author: HITCHCOCK, C.

text:
    GARRARD, et al. vs. WEBB, et al.

      As to the power of Chancery to compel parties to perfect original agreements, against a subsequent lien,

      Touching such decrees in Chancery as will not sustain a writ of error.

    1. Where parties being applied to, to become the accommodation indorsers of one on a bill of exchange, to secure themselves, took a deed of trust on the latter’s property, and endorsed the bill, and the bill not being negotiated, subsequently executed a new bill, with the agreement, that a new deed of trust should be executed ; — and on application to the trustee for that purpose, the date of the original deed was changed to a later date, and duly recorded ; and afterwards the trustee, on assurances of the debtor that the debt secured by the deed had been paid, took a dead of trust to himself on the same property' — held, that Chancery had the power of decreeing a sale of the trust property, in favor of the original deed, and thus saving the lien thereof, to the benefit of the first cestui que trust.

      SI. A decree in Chancery, which, though disposing of the main principles of the case, directs an enquiry by a commissioner as to matters which • require report to a subsequent term,— and contains no decree for ' costs ; — is not such a decree as will sustain a writ of error.
    Writ of error to the Circuit Court of Lauderdale, on a decree in Chancery.
    The bill in this case was filed by Ezra Webb, Charles Bradford, and Joseph L. B. Smith. It charged, that on the eighteenth day of March, eighteen hundred and twenty-nine, orators, at the request of one George Boggs, junior, became his accommoda-tica indorsers on a bill of exchange for four thousand eight hundred and eighty-nine dollars and eighty-one cents, drawn on White & McClain, of New Orleans, ia favor of the complainant, Smith: that to secure the complainants against all liability on said bill, the said Boggs, according to agreement, caused to be prepared in complainants’ favor, a deed of trust, in which William W. Garrard, was trustee, of sundry houses and lots, lying and situate in the town of Florence; which deed of trust was not fully executed, through the inattention of complainants. That on the eighteenth day of April, eighteen hundred and twenty-nine, the said Boggs again applied to complainants — informing them that the drawees of the said bill of exchange had refused to accept the same, unless complainants became 'joint drawers, with Boggs, thereof: that on Boggs’ promise to secure complainants as aforesaid, by deed of trust, they did become joint drawers, on above date, with him, of a new bill of exchange, drawn on one of the former firm of White & McClain, fox the amount of the first bill, — and which latter was destroyed — the other being accepted. That in the month of September, of the same year, complainants applied to the said Garrard for the purpose of having the said deed of trust perfected, and recorded : that Garrard, without adverting to the change in the responsibility of complainants, or to the execution of the second bill, adopted the deed, which had been drawn upon the endorsement of the first bill of exchange, and changed the date thereof to the twentieth of September, eighteen hundred and twenty-nine; and that the same was then duly executed and recorded, without notice of the discrepancy, until many years thereafter. I'he bill averred, that the deed of trust was executed alone for the indemnity of complainants on the last bill of exchange, though it referred to the first: that- the .said Boggs having, at the maturity of the bill of exchange, failed to discharge it, it was paid by'one of the complainants. That Boggs having become entirely insolvent, the complainants applied to' Garrard to carry into effect the said deed of trust, by sale of the trust property, but which he had always refused to do — alleging in himself the possession of a superior lien upon it. 'it, therefore,- prayed relief, by the coercion of Garrard, the trustee, to a sale of the property conveyed, for the benefit of complainants.
    The answer of Boggs admitted all the allegations' of the bill, respecting the endorsement and drawing of the two bills of exchange: the execution of the deed of trast; the payment of the last by one of the complainants; and his own insolvency : denied all fraudulent combination with Garrard, and confessed his intention to secure the complainants in the execution of the deed of trust.
    The answer of Garrard admitted, that in March,, eighteen hundred and twenty-nine, Boggs requested him to prepare a deed of trust, to secure complainants for thsir endorsement of a bill of exchange, such as described in complainants’ bill; which deed was accordingly drawn and signed by Boggs, — the latter requesting respondent to lay it aside, without having it recorded': stated, that respondent heard nothing more of the matter until about the twentieth of September, eighteen hundred and thirty, when Boggs,-with complainants, called on respondent, and inquired if the deed was recorded; that being informed it was not, they urged it to be done, when respondent informed them it would effect no purpose, as the sixty days required by law, had elapsed : that the complainants then requested respondent to change the date of said deed, but on the suggestion of the respondent, it was agreed te draw a new, rather than interline the old deed : that when about to draw the new deed, respondent having inquired if no other alteration were to be made than as respected the date,, was distinctly informed that there was none. The defendants answer further denied any knowledge of the change in the parties to the bill; and called for full proof of the numerous allegations of the bill. The answer further stated, that on the fourteenth of March, eighteen hundred and thirty-oner Boggs' having made a purchase of cotton, amounting to the' sum of two thousand nine hundred and forty-eight dollars and seventy-nine cents, respondent became his surety, on.the proposal of Boggs, to secure him by deed of trust on his property : that on enquiring of Boggs, if the debt secured by the deed of trust to the complainants had been paid, Boggs pledged his honor, that every cent of said debt had been paid : that from the length of time which had then elapsed, and from the circumstance of nothing being said about the matter by complainants, defendant felt assured that the debt had been paid, and, therefore, became Boggs’ surety for the amount aforesaid, and took a deed of trust upon the same property, previously conveyed to complainants. Defendant averred, that the note which he had thus become surety on, was in suit, and unless he had the benefit of his deed, would lose the debt.
    The cause was finally heard upon the bill, answers and exhibits — the testimony not varying the state of facts presented in the bill, and admitted in the answer ; and the Chancellor decreed a sale of the trust property, and required an account to be taken between the parties, — but gave no decree for costs.
    From this decree, the defendants below took a writ of error here.
   HITCHCOCK, C.

JThis is a writ of error to the Circuit Court of Lauderdale County. The defendants here, who were the complainants in equity below, allege in their bill, that on the eighteenth of March, eighteen hundred and twenty-nine, they became the accommodation endorsers for one George Boggs, junior, on a bill of exchange, drawn by him on White & McClain, of New Orleans, for the sum of four thousand eight hundred and eighty-nine doF lars and eighty-one conts, due twelve months after date ; that .said endorsement was upon the condition that said Boggs should execute a deed of trust upon certain real estate in the town of Florence, belong* 'ing to said Boggs; that in conformity with said agreement, the defendant, Garrard, drew up a deed of trust, in which he was constituted the trustee, which was executed by said Boggs, but which remained in the hands of said Garrard, not recorded: that on the fifteenth of April, eighteen hundred and twenty-nine, said Boggs again applied to them, stating that White & McClain declined accepting said bill, unless the complainants would become joint drawers with said Boggs, of said bill, which was to he drawn on White; the firm of White & McClain having just then been dissolved. That accordingly, on the eighteenth April, eighteen hundred and twenty-nine, another bill was drawn by Boggs and the complainants, as drawers, in favor of Kirkman & Rosser, on White,, for the sum of four thousand eight hundred and eighty-nine dollars and eighty one cents, payable twelve months after date; upon which the first bill was given up and destroyed; which last bill was accepted. That upon the executing this last bill, it was agreed between the parties, that the complainants should be secured upon the same by deed of trust, as was done in the first bill: that in the month of September, eighteen hundred and thirty, the complainants applied to Garrard to complete the deed of trust, that the same might be executed anti recorded: that Gar-rard, without adverting to the change which had been made in the date, and the manner of the responsibility of the complainants, adopted the former deed, by changing the date to the twentieth September ; that the deed was then executed and recorded, without the discrepancy being observed, till long after, by the complainants.

The bill charges, that the deed was executed expressly for the purpose of securing the complainants for their liability on the last bill, and for no other purpose. It charges, that Boggs failed to pay the bill, and that the same, at maturity, was protested; and that it has been paid by the complainants : that Boggs has become entirely insolvent; and that their only chance for indemnity is upon the property secured by the deed of trust: that they have called upon Garrard to cause the property to be sold, but he refuses, alleging that he has a superior lien on the same property, which is of later date.

