text:
    SCALES vs. SWAN.
    1. The court is not bound,.in attachment, to receive the answer ■ of a garnishee in writing — the statute requires the garnishee to appear in open court, though for the sake of convenience, and the dispatch of business, his personal appearance may be waived.
    2. The court may treat an evasive written answer as a nullity, and enter interlocutory judgment; and, in such case, there is no necessity for plaintiff to file exceptions to the answer.
    3. Where judgment nisi is properly entered — the right to enter final judgment on the return of scire facias, follows as a necessary consequence.
    4. The clerical error of a ministerial officer of court may be amended, where there is sufficient data oh which to predicate ■the amendment.
    Error to the Circuit court of Talladega.
    Attachment — before Shorfridge, J.
    This was a suit in the court below, commenced by the defendant in. error, by attachment, against one Christopher McLure, as an absconding debtor, in which the plaintiff in error was summoned as garnishee. The garnishee appeared, and filed the following answer:
    “S. F. D. Swan vs. Christopher McLure.
    “Answer of Nicholas Scales, on a summons of garnishment, at the suit of Samuel F. D. Swan vs. Christopher McLure.
    “This.respondent, saving and reserving to himself all legal and proper exceptions, &c. answering, says, that the said defendant, about the 30th March, 1836, married this respondent's daughter; that some time afterwards, to wit, about the last of August, 1836, they (McLure and Wife,) went to house-keeping in Talladega, when this respondent let them have possession of two negroes, the one a woman about the age of thirty years, the other a negro boy aged about six years, the child of said woman: —that he also permitted them to have possession (for the use of respondent’s daughter,) of a negro girl, aged about nine years; that about the end of the year 1836, they broke up house-keeping, when the negroes were returned into the possession of this respondent, where they remained until the month of June, within a few weeks of his daughter’s death; that the respondent did not then, or at any time afterwards, transfer the title of any of said negroes to the said McLure, — and the last mentioned girl was intended merely as a temporary loan; that at the death of respondent’s daughter, which took place on the second of July, 1837, or a short time thereafter, said McLure sent back the said negroes to this respondent, stating — that he did not lay any claim to the same, but returned them to the family from whence they came.
    “Respondent, at the time, offered said McLure a compensation for said negroes, which he then refused; that at a subsequent period, and a long time.after the possession of the said negroes was returned, to wit, on the 16th of October, 1837 — he, McLure, in pursuance of said offer, made his certain deed or bill of sale, whereby, in consideration of five hundred dollars, he conveyed the said negroes, or his interest therein, to said respondent, stating that he might pay him at some time when convenient to respondent,

      “This respondent further states,that he is advised, and believes that there is in the hands of James F. Way, of Davidson county, State of Tennessee, the sum of seventy-five dollars, subject to the order of said McLure: — that he knows of no effects, or debts of the said McLure, in the hands or possession of any other person.
    “ This respondent further states, that previous to this garnishment, he was served with a garnishment, at the suit in attachrnenl of William R. Ridout — that he then answered, he had no effects or debts of said McLure in his hands, and knew of none in the hands of any other person, not regarding said McLure as having any claim to the said negroes, the title thereof having never passed out of this respondent, and the possession of the same having reverted to this respondent in the manner above stated, and not then recollecting this claim in the hands of Way. Respondent, therefore, submits whether, if there be any liability under the present shewing, the claim of said Ridout should not be reserved in the first instance from the liability — wherefore, respondent having fully answered, prays to be dismissed, &c.”
    To this answer, the defendant in error filed exceptions, alleging that it was evasive — and neither admitted or denied indebtedness to the absconding debtor.
    The court, as appears from the record, sustained the exceptions to the answer of the garnishee, and rendered a judgment nisi by default against him, but in entering up the judgment, the sum of money was left blank.
    At the succeeding term of the court, on motion .of the defendant in error, the judgment nisi entered against the garnishee, was amended nunc fro tunc, and the garnishee appeared, and by leave of the court, filed an. amendment to his answer, which is in these words:
    “ This respondent amends his answer, by stating further, that after having been garnisheed in the case of Swan and Scales, he was next served with a garnishment, at the instance of William L. Ridout; attachment before a justice of the peace, for $38 12; and subsequently, but on the same day, the sheriff served on him two garnishments, one in favor of West, (being the same mentioned in the main answer.) and another in favor of Stephen Sparks, trustee, for thirty dollars, both at same time. Respondent has since been served with garnishments in four other cases from justices of the peace, to wit, Tai-na ad ge & Carey, for $30 20; McLure vs. McLure, for $29; D. S. Rolintoa vs. McLure, for $40 76; Swan vs. McLure, for $33, which were served .subsequent to those first mentioned by this respondent; but the order of service not recollected.”
    The court below treated the answer, thus amended, as a nullity, because it was evasive and argumentative; and rendered a judgment final against the garnishee, for the amount of the debt against McLure, and costs.
    The plaintiff in error (the garnishee,) prosecutes his writ of error from this judgment, and now assigns, as reasons for reversing the judgment—
    1. The court erred in rendering the judgment nisi against the plaintiff in error;
    2. In permitting the said judgment to he amended ' nunc pro tunc, at a subsequent term;
    3. In sustaining the exceptions to the answer of the plaintiff in error;

      4. In rendering final judgment against the plaintiff in error.

      Chilton, for plaintiff in error.

      Martin, contra.
   ORMOND, J.

The answer of the garnishee filed in this case, was, in our opinion,sufficient to have warranted a judgment against him. It is, in substance, an admission that the negroes sent home with his son-in-law on the marriage of his daughter, were given to the son-in-law, and afterwards re-purchased by him. It is true, that he states he made no title to the slaves, by which he doubtless means that he executed no written evidence of title to his son-in law. Rut that was not necessary, to vest the son-in-law with the title, as the title to personal property passes by delivery, and that the parties so understood it, is manifest from the plaintiff afterwards receiving a title to the slaves from McLure, and agreeing to pay him five hundred dollars.

The court, however, was not bound to receive an answer in writing. The statute evidently contemplates the personal i!appearance and examination” of the garnishee in open court — (See Aik. Dig. s. 19, p. 42) — and although for the sake of convenience, and the dispatch of business, it may be waived when the answer is full and explicit, there is no obligation on the court, and there would be no propriety, in receiving an answer studiously drawn to evade the true question. It is of great importance, that the right to examine the garnishee in open court, should not be drawn in question; the court were, therefore, not bound to receive an evasive written answer, but might consider it as a nullity, and enter an interlocutory judgment.

As the court had a right to treat the answer as a nullity, there was no error in sustaining exceptions to it, although there was no necessity to file exceptions. But if this is an error, it is one of which the plaintiff in error cannot complain, as, in our opinion, the answer was sufficient to authorise a judgment against the garnishee.

The judgment nisi being properly entered, the right to enter a final judgment on the return of the scire faci-as, followed as a necessary consequence.

The amendment of a clerical error of-a ministerial officer of the court, by inserting the sum for which the judgment.nisi was rendered-, is also assigned for error. No other question is raised, but the power of the court to make such amendment. It however clearly appears from the record, that the plaintiff in error was in court, and the amount for which the judgment against the garnishee was rendered, being the amount of the judgment against the defendant in the attachment, there was sufficient data on which to predicate the amendment, and it was therefore the duty of the court to direct the amendment to be made — (Wilkeson vs. Goldthwaite, 1 Stew. & Por. 159.)

There is no error in the judgment of the Circuit court, and it is therefore affirmed.


source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    GOLDING et al. vs. HALL.
    1. In trespass, where defendants sever in their pleadings, and separate verdicts are found against them, the judgment must correspond with the verdict.
    2. And plaintiff .must, elect against which of the defendants he will h ive execution,' as he can have but one satisfaction, and the other defendants will be discharged froth all liability, except foj costs, by the payment of the damages of the one against whom plaintiff elects to proceeds
    3. Where a plaintiff remits damages as to some of the defendants, judgment cannot be entered up against therm f°r damages found against’a co-defendant. ■ .
    Error to Talladega Circuit court.
    Trespass, guare clatisum fregif.

