text:
    ROGERS & SONS versus SMILEY & GRIFFIN.
    A pina, commencing with matter of abatement, and concluding in bar, is de-lectivo and bad, on demurrer.
    As a general rule,'a demurrer opens the whole pleadings in a cause, to the consideration of the Court, and will bo extended to the first substantial defect existing therein; but this is always upon the supposition, that the pleadings have been properly filed — in due lime, and perfect order.
    And where a plea, in abatement was filed after several continuances, and after a demurrer had been considered, and the general issue pleaded, the Court refused to extend a demurrer to the plea, back to a supposed defect in the declaration.

      Assumpsit in the- Circuit Court of Tuskaloosa, And tho plaintiffs declared for money paid, &c. at the instance and request of the defendants, they being partners in trade. The writ, as appeared, was-executed alone oil Griffin, and thereupon, in accordance with the statute in such case made and provided,, the declaration was filed against both defendants. And afterwards Griffin having appeared, craved oyer of the writ, and filed a special demurrer, for variance between the indorsement thereof, and the declaration. After continuance, leave to amend the . declaration was asked and granted to plaintiffs; whereupon, they filed other counts, and Griffin pleaded non assumpsit, as to himself; which, being stricken out on motion, he filed the general issue, and a special plea, averring, that defendant Smiley, was beyond the jurisdiction of the Court — that any copartnership before that time existing between them, was ended before the commencement of the said suit — that process in said suit had never been served on said Smiley, and concluded With an allegation, that he the said Griffin had not undertaken, assumed and promised jointly with said Smiley, as charged in the plaintiffs declaration, and thereof put himself upon the country, &c. The plaintiffs, as to the first plea, joined issue, and to the special plea, demurred.
    After many continuances, the Court, on consideration of the demurrer, ruled, that the plaintiffs’ declaration not being sufficient in law to maintain the action, the demurrer to the plea reached .the same, and that judgment should be rendered for the defendants.
    On a bill of exceptions, the plaintiffs brought the case to this Court.
    This case w'as argued at length, by Crabb for the Plaintiffs, and by
    Peck, Stewart and Ellis for defendants.
    On the points decided by the Court, it was contended for plaintiffs, that the demurrer was improperly permitted to extend to the declaration. The defendant, it was said, had before demurred to the declaration. Then was the time when he,should have avail- ■ ed himself of any defects which it might contain.
    The general rule is admitted, that a demurrer reaphes back to the, first substantial defect that has befen made in pleading; jet this rale must not be regarded as one without exceptions, For, where it appears, bj the replication of the plaintiff, to a bad or defective plea, that the plaintiff has no cause of action, judgment must go against the plaintiff, although the defendant by his ploa, committed the first defect in pleading. The plaintiff is estopped, by his own shewing, from requiring that the demurrer should extend further back. — Gould's PI. £78, 474,475. And so it is with the defendant. If the plea shews that the party- has no defence, the defendant is estopped from carrying the demurrer back to the plaintiff’s declaration.
    The second plea is what is called a technical traverse ; that is, where affirmative matter is set up implying a negative, and a negative following therefore” is added. In such case, the inducement is the substance of the plea; and if it doss not set out such [facts as will authorise the Court to infer the negative, the plea is bad.
    The inducement here doss not set out that the partnership was dissolved, but merely that Srniley was beyond the jurisdiction of the Court. It is a notice : and a service on one partner is notice to both. VAik. Dig. 288. The inducement here, does not justify the statement that the partnership is determined. [Besides, this plea is not responsive to the declaration, which states that Smiley and Griffin were long [previous indebted, &o. The plea was no defence; land therefore, the demurrer could not extend back to the declaration.
    I But, if this were an irregularity, it is not such a ■me as can be taken advantage of by demurrer. It Ian only be matter of abatement: and by plea in a-fcatement only, could the objection properly be made. It is a rule of pleading, that a party cannot demur in abatement. A parly is only entitled to plead in abatement at the first term; but if bo could take advantage of matters of abatement in this way, this salutary rulo of law would be defeated. — (See Gould’s PI. 297, 3 Sismar t, 192, 95.) Besides — this, if a defence at all, is a defence personal to Smiley. He does not complain. It was no defence to Griffin; for, he surely had due notice. Griffin had also pleaded over, and therefore, if for no other reason, he could not bo allowed to take advantage of this alleged irregularity.
    The declaration is good. It avas said to be bad, because, as was alleged, it appeared by the declaration itself, that Smiley and Griffin were not partners at the commencement of the suit. If this were admitted, this is not matter of substance. The substance of the declaration is a past promise, made as copartners. As to the promise then made, the partnership still continues. This is the general principle. How else could partnerships ever be wound up ? The doctrine is, that, once a copartner, always a copart-ner, as to the acts of the partnership during the time of its existence. Let it be admitted, that after dissolution, one partner has no right to bind the other, as to acknowledgments of old debts, or creation of new ones — this interferes not with the case. The co-partnership between partners is cut short by a dissolu-l tion : but it is not so between them and the rest of the world, as to what has been done during its continuance. — Gom on Partnership. 79, 80, 246, 253. — ll 'Vaunt. 104 — 17 Yesey, 298 — 4- Binney 275 — Kent’s^ Gom. 28,
    On tiro part of the defendants, it was said, that thel second of these pleas was good. The plaintiff was! suing under a statute, and tire plea, avers, that at thel time when the action was brought the defend anti were not partners, which if found true, went to defeat the action as to the service on the parlies.
    The Court below, in its decision, as was contended, rightfully sustained the demurrer to the plainiffs’ declaration. The general proposition is admitted that a demurrer reaches bade to the first error in plea,ding; and as to the exception where there is a had replication. on a penal bond, the replication is there substantially a part of the declaration; it is that part in which tlio breaches are assigned. The plaintiff may there be said to have committed the first fault — the replication being but a supplementary part of the declaration. The samo doctrino has been held in this Court, as to the demurrer reaching bach, even where the declaration had been determined onoo to he good. See the case of Cummins and Foster vs. Gray.

    The question then arises, is the declaration good? We say not. s Where two have beon partners, and the partnership has been dissolved, a service only on one., even if judgment went by default, would be error: and this is a much stronger caso. The statute which authorises service on one, to he notice to all, speaks of existing firms. This statute is in derogation oftho common law, and should, therefore, he construed strictly. If the Legislature had intended to extend the same rule to dissolved firms, they would havo used different language. The reason of the rule does not apply to disolved firms. Confidence is .presumed among existing partners; but not among members of dissolved firms.
    The process and pleadings in this case, sufficiently shew, that the firm of the defendants was dissolved. The writ speaks of them, as “ merchants heretofore trading under the firm of Smiley & Griffin:” and the declaration, after describing the plaintiffs as merchants trading under the firm of Rogers & Sons, describes the defendants as merchants “heretofore trading under the firm of Smiley & Griffin.” This evidently means, in defiance of criticism, that these men had been, but were not then partners. A case has been decided in this Court, where judgment had gone by default, yet the judgment was reversed, on the ground that the statute only applies to present, and not to past firms. This is a stronger case, for Griffin made the necessary exception in the Court below. Where-ever the plaintiff proceeds under the statute, by service on one for all, I hold, that there must be a,, substantive averment, that the firm is an existing firm, otherwise judgment against both would be error. — • See East’s Rep. 142.
    By the English law, where some of the obligors are outlawed, service is good (in a joint action) against those who are not outlawed ; yet the outlawry must be shewn in the declaration, or it is good cause of demurrer. — Carey on Part. 48. And under our laws, ■ where suit is brought on a joint contract, not coming under the statute of 1818, the plaintiff can not take judgment against one alone, until he has at least proceeded to a pluries capias against the otherl — Minor’’s Rep. 77. Where suit is thus brought against two, a discontinuance against one is a discontinuance against all. — 2 Stewart, 4-94. A party may sue one of a firm; but if he elect to sue both, a discontinuance as to one is a discontinuance as to both. It is assigned for error, that the Court would not permit the party to discontinue as to Smiley: when, in fact, it would have been a discontinuance as to Griffin.
    This is a good plea in bar. If the defect -were in the writ alone, it could perhaps be only reached by a plea in abatement; but the error is carried into the declaration, and there is no such thing as a plea in abatement to the declaration alone. ■ This plea says, if there were were any partnership, it was at an end at the time of the commencement of this suit. The demurrer admits the fact, and thus proves that the plaintiffs have no right to recover. This plea was drawn to suit the palate of the Court, hut it is believed to be a good plea in substance, though not in form. If it be taken as a plea in abatement, it does not need to be verified by oath, because the truth of its aver-ments appears from the record. For the same reason, no plea was 'necessary. A demurrer would have reached the defect.
    Does it not appear from the declaration that this partnership was dissolved 1 If so, the demurrer reaching back, brings this matter before the Court for its judgment. The exception as to the effect of a demurrer going back to the first defect in pleading, will not apply to this case. The condition of plaintiffs and defendants are quite different. If the plaintiff shew by his replication that he has no cause of action, it is true, he must fail, however defective the plea may be ; for where there is no cause of action, no defence is necessary; but it will not do to say, that where a defendant shews by his plea that he has no defence, the demurrer will not reach back to the declaration ; for if the declaration prove to be bad, no defective pleading on the part of the defendant — no want of defence — can entitle the plaintiff to a recovery.
   By Mr. Justice Hitchcock :