. The answer of Boggs admits the material allegations of the bill. Garrard admits the execution of the deed as described by Boggs; but which he states was not recorded at the request of Boggs: that he heard nothing more of the matter until the twentieth September, eighteen hundred and thirty, when Boggs and the complainants, Webb & Smith, called on him to enquire if the deed had been recorded, when he informed them that it had not; upon which, they requested him to to have it done : that upon his advising them that, as sixty days had elapsed, the recording would answer no purpose, they requested him to change the date; upon which he advised them to have a new deed drawn out, rather than to interline the old one, which they requested him to do : that as he was about to write the deed, he enquired of the parties present, if any change was to be made in it, when he was told, no other change than that of the date was required. He denies that he had any knowledge or intimation of the change in the bill. He further states, that on the fourteenth March, eighteen hundred and thirty-one, Boggs and one Woodcock applied to him to be their security for the sum of two thousand nine hundred and forty-eight dollars and ninety-two cents, and that Boggs proposed to give him a deed of trust on the above named property ; upon which, on enquiring of Boggs, he was informed by him, on his honor, that the debt secured by the deed of trust mentioned in the complainants’ bill, had been satisfied; that from the length of time that had elapsed, and he never having heard the subject mentioned by any of the parties, combined with the pledge of Boggs that the debt had been paid, reluctantly became the security of Boggs and Woodcock, and took a deed of trust upon the same property ; which he sets up against the deed first above mentioned.

The case was heard upon bill, answers and exhibits, and a decree was made, directing the property to be sold, and the money paid over to the complainants : and a commissioner was appointed to take an account of the rents and profits of the property.

From which decree, the case has come here.

It is conceded by the counsel for the plaintiff in error, that as between the complainants and Boggs, a Court of Equity would be authorised to make a decree for the complainants : that the security having- been intended for the indemnity of the complainants against their responsibility on the second bill, the mistake, error, or omission, to describe it properly in the deed of trust, can not be taken advantage of by him; it being the peculiar province of a Court of Equity to compel a party to perform his agreement according to its terms, and to the manifest intention of the parties.

But it is contended, that however true this may be with respect to the original parties, yet, that this can not be done, to the prejudice of third persons, who have honestly acquired an interest in the subject matter, and that in this instance, the conduct of the parties, in negligently omitting, when they applied to Garrard, to have the deed perfected and recorded, — to apprise him of the change in the date, and manner of the liabilities of the parties, — gives him a superior equity over them.

Admitting the correctness of the principle, it is difficult to perceive the application of it to this case. If the existence of the lien is admitted as between the original parties, and Garrard has been led to believe, from the complainants, that it had not been discharged, of what consequence to him was it, whether there was an error in the description of the bill, or not. The important fact for him was, whether the property was incumbered. That it was so, is true: that he knew it, is equally so; and if he has been misled, is it not owing entirely to his reliance upon the assertion of Boggs, that the lien had been discharged. The language of Boggs to him was, that the debt for which the deed was given, had been paid. Now what was the debt 1 The bill described, had been cancelled, it is true ; but the debt} which in contemplation of law, was secured, was not paid. The inference which he drew, from the silence of the parties, and the length of time that had elapsed, can not aid him, as they are no bar, at law or in equity, to the complainants’ demand. The record of the deed was notice to all the world, of the existence of the lien ; and nothing could discharge it, but the payment of the debt, or thq voluntary relinquishment by the cestui que trust. The only negligence which involves any responsibility, was in his incautiously trusting Bogg’s declaration: and having relied on his veracity, he must take the consequences of his treachery. If he had been apprised of the error, in the description of the bill, it would not have effected the case. He could, with the same propriety, rely upon the matters he now relies upon —the silence of the parties. — The length of time, and the declaration of Boggs, would have applied in that case, as well as in this. If there is any thing wanting to make the case conclusive against him, it is, that he was himself the trustee of the complainants — bound to protect their right, and through whom they were to convert the property into money, in case of need.

The counsel for the plaintiff in error, relies upon the case of Hunt vs Rousmaniere’sadm’rs ; in which it is held, “ that a Court of Equity may compel parties to execute their agreements ; but it has no power to make agreements for them.” The object of that bill was to compel the administrators of Rousmaniere to carry into effect a contract, which it was admitted, the intestate, in his life time, intended should be effected. The Court refused to aid the party, on the ground, that the intestate had, in his life time, executed precisely such an instrument, as upon reflection, and advice of counsel, was thought the most proper to effectuate the contract: that was done, which the the parties intended to do. There was no mistake, either in fact or law, to correct. The death of Rous-maniere had defeated the execution of the intention of the parties; of which his other creditors claimed the benefit.

The principles recognised in the case cited, are directly applicable to the case before us, and are binding upon Garrard as well as Boggs. Claiming under Boggs, with notice of the lien, he is estopped, as well as Boggs. There is no application here to make a new contract, or to reform one.

We are, therefore, clearly of the opinion, that as he was affected with notice of the trust deed, and' not having been misled by any act of the complainants, he is .chargeable with their prior equity.

It is insisted by the counsel for the defendants in error, that the decree in this case, is not such a final one as will authorise a writ of erroi*. It is true, that after disposing of the main principle of the bill,' the Court has directed an enquiry into the value of the rents and profits during the time the property has been in the possession of the defendant below; of which he should make report to a subsequent term of the Circuit Court: and there is no decree for costs. There is, therefore, something left for the action of the Court below, and which can not be done in this Court. If the final action of the Court- below, had been had upon this part of the decree, this Court would have felt bound to reverse it.

Under the circumstances of the case, the writ of error must be dismissed, with costs.

       1 Peters,


source: Caselaw Access Project

author: HOPKINS, J.

license: Public Domain

text:
    LEWIS AND GORMAN vs. BIBB.

      Touching the power of Chancery to interpose in favor of a vendee of real estate.

    1. Chancery will not relieve a vendee of real estate, by enjoining the collection of notes given for the purchase money, on the allegation, (without proof,) that the vendor has no title, and has absconded, — where it appears that the vendee took a bond for titles, conditioned for their execution on the payment of the first instalment — which instalment had not been paid, nor offer made to do so, Or the same excused ; — and where the vendee had suffered judgment against him on one of the notes, without defending the same.
    On writ of error from a decree of the Circuit Court of Lawrence, exercising Chancery jurisdiction.
    This was a hill in Chancery, filed in Lawrence Circuit Court. The complainant, Thomas S. Bibb, alleged that on the twenty-sixth of September, eighteen hundred and thirty-one, he purchased of Washington Lewis, a certain tract of land, situate in the State of Tennessee, for the price and sum of three hundred dollars ; that in consideration therefor, he executed two notes of hand, bearing date the twenty-sixth of September, eighteen hundred and thirty-one ; one due and payable the first of January, eighteen hundred and thirty-two, and the other on the first of January, eighteen hundred and thirty-three ; that Lewis, at that time, to wit, the twenty-sixth of September, eighteen hundred and thirty-one, executed his penal bond, conditioned for the execution of a fee simple title to said land, by the first of January after the date of said purchase, or so soon thereafter as complainant should pay said Lewis one hundred and fifty dollars of the purchase money : that before the time when said first payment became due, the said Lewis transferred said notes, the first to some persons unknown; and, the second, to wit, that becoming due in January, eighteen hundred and thirty-three, to Paris Gorman : that on this last note, said Gor-man caused suit to be brought in the County Court of Lawrence, and thereon obtained a judgment at the January term, eighteen hundred and thirty-four, which Gorman was then enforcing. Orator charged, that said Lewis, at the time of the sale of said lands to. orator, nor since, had no title whatever to the same ; and had since absconded from the country, and gone into parts unknown: Orator charged fraud, and prayed an injunction against the proceedings on the judgment, and as to the collection of the notes.
    Upon this bill, an iuj unction was awarded; and the subpoena being subsequently returned non est, judgment pro confesso was had. The testimony taken in the cause, was that of George Gorman. He testified that he saw the notes executed, as well as the bond for titles; that he did not know who had the legal titles thereto, and that Lewis had left the country.
    On a final hearing, the injunction as to the collection of the notes, was perpetuated, until such time as Lewis should exhibit a good and sufficient title to the premises.
    This decree was here assigned in error.

      Smith for plaintiff in error.

      McClung, contra.
   HOPKINS, J.