    This was an action of trespass, guare ■ .clausum fregif, brought by the defendant in error, against the plaintiff in error, and eight others. The defendants pleaded severally, not guilty.. The jury found the plaintiff, Reuben Golding, guilty, and assessed the damages to fifty .dollars: six others were found guilty,'and the damages as*, sessed to six and a fourth cents, each; and two were found not guilty. The plaintiff below remitted the damages as to the six defendants who were assessed' at six' and a fourth cents each, and the court rendered judgment against all the defendants who were found guilty for-the sum of fifty dollars, besides costs. "
    The error assigned is— ■' .
    That the court erred in rer.de’-ing judgment against, all the defendants for fifty dollars and costs. •

      Chilton, for plaintiffs in error,
   ORMOND, J.

The judgment of the court below, in this case, cannot be supported.

lit an action of trespass, where defendants sever in their pleadings, and separate verdicts are found against them, the judgment must correspond with the verdict, and the plaintiff must elect against which of the defendants he will have execution, as he can have but one satisfaction : and the other defendants will be entirely discharged, by the payment of the damages of the one against whom the plaintiff elects to proceed, from all liability, except for costs.

In this case, the plaintiff having remitted the damages as to six of the defendants, there can be no more reason for entering judgment against them for the damages found against the othe‘r defendant, than there would be for entering it against those who were found not guilty.

For this error, therefore, the judgment of the court below is reversed, and judgment rendered in this court against Reuben Golding for the damages assessed by the jury, and against all the defendants who were found guilty in the court below, for the costs of that court.,


text:
    BENNET vs. MORRIS.
    1. A verdict in trespass to try title, should describe with reasonable certainty, the land intended to be covered thereby, or the judgment founded on it will be reversed on error,

      2. A verdict in the following words, “We find for the plaintiff, and give him 120 feet on the south side of St. Michael street, commencing at the centre oT the house occupied by James Wilson, in 1817, and running 00 feet east and west, by 120 feet south” — is too vague and uncertain to sustain a judgment.
    3. The English rule, that plaintiff in ejectmeut takes possession of the premises recovered at his peril, and must be governed by the evidence given on the trial — has never been adopted in this State.
    Error to Mobile Circuit court.
    Trespass to try title — before Pickens, J.
    This action of trespass, was brought by the defendant in error, against the plaintiff in error, to recover a lot of land in the city of Mobile. It is described in the declaration, as “ a messuage or close, situate, lying and being in the city of Mobile, on the south comer of Jackson and St. Michael street, having a front one hundred and twenty feet on Jackson street, and running back parallel with St. Michael street one hundred and twenty feet, and having a front of one hundred and twenty feet on St. Michael street.”
    Issue being joined on the plea of not guilty, the jury found a verdict for the defendant in error, in the following words:
    “ We find for the plaintiff, and give him one hundred and twenty feet on the south side of St. Michael street, commencing at the centre of the house occupied by James Wilson, in 1817, and running sixty feet east and west, by one hundred and twenty feet south.”
    The court renders judgment for the plaintiff below, in the language of the verdict of the jury, and directs a writ of possession to issue to the sheriff, commanding him to put the plaintiff below in possession of “ said real estate.”
    The errors now relied on are—
    1. That the verdict is uncertain, insufficient, and not responsive to the issue;
    2. That the judgment is uncertain, insufficient, and not for the land described in the declaration.

      Stewart, for plaintiff in error.

      Dunn, contra.
   ORMOND, J.

The case of Thomas Sturdevant against the heirs of-Murrell, decided at the last term of this court, is decisive of the present-question. In that case, as. in this, the objection was to the uncertainty of the verdict and judgment. - In that case, also, as in this, the verdict did not ascertain, with any precision, the land withheld-from the plaintiff, and of which the sheriff, on the writ of habere facias possessionam, was to put him in possession.

The verdict, in this case, is for “one hundred and twenty feet on the south side of St. Michael street, commencing at the centre of the house occupied by James Wilson, in 1817j and running sixty feet east and west, by one hundred and twenty feet south, and assess the damages, &c.”

This description would suit any lot of one hundred and twenty feet in St. Michael street, and therefore certainly too vague, unless the generality of the description can be controlled by its being said to be opposite the cen-tre of the house occupied by Jumes Wilson, in eighteen hundred and seventeen. If, instead of referring to the occupancy of a house by a person twenty years since, the reference had been to some monument, or other actually existing thing, it might have been sufficient, by affording some certain data on which the sheriff might act, in executing the judgment of the court. What house a person occupied twenty years since, might be a matter of great doubt, and would be so uncertain, as to leave the whole matter almost entirely in the discretion of the sheriff.

It was urged by the defendant’s counsel, that the plaintiff below must take possession at his. peril, and would be governed by the evidence given at the trial. But this court held, in the case above cited, that the rule insisted on, which seems to prevail in England, has not been adopted in this State, owing, in a great degree, perhaps, to the^-difference between the action of ejectment in that country, and the action of trespass to try titles, in this.

The verdict should describe, with reasonable certainty, the land intended to be covered thereby, or the judgment founded on it will be reversed on error.

Let the judgment be reversed, and the cause remanded.


text:
    ALEXANDER vs. DENNIS.
    1. Where one gets possession of the property of another, by falsely and fraudulently representing to him, that a promissory note given in exchange for the property was good, and would be paid; when the holder knew it was worthless,he is not entitled to notice of non-payment.
    2. A contract tainted with fraud, is not binding on the party innocent of the fraud.
    3. Where one sells property for paper which is represented to be good, but which is worthless, and known to be so by the holder : the injured party may treat the contract as a nullity, and bring trover for the property, or an action of deceit — when the measure of damages will be the injury sustained in consequence of the fraud.
    4. The necessity of notice to the assignor, of the non-payment of an assigned promissory note, only arises from contract, expressed or implied.
    Error to the Circuit court of Lowndes.
    Case for deceit, tried before Han'is, J.
    This was an action of trespass, on the case brought by the defendant in this court, against the plaintiff.
    The declaration, in substance, alleges that the defendant in error sold the plaintiff in error eight mules, of the value of eight hundred dollars, in consideration of which, the plaintiff in error transferred to him by delivery, a promissory note for nine hundred and thirty-three dollars, made by John Fisher and Benjamin F. Johnson, and passed to one Stephen Jones, and by him endorsed to the plaintiff in error; which note had been then due more than a year.

      It is also averred, that the plaintiff in error falsely and fraudulently represented to the defendant in error, that the said note was a cash note, and that the makers and endorsers thereof were wealthy and responsible men, when in truth the makers of the note were insolvent, and the endorser released by laches, which insolvency and release from liability, it is alleged the plaintiff-in error well knew, when he made the representations aforesaid.
    The jury found a verdict for the plaintiff below, upon which judgment was rendered. On the trial of the cause in the court below, a bill of exceptions was taken to the opinion of the court, which is as follows;
    “ On the trial of this cause, there was no evidence to prove that plaintiff ever demanded payment of either the maker or endorsers of said note, or ever gave notice of the refusal to pay said note, and in the absence of such proof, defendant requested the court to charge the jury, that unless they believed that plaintiff had demanded payment of the makers of the note, he could not recover in this suit — which the court refused to charge. There was evidence that Fisher, one of the makers, had paid fifteen dollars on said note, to plaintiff.”
    To the refusal of the court to give the charge moved for, there was an exception, and the matters of law arising thereon, are assigned for error in this court.
    Dargan, for plaintiff in error.

      Cook, contra.
   ORMOND, J.

The question presented in this case is', whether a person who gets possession of the property of another, by falsely and fraudulently representing to him that a promissory note, which was given in exchange for the property, was good, and would be paid, when in fact he knew that it was worthless — is entitled to notice of the non-payment of the note. If he be entitled to notice of ti e dishonor of the note, it must be on the ground, that the contract, though tainted' with fraud on his part, is binding on his victim. But we are clear that the fraud vitiated the contract, and that the defendant in error had the right to rescind it, or rather to treat it as nullity, and bring his action of trover for the mules, or as in this case, an action for the deceit, where the measure of damages would be the injury he had sustained by the fraudulent conduct of the defendant in error.