N. Rogers & Sons issued their writ in the Circuit Court of Tuskaloosa county, on the 11th November, 1823, commanding the sheriff to take “ the bodies of William Smiley and Ira Griffin, merchants, heretofore trading under the firm of Smiley & Griffin, if to be found, &c. The defendants were sued in assump- sit, for money paid by the plaintiffs as accommodation acceptors of sundry bills of exchange, drawn by the defendants on them, and which amounted to five thousand one hundred and twenty three dollars and seventy five cents ; and the endorsement on the writ sets out a list of the bills, and an acknowledgment, ■signed by Grifan &l Smiley, that they were to provide for their payment, by shipments of cotton to N. Rogers & Sous, in season. The sheriff returned the writ, executed, but was permitted afterwards, in 1834, to amend his return ; which, as amended, is as follows : “Came to-.baud and executed, same day issued on Ira Griffin — Smiley not found.”

At the March term, 1824, the plaintiffs filed their declaration, consisting of nine counts, setting out their claim in various ways. The commencement of the first count is as follows, to wit: “ Nehemiah Rogers, el al. merchants, trading under the firm and style of N. Rogers & Sons, complain of Ira Griffin and William Smiley, merchants and copartners, heretofore trading under the firm and style of Smiley & Griffin, the said Griffin being in the custody of the sheriff, &c., and the said Smiley is declared against, owing to the writ’s having been executed oil his said co-partner, Griffin, according to the statute in such cases made and provided, of a plea of trespass on the case,” &c.

At the March term, 1824, the defendant, Griffin, appeared by his attorneys, craved oyer of the writ, and endorsement, and thereupon filed his separate demurrer to the endorsement and the declaration, setting out nine separate and special causes of demurrer, which allege sundry variations between the endorsement and the declaration, and also specifying sundry defects in the declaration.

A † this stage, the- case- appears to have been continued until March term 1827, when the plaintiffs asked for and obtained leave to amend their declaration, and the cause was again continued. At the October term following, it appearing to the Court that the further prosecution of the suit had been perpetually enjoined, it was, by the judgment of the Court, ordered to . be dismissed, at the costs of the plaintiffs. To this judgment of dismissal, the plaintiffs took a writ of error to this Court, returnable to July term 18S0. This judgment was, at the January term, 1882, of this Court, reversed,, and the cause remanded : and at the April term, 1832, the cause was reinstated and placed upon the docket; at which term the plaintiffs filed three additional counts to their declaration, .under the authority given at March term, 1S27, to amend the declaration. The cause was again continued to October term, 1832, when tiro certificate of the clerk of the Supreme Court was filed, certifying that the injunction which had been allowed, prohibiting the farther prosecution of the suit, had been dissolved, and the bill dismissed. Whereupon, the defendant Griffin, filed a separate plea of non-assumpsit, which was, on motion of the plaintiffs’ attorney, ordered to be stricken out, and leave was given the defendant to plead mstanter ; upon which, the defendant filed two pleas. 1st. A separate plea of non-assumpsit, similar to the one just stricken out. And 2d. A plea in the following words : “ And for further plea in this behalf, the said Ira Griffin, defendant, saith actio non, &c. because he saith that at the time of the commencement of this suit, and since that time, William Smiley, with whom this defendant hath been implead-ed, was beyond the jurisdiction of this Court, ,apd ever since hath been, and yetis; and that before that time, if any co-partnership ever did exist, between the said William and this defendant, the same was determined and at an end before the commencement of llxis suit, and that process never was served upon the said William ; and thereupon, the said Ira Griffin for himself separately, saith, that he the said Ira did not undertake, assume, nor promise, jointly with the said William, in manner and form, as the said plaintiffs in their said declaration have complained— and of this he puts himself upon the country.”

To the first of these pleas, the plaintiffs joined issue, and to the second they demurred. The causé was continued from term to term, in this state, until March term, 1834, when judgment by default was talien against Smiley; and at that term, the Court decided, that the plaintiffs’ demurrer to the defendant’s second plea, reached back to the plaintiffs’ declaration, ■which was decided to be insufficient in law, to maintain the action, upon which, judgment final was ren-dorod for the defendant.

There was a bill of exceptions taken to the opinion of the Court, upon sundry questions raised at this term, but as none of them are material to the case, as viewed by the Court, they will not he noticed.

Two questions present themselves for the consideration of the Court, upon this case. The first is, whether, under the circumstances here disclosed, the demurrer does reach back so as to authorise an en-quiry into the sufficiency of the declaration; and,

2d. If it does, whether the declaration is sufficient.

The first of these questions involves an enquiry as to die character of the second plea, ahd the circumstances under which it was filed.

The jilea sets out with stating matter of inducement, which if good at all, is properly matter in abate-1 meat. It alleges, that before, and at the time of] the- commencement of this suit, the defendant, Smiley, was, and ever hath been since, beyond the jurisdiction of the Court, and that if ever any partnership existed, it was determined before the commencement of this suit, and that process was never served on Smiley.” So far, the plea does not deny that there had been a co-partnership, as charged in tho writ and declaration, and it does not assign any reason for its dissolution, except that inference is to bo drawn from the alleged absence of Smiley. It does not aver any dissolution, in fact, but leaves the matter to inference entirely. So far, it is matter, as was observed before, which could only ho urged in avoidance of this writ, on the ground of miw-joinder of 'parties, or defective service of tbe writ. The balance of the plea is, however, of an entirely diíí'ereuü character: it is properly matter in bar of the action; and if any thing, amounts to the general issue. After slating the inducement as aforesaid, it concludes — '‘and therefore, the said Ira Griffin for himself separately,, saith, that he the said Ira, did not undertake, assume,, nor promise jointly with the said William, in manner and form as' the said plaintiffs in their said declaration have complained — and of this he puts himself upon the country.”

This plea must ho taken entire — it cannot be divided. If we look at the inducement, it is in abatement, and should have prayed that the writ abate. If we take the latter part, it is in bar, and is a repetition of the first plea, which immediately preceded it. “If matter of mere abatement is pleaded in bar, or if matter which goes only in bar, is pleaded in abatement, the plea in either case is ill,”' for in either case all distinction between these different classes of pleas would he confounded, arid in the former case udgment in chief must be given for the plaintiffs.— Gould's Pl. 292. If this pica is tried by this rule, it appears xo me, it must be found defective. It may be true that Smiiey was out of the country, and that the partnership was dissolved when the writ was issued, and yet It may bo true that the defendant, Griffin did assume and promise, as stated'in the declaration. One part of the plea is not necessary to the other; and the whole taken together does not make out a defence to the plaintiffs’ right of action.

Bat, it is contended, that admitting the plea to be bad, the demurrer opens the whole case, and requires the Court to seise upon the first error, and that when thus examined, it will be found that the writ must abate, on the ground that the partnership is not properly charged, either in the writ or declaration, and that service being perfected only upon. Griffin, he is not bound to answer in this form.