— This case was brought into this Court, by a writ of error from the Circuit Court of Lawrence County. Bibb filed his bill on the Chancery side of that Court; in which he stated, that in eighteen hundred and thirty-one, he purchased of Washington Lewis, a piece of land lying in the State of Tennessee, at the price of three hundred dollars « — one half of which was to have been paid on the first of January, eighteen hundred and thirty-two ; and the other, the first of January, eighteen hundred and thirty-three: that he executed a note for each instalment, and received from Lewis a penal bond, conditioned to be void, if the obligor should convey to Bibb a good and sufficient title in fee simple, by the first of January, eighteen hundred and thirty-two, or so soon thereafter as Bibb should pay the first instalment of the purchase money: that the two notes Were transferred by Lewis before the first was due —one to a person unknown, and the other, payable the first of January, eighteen hundred and thirty-three, to Gorman, one of the plaintiffs in error: that Lewis never had any title to the land; was insolvent; and had absconded from the country; and that Gor-man, in January, eighteen hundred and thirty-four, obtained a judgment for the amount due on the note, which had been transferred to him. Upon the bill, the judgment w;as enjoined, and as the defendants to it were not inhabitants of the State, the Circuit Court made the order of publication, which is necessary in such case, and the bill was afterwards taken fro confesso.

The only deposition which was taken in the cause,proves only that the witness did not know that the title had ever been conveyed by Lewis to Bibb, and that Lewis left the country in the autumn of eighteen hundred and thirty-two ; which must have been eight months after the note, first payable, was due :• but there is no evidence in . the deposition that he was insolvent, or without a title to the land.

The Court decreed that the injunction, which embraced the note, the holder of which was unknown, as well as the judgment, should be continued, until Lewis should exhibit to that Court a satisfactory title in himself, and a conveyance of it to Bibb. The defendants to the bill were decreed also to pay the costs of this suit, and of that at law, in which the judgment was rendered.

The agreement of the parties gave Bibb no right to demand a conveyance of the title, until he paid, or should offer to pay, the first instalment of the purchase money. His vendor remained in the country at least eight months after the first noté became due; during which time, he does not pretend that he offered to pay it. If he had complied with his own part of the agreement, or had offered to do so, and the vendor had unjustly withheld the title, — or from having none himself, had been unable to convey it, the action at law could, and ought to, have been defended. If Bibb, with such a defence, at law, had omitted to make it, a Court of Equity would not listen to his complaint of the injustice of the judgment, unless he could make it appear that he had been pr'e-vented by some cause, which he could not control, from defending.the action. But, Bibb liadno defence to the action, because he had not done what the agreement required of him. We know of no principle that authorises a Court of Equity to take jurisdiction of a case, in which, the question presented by the complainant, would have been, if he had complied with his part of the agreement, of a legal character.

To give relief, in this case, would extend the jurisdiction of Chancery farther than to exercise the power of determining legal questions, which existed before .the trial of an action at law, in which they arose, but were not made; and this power Courts of Equity have always disclaimed.

Relief to Bibb, would be to supply, in the first place, his omission to do his duty — and in the next, to consider his case as if he had discharged the duty himself, and been prevented by something, over which he had no control, from making his defence to the action at law.

It does not appear from the record, who has had the possession of the land since it was purchased by Bibb. The inference from what does appear, is, that the possession has been with Bibb. If he had complied with his part of the agreement, he could not have defended the action, upon the ground, that no title had been made to him, while he retained the possession. To give him a right to such a defence, or to entitle him, under any circumstance, to a decree, rescinding the agreement, it was necessary that he should have disaffirmed the contract, by abandon-mg or restoring the possession.

As the defendants in the suit were neither served with process — -nor inhabitants of the State — and the land lies in another State, — the Circuit Court of the county of Lawrence, could, under no circumstances, have taken jurisdiction of any matter alleged in the bill, but for the judgment which was rendered by the County Court of that county.

There being nothing in the case, for which the judgment ought to have been enjoined, a decree against the vendor for a specific performance of the agreement could not be made, were the bill framed also for that purpose. Of such a bill, as the land lies in Tennessee, a Court of Equity in that State might take jurisdiction, though the person of the vendor may be beyond the reach of its process.

The decree is erroneous. Let it be reversed, and the bill dismissed.

       it. 455; 2 Rep. 5i9.


author: HITCHCOCK, C. J.

text:
    M'BROOM, et al. vs. THE GOVERNOR, for use, &c.

      As to the evidence admissible under a replication tahing ■ an issue to the country — the plea improperly concluding with a verification.

      As to the conclusiveness of a judgment between parties.

    1. Matters of evidence, which can not he replied as an estop" pel, but which must be relied on, if at all, as evidence under an issue, — may properly be admitted under a replication, tali" ing issue to the country, to a plea which improperly con'" eludes with a verification.
    2. The record of a judgment rendered upon proceedings by scC fa. against sureties upon a writ of error bond,.taken upon-ther removal to the Supreme Court of a particular cause; in which cause it was determined that a payment made to one as a deputy sheriff, by a defendant to the judgment, was a satisfaction of the same — held to be conclusive, in a suit brought by the plaintiff in such judgment against the sureties-of the sheriff on his official bond, to recover the amount so paid to his deputy, — it appearing that notice was given to the defendants; and that the sheriff's representative appeared and defended the suit in error : also that the deputy was one of the defendants in the suit by sci. fa.

    3. In an abtion by a plaintiff in a judgment to recover of a sheriff’s sureties, money received thereon by the sheriff’s deputy, — notice to the sheriff’s administrator, that in the event of a pending suit being determined against the plaintiff irr the judgment, the estate of the sheriff would be held liable, held sufficient, without the production of the receipts signed by the deputy, — the sheriff, under such notice, appearing and defending the suit.
    This case originated in an action of deht? prosecut■ed in the Circuit Court of Madison County, in the name of Samuel B. Moore, for the use of Francis E. Rives, against Stephen McBroom, William Derrick, Robert Walton, and Lewis Moore; and was founded upon the official bond of William McBroom, as .sheriff of Madison County, and of which the defendants were the sureties.
    The declaration complained, “for that the defend-ants, and one William McBroom, in his life time, who died before the commencement of this action, heretofore, to wit, on the fourth day of November, eighteen hundred and twenty-two, in the county aforesaid, by their certain writing obligatory, sealed with their seals, and now here to the Court shewn, the date whereof is the day and year last aforesaid, acknowledged themselves to be held and firmly bound unto Israel Pickens, Governor of the State of Alabama, and his successors in office, in the penal sum of ten thousand dollars, when demanded, to be paid to the said Israel Pickens, Governor of the State aforesaid, or his successors in office, when they, the said defendants; and the said William McBroom,' should be thereunto afterwards requested; which said writing obligatory was subject to a certain condition there under written, whereby, after reciting to the effect following, to wit, — ‘ Whereas the above bound William McBroom, has been duly elected sheriff of the said county of Madison, according to law, — the condition of the above obligation was such, that if the above bound William McBroom, did well, diligently, and faithfully perform all the duties incumbent on him, as required by law, in his said office as sheriff of the county of Madison as aforesaid, then the said writing obligatory should be void.’ ”
    The plaintiff averred, that the said William Mc-Broom did not well, diligently and faithfully perform all the duties incumbent on him, as required by law, as sheriff of the county of Madison aforesaid; but that the said William McBroom, in his life time, to wit, on the eigth day of April, eighteen hundred and twenty-three, and on divers other days and times, between that day and the twenty-fifth day of July last aforesaid, by virtue of his said office of sheriff of the county aforesaid, received by the hands of Willinm Saunders, who was a deputy sheriff of, and under him, the said William McBroom, divers sums of money, and Tennessee Bank notes, amounting together, and in value, to a large sum of money, to wit, the sum of twenty-three hundred dollars, of and belonging to the said Francis E. Rives, which said sums of money, and Bank notes, were received by the said William, as aforesaid, of Walter Otey, on a writ of fieri facias, which issued from the office of the clerk of the County Court of Madison, bearing date the first day of March, eighteen hundred and twenty-three, and returnable on the fourth Monday of July, eighteen hundred and twenty-three, being in favor of the said Francis E. Rives, against the said'Walter Otey and William Lewis, and directed to the sheriff of the said county of Madison: and that the said William McBroom, in his life time, wholly neglected and refused to pay the said sum of money last aforesaid, or any part thereof, to the said Francis E. Rives, contrary to the form and effect of the said condition of the said writing obligatory; by means whereof the same became forfeited, and an action had accrued to the plaintiff, &c.
    The defendants craved oyer of the bond and condition, and demurred; and subsequently, the following pleadings were filed, to wit:
    First — “ And the said defendants come and defend the wrong and injury, when, &e., and for plea, say actio non, because they say that said sum of money in said declaration mentioned, was not received by said William Saunders, by virtue of his official authority as deputy sheriff, and that the same never came into the possession of the said McBroom; and this they are ready to verify ; wherefore they pray judgment,” &c.
    “ General replication and issue.”-
    Second — A plea that at the time of the reception of said money by said Saunders, the said McBroom was not sheriff of Madison County ; to which there were also replication and issue.
    Third — That at the time of the reception of said money, said plaintiff was a non-resident, and had no agent in the County of Madison to receive the same : also replication and issue..
    Fourth — After oyer craved, of the writing obliga-tary, and the condition thereto, the plea, that defendants were only the sureties of the said McBroom, who was deceased; and relying upon the statute of non-claim : also replication and issue.
    Upon this state of pleadings, a verdict and judgment were had for plaintiff, and by bill of exceptions the cause was removed here.
    The bill of exceptions set forth the following facts: the plaintiff read to the jury the bond of Wil-liara McBroom, and of the defendants, his sureties, as declared upon, and by records proved, that at July term, eighteen hundred and thirty-one, said Rives recovered of Walter Otey, William Lewis, Frederick Jones, Irby Jones, and Edwin Jones, the sura of three thousand and ninety-one dollar’s and fifty-nine cents, debt and damages, besides costs: that Otey and Lewis brought error upon that judgment, and gave bond with sureties to supersede the execution : that in the appellate Court the judgment was affirmed, and that execution issued thereon, to the sheriff of the said County of Madison, and returnable to the succeeding term of the said County Court: that this execution was endorsed by the said William McBroom, as follows — “ Received first of March, eighteen hundred and twenty-three, Wm. McBroom, sheriff;” and a return, in the hand-writing of William Saunders, in the following words— “ Taken up by writ of error, July twenty-fifth, eighteen hundred and twenty-three- — -Wm. McBroom, sh’ff, by his deputy, W. Saunders.” That on the twenty-fifth of July, eighteen hundred and twenty-three, the said Otey sued out another writ of error to the Supreme Court, and gave bond in error, with said Saunders and Joseph Fenwick, as sureties: that the judgment in the Supreme Court was affirmed, and execution issued thereon, which was returned nulla bona.

