unless it extend the whole length of the injunction. It is substituted for the payment of all the, money recovered, which was anciently required, and ought to be an effectual security for at least that amount. The bond in this case, though not very skilfully drawn, does, I think, by a fair construction, reach to this extent. It is composed, first of the ordinary direct obligation to pay the penal sum of twelve hundred dollars. A recital of the two judgments enjoined, as being for $567, that an injunction had been prayed and obtained, restraining the plaintiff from collecting the amount of said judgments, and of a condition in the following words, to-wit: Now, the condition of the above obligation is such, that if said injunction should be dissolved, then the above obligation to be in full force, otherwise, to be void.” The argument of the objection is, that this recital of the judgments as being for $567, though the judgments were, in truth for more, and were enjoined to their whole extent, limits the recovery cf damages, to the amount so recited. I cannot concede this effect to the mere recital in the bond of the obligor. The bond is for twelve hundred dollars, and the condition is, that the bond sliallbe in full force, if the injunction be dissolved. The literal obligation of this bond, is, to pay the sum of twelve hundred dollars, it having become absolute by the dissolution of the injunction, (and such would be the recovery at common law.) The chancellor,-however, always interpor-ed and restrained the recovery to the amount equitably due. The object of the statute above cited, was to effect before a jury in the common law courts, and in ono suit, what the chancellor would otherwise be invoked to decree. So, that when we determine what is equitably nue on this bond, we arrive at what amount of damages should have been allowed by the jury. In this' view, we think that the costs of the judgments enjoined, should constitute a part ofthese damages. The last error assigned, relates to the manner of entering the judgment; with regard to which, we do not consider it material, whether it be for the amount of the penalty to be discharged, by the sum assessed by the jury, or directly, for the last named amount; they being substantially the same.

The judgment below is affirmed.


text:
    T. & J. Kirkmans vs. Martin Harkins.

      Error from Lauderdale County Court.

    In a. proceeding had under the statute, against a sheriff fornot making thy money on an execution, no notice of the “ suggestion” to the court is necessary.
    The remedy against sheriffs for not making the money on an execution, is not limited to the, return term of the execution, but may be sought at a subsequent term. >
    This case originated from a motion made in the County Court of Lauderdale county, against a sheriff, for not making the money on an execution of the plaintiffs. The declaration set out, that the sheriff’s return on the execution was, that a levy had been made in pursuance of the same, but that the money was not made for want of time, and suggested, that the sheriff could have made the money by due diligence. A motion was made to the court below to quash the proceedings, on the grounds—
    1st. That the motion should have been made at the term of the court to which the execution was returned.
    2d. That the notice was in itself insufficient.
    The motion to quash being sustained, the Kirkmans assigned for error, the decision ‘of the court.

      Ormond, for Plaintiff in error—
    • Contended, that the notice which had been issued and serv- . ed on the defendant, was, under our statute, sufficient, and' made at the proper time.

      f A notice, in fact, was not necessary, as one particular statute of this state gave a remedy against the sheriff, without requiring any notice whatever. But if notice was requisite, the insufficiency of the present one was waved, by the appearance of the party. The only object to be attained by notice, is, that the sheriff may be apprised of what he is called upon to answer, so that he may prepare that defence which will avail him. If the notice, in the present case, did not effect this, the defendant should have moved a continuance, y

    P. Martin, contra.

    The propriety of mailing this motion at the return term, is evident, from the nature of the remedy. The defence of a sheriff would necessarily be in court, and attached to his office. In an analagous case, that of ruling a sheriff'for not returning an execution, the courts at nisi prius have settled the principle, and determined that the motion must be made at the return term., The principle applies in a stronger way here. Tn this casq, the plaintiff waits three years* and then makes a call upon the sheriff, at that late period* to answer matters entirely beyond his reach.
    The statute giving this remedy, imposes a penalty on the sheriff, and should be construed strictly. The notice is informal. It may be admitted, that notice is not strictly required by the statute ; but if a party undertakes to issue a notice, he must pursue the general requisites of .a notice, strictly. The declaration is unnecessary, and the insufficiency of the notice cannot be sustained by that. As for the suggestion, it does not set out when the judgment was obtained, nor when the execution was placed in defendant’s hands. These are material points in the sheriff’s defence. — Ai/cin’c Dig. 175 — 1 Bill, 269.