To this it is answered, and we think properly, that : the plea, if filed for the purpose of avoiding this writ, is to be hold as a plea in abatement, and if so, could not have been received, under the rules of Court, at this stage of the suit; and a party may in such a case, ^ either move to strike out the plea or demur to it; and he shall have the same benefit in either form. Here, the defendant had, at a former term, demurred to the , declaration, .and at the time this plea was filed, had ‘ pleaded the general issue. It is admitted,.that -as a. general rule, a demurrer opens the whole case to the consideration of the Court. But. this is always upon the supposition, that the pleadings were all properly filed, in due time, and in proper order. To receive a pleaiix abatement, after a demurrer and a plea of the! general issue, would be reversing the order, of plead- fl ing. Besides this, a demurrer is not good in matter fl of abatement; and if in this case, a demurrer by the de-fl fondant, could not have been filed to the writ, this,® can only extend back to matter of substance in thefl declaration. This has been once before decided upon, by the former demurrer of the defendant to the plaintiffs’ endorsement and declaration, and can not reach beyond the decision then made, and which has been cured by the leave given to amend, and the amendment made thereon. I am, therefore, of the opinion, that under the circumstances of this case, the demurrer does not reach beyond the plea.

But, admitting that it does, the Court, on examining the point contended for by the defendant, are satisfied that the writ and declaration are good, and that the defendant can properly be held to answer.

The writ described the defendants as merchants heretofore trading under the firm of Smiley & Griffin,” and the declaration charges them as being “ merchants and co-partners heretofore, trading under the firnj. and style of Smiley & Griffin,” Here, in both cases, a partnership is charged to be in existence at the date of the writ, and the word “ heretofore” has reference to the act of trading. They are not charged as late partners, thereby admitting a dissolution. Now, a partnership is a contract by which two or more persons engage to trade together for their mutual benefit, and the act of trading is the result of that contract; and unless it can be shewn that persons cease to be partners the moment they close their sales, it would be difficult to shew, in this case, that the present defendants are not charged as partners. This writ, then, charging the defendants-as partners, a service upon one, is service upon both, by virtue of .our statute, which declares, that “ when any writ .shall be issued against all the partners of a firm, service of the same on any one shall be equivalent to service upon all.’’

But, even if there were any doubt on this point, the Court .is not prepared to say, that in this case, Griffin, upon whom service was perfected, could take advantage of the error. He, at least, is present in Court, and can make' his defence, and if any one can come into this Court to complain, it must be Smiley, who being absent, and having had no notice of the suit, may be injured. Griffin has no cause for complaint, and if he had denied the existence of the partnerskip> the plaintiffs, under the provisions of our act, could have dismissed the suit as to Smiley, and have proceeded against him, alone. But on these last points no opinion is given, as none is required.

The cause must be reversed, and remanded.

       Aik. Dig.268.

       Aik. Dig.268


source: Caselaw Access Project

author: By Mr. Justice Hitchcock :

license: Public Domain

text:
    THOMAS & HARRIS versus HEARN, et al.

    It is an inflexible rule, that chancery will not relieve against a judgment, where a party has been heard at law, unless he were ignorant of facts pending the suit, or those facts wore such as could not have been received, as a defence at law.
    Where facts and circumstances, available as a defence at law, have been omitted to bo relied on, or where those matters have been passed upon by a Court of competent authority, and no steps have been taken to correct an erroneous decision' of such Court, in relation to them; chancery will not interfere.
    Where two,'of three-joint owners of a mill, were compelled to pay a judgment at law, on account of the joint property, the Court of Chancery, (under the circumstances, to save litigation, its jurisdiction being concurrent,) entertained a bill, and compelled the third joint owner, to contribute his proportion of tire said judgment.
    This case was commenced, by bill in chancery, filed by the complainants in the Circuit Court of Jefferson. The bill disclosed, that on the 7 th day of June, 1821-, the said complainants, together with one of the defendants, Sims,, for themselves and others, entered into a written contract with Hearn and San-tiers, for the erection of a mill dam, whereby, in consideration of the sum of two thousand dollars, the said Hearn and Sanders, bound themselves to construct said dam according to a specified manner, and in such a way as that it would stand good for the space of two years. That in part consideration for the building of said mill dam, the said complainants and Sims, executed their note for three hundred and fifty dollars, to the said Hearn and Sanders, to be paid in six months after the completion of the dam. That at the same time it was verbally understood, between the parties, that the said note and written agreement should remain in the care and possession of Thomas, until the contract under the agreement should be completed. That afterwards, and before the said work was finished, one Jones, since deceased, and then a partner or joint owner in the said mill, took the agreement and note into his possession, for examination. That after the death of Jones, his representatives Sims and one Banks, instituted an action, and recovered judgment on the note, in the name of said Hearn and Sanders, for the use of Sims, and Jones’ estate. The bill further stated, that on the trial, at law, to recover the amount of the note, the Court rejected the complainants’ defence, that the mill dam was not completed under the contract of Hearn and Sanders, and referred the complainants to their cross action. It also charged, that Hearn and Sanders were insolvent; that a fraudulent combination existed between Sims and Hearn and Sanders; and prayed that the judgment should be enjoined, and their judgment off-set against that obtained by Sims and Banks against them. The record shewed, that after the filing of the bill in this case, the complainants had prosecuted their action on the written agreement against Hearn and Sanders, and had recovered judgment for the breach thereof, for upwards of two thousand dollars. • The answers of Hearn, and Sanders, generally denied the allegations of the bill; denied their insolvency, and averred themselves able to pay all the demands of the complainants against them.
    Sims, by his answer, averred, that the note sued on, was the property of himself and Jones; that it was 'sued in the name of the payees, because it was not indorsed ; and insisted on his belief that the note went fairly into the possession of Jones.
    There being no testimony rebutting the answers of the defendants, on a final hearing, the Court dismissed the bill, with costs. To reverse this decree, the complainants took a writ of error to this Court.
    Peck and Baylor, for Plaintiff in error,
    cited in argument, Ala. Rep. 106, 114 — 7 Johns. Chan. Rep. 240 — 1 Johns. Chan. Rep. 91 — 14- Johns. Chan. Rep. 91 — 5 Cranch,'322 — 6 Cranch, 9, 51 — 3 Cranch, 220.

      Wilsois,'contra.

    2 Hen. & Mun. 146.
   By Mr. Justice Hitchcock :

The bill in this case, charges, that the note upon which the judgment was rendered, was, by agreement, to remain in the possession of Thomas until after the mill dam should be completed, according to contract, and was not till then to be delivered to Plearn and Sanders: that it did remain in the custody of Thomas for some time, but that before the completion of the work, it got by accident or inadvertence, into the possession of Jones, one of the partners in the mill company, who did not return it, but kept it in his possession until his death, and that it never was delivered to Hearn and Sanders, by the complainants Thomas and Harris, or by either of them, by their • consent. It further charges that the work never was completed according to contract; that Sims and Jones were both partners in the mill company; that Sims, and complainants, were joint agents of the company ■ and that the note was given for the benefit of the company; that Sims and Jones were fully apprised of the circumstances under which the note was made, and of the non-performance by Hearn and Sanders of their contract. It avers, that the complainants en» deavored to defend themselves at law, on the ground of the failure of consideration, but were told by the Court, that they must sue on the bond for the performance of the contract. It charges Sims with using his exertions to procure a judgment in favor of the plaintiffs, although he was himself a co-defendant, It charges, that the complainants have heard, and believe, that at the time Jones got the note, Hearn and Sanders were indebted to him and Sims, who were partners in trade, and that, fearing they might loose their debt, they agreed to take the note, either absolutely or conditionally, as payment, although they well knew the terms and conditions on which it was made, and as they believe, with a view to recover the amount of the complainants, and to put the money in their own pockets. They charge a fraudulent and collusive combination between Jones and Sims and Hearn and Sanders, to defraud the complainants. They aver, that Hearn and Sanders are insolvent; that they are liable for damages on their contract, to a much larger amount than the judgment; and pray 'an injunction until the suit they are about to bring, at law, may be decided ; and that, one judgment may [be set off against the other, and for general relief. ¡The supplemental bill states, that they had.obtained judgment against Hearn and Sanders, for two thousand dollars on the bond, thereby establishing a breach of the contract for the erection of the mill dam.