    The plaintiff then read to the jury two receipts, in the hand-writing of Saunders, as follows — “Rec’d of Walter Otey, five hundred dollars, Tennessee money, which is to be applied to an execution, F. E. Rives vs. Walter Otey, &c. — April twenty-first, eighteen hundred and twenty-three. — W. Saunders, D. S.”; — “Rec’d of Walter Otey, one thousand dollars, in Tennessee Bank notes, which is to be applied toward the payment of an execution, which Francis E. Rives obtained against said Walter Otey and William Lewis, in the County Court of Madison County — W. Saunders, D. S:”
    The plaintiff then proposed to prove by the records, that on the eighteenth of September, eighteen hundred and twenty-six, the said Rives sued out of the Circuit Court of Madison, a scire facias against said Saunders and Fenwick, sureties of the said Otey in the said writ of error bond, in order to have award of execution against them thereon: upon which scire jadas he obtained judgment; which was subsequently taken to the Supreme Court on writ of error, and affirmed. That upon this proceeding, the .said Fenwick relied upon the aforesaid payments to Saunders; and of all which, the said William Mc-Broom was notified — the service of the said notice having been made by the attorney of Rives.
    The plaintiff also gave in evidence certain notices to the administrators of McBroom, and to the said defendants — part thereof being served by the sheriff, the object of which was to apprise them that the proceedings under the scire facias would be used in evidence against them in a future suit, in the event that it was determined that the aforesaid payments were properly made to the sheriff.
    All these records, and proceedings under the scire facias, were admitted by the Court, notwithstanding the objection of the defendants.
    The defendants then offered to give in evidence the deposition of the said Saunders; which the Court rejected.
    The Court instructed the jury, that the evidence offered by the plaintiff', as above set forth, was conclusive evidence of the fact that the amount of money mentioned in the aforesaid receipts, were payments to the said McBroom, as sheriff, on the aforesaid execution.

      McClung and Robertson for pl’tiff — Ormond, contra*
   HITCHCOCK, C. J.

— This was.an action of debt, in the name of the Governor, for the use of Rives, against the plaintiffs in- error, on a bond, as securities ' of William McBroom, late sheriff of Madison County.

The declaration sets out the bond and condition, and assigns as . a breach, that “ the sheriff,- by the hands of one William Saunders, his deputy, received divers sums of money and Tennessee Bank notes, amounting to twenty-three hundred dollars, belonging to said Rives, ■ received by said deputy, under and by virtue of an execution in favor of said Rives, against one Otey, duly issued, &c.; which the said sheriff had wholly neglected and refused to pay over, &c.

The first plea of the defendants states, that “ the said money was not received by the said William Saunders by virtue of his official authority- as deputy sheriff; and that the same never came into the possession>of the said William McBroom; which they were ready to verify,” &c.

To this plea there was a general replication and issue, in .short; there was also a plea of the statute of non-claim — McBroom, the sheriff, having died before the suit was brought;

At the trial, the plaintiff below, gave in evidence the records and proceedings in a suit of sd. fa. brought by Rives against Fenwick and Saunders, the securities of Otey, upon a writ of error bond, on a judg-' ment affirmed m the Supreme Court, in the suit upon which the money had been collected by Saunders • in which it was decided that the payment by Otey, to Saunders, was pro tanto, a discharge-of the judgment ; and to convict the defendants with the suit, a notice to Mills, the administrator of William Mc-Broom, was produced : also, two notices to the defendants in this suit, of the pendency of the same, and that if judgment should be rendered against said Rives, he would look to the defendants as secu-rieties of McBroom, for the amount collected- by Saunders, his deputy. The notices to Mills, and one of the notices to the plaintiffs in error, were served by Samuel Pete, Esquire, Riyes’ attorney: the other notice to the plaintiffs in error, of a similar character, was served by the sheriff of Madison county. Proof was also given, shewing that Mills, the administrator, employed counsel and attended the trial of the suit on the sd. fa. The testimony of Samuel Pete was also admitted, who proved, “ that within eighteen months after the grant of administration on the estate of William McBroom, in order' to make demand of the administrator, so as to prevent the operation of the statute of non-claim, he gave to the administrator a verbal history of the matters involved in the proceedings on the sd. fa. against Saunders and Fenwick, stating- to him, that if they (Saunders and Fenwick,) should succeed in establishing the payments, made by Otby to Saunders, as payments to said McBroom, that then Rives would look to the estate of McBroom for that amount: that he could not say that he mentioned the receipts given by Saunders, as deputy, for the money paid by Otey, particularly, or the sums they called for, or dates : that he did not present the receipts, they being then in the hands of Otey’s securities, and did not present any written specification or memorandum of the demand, or facts constituting it; nor could he say that he informed the administrator that lie was then making a presentment of the claim, or demand, to prevent the bar of the statute.” Two receipts signed by Saunders, shewing the amount lie had received of Otcy on the judgment, were also read.

The whole of this evidence was excepted to by the defendants below ; but the exceptions were overruled. The testimony of Saunders, the deputy, and who was one of the defendants in the suit on the sci. fa,, was offered by the plaintiffs in error, but which was rejected by the Court. There was a verdict and judgment for the plaintiff below, for the amount received by Saunders, with interest.

A hill of exceptions was taken at the trial presenting the above facts, and also stating sundry instructions of the Court, which were excepted to, and sundry instructions asked, which were refused. The Court held that the proceedings on the sci. fa., coupled with the notices, were conclusive evidence to bind the sheriff and his securities, and that the evidence of Samuel Pete, as to the presentation of the claims, took the case out of the statute of non-claim, and rejected all evidence by the defendants to controvert the conclusiveness of the liability of the defendants.