It follows, that he was under no necessity to give notice of the non-payment of the note. The necessity so to do could only result from a contract, express or implied — (See Read vs. Hutchinson, 3 Campbell’s N. P. 352.)

We express no opinion as to the rights or obligations of the parties, had the contract been valid.

The judgment is affirmed.


author: GOLDTHWAITE, J.

text:
    HATCH vs. COOK, adm’r.
    1. The death of a plaintiff may be suggested, and his administrator made a party to the suit, whilst the trial is progressing.
    2. Where a defendant is advised of the death of plaintiff, and those prosecuting the case will not admit the death — the suit may be arrested by interposing a plea jmis darrien continuance.

    3. But when the death of either of the suitors is suggested by those who have represented him in the cause, the court must ascertain the fact in some other mauner than by plea.
    4. Proceeding to judgment when either party is dead, more especially when defendant is so, is an irregularity for which judgment may be avoided.
    5. The usual practice is, that when the representative of a deceased plaintiff produces his letters testamentary or of administration, the case proceeds: or if defendant dies, his representative is made a party by suggestion; or plaintiff brings him into court by scire facias.

    6. Where the death is denied, it is proper that the fact should be shewn by affidavits.
    Error to Wilcox County court.
    Assumpsit on a promissory note. This was an action by one Norwood, on a note made by plaintiff in error.
    • On the trial below, after the evidence, argument and charge of the court — the plaintiff’s attorney suggested that plaintiff had died before issue joined, and moved to make Cook, the defendant in error, party plaintiff, as administrator; which the court allowed, and defendant excepted.

      Permitting Cook to be made a party, after the trial had progressed as above stated, was assigned as error.

      Stewart, for plaintiff in error.
    Clarke, contra.
   GOLDTHWAITE, J.

The sole question presented by this rectord, is, whether the death of the plaintiff can properly be suggested, and his administrator made a party to the suit, whilst its trial is progressing.

The plaintiff in error contends, that the death ought to have been regularly pleaded, as the suggestion was denied, but the law has provided no such mode of ascertaining the fact. We are not aware that any one, on behalf the plaintiff, can intervene, and plead this matter. If the defendant was advised of the death of the party, and those prosecuting the cause, would not admit his death, the suit might he arrested by his interposing a plea puis darrien continuance, but when the death of either one of the suitors is suggested by those, who before had represented him in the cause, the court must of necessity ascertain the fact in some other manner than by plea. In most instances, the proceeding to judgment, when either party is dead, but more especially when the defendant is so, is an irregularity, for which the judgment may be avoided.

The act to prevent suits from abating, on the death of either party, (Aik. Dig. 259,) provides, that when any cause shall be depending in any court, and either of the parties shall die before final judgment, the executor or administrator of such deceased, who was plaintiff, petitioner or defendant, shall have full power, (in case the action by law survive,) to prosecute and defend such action, until final judgment: no mode' is pointed out, by which the death shall be brought to the knowledge of the court; it therefore becomes necessary to adopt some reasonable means for ascertaining the fact. The usual practice which prevails, is to suggest the death, which, if not denied, is entered on the record, and the cause proceeds, when thé representative of plaintiff produces his letters testamentary or of administration: if the defendant is the party dead, his representatives either make themselves parties in á similar manner, or the plaintiff proceeds to bring them into court by scire facias. It is not known what practice has obtained on the circuits, when the suggestion of the death is denied, but in such a case, it is proper that the facts should be shown by affidavits. In the present case, the fact of the death was not denied, but the objection seems to have been as to the time, when the representative of the plaintiff made himself a party.

In this respect, we think there is no error in the action of the County court, and its judgment is affirmed.


text:
    READ, claimant, vs. OWEN, MARTIN et al.
    1. One who claims añ interest in a ship, or other thing, which is the subject of a proceeding in rem, must put in his claim upon oath, averring, in positive terms, his proprietary interest: and an agent may be required to prove his authority, before he can be admitted to put in his claim.

      2. Where this is not done, the adverse party may insist upon a dismissal of the claim.
    3. And a claim thus admitted, may still be contested, by suitable exceptive allegations. '
    4. But where the claim is admitted, and pleadings to the merits are put in, it is a waiver of the preliminary enquiry, and an admission that the party is rightfully in court.
    5. Where several libellants have joined in their libel, because of their common pursuit of the same ship — when their interests become severed by decrees, each decree becomes distinct and independent, arid as such, must be appealed from.
    6. A writ of error, which seeks to reverse several independent decrees, will be dismissed.
    7. And the same rule obtains when several claims are interposed.
    8. Any person interested in a ship, or thing proceeded against in-admiralty, may come within a year from the time of a decree rendered by default, and on giving security and paying all the costs, and shewing a sufficient cause for his previous default, be admitted to defend.
    9. And it is the usual practice on defaults, before a sale is permitted, to require security of the libellant, to answer for the sum received, to any person claiming a right, or presenting his interest within a year.
    Error to Dallas County court, exercising admiralty jurisdiction.

      Libel against a steamer, for the wages of hands.
    In this case, the defendant in error, and twelve others, exhibited their libel, in the County court aforesaid, against the steamer Fox, for wages due them, and services rendered by them on board said vessel, as seamen, firemen, &c. To the allegations contained in the libel, a denial was filed on the part of the boat. Judgment was rendered on the verdict of a jury for each of the li-bellants, separately, for the amount of their respective demands. A sale of the vessel was also ordered, &c.
    To reverse the decree, a writ of error was sued out by plaintiff in error, whose name no where previously appears in the record, and. who assigned the following causes:
    ■ 1. The libel does not pursue the statute, in stating
    that the boat was registered, enrolled or licensed;
    2. The facts alleged' in the libel are not sworn to by the plaintiffs, or one of them, or by an authorised agent, or factor; but by some indifferent person;
    3.' The court erred in giving a separate judgment in. favor of each libellant;
    4. The court erred in giving judgment in favor of the libellants at all;
    5. The record is accompanied with no evidence to support the judgments, neither does it contain any ;
    6. The fiat of the judge is not under his hand and seal;

      7. The court erred in ordering a commission to the sheriff'to issue, to sell the boat on giving sixty days notice, and consequently, the judgment was wrong;
    8. The record is erroneous in containing two declarations, or any at all;

      9. Tlie court erred in allowing oral testimony. It should have been taken by deposition, under a commission, as in Chancery cases;
    10. The suit is brought by many individuals-jointly, for debts due them separately, and for sums below the Jurisdiction of the court:
    11. The court rendered separate judgments for each individual, for a less sum than its jurisdiction would allow ;
    12. The. court gave judgment for costs in the suit on tile declaration, and on the libel.
   GOLDTHWAITE, J.

It appears from the record, that no,person whatever appeared in the County court, where this proceeding liad its origin, claiming any interest in the steam-boat .attached. The judgment entry, at the term after the process of monition and attachment was issued, states that, “came as well the plaintiffs by their attorneys and proctors, as Joseph P. Saffold, proctor and attorney in behalf of the said boat. And the said Saffold, in behalf of the said boat, denies all the allegations of the libel and proceedings in this case contained, and thereupon, on request of the parties, and by the direction-of the court, came a jury,” &c.

The plaintiff in error is no where in the proceedings, mentioned as having presented any claim to the boat, and was not admitted to defend the libel, on account of any supposed interest in the same, or for any other cause whatever.