The answer of Hearn and Sanders admits,- that the dam1 was not erected in strict conformity with the contract, but that it was altered by the consent of Thomas, the acting agent of the company. They consider the work to have been strictly and substantially done, according to the agreement, as modified by the consent of Thomas. That if the work has not stood firm, they believe the principal reason to have arisen from the manner of erecting the mill-house, with which they had no agency, and from the modifications made, by consent of Thomas, in the erection of the mill dam. They say they are strangers to any agreement, that the bond or note should remain with Thomas, as stated in the bill; that they are ignorant of the manner in which Jones obtained it; that, however that fact may be, Jones did not shew it to them, until after the completion of the work; that, Jones being a partner in the company might have had access to the papers; that, whether Sims and Jones, or the representative of Jones, are interested in the recovery, they think is immaterial to the complainants ; that, they being the plaintiffs of record, no beneficial interest of Jones or Sims, they think, can 'be noticed. They say they understood that the decision of the Court, in excluding the defence at the trial, at law, is not such as the bill represents; that the only point decided, as it is believed, was, that the issue was too narrow and restricted to admit of evidence to shew, the manner in which the dam was completed; that the only matter put in issue, was the time when it was completed. They say they consider themselves amply able to pay any sum which the complainants may shew to be due; and Hearn Ayers he is not insolvent; and they deny any intention of coercing payment out of the complainants, individually, but. from the property of the company, that being first liable, &c.

Sims, in his answer, admits the contract to build the mill; that he does not know whether it was well built or not; that having disposed of his interest in the company, he had no concern, except to see that the debts contracted while he was a partner, should be paid. He admits, that the note sued on belonged jointly to Jones and himself; that he has learned it was taken in payment for a debt due Jones and Sims, but when it was taken, or on what terms, he does not know; that, as there was no endorsement or other transfer made, as passed such an interest as would enable them to bring suit in their own names, the suit was brought in the name of the payees. He conceives it is not important to the complainants case, what his (Sims’s) interest may be, in as much as it is of an equitable character, the benefit of which could only be obtained by the prosecution of the suit in the name of the payees — one, which presents no barrier to a recovery in the form, in which the suit is brought, and that, even if it were so, it is an advantage which should have been taken at the trial at law. That, from his knowdege of Jones’s character, and from his never having heard from the complainants before the institution of the suit at law, any thing suggested as to the manner in which Jones obtained the note, he cannot but believe that he came fairly by it.

Banks, executor of Jones, denies all knowledgé of the transaction, except from rumor — sets up no claim to the money, and demurs to the bill, as do all the defendants.

All the matters charged in this bill, wdiich relate to the manner in which Jones obtained possession of the note, or bond; the consideration, if any, upon which it passed to Jones and Sims; the failure of Hearn and Sanders to comply with the contract to build the mill dam; and the refusal of Sims to unite in the de-fence of the suit, were within the full and perfect knowledge of the complainants before the rendition of the judgment at law, and however forcibly they might have presented themselves to the breast of a chancellor, on an application for a bill of discovery, to be used on the trial at law, (and the Court aro constrained to say, they present very powerful considerations) yet it is an inflexible rule, that a Court of Chancery will not relieve against a judgment, after a party has been heard at law, even where the fraud goes to the whole judgment, unless the party were ignorant of the facts pending the suit, or they were such as °°uld not have been received as a defence at law.

In this case, the ignorance of the party is not alleged ; neither is it averred that the party could not have proved all the facts set forth in the bill, by testimony aliunde, at the trial at law.

The grounds set up for going into chancery, are the facts, that the Court refused to permit the party to give evidence of a partial failure of consideration. The rule of decision being, at the time of the trial, it is alleged, opposed to the admission of such evidence; and the fact of the alleged insolvency of Hearn and Sanders.

Whether that rule of decision be correct, or whether later decisions have relaxed or modified it, it is equally clear that the party cannot now come into chancery and urge it as a reason for relief against the judgment at law. The matter was passed upon by a Court of competent jurisdiction, and no point rvas-reserved for revision before a higher tribunal. To allow it to be again brought before a Court of Chancery, would open a door to endless litigation, which would destroy the distinction between the two courts, and the Common Law Courts would ultimately be swallowed up in Chancery.

As to the question, whether the alleged insolvency of Hearn and Sanders can be urged to enable the party to off-set the claim for damages, which has since been reduced to judgment, it may be remarked, that the judgment having established the right of recovery, in favor of Hearn and Sanders, and excluding, as it has been shewn we are bound to do, every thing relating to the manner of the transfer of the note to Jones, and admitting, as the bill does, the indebtedness of Hearn and Sanders to Jones and Sims, is there any thing in the case which will defeat their right to the benefit of the judgment, or in other words, will the alleged insolvency of Hearn and Saunders, at the time of the transfer, admitting it to be true, have that operation. It is admitted, that a man in failing circumstances, may prefer one creditor to another, and in the aspect in which this case appears, does it present any other principle ? If it does not, what peculiar objection is there to prevent Jones from availing himself of it, in this case. His relation to the company could not preclude him from securing his own debt, and.that of his partner, or from doing any tiling which any other person who stood in the relation of creditor to Hearn and Sanders, might have done. It cannot be doubted, that Hearn and Sanders could have rightfully transferred the note to any bona fide creditor, not belonging to the mill company, and it will not be pretended, that in such hands, this set-off could be allowed — ’more especially when the set-off is a claim sounding in damages, and the suit not yet brought. But admitting, that since the judgment for damages has been recovered, the equities are equal; the claim of Jones and Sims, is prior in time to that of the complainants, and upon every principle, must be preferred.

That Sims refused his aid in the defence at law, cannot avail the complainants in this stage of the proceedings, whatever it might have done, on a bill filed in reference to the manner in which Jones obtained possession of the note. The defence having been so conducted as to preclude that investigation, he was not bound to defeat the recovery at law.

The only point then, left open for consideration, is, whether the bill can be entertained, so far as to compel Sims to contribute one third of the judgment and costs of the suit at law, on the ground of his original liability, as one of the obligors to the note or bond. On this point the Court has had some difficulty, as it would seem, that this could be recovered at law. But, under the circumstances of the case, and as the jurisdiction of a Court of Chancery is concurrent with a Court of Law, in matters of contribution — as the money has been received by Sims, to save delay and multiplicity of actions, as each of the complainants might have to sue for his share of the'amount paid by him, we think the .bill should be retained for that purpose.

On this ground then, the decree below must be reversed, and a decree rendered here, in favor of the complainants, against the defendant Sims, for one third of the judgment, interest, and costs, of the suit at law in favor of Hearn and Sanders, computing the interest from the time of the rendition of the judgment in the Court below, together with the costs of the proceedings in Chancery, in this Court, and in the Court below. .

       1 Johns. Ch. Rep. 98-320. 6 ib. 87.


author: By Mr. Justice Thornton :

text:
    THE BANK OF THE STATE OF ALABAMA vs. HOOKS & DAVIS.
    A scire facias against executors or administrators, to shew cause why execution, de bonispropriis should not issue, (after a judgment by default against the estate,) is not allowable on the bare return of mdla bona, to an execution ■de bonis testatoris.

    In this Gase, the plaintiff in error obtained a judgment by default, in the Circuit Court of Tuskaloosa, against the defendants, as administrators of one Par-ham. A fieri facias, de bonis testatoris, being returned nulla bona, the plaintiff procured the issuance of a scire facias against the defendants, calling upon them to shew cause why execution de bonispro-priis, for the amount of the judgment, should not issue.
    The Court below, quashed the scire facias, and gave judgment for the defendants : to reverse which decision, a writ of error was taken to this Court.
    Stewart, for Plaintiff
    Contended, that sci. fa. was the proper remedy in this case. — 6 John$. Rep.
      129 — 1 Johns. Cases, 276 — 14 Johns. Reports 440 — 1 Hay mood, 304 — Sanders on PI & Ev. 513, marg — 1 Salkeld, 310 — 2 Strange, 1075,732- — .1 Wilson, 258— 1 Lord Raym. 589.

      Sd. fa. in such cases, (lie remarked,) is a concurrent remedy with debt, suggesting a devastavit — l Haywood, 218, 298 — •2 Haywood, 112, From these cases it will also appear, that a failure to plead want of assets, .admits assets. It lias been held, that even sd. fa. is not necessary, and that a special fi. fa. de bo-nis propriis, is sufficient. It seems, though, that sd. fa. is the most appropriate remedy. The same doctrine will be found in 2 Haywood, 125, 377. It is laid down in these cases, that the sd. fa. is employed in practice in this country, in lieu of the sdre fieri en-quiry in England. In the English practice, debt, suggesting a devastavit, is of late, the most usual practice : but, in North Carolina, the sd. fa. has been' adopted as a preferable remedy. It is so : it is a Common Lav/ writ, giving a full remedy, and offering every ground of defence to the defendant, that the action of debt could afford. The return of nulla bona, is quasi conclusive as to the devastavit, when judgment has been by default.
    In England, the remedy of sd. fa. is concurrent with that of debt. — Tollers Ex'ors, 469 — 1 Saunders' Rep. 303,' 305, 307, 337, note 1.