The case has been very fully argued here upon many points of much intricacy; only as many of which will be noticed as will be necessary to its determination.

1. The first inquiry proper to make, is, whether the testimony was proper under the issue.

The counsel for the plaintiffs in error contend, that if this evidence was proper to accomplish the objects of the defendant in error, it should have been pleaded specially, by way of estoppel; and that it could not be received under the pleadings as they stand.

The breach assigned a distinct cause of liability, to wit, the reception of money by the deputy in his official capacity, which had not been paid over ; and the plea is a simple negation of the fact of its reception in that capacity. Wow, according to all the well settled rules of pleading, this formed an issue of itself, and the plea might, and should have concluded to the country. That it concludes with a verification, which would have been cause of special demurrer, if our statute had not prohibited such a proceeding, does not alter the case. The replication properly concluded to the country, as the plea should have done, — the plaintiff below could not have replied specially the facts, by way of estoppel: they consisted of matters of record, and of matters in pats. Wow, no instrument in'writing, not under seal, or by parol, • can be pleaded as an estoppel; and when such is the case, they must be relied upon as evidence under an issue.* An estoppel must be complete in itself without the-aid °f any thing in connexion with it. The doctrine 0f estoppel does not, therefore, apply to this case.

2, Exception was taken to the sufficiency of the service of the notice, by the sheriff.

Our statute declares, “that all notices in writing, which may be necessary or proper to be given, by either plaintiff or defendant, in any suit, either at common law or in Chancery, may be served by the sheriff of any county, and the return of the sheriff shall be good and sufficient in any Court of record in this State.” This is a remedial statute, and should receive a liberal construction. To determine its application to this case, it will be neeessary to ascertain whether the notices can have any legal effect upon the rights of the plaintiff; for the statute authorises all notices, that may be necessary or proper, to be served by the sheriff. The object of these notices was to bind the parties, by the result of the suit against Saunders and Fenwick. If the judgment in that case could have no effect upon them, for that purpose, to enable the plaintiff to rely upon the record, either as prima facie, or conclusive evidence of their liability to him, then they were not such notices as the sheriff coüld serve ; otherwise, they were, and this brings us to the principal point of the case, which is,

3. The effect of the judgment in the case against Fenwick and Saunders. '

The plaintiffs in error contend, that they were neither parties nor privies to that suit: that they were-not bound to defend it; and they state, as a .prominent reason, that they could not in that suit, have availed themselves of the benefit of the testimony, of Saunders, the deputy, he being a defendant to the suit: that they ought not now to be denied the opportunity of establishing the truth of the case, as stated in their plea.

To this it is replied, that the questions presented in the issue, by the pleadings in this suit, are identical with those in the other suit: that there must be an end at some time to litigation : that Rives, having a right to the money from some one, was autho-rised to notify all persons who were, or might become liable to him, to be present to protect their rights: that having done so in this case, he cannot now be compelled to submit his rights to a second trial; that the securities of a sheriff are bound by the notice to their principal; that a judgment which binds the principal, either directly or indirectly, binds, to the same extent, the securities, unless they can shew it was obtained by fraud or collusion; otherwise, the same question would be twice, fried by different persons, who compose but one and the same party in interest : that if this point cap be questioned, the case is put at rest by the notice to the sureties themselves, which, upon every principle, estops them from contesting the point again, when sued themselves.

Iu further illustration of this view of the case, it .is maintained, that Rives’ right of action against the present defendants does not depend upon the results of the action on the sci.fa. Both actions might have been brought at the same time, and the verdict on the sci, fa. might have been used immediately after it was recorded in the other suit. The trial of the issue on the sci. fa. made it conclusive against the defendants in the present suit, and bound both parties to it. If it had been against Fenwick and Saunders, it would have also been conclusive in favor of the defendants below. If the trial of the suit against the defendants below had first come on, there would have been no evidence conclusive in its character agaiust them, but all would have been open to contradiction ; - bat the trial of the issue in the suit on the sci. fa. determined the rights of all persons interested in it.

If this is not held to be the legal result, Rives, who, it is admitted, has an undoubted right to the money from some one, may be wholly defeated in his recovery, without any fault on hjs part. Having united with the present defendants below, to establish the right against Saunders and Fenwick, and they having failed there, — if they now are permitted to turn round, and with the aid. of Saunders, deny that liability, Rives may be left wholly remediless— a consequence, which the principles of justice, and of law, cannot permit.

Many authorities have been read and referred to, on both sides ; a few only of which, will be noticed by the Court.

In the case of Kip vs Brigham, et al. — if was. held, that a judgment against a sheriff for an escape, on a bond for the liberties of the jail, granted to a prisoner in execution, was concluoiue evidence in a suit by the sheriff against the securities of the prisoner ; they having received notice from the sheriff of. the suit, and having aided in the defence. The same principle was again recognised in 7 Johnson, 168,

In the case of Bender vs Fromberger — the same point was ruled ou an action of covenant for land; so also in 2 Term R. 316, and 2 Marshall, 304.

The same principle was recognised in this Court, in the case of McBroom vs Somerville, et al. — where it was held, that “ a security on an injunction bond could not go into the merits of the previous decree, rendered against his principal, nor of the original judgment at law, which had been enjoined; no fraud being alleged in the rendition of the decree.”

The Court, in the opinion delivered, do not appear to place the decision upon any statute law of our State, as to injunction bonds; but upon the general principles applicable to bonds of indemnity, which, according to Pothier on Obligations, do not come within the rules of res inter alios acta.

On the part of the plain tills in error, the case of Foxcroft, Treasurer, &c. vs Nevins, et al. — is cited. In this case, which was a bond given by a collector of taxes, the condition was, that “ he should collect all such rates as he should have sufficient warrant for, under the hands of the assessors, according to law.” The action was against principal and securities. The collector made no defence, but made default, and the securities defended themselves upon the ground, that their principal never had any sufficient warrant, &c. The Court held, that the judgment by default against the principal, did not affect the securities. They say, that “ the express language of the condition was, that the securities undertook for the fidelity of the principal, when he should be furnished with legal authority, necessary to the effectual discharge of his duty. This not having been done, the Court could not extend their liability, by construction beyond the bounds by which it is expressly qualified limited in plain and explicit terms that, in consequence of the insufficiency of the authority of the collector, arising from the negligence of the town officers, in whose behalf the plaintiff prosecutes, no liability had attached. Had the authority of a legal warrant been produced, the case would have been otherwise. In that particular, this case is at once' distinguishable from the case at bar.

In the case, The State vs Davis — on a iecogni-«anee for the good behavior of William Gobbet, the-Court excluded the record of his conviction, on the ground, that no record of a conviction should be given in evidence, except in cases where the benefit was not mutual. No notice appears to have been given in thatcase 't° the securities, and the same may be said of the case of Beal vs Beck, admW.

In the case of Dawes, Judge, &c. vs Shed, et al. Ex’rs — wilere sureties of executors were sued and the judgment against the executors was pro-' duced, the sureties were permitted to rely upon the statute of limitations, notwithstanding the executors-had failed to plead it. This decision was put upon the ground, that the securities were not barred by a judgment, suffered collusively, or negligently, by the administrator. Here; too, was no notice to the securities.

In the case of Roberts vs Smiley — 'the Court admit the doctrine, so far as to permit the record to be used to some extent; but dissent from what they admit to be the doctrine of some of the Americrn cases, as to its conclusiveness: Such a principle, they say, “ if carried out, would, iu many cases, produce results highly unjust and reproachful to the administration of the law.” No authorities are cited ; no general principle appears to have been laid down; and the case of hardship, which is put as an illustration of their view of the case, would come within the principle of fraud and collusion. They suppose a sale of a negro with warranty, and a subsequent emancipation by the vendee, and suit by the negro, against the vendee, to obtain his freedom,— the vendee holding the negro against his own deed of emancipation, — -notice to the vendor, and a recovery by the negro. Here, say the Court, if the' record of freedom is conclusive, the vendor will be held liable, though there has been no breach of his warranty. The answer to this, is as before stated. It would be fraud on the part of the vendee, and collusion with the negro, which would protect the’ vendor.

Without pursuing this inquiry farther, we are satisfied, that upon principle and authority, the judgment in this case, on the sci. fan with the notices served upon the defendants below, and upon the administrator, who appeared and assisted in prosecuting the suit, are conclusive upon the rights of these parties.