A person of the same name is one of the libellants, .but whether he is the same person who sues out the writ of error, and is described therein as the sole owner, does not appear. The mode in which any one claiming an interest, in a ship’or other thing, which is the subject of a proceeding in rent, may make himself a party defendant to the suit, according to the course of the admiralty practice, is very distinctly laid clown in the books. The first step is the interposition of a claim for the property libelled. In the case of the United States vs. 422 Casks Malaga Wine, (1 Peters, 547,) it is said, the claimant is an actor, and is entitled to come befóse the court, in that character only, in virtue of his proprietary interest in the thing in controversy ; this alone gives him a 'persona standi injudido. It is necessary that he should establish his right to that character, as a preliminary to his admission as a party, ad litem, capable of sustaining the litigation. He is, therefore, in the regular and proper course of practice, required in the first instance, to. put in his claim, upon oath, averring, in positive terms, his proprietary interest. If he refuses so to do, it is a sufficient reason for the rejection of his claim. If the claim be made through the intervention of an agent, the agent is in like manner required to make oath of his belief in the verity of the claim; and if necessary, he may be required to produce and prove his authority, before he can be admitted to put in the claim. If this is not done, it furnishes matter of exception, and may be insisted upon by the adverse party for the dismissal of the claim. If the claim he admitted, on this preliminary proof, it is still open to contestation, and, by a suitable exceptive allegation, the facts of proprietary interest, sufficient to support the claim, may be put in contestation, and formally decided. it is in this stage of the proceedings, and in this only, that the question of the claimant’s right, is generally open for discussion. If the claim is admitted without objection, and allegations or pleadings to the merits are subsequently put in; it is a waiver of the preliminary enquiry, and an admission that the party is rightfully in court, and capable of contesting the merits.

To follow out the course of practice thus indicated, if any one in this suit had intervened as a claimant, we should not question the manner by which he came into court, in the absence of ah exceptive allegation, but here no person has intervened. It is true, a proctor comes and denies the allegations of the libel, but he only appears on behalf the boat, which cannot thus, or in any other manner, be represented for the purposes of making the lids contestado.

If, however, a claim was properly interposed, in this cause, in the County court, and the claims of the libel-lants were there contested by a proper party, this writ of error would, notwithstanding, he dismissed, because it seeks to remove several independent decrees. The rule of admiralty practice is clear, that when the libellants have joined in their libel, because of their common pursuit of the same ship, whenever their interests become severed by decrees, each decree becomes distinct and independent, and as such, must be appealed from — -(Oliver vs. Alexander et al. 6 Peters, 143.)

The same rule obtains when several claims are interposed — (Stratton vs. Jarvis & Brown, 8 Peters, 4.)

It may be enquired, how, and in what manner, can those who are interested as the proprietors of the ship, or thing which is proceeded against, review the proceedings against it, when a decree has passed by default 7 According to the course of practice, as laid down in the elementary treatises on admiralty law, any person interested may come in, within a year from the time of the decree, and on giving security and paying all the costs, be admitted to defend — (2 Brown’s Civ. & Adm. Law, 405.) And it is stated, as the usual practice on defaults, before a sale is permitted, to require security of the libel-lant to answer for the sum received, to any person claiming right, or intervening for their interest within a yeai' —(2 Brown’s Civ. & Adm. Law, 402.) "VVe are not aware of any decisions in the American courts on this subject, but the rule above quoted seems so reasonable, and protects so perfectly the rights of absent parties in interest, that we do not hesitate to adopt it. In Stratton vs. Jarvis & Brown, (8 Peters, 4,) it is said, if no owner should appear to claim any particular parcel of property, or its proceeds, the habit of courts of admiralty is, to retain such property, or its proceeds, until a claim is made, or a year and a day have elapsed from the time of the institution of the proceedings, but the case did not require any decision on this question of practice — (See also The Harrison, 1 Wheat. 298.) Should any person claiming an interest, then intervene after a default and condemnation, on shewing a different cause for his previous default, he will be permitted to contest the.suit, as if no decree had been,rendered, and of course the proceedings having then assumed the character of a litis contestation might, after final judgment, be removed to an appellate court by the ordinary mode. Let the writ of error b,e dismissed.


text:
    EVANS vs. ST. JOHN.
    1. Questions cannot, under any circumstances, be reviewed in the Supreme court, which were omitted to be presented before the Circuit court, when sitting as a court of errors, on judgments rendered by the County court.
    2. Parties are presumed, by the rules ef practice, to waive all errors not specially mentioned in their assignments.
    3. But where there is no joinder in error, and in cases where parties are permitted to re-assign, the court.will look into matters not covered by the errors assigned.
    4. A plaintiff in an action need not reply specially to pleas concluding to the country, and the omission of a similiter is not an error for which judgment will be reversed.
    5. The admission or rejection of additional pleas, is a matter wholly within the discretion of the -court, and cannot be examined in a court of errors.
    6. The holder of a bill of exchange, is only bound to present the bill at the place designated for payment, and if refused, his right of action against the drawer is complete, when the bill is protested and notice duly given.
    7. It is immaterial to the defence, whether a bill is made for the benefit of the acceptor or maker, or by which of them the funds are used: — So, also, the omission of a personal demand of the acceptor.
    8. A plaintiff in error can have no legal advantage from a mere clerical error, and its correction, impairs no right which he can assert!

      9. If a judgment be entered for too much, in consequence of a clerical error, it may, notwithstanding error brought, be amended in the court below, and the amended judgment will be affirmed without damages, and at the costs of the defendant in error.
    10. Whether a defendant in error, by obtaining the amendment of a judgment pending the writ of error, has discharged the sureties in the writ of error bond,— Quere.

    Error to the Circuit court of Wilcox.
    Assumpsit on a hill of exchange.
    In this case, St. John, as the surviving partner of St. John & Leavens, instituted an action of assumpsit in the County court of Wilcox county, against Evans. The declaration, besides the usual money counts, discloses the cause of action to be an inland bill of exchange, drawn by H. S. Evans, the plaintiff in error, on, and accepted by, Thomas Evans, payable to the order of, and endorsed by Charles Irby & Co., negotiable and payable at the office of discount and deposit at the Bank of the United States, at Mobile.
    A presentment for payment at the bank, protest for non-payment, and notice to the endorser, is alleged in the special count on the bill.
    The defendant, at July term, eighteen hundred and thirty-six, pleaded—
    1. The general issue;
    2. Payment and set-off;
    3. That payment was never, demanded of the acceptor, in whose hands funds were placed to pay the bill.
    Issue was joined on the second plea, and to the third, a replication was filed, alleging that the bill in question was duly presented to the bank where made payable, and payment thereof duly demanded.

      It is stated in the minutes of the court, for January term, eighteen hundred and thirty-seven, that the parties then came, by their attorneys, and the defendant pleaded the following pleas, in short, by consent:
    1. Payment, accord, and satisfaction and set-off;

      2. General issue;
    3. Pending of a former suit, for the same cause of action ;
    4. That the court had no jurisdiction, the sum involved being more than six thousand dollars;
    5. That the plaintiff had never claimed payment of the acceptor, in whose hands funds were placed to pay the bill.
    It is also stated, that the defendant’s' demurrer to the plaintiff^ replication to the fifth plea having been argued, was overruled by the court, as was also his motion to strike out the rejoinder. A jury was then sworn, to try the issue joined, who returned a verdict for the plaintiff. This verdict was set aside, and a new trial granted, At the ensuing term, it was agreed between the parties, that the two pleas to the jurisdiction pleaded at the previous term should be stricken out, and the cause was again submitted to a jury, which returned a verdict for the plaintiff, on which judgment was rendered,
    In the progress of the trial, several exceptions were taken by the defendant, to the action of the court in overruling motions to allow him to plead other pleas, the admission of evidence, &c. These exceptions, as shewn on the record, are as follows: . *
    1. The court overruled the defendant’s motion to be permitted to plead additional pleas to the merits of the cause, of matter of defence, which existed at the time when the pleadings were made up, but not then, within his knowledge.
    2. The court excluded evidence of the account due to Charles Irby & Co., which was liquidated by the proceeds of the bill of exchange sued on, and two others, made by the same parties, which was offered to reduce the amount of the bill.
    3. The defendant, offered to introduce Thomas Evans, the acceptor of the bill, to prove the entire contract between the parties, who stated the bill in question was made for his benefit, and that he received the proceeds: and also to prove that the bill was given to raise money on — all which was overruled by the court.
    4. The defendant further offered to prove by said acceptor, that he had funds in his hands, more than enough to cover the bill at its maturity — which evidence the court ruled to be irregular.
    5. The defendant further offered to prove by the same witness, that no demand was .ever made of him to pay the bill. The court ruled that such a demand was unnecessary, inasmuch as the bill was payable at a bank.
    The defendant prosecuted his writ of error to the Circuit court, to reverse the judgment rendered against him, and assigned as errbr:
    1. (To) the first pleas, general issue and non-assumpsit —issue was never taken by plaintiff, and was not disposed of by the court.
    2. The court refused to let defendant put in a plea of puis darrien continuance at the trial term, the matter of which plea came to the knowledge of the defendant, after the pleadings were made up, which motion to put in said plea, was made on the first day of the trial term, and was not acted on until the cause came on for trial, which was two days after the motion was made, which plea extended to the merits of the case.
    3. The defendant offered on the trial, the account of Charles Irby & Co., which was liquidated by the proceeds of the bill of exchange sued on as evidence, to show the bill was drawn and discounted by the plaintiffs for a larger amount than it should have been — which evidence the court refused to allow.
    4. The defendant offered Thomas Evans, acceptor of the bill, as a witness to prove the contract between the parties, and to prove he had sufficient funds in his hands at the maturity of the bill, of the makers’, to discharge it, and that the same was never presented to him for payment : which the court refused to permit to go to the jury as evidence. The judgment was affirmed at the May term, eighteen hundred and thirty-eight, of the Circuit court, and judgment rendered for the debt and damages consequent on affirmance against the defendant and Abel E. Evans, his security on the writ of error bond. A writ of error was sued out to the Supreme court, on the twenty-ninth June, eighteen hundred and thirty-eight, to reverse the judgment of the Circuit court, and at the subsequent Fall term of the Circuit court, the judgment of affirmance, rendered at the previous term, was corrected, it having been entered for a smaller sum than it should have been. This amendment of the judgment was made against the consent of the defendant, who appeared, and contested the authority of the court to make the amendment.