      Nulla bona returned, after a judgment by default, is nearly'equivalent to the return of a devastavit. — ,-1 Salk. 310. The same doctrine is laid down in Tidd’s Practice.

    In England, the action of debt has been preferred to sci. fa. because the latter carries no costs.
    Vandegraff and Shortridge, contra

    -Argued, that the sci. fa. in this case, could not be sustained. It is not, (it was said) in the form now given to it, a Common Law writ. It was only known to the Common-Law for the purpose of enforcing judgment after a year and a day in real or mixed actions) hut as a personal action it only exists by statute. It- was introduced by statute in England, for special purposes; and no such statute as that of England exists in this country. — Cohe on Lit. 290, B.

    But even if the action could be sustained, it could only lie on matter of record. It could not lie here, because there was no record evidence shewing a de-vastavit. The return of nulla bona, cannot constitute any such record.
    In England, on judgment de bon. test, the sheriff might return nulla bona, or at his peril, a devastavit: this last was a matter of considerable risk, and seldom done. The return of nulla bona does not fix the de-vastavit on the defendant; it is only evidence of it, and not a record or ascertainment of the fact. The true remedy in a case of this kind is an action of debt suggesting a devastavit. This has been the known and acknowledged remedy from time immemorial. In this action, the return of nulla bona is evidence — : but not conclusive, of a devastavit. Sometimes, indeed, in England, the sheriff returned a devastavit along with nulla bona: this was a record, and upon it a sci. fa. was allowed. Yet, even then, this record — unlike most others, could be controverted. But we insist that English authorities will not justify ,the' issuing of a sci. fa. merely on nulla bona : not can any such authority be cited in the Courts of the United States, except those of North Carolina, which were decided on the authority of Pettifers case — * which case has been overruled, and is not law. — «1 Zanders, 219, note 8. 1

      The sci. fa. was not issued in England on the return of nulla bona, without the empannelling of a jury to ■ ascertain whether there had been a devastavit. Then, if the jury found the fact, there was record, and a sci. fa. might issue. '
    The scire fieri enquiry, was a writ issued after return of nulla bona, incorporating the sci. fa. with the fi. fa. directing an inquiry to ascertain the devasta-vit, and effecting by one writ what had formerly been effected -by two. But debt, suggesting a devastavit, is the more usual remedy now in England.
    The imputation of a devastavit is quasi the imputation of a crime, and will not be, presumed without the finding of a jury — Dunlap’s Practice, 1083, 1092— Catlett ms. Carter’sex’ors, 2 Munf. 24 ' '
   By Mr. Justice Thornton :

Upon a judgment by default against the defendants'' in error, as administrators of William W. Parham,-dec. in the Circuit Court of Tuskalcosa, and the return oí nidia bona de bonis tesiatcris, to a fieri facias issued thereon, the plaintiff issued a scire facias, citing- the defendants to shew cause why execution de bonis-propriis should not issue, to levy the amount of the said judgment. On the motion of the defendants in error, who were the defendants below, the writ of scire facias was quashed, and judgment-rendered for costs against the plaintiff, from which a writ of error ' is prosecuted, and the rendering of the said judgment is now here assigned for error.

Noquestion concerning the revivor of judgments by sci. fa. is presented for our consideration on this record. If it were, I am induced to think, that the dis--tinction, which, according to the general tenor of authority, existed at the Common Lawq between real and personal actions, lias been as entirely obviated by our statutory enactments, as it has been in England. In ovary case where tho necessity of reviving exists, the mode or sci. fa. is authorised to be pursued.

a Aik. Dig.270.

The only enquiry involved here, is, whether in the case of an existing judgment by default against administrators, a scire facias is a proper remedy to obtain satisfaction, out of their own goods and chattels, upon the return of nulla bona, to’ a fi. fa. de bonis tes-tatoris. \Yo have no statute upon this subject: nor can I discover that there is any, originating, or regulating tho course of practice, as sometimes pursued in the English Courts, by scire facias, in lieu of the more usual one, by the action of debt on the judgment, suggesting a devastavit.

The proceeding in the case before us, is not in accordance with any practice, which at any time, has prevailed either in tho Common Pleas, or Court of King’s Bench in England. The history of this matter, as stated in 2d Crompton's Practice, 108, which contains a methodical arrangement of the rales of practice in both those Courts, is this : “ Formerly the method was, upon obtaining judgment by default against an executor or administrator, (which would reach only the goods of tho testator or intestate) and nidia bona returned to a fi. fa. sued out on such judgment, to issue out a writ to enquire, whether the defendant had wasted any cf the effects of the deceased ; and if a devastavit was found by the inquisition, and returned thereto, then for the plaintiff to proceed by scire facias, for the defendant to shew cause, why the plaintiff should not have judgment de bonis propriis: to which sci. fa. tho executor, or administrator, could appear, and pisadplene administra-vit. But .now, the fieri facias enquiry, and scire fd- cias, are incorporated, and made out in one writ, for expedition. However, this method, though much better than the old one, is seldom pursued at this day, &c. But the way is, to bring an action of debt on the judgment, suggesting a devastavit.”

JNow, m the case before us, there is no enquiry, nor is there any return of a waste, by the sheriff, on the Ji. fa. So, that it is not even presented for our consideration, whether we would recognise and sustain, either the ancient or modern practice as above described, in lieu of the action of debt, suggesting a devastavit; for the case pursues neither course. So that, whatever we might decide upon a proper case, as to the binding force of this remedy, in either form of it, we cannot support the course here pursued by sci. fa. alone, without any thing but the return of nulla bona, as such was not allowed in the English Courts, by the authority of which, we are urged, as precedents of practice, to tolerate this procedure.

Let the judgment be affirmed.

       See also, 1st Saund. 219,-note G.


author: By Mr. Justice Thotleton :

text:
    CAWTHORN versus DEAS.
    The master of a slave, is not liable for injuries, caused by the negligent conduct of such slave, while not acting m his master’s employment, or under his authority.
    This action was trespass on the case, brought by the defendant in error,, in the Circuit Court of Henry, The plaintiff there, declared for an injury caused to his property, by the negligent conduct of the defendant’s slaves. The Court below, during the trial, charged the jury, that it was not essential for the plaintiff to prove, that the slaves acted under their master’s authority, but that, in presumption of law, slaves wore always under the owner’s control, and that he was liable for their negligent conduct, The jury, under this charge, returned a verdict in favor of the plaintiff, and by bill of exceptions tho defendant brought his case to this Court.
    Peck, for Plaintiff in error.
    'The charge of the Judge is too narrow. A master is only liable for an injury resulting from the negligence of his slave, while in pursuit of the master’s business, or acting under his orders. — Reeves, 357 — 3 Mass. -385. The charge makes no ' distinction between an injury resulting from the negligence of a slave, whether he be, or be not, engaged in the business of the master, or whether he is, or is not, acting under his master’s orders. Suppose a slave leave his master’s quarters at night, without his consent, to fish or hunt; and while absent, should carelessly, with a torch, set the woods on fire, and a neighbor’s crop, fence, or buildings be by that means destroyed: would the master be liable ? If this be the law, it throws upon every slave holder a most fearful responsibility. But, this Court said, in the case of Brandon and The Buntsvüle Bank, ‘‘ to make the master responsible for the torts of, the slave, the slave must, at the time, be in the immediate employment of the master, or from the vicious habits of the slave, and his general liberty, some degree of culpability must attach to his master” — 1 Ste)v-art, 340.
   By Mr. Justice Thotleton :