This view of the case, disposes of the objection to the service of the notice by the sheriff, and renders it unnecessary to advert, to' the effect, which it might otherwise have had upon the service of the notice by Pete, which was to the same effect. It also excludes the necessity of deciding the questions raised upon tlie admissibility of Saunders’ testimony, and leaves but one point now for enquiry, which is,

4. The sufficiency of the presentation of the claim to Mills, the administrator of William McBroom, to prevent the operation of the statute of non-claim.

On this point, we think the notice sufficient. — ■ The receipts, upon which the claim was founded, were not then in the hands, or under the control of Hives, or his attorney'; all that he could be expected to do, ivas done, and it had the effect intended, to wit, to induce the administrator to assist in the de-fence. Until the rendition of the judgment on the sci. fa. it was uncertain; it then became an ascertained debt, and brings the case within the principles of the case of Neil, use, &c. vs. Cunningham's Ex’rs. The judgment must, therefore, be affirmed.

HOPKINS, J. not sitting.

       r Í58hns’

      4 Dallas>

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         él

       Green!'

       529.Ydles’

      3 ii mt-l ¿42.

       tioMds. 6

       5Monroe 271‘

       2 Porter, m'

      Co.LU.352 Dig.°estopS johns.Rep


text:
    CHARLES, A SLAVE, VS THE STATE.

      As to the power of different Judges of the same Court, to carry out the judgments of each other.

    3. Where a verdict of guilty is rendered in a criminal case, and . the Court adjourns without giving judgment thereon, — a different judge presiding at a different term, has power to render that judgment, which the first Court should have given.
    In this case, Charles, a slave, was indicted in the Circuit Court of Madison, at the October term, eighteen hundred and thirty-five, thereof, for the murder of Willis Sanford : and on the twenty-ninth day of October, a day of that term, by a jury, found guilty of the offence. The Court, after the finding, adjourned to the thirtieth, and from thence to the thirty-first, and from thence to the fourth of November, and from ■thence to the succeeding term, without rendering judgment on the verdict.,
    At April term, eighteen hundred and thirty-six, the prisoner was brought to the bar for judgment, when a motion was made by his counsel for his discharge, on the ground, that the judge who presided at the term when the prisoner was convicted, had died after said term, and that the then present presiding judge had no power to render j udgment on the verdict of the former term — the case having been continued without any judgment having been rendered, or other proceeding . had. The Court overruled the motion to discharge, as also one made in arrest of judgment —but referred the question to this Court, as one novel and difficult.

      Parsons and Robinson, for prisoner,

      Attorney General, contra.
   HOPKINS, J.

— On the twenty-ninth of October, eighteen hundred and thirty-five, a verdict of guilty was returned by a jury, into the Circuit Court of Madison County, against Charles, the plaintiff in error, upon an indictment for murder. The Court was adjourned on that day to the thirtieth of the -same month, on the thirtieth to the thirty-first, on the thirty-first ■ to the fourth of the next month, and on ' the last mentioned day till the next term thereof, without having given a judgment on the verdict against the prisoner, or acted upon it in any manner. Before the next term of the Court, the judge, who presided on the trial of the indictment, died. At the next term, a motion was made by the counsel of the prisoner for his discharge, upon the ground, that the Court held then by a different judge had no power to give a judgment, which ought to have been rendered by the Court during the preceding term. The motion was overruled, and the counsel of the prisoner then moved, upon the same reason, in arrest of judgment; which motion the Court overruled also.

The questions, which arose upon both motions, the Circuit Court referred to this Court, as novel and difficult.

The Circuit Courts, though the powers of them may be exercised at different terms by different judges, are always the same. The power, which belongs to them, does hot depend upon the commission of any judge who exercises it, hut is derived from the Constitution, and is always the same while there are judges to exercise it. The Court held by the judge, before whorn the motions in the case were made, had the same power to act on every case that remained on the docket undetermined, or to grant a new trial, or render a judgment in a case in which a verdict had been given, but not acted upon by the Court at the preceding term, which belonged to the Court at that term. This principle has been recognized by the Supreme Court of the IT and requires, in the opinion of that Couft^jJs^^sAj the District Courts of the United States to do whal their predecessors in office could have omitted to do A judge of aCircuit.fcc^^t^ig^¿i| ample power from the Constitution to amm such a case, as was conferred in England by the statif^o' Henry 6, & Eliz. 6, upon Justices of Assize and ol Oyer and Terminer and Jail Delivery, to give upon convictions had before their predecessors, the judgments they could have rendered.'

The facts relied upon in support of the motions did not affect the power of the Court to give judgment in this case, and, therefore, gave the prisonei no right to be discharged, or to arrest the judgment

Whether the Circuit Court, in the exercise of s sound discretion, ought not, voluntarily and without a motion from the prisoner, to have granted him a new trial, is a point, which that Court did not reserve fin the consideration of this. It is true, as the counsel of the prisoner affirmed, that Sir Matthew Half never would give judgment, or award execution upou a person who had been reprieved by another judge, because he couid not know for what reason he had been reprieved; and his rule, in this respect, has been, in general, observed by his successors

jn cases like this, in which the judge who presided u . *“ . at the trial, had. power to grant a new trial on his own observation of any impropriety in the conduct of the witnesses, or because he did hot believe them, it would, perhaps, be .most proper for the Court to grant a new trial, unless it appeared by evidence, from some source, that the judge, before whom the cause was tried, was satisfied with the verdict.

Let the judgment be affirmed.

       Piers’

         \% Hale’s Pis. Cro. 400, 405, ,406; 1C hit Cri. Law, '568, 569.

      2 Pi’s. Cro. 405,406 & noto a.; 1 Chit, cri, aw ’


text:
    FLORA, A SLAVE, VS THE STATE.

      Touching proof of the ownership of a slave indicted for felony.

    1. In an indictment against a slave for a capital offence, some part of the proceedings must contain the name of the owner ; and such ownership is an essential matter, necessary to be proved and found by the jury.
    Flora, a slave, was indicted in.Madison Circuit Court for murder. The indictment charged, that Flora, a slave, the property of Allen and Richard Sanford, administrators of the estate of Willis Sanford, committed the murder upon the body of Willis Sanford; and she was found guilty.
    The case was removed into this Court by writ of error, upon exceptions taken to the opinion' of the Court in the progress of the trial. These exceptions disclosed, that it was in proof on the part of prisoner, that she was the property of Willis Sanford, in his life time, and at the time of his death. No proof was made of property in the slave, in Allen and Richard Sanford, as laid in the indictment; or that administration upon the estate of the said Willis had ever been granted to any .person whomsoever. Nor was there proof that Allen and Richard Sanford ever laid claim to the slave. Thereupon the prisoner’s counsel moved the Court to instruct the jury, that if they believed the property in said slave, was not in said Allen and Richard Sahford, but in the heirs or legal representatives of Willis Sanford, then, the proof did not sustain the indictment, but was variant therefrom, and of consequence, the jury must find the prisoner not guilty. This the Court refused; 'but because the question was novel and difficult, referred the same to this Court.

      Parsons and Robinson, for the prisoner.

      Attorney General, contra.
   HOPKINS, J.

— The plaintiff in error was indicted for the murder of one Willis Sanford. In the indictment it is alleged, that she was a slave, and the property of Allen and Richard Sanford, administrators of Willis Sanford, deceased. Upon the trial of the case, there was no proof that she was their property, or that administration upon the estate of Willis Sanford had ever been granted to them ; and none that they had ever made any claim to her. Her counsel moved the Court to instruct the jury, that unless they believed, from the evidence, she was the property of Allen and Richard Sanford, they must find the issue for the prisoner. The Circuit Court refused to give the instruction, and referred the question, as novel and difficult, to this Court.