      Errors were assigned in this court, without noticing the action of the Circuit court on the errors there assigned, but covering the alleged errors of the County court; and also alleging error in the action of the Circuit court, in amending the judgment after writ of error sued out.
    Proctor, for plaintiff in error.
   GOLDTHWAITE, J.

The errors assigned, in this court, call its attention to matters of exception, which arose in the County court, but which are unnoticed in the assignment of errors in the Circuit court. Our rules of practice do not permit this course to be pursued, and the party is presumed to waive all errors which are not specifically mentioned — (Ripley vs. Coolidge et al. Minor, 11; Brahan vs. Collins, Minor, 169.)

Under no circumstances can questions be reviewed in this court, which were omitted to be presented before the Circuit court, when sitting as a court of errors, on judgments rendered by the County court.

We presume it was the intention of counsel, to present for revision the action of the Circuit court on the errors there assigned, and as there is- no joinder in error, and as the party might be permitted' to re-assign, we have thought it best to look into the judgment actually rendered by the Circuit court, although the errors assigned do not cover that judgment.

It was unnecessary for the plaintiff in the action to have specially replied to the pleas concluding to country, and the omission of a similiter is not an error for which the judgment will be reversed — (Ripley vs. Coolidge et al. Minor, 11.) There is, therefore) nothing in this assignment.

The second is not supported by the facts of the case. No plea puis darfien continuance was offered-, but as we Understand from the bill of exceptions, pleas to the merits were offered, shewing matter of defence, which Existed when the pleadings were made up, but were not then Within the knowledge of the defendant to the action. What these matters of defence were, is not shewn, but the answer to this, if properly assigned, would be, that the admission or rejection of additional pleas, is a matter wholly Within the discretion of the court, and cannot be examined in a court of errors.

The third assignment. is also unsupported by the exception taken, or at least the nature and object of the evidence offered and excluded, is more fully stated in the assignment, than the bill of exceptions warrants. As therein stated, the defendant “offered as evidence, the account due to Charles Irby & Co., which was liquidated by the proceeds of the bill of exchange sued on, and two others made by the same parties, to reduce the amount of the bill.” Now, argument is useless, to shew that nothing is presented by this exception, on which the court can act. The account is not exhibited, nor does it appear how it could affect the rights of the plaintiff, who is an endorsee of the bill.

The fourth assignment relates to the exclusion of the testimony of the acceptor of the bill, showing the contract between the parties, and to prove that he had sufficient funds in his hands, belonging to the maker, at the maturity of the bill, to discharge it, and that the same was never presented to Mm for payment. It does not appear that the witness was prevented from giving evidence, as what he said is stated in the bill of exceptions) but we infer that the evidence was overruled, as shewing nothing which, by possibility, could affect the right- of the plaintiff to a recovery. It was wholly immaterial-to the defence, whether the bill was made for the benefit of the acceptor or maker, or by which of them the funds were used. So, likewise, as to the omission of a personal"''' demand of the acceptor. The holder was only bound to present the bill at the place designated for payment, and if refused, his right of action against the drawer was complete, when the bill was protested, and notice duly / given. In none of the matters assigned for error in the Circuit court, was there anything for which the judg-. ment of the County court should have been reversed.

The only remaining point to be noticed, is the amendment made in the Circuit court of its judgment) after the suing out of the writ of error. The judgment Was entered for a lesser sum than by law it should have been, and was a mere clerical error. The plaintiff in error could have no legal advantage from this error, and its correction impaired no right which he could assert. If the judgment had been entered for too much, in consequence of a clerical error, it might, notwithstanding error brought, be amended in the court below, and the amended judgment would be affirmed without damages, and at the coáts of the defendant in error — (Brown & Parsons vs. Tarver, Minor, 370.) But, in the present case, the condition of the parties is not affected by the amendment. If it had not been made; an affirmance would have been the result of the writ of error, and it cannot he changed by the correction of the judgment, by entering it for the proper sum.

If the court was asked to .affirm the judgment, with damages against the sureties in the writ of error bond; the aspect of the case might be varied, in some degree, as by a judgment against them for the amount of the amended judgment, a liability would be imposed beyond that which was known to them when the bond was given, and it would seem, on principle, that the defendant in error, by asking the amendment of the judgment pending the writ of error, had, by his own act, discharged the sureties. This point, in relation to the sureties, is not to be considered as decided, as the defendant in error has intimated his assent, that no judgment shall go against them.

Let the judgment of the Circuit court be affirmed.


text:
    FINDLAY vs. PRUITT.
    1. Advantage of an irregularity in a writ, must be taken by pléa in abatement.
    2. It is essential to the validity of a plea in abatement to the writ, that the writ should be set out on oyer — where this is not done,, it cannot be presumed to be waived.
    3. A plea in abatement to a writ, taken in short, by consent of parties — waives both the form and substance of the writ.
    5. Advantage can only be taken of a variance between a writ and declaration, by plea in abatement.
    7. Mere suspicion, that a felony has been committed, will not justify an assault and imprisonment; though a well grounded belief) founded on pregnant circumsíances,'that a felony has • been committed, will.
    8. Atíd, in any event, violence cannot be used, unless the arrest is opposed by resistance.
    9. Where a defendant is improperly permitted to assail the character of plaintiff, there is no error in permitting plaintiff to countervail it by evidence of good character.
    10. Points intended to be raised for revision, must be set out in the record with reasonable certainty, and where this is not done, so as to enable the court to decide without, danger of mistake, the exception or point reserved, will be disregarded for uncertainty.
    Error to the Circuit court of Benton.’
    Trespass, assault and battery, &c. — tried by A. Martin, J.
    This action was brought in the court below, by the defendant in error, against the plaintiff in error, for a trespass. The writ is sued out in the name of A. G. Pruitt,
    The declaration consists of two counts — one for an assault and battery, and the other for false imprisonment. The statement in the declaration is, “Ansel B. Pruitt, who sued out his writ under the style of (A. G. Pruitt,) by attorney, complains,” &c.
    The defendant below pleaded in abatement, in short, the variance between the writ and declaration. To this plea, the plaintiff below demurred, and the demurrer was sustained by the court.
    The defendant below then craved oyer of the original writ, and demurred to the declaration, which was overruled by the court. The defendant below then pleaded not guilty, with leave to give special matter in evidence. The jury found a verdict for the plaintiff below.
    On the trial, a bill of exceptions was sealed by the presiding judge, from which it appears that the defendant below, on the cross-examination of one of the plaintiff’s witnesses, proved that at the time the violence was committed by defendant on plaintiff in a public crowd, it was generally suspected by that crowd, that the plaintiff was guilty of stealing money from the defendant’s store, which was the cause of the violence committed by defendant on plaintiff. The witness, also, on cross-examination, stated that one Cox said he (plaintiff,) had stolen the money from defendant’s store, and made this statement to the plaintiff’s face, in the crowd. It was also proved, that the defendant told the plaintiff at the time, and also while going to the place, that he (plaintiff) was guilty of stealing his money. Said witness further said, on cross-examination, that he had been acquainted with the plaintiff nine or ten years.
    The plaintiff’s counsel then asked the witness, what was the general character of the plaintiff; to which the ■ defendant’s counsel objected — ■
    1. Because the plaintiff could not go into his own general character;
    2. That the plaintiff, after cross-examination, had no right to enquire into new matter.
    But the court overruled the objection, and allowed the witness to answer. The plaintiff was also allowed to introduce other witnesses, to prove his general good character, though objected to by the defendant’s counsel.
    To the opinion of the court, overruling the defendant’s objections, and admitting the testimony as aforesaid, the defendant excepted.
    The defendant below now assigns as error :
    1. The court erred in sustaining the demurrer of the plaintiff below, to the plea in abatement of the defendant ;
    2. The court erred in overruling the demurrer to the declaration; •
    3. The court erred in permitting the plaintiff to introduce witnesses in proof of his good character, as set forth in the bill of exceptions.