This is a writ of error, brought by the plaintiff, to a judgment rendered for the defendant, in the Circuit Court of Henry county, in an action of trespass on the case ; instituted to recover damages from the plaintiff for an injury done to the defendant, by the slaves of the plaintiff. A bill of exceptions taken during the progress of the cause, contains the following charge given by the Court to the jury. “ It was only necessary in this action, for the plaintiff to prove, that the corn was the property of the plaintiff, and that it was destroyed by the negligence of the- defendant’s slaves; and that it was not necessary to prove that the slaves acted under the express orders of the defendant ; that in presumption of law, slaves are always under the control of the master; and that masters are in law liable in this form of action, for the negligent conduct of their slaves.” The only question presented by the assignment of errors is the propriety of this charge. If the proposition, that the master is liable for injuries accruing from the negligent conduct of the slave, although not in his employment, or in the execution of his authority, be not expressly announced in this charge; yet such might have been fairly deduced from it by the jury; in which case, as much as if it had been explicitly declared ; if it be illegal, the assignment is well taken. The doctrine of the charge, thus interpreted, conforms to no code from whence we derive our notions of jurisprudence — neither to the Common Law of England, nor to the Civil Law. According to the former, the master is only liable for torts done in the execution of his authority, or for damages flowing from 'negligent conduct in his employment. According to the latter, though the master be liable for any injury or damage done by the slave, yet- that liability is limited to the value of the slave, it being always in the option of the master to pay the estimate of the damage done, or surrender the body of the slave as a recompensed. It must be conceded that the Common Law upon this particular head, is not framed with reference to any such relation as exists in this country between owner and slave ; and that (though by no means identical,) the resemblance, is much greater, between tire condition of slavery with us, and amongst the Komans, than between it, and any condition recognised by the Common Law. It is apparent too, that by adopting the principles of the Common Law, as above cited, it will result from the peculiar nature 'of our slavery, that there is no redress, cimliter, for any injury done by a slave, not acting in obedience to his master’s authority, express, or implied. Punishment may operate as a preventive, but so far as remuneration is concerned, it is, .as if the injury was effected by the natural elements of air, or fire. By the Common Law we know, in case of injury to third persons, either the master, or servant, or both, were always responsible. But notwithstanding all this, and many other discrepances not here adverted to ; upon the question of the liability of the master for the acts of the slave, I feel bound to adopt in this case, the principles of the Common Law, as applied to master and servant. The Court below having departed from them in the charge excepted to, the judgment must be reversed, and the cause remanded.

       3 Bac. Ab. title mast.& servant, K. 560-2 Salk. 441.

       Cooner's Jus. 354, '5.


author: By Mr. Chief-Justice Saffold :

text:
    LOWREY versus MURRELL.
    Payment, in disohai'go ol’ a debt, in genuine Bank Notes, if madé bond fide¡ and in ignorance of the failure of the Bank, isa valid payment! though at the time, the notes might be valueless.
    In error from the Circuit Court of Pike. Lowry was indebted to Murrell in the sum of one hundred dollars, In part payment of this debt, the former paid to the latter, two notes of twenty dollars each, on one of the Banks in Georgia. Murrell after-wards brought his action against Lowry before a J us-tice of the Peace, for the amount of the notes, and recovered judgment, on tho ground, that the notes were on a Bank that had stopped payment, Lowry took the case before the Circuit Court, where a trial was had on the issues of non-assumpsit and payment Lowry requested the Court to instruct the jury, that if they believed from the evidence that the notes were genuine, and were paid in good faith, in part satisfaction of a debt — no proof having been made that the notes had been presented to the Bank, or that any offer had been made to return them, the plaintiff could not recover; also, that the plaintiff could not recover unless he shewed a failure of the Bank before the time that the suit was commenced before the magistrate. The Court refused to give these instructions, or either of them, but instructed the jury, that the only questions were, did the defendant owe the plaintiff a debt — did he pass the notes in question in payment of it ? — if so, were these notes on a Bank which had stopped payment before they were passed? and that, in the latter event, they must find for the plaintiff. The instructions refused, and the instructions given, were assigned as erroneous by the plaintiff in error, • ,

      Peck, for Plaintiff.
    The defendant in error consented to, and did receive these bills as cash — they are admitted to be genuine — they were paid by the plainihi in error in good faith, in the ordinary course of business, without any knowledge that the Bank had ceased to redeem its bills; the defendant, therefore, must be deemed to have taken them in payment) and if so, it will be considered as payment — 11 Johns-. jRep. 409 — 15 Johns. Rep. 241 — 7 Mass. 28G.
    Banknotes stand upon a different footing from the notes -of individuals turned over by a debtor in payment — they are treated and considered in the ordinary course and transaction of business, as money — 1 they pass by will, as money or cash — 1 Burr. 457— 3 Term Rep. ^54. A promissory note, payable in bank bills is a negotiable note, within the statute) which it would not be, unless hank bills were treated as money. — -9 Johns. Rep. 120 — 19 Johns. Rep. 144 — ■ 5 Comen, 183. *
    Bank hills are considered a legal tender, unless specie is expressly demanded — solely upon the reason) that in conformity with common usage, they are regarded as cash — 3 StarTd¿s Ev. 1390, note y.

    "Where a loss must fall on one or the other of two innocent parties, the defendant is to he preferred.— Doug. 655 — 1 Bos. & Pul. 260 — 1 Mass. 66.
    There should have been an offer to return the notes) and the Judge ought so to have charged.---Ah. Rep-. 299 — 1 Stemart, 354.
   By Mr. Chief-Justice Saffold :

Murrell brought his action before a Justice, to., recover forty dollars of Lowry, and obtained judgment accordingly. Lowry appealed to the Circuit Court, where a trial was had on the issues of non-assumpsit" and payment.

It appears by bill of exceptions, that Murrell had lent to Lowry one hundred dollars, in payment, of which sum, Lowry, in part satisfaction, paid two bills on one of the Banks in Georgia, of twenty dollars each; that several months after the institution of the suit before the magistrate, the Bank appéared to have stopped payment: the particular time did not appear. There was no proof that the notes had been presented at the Bank for payment, or of notice given to, Lowry, or of any offer to-return them to him. The notes were admitted to be genuine, and it appeared in evidence they were -worth about fifty cents in the dollar. There was no evidence of fraud or bad faith in the payment

Lowry requested the Court to instruct the jury, that if they found the facts as above stated, the plaintiff was. not entitled to recover : also, that unless'the, evidence shewed, a failure of the Bank before the issuance of the warrant, which was the Commencement of the suit, .the plaintiff could not recover. All which the Court re-fused; but charged, that the only question in the case was, did the defendant, owe plaintiff a debt, and did he pass the notes in question in payment of it; if so, were these notes of a Bank which had stopped payment before they were thus passed-; in the latter event, they must find for the plaintiff. The opinion of the, Court, in refusing the instructions as requested, and in giving the contrary charge, being excepted to, is here assigned as erroneous.

In the argument of counsel, (which has been ex parte plaintiff) the transaction has been treated as one in which a promissory note, or bill of exchange has been passed in the purchase of an article, or in discharge of a pre-existing debt. In cases of the former description, it has been ruled that, if a vendor of goods, receive from the purchaser the note of, a third person, (such note not being forged, and there being no fraud or misrepresentation on the part of the purchaser as to the note, or the solvency of the maker,) such note will be deemed to have been accepted by the vendor in payment and satisfaction, unless the contrary be expressly proved.-(Whitbeck vs. Van Ness. -Breed vs. Cook & Caldwell : ) also, in a case of the latter description, (Wiseman, et al. vs. Lyman,) it was held, that, where the defendant received in payment of a debt due him from the plaintiff, the promissory note of a third person, payable to said defendant, such note is at the risque of the defendant, unless there be fraud, or some agreement to the contrary.

There has, however, been some contrariety of d<> cisión on these points, especially in reference to preexisting debts; and in such cases a material enquiry is, whether the note of the third person was taken in absolute payment and discharge of the prior debt; or whether it was intended only as a guarantee of the debt, or conditional payment. If it be expressed or sufficiently implied, that such note was not passed in absolute payment, or if there be fraud or misrepresentation, resort may be had to the original consideration.

Payment of a debt, in a description of money,/ which if offered as a tender, and not objected to because of the kind, would be good, must, it would seem, be regarded as a valid payment. A tender must, in legal strictness, be of specie, and not of bank notes or bills. But a tender in bank notes, is now conceded to be legal and sufficient, unless it be specially objected to.-(Wright vs. Reed.) 2

In Whitbeck vs. Van Ness above referred to, the Supreme Court of New York .distinguishes the effect of payments in genuine, from payments in spur pious bank notes; they remark, that though the payee does not. assume upon himself the risque of forgery, yet if the bill be genuine, and the bank fail, the.parties being equally ignorant of the fact, the payment is available.. In a late case, the same Court remarks, in reference to payment in promissory notes, that the question is the same, whether the note be given for a precedent or coiemporary debt, or whether it be the note of the party, or of a third person; ■ that in each case it is, whether it was agreed to be received as payment.-(Porter vs. Talcott and Bowers. ) Again, they say — the acceptance of the note of a third person,- on the sale of a chattel for the consideration money, is payment.