The statute law of the State requires, that whenever, on the trial of any slave for a capital offence, the jury shall return a verdict of guilty, the judge shall cause the same jury to be sworn to assess the value of the slave, and the portion, thereof that the owner shall have, which in no case shall exceed one half of the value assessed; that the verdict of the jury shall be entered on the records of the Court, and gives a right to the owner, on producing to the Comptroller of Public Accounts, a transcript of the record of the Court, certified by the clerk, together with a certificate of the sheriff’ that the slave had been executed in pursuance of the sentence of the Court, to receive a warrant on the Treasurer for the portion to which the verdict may entitle him

The name of the owner of the slave ought to he stated in some part of the proceedings, as his right to a portion of the value of the property depends upon a transcript of the record, which he must present to the Comptroller, which would be no evidence of his right, unless the fact that he was the owner appeared from the transcript. The Comptroller has no power to inquire who the owner is, but must admit the' evidence, and, that only, which the statute requires.

Unless the jury can inquire upon the trial of the issue, to ascertain the guilt or innocence of the prisoner, who the owner is, there is no subsequent part of the proceeding, which is suitable for making the inquiry, and the record would not be, what the law intended it should—evidence of the right of the owner to a portion of the value of the slave. If it be necessary to introduce the name of the owner into the proceedings, the indictment is the proper place for it. It is not necessary to state any fact in an indictment which it is needless to prove; butany thing tbatought to be alleged must be proved. If the name of the owner had been omitted in the indictment, the record would afford no evidence of the right of any person to receive a part of the value of the slave. The construction of .the .statute requires, that the proceedings shall ascertain the owner, unless it be stated in. the indictment that he is unknown, for the purpose that personal rights may be secured by the same trial, the result of which will satisfy public justice. As the right of the owner to receive a part of the value of the slave, must appear from the record, the fact of ownership on which the personal right depends, as well as the fact of guilt, upon which the demand of public justice is made, ought to be put in issué by the indictment, and found by the jury. It is admitted, that the guilt of the prisoner, if she be guilty, is the same, whether she belong to the persons named in the indictment, or to any others : so is the crime of a thief, whether the goods he feloniously took and carried away were the property of Á or B, But the doctrine is settled, that if an indictment for larceny state the property to belong to a person unknown, when the owner was really known, or that it is in A. when B is the owner, in either case the prisoner ought to be discharged from the indictment. After the felon is convicted, the owner, if the stolen property be in Court, or in the custody of the law, is entitled to an order of the Court of restitution, or to a judgment for the value of such property as shall not be restored. As the owner may acquire rights from the trial of such an indictment, his name, if it be known, must be stated in it, and proved on the trial. The same principle applies, we think, to an indict-merit of a slave for a capital offence.

In this case, were the judgment affirmed, thep e- . , 1 sons who are stated in the indictment to be the owners, would receive a part of the value of the slave, when no evidence was offered upon the trial, which tended to prove the property was in them: If after the person, who appeared upon the trial to be the owner, had received a portion of the value of the slave, another should prove that he was the real owner, in an action against him, the proceedings upon the indictment would be no evidence of the right of the defendant to retain the part of the value, which had been paid to him, against the plaintiff, who proved his property in the slave.

We are of opinion, the Circuit Court ought to have given the instruction, which was asked for the prisoner.

Let the judgment be reversed, and the cause re* raaded,

      Aik. Dig. 124,sec.6Q. 64.

       0EastCro 651, 652, 788 & 789; 2 Ha. pi’s, Cro‘ 181‘


author: COLLIER, J.

text:
    SAWYER VS BALLEW.

      As to the form of action for an escape in forcible de-tainer.

    1. An action upon the case lies against a sheriff for the escape of a defendant under proceedings for an unlawful detainer,— notwithstanding the penalty given by statute against a sheriff by the Act of 1805,
    This was an action upon the case, by Sawyer against Ballew, in the Circuit Court of Morgan : and the plaintiff declared against the defefendant for that, theretofore in a proceeding for forcible and unlawful detainer, he had obtained judgment against one Larkin R. Sawyer, before a justice of the peace, upon which execution had issued against the said Larkin, and under which he had been arrested. But that the defendant had voluntarily suffered and permitted the said Larkin to escape out of his custody, &c,, whereby the plaintiff was injured, &c.
    , To the declaration there was a demurrer which being sustained, judgment was rendered for the defendant, The plaintiff here assigned the same in error.
    McClung, for plaintiff in error.

      S. Parson's, contra.
   COLLIER, J.

— The plaintiff brought an action on the case in the Circuit Court of Morgan, against the defendant, as sheriff of that county, for suffering, and voluntarily permitting Larkin R. Sawyer, whom he had previously arrested under an execution, regularly issued by a justice of the peace, on a judgment in a proceeding for an unlawful detainer, to escape and go at large. To the plaintiff’s declaration, setting out these facts, the defendant demurred, and his demurrer was sustained by the Court.

In considering the judgment on the demurrer, it will only be necessary to enquire, whether the form of action adopted, will lie upon the state of facts disclosed by the declaration.

At common law, the appropriate remedy for .an escape was an action on the case, in which the measure of damages was the injury sustained Colby vs Sampson.

In England, and some of the States, an action of debt is given by statute for an escape on final process. In this action, the plaintiff is entitled to recover at once the sum for which the prisoner had been charged in execution. Though the action of debt has been given by statute, and is often to be preferred as a remedy, yet a plaintiff may prosecute this action or case at his election — the statutory remedy never having been held exclusive of that afforded by common law, but rather esteemed as cumulative.

It is, however, argued, that conceding the justness of all these propositions, they do not furnish any authority for the maintenance of this action : that by the seventeenth section of the act relating to the proceeding by “ Forcible entry and detainer,” the sheriff is subjected to a forfeiture of two hundred dollars to the party aggrieved, for a neglect or refusal to execute or return any precept, writ, or other process, directed and delivered to him by virtue of that act: that the proceeding under that act, being unknown to the common law, the remedy prescribed, by that law is impliedly excluded by the statute.

• Without stopping to enquire, whether an escape comes within the provision of the act relied on, we are persuaded that the conclusion deduced from it, is not defensible. Had the statute been silent, as it regards the infliction of a penalty upon the sheriff, for a neglect or breach of duty, it is clear that one im-jured from either cause, might have adopted for his redress, the appropriate common law remedy. In some cases, the penalty imposed by statute would be inadequate to compensate the loss sustained. In such case, it cannot be supposed that the Legislature intended to leave a party remediless beyond the penalty ; and if in any case, the common law remedy is proper, it must be in all.

But we are relieved from considering this cause upon principle and the general analogies of the law, for in' Brown vs Chapman — we discover that the very point was adjudged by the Court of King’s Bench, In that case, the plaintiff brought an action on the case for falsely and maliciously suing out a commission of bankruptcy against him. The defendant insisted, that in as much as bankruptcy did not exist at common lam, and the statute of 5 George II, had given a remedy upon a bond, for the penalty of 200/., required to be executed by the party suing out the commission — therefore, the action did not lie. The Court were so clear that they stopped the counsel for the plaintiff; Lord Mansfield remarking, There is no clause in the act that takes away the common law remedy; nor that says, that the party .shall not recover more than 200/. damages.” — • So an action will lie for wrongfully suing out an attachment, though a bond with surety, has been executed by the plaintiff, conditioned to satisfy the defendant in the attachment, all costs and damages he. may sustain by the wrongful suing out of such process; and this, though the remedy by. attachment is given by statute — Wilson vs. Outlaw

We are persuaded that the remedy by statute can, at most, be considered as only cumulative, and that the judgment must be reversed and the cause be remanded.

      5Mass.R..

       & g.' 4/9,484,

      3 T 'R_ 7Mass'377

       p.a&E! 484;6John.

      6 Bun-, R, 14’18’

      Aia.Rep,


author: HITCHCOCK, C.. J.

text:
    WELCH, adm’r. VS WALKER, et ux.

      As to the acknowledgment of service of process.

      As to citation to an administrator.