      Chilton, for plaintiff in error.

      Martin, contra.
   ORMOND, J.

In England, and in some of the States of the Union, a variance between the writ and declaration, is reached in a summary mode, by motion to.the court to set aside the declaration for irregularity. But this proceeds from the refusal of the court to allow oyer to be craved of the writ, without which the variance cannot be shown, unless, as in this case, it appears from the declaration, when it may be reached by motion— (See Willard vs. Missani, 1 Cowen, 37.)

. The act of the Legislature (Aik. Dig. 278,) which requires process irregular^ or improperly issued, to be abated on the plea of the defendant, must, in this State, introduce a different rule; and advantage may’be taken Of an irregularity of this kind, by a plea in abatement— if compelled by the court.

This has been attempted, in this case, but in such a careless and inartificial manner, that no benefit can be derived from it. It is in these words: “ The defendant, by consent of plaintiff, pleads a misnomer, in setting out the name of A. G. Pruitt, in the original writ, in this, that his true and only name is Ansel B. Pruitt, and not A. G. Pruitt, which is taken in short, and sworn to.”

In pleas in abatement, which do not reach the merits of the case, but merely delay the action, great strictness has always been required,'and form becomes material. What then is intended to be waived by the consent of the parties — the mere form of the plea, or both form and substance ? for unless the latter was the intention of the parties, the plea cannot be sustained. It is essential to the validity of the plea; that the writ should have been set out on oyer: this has not been done, and we cannot presume it was waived. If it be intended to raiso quesr tions of this kind, the plea must eifhej.* be drawn out in extenso, or at least, all the material facts and allegations necessary to constitute the plea, must be stated.

The court, therefore, did not err in sustaining the demurrers to the plea in abatement; nor did the court err in overruling the demurrer to the declaration.

It is well settled, that advantage cannot be taken of a variance between the writ and declaration, but by plea-in abatement. A demurrer, in the language of Mr. Chitty, objects to the sufficiency of the declaration, plea, or replication, to whioh it is filed, upon the face of the pleading, and without reference to extrinsic matter. But the declaration in this case, unaided by the writ, showing: that the writ and declaration do not correspond, is not objectionable, and the demurrer was therefore properly overruled.

The remarks made in reference to the pleadings, apply with equal force to the statements in the bill of exceptions, showing the admission of testimony, objected to by the plaintiff in error.

It is difficult to asceitain, with any thing which approaches to certainty, for what purpose the defendant-below was permitted to give evidence to impeach the character of the plaintiff. The language of the bill of exceptions is, that the defendant proved “ that at the time the violence toas committed by defendant on plaintiff,, in a public crowd, it was generally suspected by the: crowd, that the plaintiff was guilty of stealing money from defendant’s store.”

We might perhaps conjecture, that as- one of the counts: of the declaration charged the defendant below with false imprisonment, that this evidence was intended to-justify the arrest and imprisonment for the supposed felony ; but there is no plea of justification interposed, unless the agreement to permit the special matter to be given in evidence under the general issue, can be so considered. It is not, however, necessary, to consider the effect of this agreement, as the evidence would have been improper, under a plea of justification.

It is true, that an arrest may be justified,-where there is a well grounded belief, founded on pregnant circumstances, that a felony has been committed, but mere suspicion wiil not afford a justification. At all events, whether the belief of the guilt of the defendant in error was well or ill founded, it would not authorise violence to be used, unless the arrest was opposed by resistance, which is not stated. It would appear, therefore, that the evidence was offered upon the first count in the declaration: assuming this to be the case presented by the record, the evidence was improperly admitted; but as the defendant below was thus permitted improperly to assail the character of the plaintiff below, the court did not err, ip permitting the plaintiff to countervail it by evidence of good character.

It is possible, that we may have mistaken the case intended to be presented to this court for revision ; but if it be so, the fault must rest on those whose duty it was to present the points they intended to raise upon the record, with reasonable certainty. If this is not done, so as to enable this court to decide, without danger of mistake, the exception taken in the court below, or point reserved, will be disregarded, for uncertainty.

The judgment of the court below is affirmed.


author: COLLIER, C. J.

text:
    WEBB vs. BUMPASS.
    1. Where a defendant pays the money to the sheriff on a fi. feu he is discharged from the execution, and if the plaintiff fails to receive it, he must have recourse to the sheriff
    2. If the sheriff take goods in execution-under a fi. fa., whether he sell them or not the defendant shall not be liable to a second execution,
    3. But'where a defendant taken on a ca. sa. escapes, or is rescued, —plaintiff may take out a new execution, and is not coni- ■ . pelled to take his remedy against the sheriff ■
    4. So, where goods levied on by a fi. fa. are removed by defendant, or by his permission, or connivance, so that they cannot be sold under the execution, or under a venditioni exponas— the plaintiff may take out a new execution.
    5. Where the sheriff makes a levy, he is liable to the plaintiff for tile amount of the judgment, if the property be of sufficient value for that purpose, and it is the sheriff’s duty to provide for its forthcoming at the day of sale • but if the property be carried away by defendant's connivance, the plaintiff cannot be referred to the sheriff for payment,
    6. Plaintiff may, by statute, .(Aik. Dig, 159,) have a second writ of execution, at his own cost and charges, if the first writ be not returned and executed,
    7. In an action by the purchaser, for property sold under a second execution — such execution may be received in evidence, although the sheriff has in his hands a venditioni exponas, directing the sale of property levied on under the first execution.
    8. In a return to an execution under Which lands have been sold, it is not necessary to describe particularly the land sold — the identity of the property sold may be shewn by parol proof.
    9. And it is no objection to an execution offered in evidence, that the sheriff’s return does not describe the land levied on with minuteness.
    Error to the Circuit court of Lauderdale county.
    Trespass, to try title — tried before Coleman, J.
    The plaintiff in error brought an action of trespass against the defendant, in the Circuit court of Lauderdale, as well to try title to a tract of land situate in that county, as to recover damages for its occupation. The case was submitted to the jury on the plea of “ not guilty.”
    On the trial, the plaintiff proved that in eighteen hundred and twenty-seven, he recovered a judgment against the defendant, on which a fieri facias issued, and was placed in the hands of the then sheriff of Lauderdale, who returned the same, with his endorsement thereon, as follows:
    “A list of property given up by Gabriel Bumpass, to satisfy the within execution — five negroes, named Patsey, Drusilla, Daniel, Eliza, and Andrew Jackson, as the property of said Bumpass — 9th April, 1828.
    “M. Harkins, Sh’ff”
    It was also proved by the plaintiff, that a writ of ven-ditioni exponas issued in due form, requiring the sheriff to expose to sale, the negroes levied on by th & fieri facias, on which he.made the following return:
    “ The negroes levied upon were suffered to remain in the hands of the defendant, who did not deliver them— 2d August, 1828. M. Harkins, Sh’ff.”
    The plaintiff then produced a writ of fieri, facias^ issued on the same judgment, on the twenty-sixth 'day of May, eighteen - hundred and twenty-eight, which was placed in the sheriff’s hands, and returned to him, as fellows-:

      “ Levied on a tract of land, upon which Gabriel Bump-ass now lives, in Lauderdalé county, adjoining Richard Baugh and-, supposed to contain eighty acres —there not being a sufficiency of personal property to satisfy the debt; and after advertising the same according to law, sold John Webb, on the 4th day of August, 1828, at the price of three dollars per acre, he being the highest and best bidder at public sale. ,
    “ M. Harkins, Sh’ff”
    Which fieri facias, with the endorsement thereon, the plaintiff offered to read to the jury, to maintain the issue on his part; but on objection by the defendant’s counsel, the same was excluded: and thereupon the plaintiff excepted, and now presents the questions of law arising on his bill of exceptions to this court for revision.