The case before us is conceived to involve a. prin.ciple essentially different. Bank notes usually pass as current money, implying no warranty of solvency on the part of the payer. From the nature of. the subject, and the usage of commerce, a payment so made, is a full indication of final settlement; much stronger than the passing a promissory note, bond, or bill of -exchange, which custom has not sanctioned the-use of, as money. Good faith is equally demanded in either case; so that for fraud or misrepreSentation respecting the quality of either kind of paper, as well as any other article, or for a false warranty respecting it, doubtless the person paying or passing- it, would be legally responsible.

The idea may be plausible, that if a debtor has passed a currency in payment of his debt, which was believed at the time to have been equivalent to cash, but which in fact wras worth nothing, or only half the nominal sum, the debt, in legal contemplate* tion, should remain unexíinguishcd. Such is admitted to be tiro lav/ and justice of the case, if the paper be spurious, because of iho implied warranty of genuineness or title; but accord big to legal analogy, and the nature of commerce, it is impracticable to carry the principle farther. If an article of property be sold in good faith, without warranty, apparently of great value, v/hon in feet it was of little or none, the vendee is without remedy; if in the same contract, and in the samo good faith, lank notes be taken in payment, and the result should afterwards be found so far different, that the pvonrrty prove sound, .but the notes unavailable from the failure of the bank, the loss must, in like maimor “boberne by the vendor. The principle must be the curco where the payment has been made of a pre-existing debt. Bask notes are usually in rapid circulation i-z cash, and are apt to pass through many innocent bauds after the bank has stopped payment, and before notice thereof has reached the place; after which, nothing could ho more embarrassing to commerce, than to upset all such transactions; nor would there be any justice in the principle: it would carry the responsibility back to the holder who first passed the note after the moment of failure, when several subsequent holders may have passed it in like maimer, and -without loss to themselves.

In the present case, the objection to the opinion of the circuit court, goes farther. The notes appear to have only depreciated about fifty per cent- there appears to have 'been no offer to return them — no diligence attempted to collect or receive the money of the Bank ; yet the party thus making payment, was held responsible for the full value of the notes, when at least they appear to have been available to the amount of about half their nominal value. But, independent of this latter objection, there is error in the record, for which, the judgment must be reversed, and the cause remanded.

       11 johns. R. 409

       15 ib 241.

       7 Mass. Rep. 286.

       3 Stark. 1390

       3 T. Rep.554 Ev. 368, 2 Bos. & Pul. 526-3 Starkle 1390, Note Y. Idem, 1392-2 l. &Sound

       1 Cow.R.359.

       3 Cow. 272, 11 Johns. Rep. 415, note.


author: By Mr. Chief justice Sappold: By Mr. Justice Thornton :

text:
    RANDOLPH versus COOK & ELLIS.
    A suit cannot be legally commenced upon a promissoiy note, on the same day on which it becomes due.
    That, suit is brought on a cause of action, beforethe same is past due, is avail» able in error, even after appearance and judgment by nil dint.

    Assumpsit on a promissoiy note. The defendants in error sued out a capias ad respondendum, from the County Court of Tuskaloosa, against Randolph, on the day the note became due. At the appearance term, the plaintiff in error entered a formal appearance by attorney, and at the succeeding term, judgment by default, for want of a plea, was rendered against him.
    The plaintiff prosecuted his writ of error to this Court, and the question raised, was, whether the objection was available in error, after appearance and plea.
    Stewart, for Plaintiff in error
    said, that in this case suit was brought on the note before it was due. It was made payable “ one day after date.” It was dated on the fifth day of the month, and on the sixth, suit was brought. The party was entitled to the whole of the sixth day to make payment.- — 3 Star-Idés Ed. 1399 — 8 Mass. Rep. 453. It has been decided, that where a note was payable in sixty days, the whole sixty days, the day of the date excluded, must expire before suit can be brought. — 1 Pickeringf 4S4 — 15 Mass. 193. The debtor lias the whole of the day on which the note becomes due, to pay in; the law will not notice fractions of days. A day is a point, indivisible in law; and it must expire before' suit can be brought.
    Ellis, contra

    Said, he would waive the matter discussed by the counsel of the plaintiff in error, and put this case on a different footing. The writ was issued on the 6th of June. It was executed on the same day. At June term, the defendant appeared, but filed no plea. At the same time also, the plaintiffs filed his declaration. The note was then due. If the defendant intended to object to the premature issuance of the writ, then was the time ; but he did not object, either by craving oyer of the writ, and pleading in abatement, or in any other manner. How does the counsel get at the writ. It is mere process, to bring the party into Court; and no part of the record ; neither has it been brought before the Court by craving oyer. — See Aik. Big. 278. At the succeeding term of the Court below, judgment by nil elicit, was given against the defendant, who is now plaintiff in error. Having appeared at the first term, and having altogether failed to plead, it was a waiver of the objection now brought forward.
    It will be seen, by reference to the Almanac, that the June term of the Court commenced on the 11th of June. The note was then due. The objection here made could have been taken advantage of by plea in abatement, which defeats the action for the time, but does not bar it finally. And here there is no pretence that the action should be finally barréd. See Nabors vs. Nabors, page 162 of this volume : also, Miner’s Rep. 92, 100, 102, 274, and 3d Peters’ IZep. 459-.
   By Mr. Chief justice Sappold:

The action was assumpsit, ’brought by the defendants in error, on á promissory note drawn in their fa-' vor by Randolph. The note bears date on the 5th June. 1832; is payable one day after date, and the writ was issued and served on the 6th of the same month. The' declaration contains one count only, which is on the note in the usual form, and is captioned as of June Term of the County Court, 1832, this being the return term.- At the same term, T.' j. Abbott, Esq. an attorney of this Court, entered a formal appearance for the defendant, on the Appearance book, in the manner prescribed by the rule of Court for entering appearances cf record; but no plea appears to have been filed. At the succeeding December term, the record states, that the parties came, by their attorneys; and for want of a plea, judgment was rendered by default; to reverse which the defendant below, prosecutes this writ cf error.

He assigns, as ground of error, that no cause of action is shown'in the plaintiffs declaration, in as much as the note declared on was not past due when the action v/as brought.

The plaintiff in error insists that he had the whole of the 6 th cf June to pay the note, and that no action could legally be brought till the 7th, fractions of days not being recognised by the law. This position is not contested by the counsel for the defendant in error; therefore, it is unnecessary to examine it. But admitting the principle, that the suit was prematurely brought, it is insisted that advantage could' only liave been taken of it, on, or previous to the trial below, and that the objection has been waived.— This is the only question necessary tobe considered.

A rule, which appears to be well sustained by numerous authorities, and salutary in principle, is, that matter merely abateable, where the defendant has had legal notice of the process, must be taken advantage of by plea; else the objection is considered to have been waived. This, I understand to be the rule which has uniformly prevailed in this Court, and that it holds equally, whether the abateable matter be ap~ parent on the writ, or arise from extrinsic, circumstances. If there be a misnomer of plaintiff or defendant, the process having been duly served on the true defendant, and a good declaration filed, for a cause of action corresponding with that indicated by the writ, the exception can only be taken by plea, within the time allowed for pleading. An objection to the service of the writ, whether it relate to the officer making it, or the time or manner of execution, has uniformly been considered to be waived by the regular appearance of the defendant, and suffering a judgment by nil dicit, or by pleading to the merits of the action. Even a judgment by default, where there has been due service of the writ, and there is no error apparent on the record, is an admission of the cause of action as alleged in the declaration. The premature commencement of this suit, is the only objection to it. After having been regularly served with the writ, the defendant, by his attorney, entered his formal appearance at the return term, and at the trial term, suffered judgment by default. I havé no hesitation in saying, that in cases where the record does not disclose the fact that the suit has been prematurely commenced, the exception is allowable on motion to exclude the evidence : in such cases this would be the only means of defence.