    1 The mere acknowledgment of the service of process by one, without proof of the genuineness of the signature, will not authorise a judgment.
    2. It seems, that where process has gone into the sheriff’s hands, and an acknowledgment of the service thereof appears on the back, it might be regarded as the sheriff ’s return.
    3. A citation to an administrator, calling upon him to shew cause why judgment and execution should not be awarded against him, for the distributive share of one in an estate,— must set out the previous proceedings had in the settlement of the estate.
    This •was a writ of error to the County Court of Madison, upon • a judgment rendered by default against George W. Welch, administrator of the estate of Samuel D. Sherrell, deceased; which judgment was founded upon an application of William. Walker and wife. The record shewed the following entry:
    “ On the application of William Walker, and wife, Rebecca, formerly Rebecca Sherrell, one of the children and heirs of Samuel D. Sherrell, deceased,— it is ordered, that George W. Welch, now of Franklin County, in said State, be cited to appear before the Judge of said Court, at the Court house, in the town .of Huntsville, in said County of Madison, on the second Monday in October next, to shew cause why said applicants shall not have judgment and execution against him, for their distributive share of the balance clue estate of the sai; from him, as administrator of the I Samuel 1). Sherrell, deceased, on, jttlement of his said administraiion heretofore made. And thereupon was issued a citation in the words and figures following, to wit, ‘ The ¡otate of Alabama, to the ■ sheriff of Franklin County, Greeting. — You are hereby commanded to summon Geore W. Welch, late administrator of the estate of Samuel D. Sher-rell, deceased, to appear before the Judge of the Orphans’ Court of Madison County, at the Court house, in the town of Huntsville, on the second Monday in October next, to shew cause why judgment, for the distributive share of the balance due from him, on settlement of his administration, to William Walker, and his wife, Rebecca, formerly Rebecca Sherrell, one of the children and heirs of the said Samuel D. Sherrell, deceased, — shall not, be rendered against him. Herein fail not, and have then there this precept. Witness, Richard B. Pardom, Clerk of said Court, at office in Himisyiiie, this eighteenth day of September, 1834. Endorsed, I acknowledge the service of the within notice. — G. W. Welch, Sept. 30, 1834.’ And now, afterwards, to wit, on the thirteenth day of October, being a day of a term of the Orphans’ Court of said.cousvi.y, begun and held at the Courthouse, in the town of Ilimiovilie, on the second Monday in said month, (October,') in the year of our Lord, eighteen hundred asid thirty-four, — the citation heretofore awarded against George W. Welch, administrator of the estate of Samuel D. Sherrell, deceased, requiring him to appear, Re., this day, to shew cause why judgment, for the distributive share 'of the balance due from him on settlement of his administration, to William Walker, and his wife, Rebecca, formerly Rebecca Sherrell, one of the children and heirs of the said Samuel D. Sherrell, deceased, shall not be rendered against him, — ha ving-been returned acknowledged; and said administrator being solemnly called, comes not, but makes default: It is therefore considered by the Court, that said William Walker, and wife, recover of, and have execution against, the said administrator, the sum of one hundred and thirty-nine dollars and thirteen and three fourth cents, being the one fourth of the distributive share of the balance due from said administrator on settlement of his said administration, settled the eighth day of November, eighteen hundred and thirty,” with costs, &c.
    It was here assigned in error—
    1. That there was a judgment by default, when it did not appear that the process was served: and there was no appearance.
    2. That nothing in the citation or record, showed the amount of any indebtedness on the part of the defendant.
    3. That there was no shewing of the number of persons entitled to distribution.
    4. That judgment should have been entered for defendant.

      McClung for plaintiff in error.

      Robinson, contra.
   HITCHCOCK, C.. J.

— This was a citation issued by the Judge of the County Court of Madison county, in favor of Walker and his. wife, against George W. Welch, as administrator of Samuel D. Sher-rell, deceased, to shew cause why they should not have judgment and execution against him for their distributive share of the balance due from him, as administrator of said Sherell, deceased, on a settlement theretofore made.

The citation is directed to Franklin county, upon which there is an endorsement as follows: “ I acknowledge the service of the within notice. Signed G. W. Welch, September 30, 1834.”

At the October Term, eighteen hundred and thirty-four, of the Court, a judgment by default was rendered, awarding execution in favor of the plaintiffs, for the sum' of one hundred and thirty-nine dollars and thirteen and three fourth cents, the distributive share of the balance due from said administrator, on settlement of said administration, settled on the eighth day of November, eighteen hundred and thirty,” together with the sum of forty-two dollars and eighty-cents damages, being the interest on said sum, besides costs, &c.

It is insisted, that this judgment is erroneous, for the following reasons:

1. It does not appear that any service of the citation was ever made on Welch, the defendant.

2. There is nothing, either in the citation or in the record, going to shew any amount of indebtedness, on the part of the defendant below, and

3. There is nothing showing the number of persons entitled to distribution of the estate.

These reasons, we think; are well assigned.

To allow a judgment, upon a writ or citation, not returned by the sheriff, without any proof of the truth ofthe acknowledgmentof the service by the defendant, would be extremely irregular : both the Court and parties would be liable to the grossest deception. In such a case, satisfactory proof should be adduced of the genuineness of the signature to the acknowledgment of service. If the writ appeared to have been received by the sheriff, such a return as the above might be considered as his return; but the mere appearance of the acknowledgment by the defendant, of his name on the back, is not prima facie evidence of the fact — Demon, survivor, vs Swaim’s administors.

As to the other two assignments, it may 'be remark" ed, that since the act of January, eighteen hundred and thirty, the final settlements of the accounts of administrators have the effect of judgments, and execution may issue upon them without any further proceedings. If they have lain dormant a year and a day, or if in the settlement, the distributees are not specifically named, and their respective amounts allotted to them, a citation may issue; hut in such a case, the record should shew what the previous proceedings were, so that the Court, in case a writ of error is taken, can know what was done below. In this case, it does not appear but that a previous execution within a year and a day may have issued. If so, no citation was necessary or proper. The decision in the case of Boggs vs Bandy — is overruled, and the doctrine contended for in the dissenting opinion in that case, is recognized by us to be the correct law. The citation being in the nature of a sci.fa.., should state so much of the previous proceedings as to enable the Court to act upon the subject advisedly. In this case, the citation is wholly defective. If the settlement, though final, has not made distribution to those entitled, this should be stated, so that the defendant may know what he has to defend, and the Court may know what they have to adjudicate.

The judgment must be reversed.

      5Stew. & Porter,293,

      2 stewt. 459.


text:
    JOHNSON, SURV. VS H. & R. W. GREEN.

      Touching actions against parties, as partners.

      1. Where two or more are sued as partners, a verdict may be found against such as appear to be so, and in favor of those not.
    In error to the Circuit Court of Morgan.
    David B. Johnson, survivor, declared against Horace Green and Robert W. Green, as late merchants and copartners, trading under the firm and style of H. & R. W. Green, — -in assumpsit, for work and labor. The defendants plead—
    1. Non-assumpsit.
    2. Another action for same cause, pending.
    And on these pleas a verdict' was rendered for the defendants.
    In the progress of the trial the plaintiff took a bill of exceptions, which disclosed these facts.— The plaintiff having proved the execution, and value of the work and labor charged in the declaration, the defendant gave evidence of a deed to Horace Green, for the lot on which the work and labor was performed. The Court then charged the jury, that the plaintiff could not recover, without proving a partnership between Horace and Robert W. Green.
    Robinson, for plaintiff in error.

      S. Parsons, contra.
   HITCHCOCK, C. J.

— This was an action by the plaintiff in error, who was plaintiff below, against the defendants, charging them as partners, on an account for work and labor. A verdict and judgment were hail against the plaintiff below.

The only question to be examined in this Court, arises upon a bill of exceptions, taken at the trial below, to the instruction given by the Court to the jury-

Proof was given by the plaintiff, of his account, which appeared to have been for work, &c., on a lot of ground, a deed to which, in the name of Horace Green, one of the defendants, was read. The Court charged the jury, “ that the plaintiff could not recover without proving a partnership between the defendants to which the plaintiff excepted.”

By the act of 1818, it is declared, that “when any suit shall be instituted against two or more persons, as partners in any firm, if one or more persons, not partners in said firm, shall have been sued as such, the Court before whom said suit is pending, shall discontinue said suit against such person or persons, as shall appear not to be partners in said firm, and proceed to judgment and execution against all,, or any of the defendants in such action, who shall appear to be partners.”

Under this statute, the charge of the Court was erroneous. The jury should have been instructed, to have found in favor of the one found not to be a partner, and against the other, if the facts so appeared, and then judgment should have been rendered against the one, and in favor of the other, for his costs. The object of this statute was to prevent the dismissal of suits when persons were improperly-joined as partners. Such was the decision of this Court in the case of Jones, et al. vs Pitcher, et al.

The judgment must be reversed and the cause remanded.

       ¡¡$&"Dis'