      McClung, for the plaintiff in error.
   COLLIER, C. J.

We do not understand that the writ of fieri facias, with its endorsement, was the only evidence offered by the plaintiff of his right to recover, but only that it was proposed, so far as it was pertinent to maintain the issue. He may- have been prepared with the sheriff’s deed, and such other evidence as was necessary to show that the particular tract of land embraced by it, is identical with that, on which the execution was levied.

It was said at the bar, that the evidence was rejected, because the first fieri facias having been levied on property sufficient to satisfy the judgment, the Circuit court supposed the second to be a nullity. It is clear, that if the defendant pays the money to the sheriff on a fieri facias, he is discharged from the execution, and the plaintiff must bring his action against the sheriff. So, if the sheriff take goods in execution under a fieri facias, whether he sells them or not, yet, as they were taken from the party against whom the execution was sued, he may plead the taking in discharge of himself, and shall not be liable to a second execution — (See 2 Bac. Abb. 719, 720, .and pases cited in notes.) But if a party taken on a capias ad satisfaciendum escapes, or is rescued, though the sheriff is made liable, because he ought to have called to his aid the posse comitatus, yet the plaintiff may take out any new execution, and shall not be compelled to take his remedy against the sheriff, who may be' dead, or insolvent. And the law is the same, where goods levied on by fieri facias, are removed by the party himself, or by his permission or connivance, so that they cannot •be sold under the execution Uself, or under a venditioni e$ponas, issued on the sheriff’s return — (2 Bac, Ab. 719 ; Cro. Car. 40, 455.)

There can be no doubt that the sheriff became liable, by his levy, to satisfy the plaintiff the amount of his judgment : the property was doubtless of sufficient value for that purpose, and it was the sheriff’s duty to have provided that it should be forthcoming at the day of sale. The defendant is not, however, prejudiced by the sheriff’s neglect, and cannot be permitted to refer the plaintiff to him for the payment of his demand. This would be to compel one who himself was in no fault, to commence a new action against another, who might be unable to respond to him, while the original debtor honestly owed the debt. When the law shall recognise such a principle, it will cease to be respected as a science founded in the purest morality, but be regarded as uncertain as a game of hazard, whose capricious decisions often sacrifice the. artless and confiding, to advantage the cunning and the knavish.

The Circuit court was not authorised to reject the execution and its return, because the sheriff, at the same time, had in his hands a venditioni exponas, directing the sale of the slaves levied on by the first fieri facias-. We have a statute which prescribes, “ When any execution shall issue, and the party at whose suit the same is .issued, shall afterwards desire to take out another writ of execution, at his own proper costs and charges, the clerk may issue the same, if the first writ be not returned and executed,” &c. — (Aik. Dig. s. 2, p. 159.) Here is a clear authority to issue a second execution, while the first is still in the sheriff’s hands unsatisfied.

It was certainly no objection to the execution offered in evidence, that the sheriff’s return did not describe with more particularity, the land levied on. There is no statute, imposing upon the sheriff the duty of making a more particular description. In Benjamin vs. Smith, (4 Wend. R. 462,) the court say it is not necessary in the return to an execution, by virtue of which lands have been sold, to describe, particularly, the land sold- — and that it is competent to shew the identity of the property sold, by parol proof.

We have been thus particular, in considering every . question, that could, by any reasonable probability, have suggested itself as an objection to the admission of the evidence, in the Circuit court; because the case was submitted for our decision, without even a single suggestion on the part of the defendant in error.

Our conclusion is, that the judgment must be reversed, and the case remanded.


text:
    BROWN vs. HEMPHILL.
    X. It is not necessary in a declaration in debt on single bill, to aver a delivery of the writing obligatory to the payee; although such delivery is essential to its validity.

      2. The statute of limitations, must always be pleaded in actions ex contractu, if such a defence is intended to be relied on.
    Error to Greene County court.
    Debt. — This action of debt, was instituted on the thirtieth day of March, eighteen hundred and thirty-five, by the plaintiff in error, against the defendant. The declaration contains four counts, of which the first, third and fourth, describe the cause of action to be a writing obligatory, made by the defendant bearing date the seventh of September, eighteen hundred and eighteen, promising to pay one A. M. Harwood, or order, two hundred 'dollars, on or before the first day of January then next. These counts allege an assignment of this writing obligatory, by Harwood to the plaintiff, on the twentieth of September, eighteen hundred and thirty-four, by endorsement on the same. The second count describes the date and making of a writing obligatory, on the seventh of September, eighteen hundred and thirty-eighty and its endorsement to plaintiff on the twentieth of September, eighteen hundred and thirty-four.

    In neither of the counts is there any statement, that the writing obligatory was delivered to the payee, Har-wood.
    The defendant demurred to each count, and generally, to the whole declaration; and this demurrer was sustained, and judgment rendered for the defendant. The plaintiff prosecutes this writ of error, and assigns that the County court erred in sustaining the demurrer.
    Peck, for plaintiff in error.
   GOLDTHWAITE, J.

We have not been aided by any argument on behalf of the defendant in error, and are entirely at a loss to conceive on what reasons the judgment of the County court was founded. •<

The second count must be admitted bad, as it states an endorsement, before the instrument declared on was made, but even this error is presumed to arise from a mistake in the transcription of the record.

We do not perceive any material defect in the other counts: it is true, that a delivery of the writing obligatory is not averred, but this, although essential to its validity, need not be stated in pleading — (1 Chit. Pi. 351; 1 Saund. 291, n. 1.)

It is possible, however, that the'judgment of the County court was predicated on the fact, that when the writ was issued, the statute of limitations, had already run against the writing obligatory declared on. If this idea influenced the court, the case was decided in opposition to the universal course of proceeding.

It is unnecessary, at this time, to go into an examination of cases to shew, that the statute of limitations must always be pleaded, to actions ex contractu, if that defence is intended to be relied on.

There was error in sustaining the demurrer to the first,, third and fourth counts, for which the judgment of the County court is reversed and remánded.


author: COLLIER, C- J.

text:
    WOOD vs. YONGE.

      1. Ill scire facias against bail, it is competent for the bail to shew by plea, that the plaintiff has not given security for costs; and that therefore the bail bond is void.
    Error to Montgomery Circuit court..

      Scire facias, tried by A. Martin, J.
    The defendant in error caused a scire facias to be issued frormthe Circuit court of Montgomery, against the. plaintiff, as the bail of John Thomas.
    The plaintiff in error pleaded, — That the defendant, “neither at or before the time of holding the said John Thomas to bail, nor since, hath given security for the costs of his suit, according to the statute in such case made and -provided,” &c.
    To this plea, there was a demurrer, which being overruled, and judgment rendered for defendant in.error, the plaintiff brings the case here for revision*

      Campbell, for plaintiff in errofi

      Hilliard, contía.
   COLLIER, C- J.

The only question .made at the argib ment, is as to the correctness, of the judgment on demurrer. In Toulmin vs. Bennett & Laidlaw, (3 Stew. & Por. 225,) on a scire facias against bail, it was decided that it was competent for the bail to show by plea, that the plaintiff had not given security for costs — and by failing to do so, the bail bond was void. With this decision, We are satisfied ; and the judgment is consequently reversed, and the case remanded. • -


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    FISHER & JOHNSON vs. CAMPBELL.
    1. An agent, acting within the scope of his authority, binds his principal.