But in a case like the present, is the objection available in error, when not earlier claimed. I will notice some authorities applicable to the principle. In Wood vs. Newton, the action was indebitatus assump-sit, for the use and occupation of land. The defendant pleaded a tender on a particular day. The plaintiff replied, that the day of the tender was after the suing out of his latitat. The defendant rejoined, that the latitat was sued out before the cause of action -accrued, as, anterior to its date, he had never assumed to pay, &c. To this the plaintiff filed a general demurrer. The Court sustained the rejoinder, holding that the issuance of the latitat was the commencement of the suit; and that as the demurrer admitted this to have been anterior to the cause of action, no recovery could be had thereon. This principle is quite clear : for there, though the declaration did not shew the objection, it fully appeared from the replication, rejoinder, and demurrer, the regular pleadings in the cause, that no right of action existed at the in stitution of the suit; and as the objection did notap-pear in the declaration, or the latitat, there was no waiver of it by pleading to the merits.

In Lowry vs. Lawrence,a the suit was on a bill of exchange, presented for acceptance on the 1st October, 1801 and refused, of which notice was given to the defendant, who, on the 11th October, promised payment. The decleration was captioned of July Term, 1801, and shewed on its face, that the cause of action did not arise until the October following. On special demurrer for this cause, the Court held the action not sustainable that when it was filed, which, by law, must have been subsequent to the institution of the suit, he had no cause of action.

In Cheatham versus Lewis, the fact, that the suit, which was for a libel, had been prematurely commenced, also fully appeared on the face of the declaration : for this, there was a general demurrer, -which was sustained. In both these latter cases, it was held that the suing out the writ was the commencement of the action; that the wait must precede the declaration, and if it appear that the cause of action had not accrued when the suit was commenced, the objection is available on demurrer. In the latter case, it is said to be equally so, in arrest of judgment, or in er-. ror. The Courts also use the general expression, that if the objection appear of record, it is available by either mode of exception.

The only difficulty I have felt in this case has been, to determine, whether the appearance of the defendant, and the judgment by default did not cure, or-constitute a waiver of the objection. In reference to. this principle, respectable authority has maintained, that a judgment by default cures only such defects in the declaration as would have been, aided by a general demurrer — that the effect of a demurrer to the pleadings is, that it reaches back through the whole record, and attaches ultimately upon the first substantial defect in \he pleadings, on which ever side it may have occurred. It is also said that the objection, “ that the right of action had not accrued at the commencement of the suit, mag be pleaded in abatement ; as where an action on a contract is commenced before the time appointed for the performace;” but that this plea is seldom necessary; because, if the defect appear upon the face of the declaration, it is fatal on demurrer; and if not it may generally be taken advantage of on the trial. The remarks of Judge Gould do not fully- embrace the particular point under consideration; where, the defect .does not appear in the declaration without reference to the capias ad respondendum, but appears from the latter ; and where there is no plea to the merits, nor any exception taken in the Court below. It is clear, -however, that the issuance of the capias, with us, is the commencement of the suit. From the other authorities to which I have referred, it appears, that if the defect appear from the pleadings, and has not been waived by the defendant’s plea, it is available in error; nor do those cases limit the inspection of the revising tribunal to the pleadings in their technical acceptation, but seem to consider the objection fatal, if it appear in any part of the record, and to regard the process by which the suit is commenced as matter of record, for ascertaining the time.

Several other early English cases are to the same effect. In Ward vs. Honeywood, it appeared from the plaint that suit was commenced before the maturity of the note, which was the cause of action. The Court of King's Bench, held, that the plaint was to be considered as the original and commencement of the action, and the defect thus appearing of record, the exception was available in error. There are various other decisions to the same effect. Hence I conclude, that the judgment must be reversed.

By Mr. Justice Thornton :

This was an action brought upon a promissory note, which, by the declaration appears to have been made' payable to the plaintiffs, one day after its date ; and the writ bears date on the day after the date of the said note — before, as is conceded, the same was past due. At the return term of this writ, the defendant, by his attorney, entered his appearance; but failing to plead, at the trial term, a judgme it by default final, or, more properly, of nil dicit, was taken.'against him. The case is brought up by writ of error, and the assignment presents the question, whether the fact of the writ being issued before the cause of action had accrued, is, under the circumstances, available in error. It is an axiom of the Common Law, that no action can be commenced against a party, before any cause for such action exists. That the action commences with the capias writ, in this country, is equally incontrovertible; as also, that this capias is a part of the record of the suit. Hence the validity of a tender, when pleaded, is tested by the fact of its being made anterior, or not to the impeiration of the writ, the test of which by our statute, is not of the prece- - ding term, but the true date of its actual signature by the cleric. So the statute of limitations, and sets-off, when plead in bar, are available or not, according as it may appear from the test of the writ, that the time .had elapsed, or the set-off had been acquired, subsequent, or prior to that period of time. The ground assumed here, however, in support of the judgment below, is, as I apprehend it, that the commencement of the action before its cause had accrued, is such a defect as can be reached only by plea in abatement, and that, after appearance, if not objected to within the time prescribed for the talcing advantage of abate-able matter, the benefit of the defect is lost.

It is apparent to my mind, that this is not one of those irregularities, which an appearance of the party merely, will cure. So far as the writ merely operates as a summons to appear at its return, the appearance being entered, its object, is accomplished; and if to bring the party into Court, were all that it is the office of a writ to do, then after appearance, it would be wholly immaterial whether there were any writ at all, or not; or what defects there might be in it. But this is not the sole office of our original writ of capias, and hence we see that a distinction obtains, as to defences proper to the form of the writ, and to the action of the writ; the former of which must be taken advantage of within a limited period, by plea, or are considered as waived; while the latter, though available in that mode, are now rarely so reached, because they are good on demurrer, or on motion, as. in case of a non-suit at the trial, &c. Some perpléxity has been introduced into this head of our law, by to the English authorities, without bearing in mind, that as a general rule, the filing of the declaration in that country is the commencement of the action, and not the issuing of the writ. When, how-, ever, even there, the writ precedes the declaration,, and is the foundation and commencement of the suit, .it is held fatal in error, even after verdict, to issue it before the cause of action existed. For the English doctrine on this head, see Doug. 61, 62; 1 Wils. 147 ; Bac. Pl. B. 51; 1 Strange, 21, &c.

In Dunlap’s Practice, vol 1, page 120, which is an American work, the doctrine as declared from American decisions, is thus laid down: “ The issuing of the capias is the commencement of the action, and the plaintiff, in order to maintain his suit, must have a cause of action at the time of issuing it: and if it appear on the face of the proceedings, to have been prematurely brought, it will be fatal on demurrer, or in arrest of judgment, or on writ of error.’’ I feel assured that this is the doctrine of the Common Law,, and it must be remembered, that our statute of Jeq■=.

.fail and amendments) do not reach substantial defects of this character. The broadest of them, only tects, after verdict or judgment, against all defects on the face of the pleadings, not previously objected to; provided the declaration contains a substantial cause of action, and a material issue-has been tried thereon. This statute cannot affect the case; for, in the first place, this defect is not in the pleadings, but in the writ, which is no part of them; and besides, there has been no issue tried, but only a judgment by nil ■dicit.

It was urged in argument, by the counsel of the ■defendants in error, that as the party entered his ap-pearace regularly, at the return term of the capias, ■and did not, afterwards, either by plea, or otherwise, object to the defect, he must now be held either to have voluntarily waived it; or if not, that his failure to use diligence in reaching it, must be visited by a denial of ulterior redress. The application of either of those principles to this case, would, as it seems to me, be entirely arbitrary ; and if adopted, ought not only Xo extend to a case of failure to plead, or otherwise to raise the objection after appearance entered, but even to a case, where, after service of the process, no appearance is made; for the default is more inveterate in the latter instance, than in the former. So, they should be applied where, after service, with, or without an appearance, the record exhibits a case of a writ in debt, and a declaration in trespass; for here, too, the party might have appeared, or, after appearance, might have defeated the action in the Court below. I conclude, that- however much force I might be inclined to allow to a plea to the merits, as constituting a waiver of this defect, I am clearly of opinion, that an appearance alone, without more, should not deprive the party of his relief by writ of error.

Let the judgment be reversed.

       1 Wish. R. 141

       3 John. R. 42.

       Gould's Pl. ch. 10, § 26.

       Id. 9, sec. 36.

       Gould’s Pl. c 5, s. 137, 8. .

       Doug. 61.

       1 Comyn’s D 214, E-2 id. E, 3.

       1 Chit. Plea. last Am

       Aik. Dig.m

       1 Caines's69.