      Ormond, in reply—
    Read the law. — (Aik. Dig. 175.J The law here read, 'gives a party in execution a summary remedy against the sheriff.
    It merely requires the court to direct an issue, which issue tries the fact. The party defendant can only make such a de-fence as the law will notice. Has he complied with the requisitions of the statute, and exercised due diligence in his efforts to make the money ? If he can make this showing at the first term, he can always afterwards.
    The statute neither restricts his defence, nor the plaintiffs’ remedy. It should be construed strictly against sheriffs, bdtause it is intended to hold this class of officers to a strict account.
   By Mr. Justice Thornton :

This writ of error is brought to reverse a judgment of the county court of Lauderdale, in a proceeding there had under the 3d section of the act cf 1826, entitled an act “ The better to secure money in the hands of clerks, sheriffs, and coroners.” The record discloses, as 'the incipient step in the procedure, a notice, dated 16th February, 1831, to the defendant, late sheriff of Lauderdale, stating that the plaintiffs would, on the 18th of said month, move the court then in session, for an issue, according to the statute, to make him liable for not making the money on an execution, said to have been .issued on a judgment in favor of the plaintiffs, against one Daniel Wilerson. It does not appear that this notice was ever served on the defendant. Then follows a formal declaration, setting forth with particularity, all the grounds upon which a recovery is sought from the defendant, and concluding with a prayer for an issue, to be ordered according to the statute above referred to. Whereupon, the court ordered an issue to be forthwith made up, to try the fact, whether, by due diligence, the money could have been made upon the execution, before the return day thereof. Immediatély upon this order for an issue to be made up, on the motion of the defendant, the, whole proceedings are quashed, and the judgment for the costs rendered against' the plaintiffs, which is now here assigned as error. I cannot perceive upon what view of the case, the motion to quash the proceedings, was sustained. Its propriety is defended by counsel here, upon the grounds, that the record does not disclose a sufficient ground of claim by the plaintiff; that if so, no sufficient notice of such claim or demand was given to the defendant; and lastly, that the proceeding was not warranted by the statute ; because not. instituted at the term to which the execution was returnable. From the view which I take of the statute, tho proceeding, when arrested, and q tasked, was not obnoxious to either objection here intimated. The first step which the statute requires, is the suggestion to the court, by tho party complaining, of defalcation in the officer. Mo notice that, such suggestion will be made, is required to be given. The application is cx xaric, and the issue' ordered as of course, upen the'plaintiff’s suggestion. Thus far, no detriment can ensue from the -ex-paric nature of the proceeding, and the statute clearly allows it to be so.' If the court had proceeded to males up the issue, and try the fact without notice, then a clear injustice would have been done, which the statute ¡iocs not allow, nor cos'd constitutionally have permitted. The issue in this case was forthwith ordered to be made, to try the fact suggested, but it was not made, nor a trial had. Previous to the doing of either of those things, we are to presume that the court would, see that due and legal notice had been given to the party defendant, to come forward, to unite in the issue, and defend the trial. So far as want of notice may have, been the foundation of the judgment complained of, is clearly unsupported ; as the only notice contemplated by the statute, and necessary to the maintenance of his defence, should regularly have originated subsequent to.the state of proceeding, when the motion to quash was made by the defendant, and sustained by the court. As regards the statement on the record, of the ground of claim, by the plaintiff from the defen-it appears to contain every requisite, which ought, in reason to be demanded. A regular declaration, containing an ample and certain detail of the matters complained of, is filed and accepted by the court as a suggestion; upon which, the issue, as above stated, was ordered. All that can be said against this course, is at most, but to the manner, and not to the matter of the proceeding. The argument, that the remedy afforded by the statute in this case, is limited to the term of the court to which the execution is returnable, is no less untenable. When an action or remedy, once arises, it will contiuue without limit as to , time ; unless its term is prescribed by some positive enactment. The statute giving the summary remedy pursued in this case, does not limit its operation, and if embraced even in the equity of the general statute of limitations, it is not barred.

The judgment is reversed, and the cause remanded.