      2. The overseer of a plantation, as such, has no right to bind his employer, by the purchase of articles which he may suppose necessary. Such authority is not necessary, to enable him to perform the duties incident to his station, and therefore he cannot be presumed to be invested with it.
    3. A master, being entitled to the labor of his slaves, is bound to provide for their wants.
    4. And where no provision is made by an absent master for their subsistence, an overseer may procure necessary supplies on account of the owner, on the same principle that a father is liable to support his children.
    5. There is.no usage in this State, which authorises an overseer to purchase necessaries, for the maintenance of the slaves of an absent master, and thus bind the master contrary to his wishes.
    6. The authority of an agent may be implied from his previous employment in similar acts, aftd from subsequent acquiescence.
    7. An authority delegated to an agent, must be strictlypursued, in form as well as in substance.
    8. When a person deals with one who professes to be agent of [ another; the person contracting with him is bound to know the extent of his authority. †

    9. If one be held out to the world as the general agent of another, particular instructions not communicated, will not prevent the agent from binding his principal, even when he acts in disregard of such particular instructions.
    10. A partner can receive his individual debt,- in payment of goods sold by him belonging to the firm.

      Error to Lowndes county Circuit court.
    Assumpsit, for goods sold and delivered' — tried before Harris, J.
    This action of assumpsit, was brought by the plaintiffs, against the defendant, in the- court below, for goods, wares and merchandise. There was a verdict and judgment for the defendant, on the plea of non-assumpsit.
    Upon the trial of the cause, a bill of exceptions was tendered by the plaintiffs, from which it appears that the defendant is a resident of South Carolina, and has a plantation, and a large number of hands, in Lowndes county, in this State, where he was making a crop, and that one McMoy had charge of the plantation and hands, as an overseer — that while said' defendant was absent from the State, it became necessary to purchase pork for the slaves — that he, the said McMoy, called upon the plaintiffs, and purchased and received of them eight barrels of pork, for the said slaves, and directed the same to be charged to the defendant, his employer, which pork was used by the said slaves. The defendant then proved by said McMoy, that he had given the said McMoy directions to buy pork for his slaves of a particular'mercantile house at Montgomery, with whom he had made arrangements for that purpose, and had given him no directions to buy any where else, nor had he any authority to purchase of any other person. Tlidt said McMoy purchased the pork at the Montgomery prices, and chose to purchase it of the plaintiffs, on account of the bad state of the roads to Montgomery. It was also proved, that it was customary for overseers to purchase things necessary for fhei.r farms, &c. It was also further proved, that said Fisher agreed with said McMoy, that if he would get a certain individual debt on him, the said Fisher, that the same should be received in part payment of the pork — about forty dollars. It was also proved, that the house in Montgomery at all times furnished provisions when called on by McMoy.
    Upon this evidence, the plaintiffs requested the court to charge the jury, that if they believed from the evidence, that the said McMoy was the general agent of the defendant, in the conduct and management of said plantation and slaves, that the said pork was necessary, and was used for the benefit of the defendant in good faith, that any special directions given by the defendant to the said McMoy, as to the place of purchasing, was wholly Immaterial, as to this purchase, unless from the evidence, they were satisfied that plaintiffs were informed at the time of such sale, of such special directions, and that without this information, the plaintiffs would be entitled to recover, if the proof was fully made out.
    This charge, the court refused to give, but charged the jury, that if McMoy’s agency was special, and he was directed by defendant to purchase pork of a particular house at Montgomery, and had not been directed or au-thorised by defendant to purchase any where else, that the defendant was not bound to pay for them.
    The plaintiff requested the court to charge the jury, that Fisher had no right to sell the pork belonging to the firm of Fisher & Johnson, and to receive in payment therefor his (Fisher’s) note; which charge the court refused to give. An exception was taken to the refusal to charge, and to the charge as given ; and the matters of law arising thereon are now assigned as error.

      Cook, for plaintiff in error.
   ORMOND, J.

That an agent, while he acts within the scope of his authority, can hind his principal, admits of no controversy. The difficulty attending such cases in general, is to ascertain whether the person professing to act as agent had authority to bind his principal, either express or implied. Thus, in this case, the question to he settled is, whether McMoy lmd authority, either express, or arising by necessary implication from his employment by the defendant, to bind him in the purchase of the pork, for the price of which this suit is brought.

The first charge moved for, assumes that as McMoy was the overseer of the defendant, and had the charge of his slaves — as the pork purchased by him from the plaintiffs was wanted for the use of the slaves, qjid "was in fact consumed by them. — that although there was not only no authority given by the defendant to McMoy, to buy the pork of the plaintiffs, but a special direction to get it elsewhere, where arrangements had been made to procure it by the defendant — that unless this fact was known to the plaintiff's, they are entitled to recover.

To a proper understanding of the propriety of this charge, in reference to the facts of the case, it will be necessary to consider separately the different facts and assumptions which it contains.

And first, it cannot be maintained, that the overseer of a plantation, as such merely, has the right to bind his employer by the purchase of articles which he may suppose necessary for the use of the plantation. Such authority is not necessary to enable him to perform the duties incident to his station, -and therefore he cannot be presumed to be invested with such power by his employer.

It seems, however, lo be supposed, that the now residence of the defendant created a necessity for investing him with power to procure by purchase, the necessary subsistence for the slaves under his control. But the fact, that no such necessity existed, is evident from the proof on the record, that the defendant had made arrangements to get the pork at Montgomery, and the only reason assigned for getting it of the plaintiffs is, that it was more convenient to do so.

The master being entitled to the labor of his slaves, is bound by the common dictates of humanity, as well as by the law of the land, to provide for their wants; and if no provision had been made for their subsistence, we should hold that the overseer would have had the right to procure the necessary supplies, on account of the defendant, on the same principle that a father is bound to support his children, and might, under peculiar circumstances, be liable for necessaries furnished to them without his knowledge or consent — (See Owen vs. White, at the June term, 1837, of this court.)

It was also proved, that it was customary for overseers similarly situated, to purchase things necessary for their farms, &c. It will scarcely be contended, that such a usage as this exists in this State, so as to have the force of-law, and be binding on employers generally ; and if not, it proves nothing more, than that some planters are in the practice of sanctioning such purchases, but it by no means follows, that others, who have not assented to it, are bound by i(.

The nest inference of the charge is, “ that as the portó was necessary, and was used for the benefit of the defendant in good faith,” he is therefore liable. The authority of an agent may be implied from his previous employment in similar acts, or from subsequent acquiescence.

Thus, if a servant buy articles without authority, and they come to the master’s use with his knowledge, it will be an affirmance of the act. .But the mere fact, as in this case, that the articles purchased came to the use of the* employer without his knowledge, will not bind him. To maintain that it would have Cruft effect, would foe to permit one to constitute himself the judge of what was1 fit, and proper and necessary for another, without his consent. It would, in substance, be a permission to & stranger, to create the relation of debtor and creditor, probably against the will, and certainly without the consent, of the party sought to be charged.

The mere fact, that the provisions were consumed by the slaves of the defendant, is not sufficient to charge him legally; how far it should bind him in honor, or fn conscience, is a question which the defendant can best solve. It cannot influence the opinion of the court.

The last branch of the charge is stated as a corollary from the preceding propositions: “that any special directions given to McMoy by the defendant, as to the place of purchasing, was wholly immaterial as to this purchase, unless from the evidence, they were satisfied that plaintiffs- were informed, at the time of such sale, of such special directions, and that without- this information, the plaintiffs would be entitled to recover, if the proof was.fully made out,”

We Understand Uie law to be the' exact converse of this proposition, when a person deals with one who professes to be the agent of another person, the person contracting with him, is bound to know the extent of his authority. It has been shown, that McMoy had no’authority to bind the defendant, in consequence of being his overseer: nor was he a general agent/ His agency, then, if any existed, was special, and allpersons dealing with him, as such, are confined to its terms. “An authority delegated to an agent, must be strictly pursued in form, as well as in substance — (See Banoyer vs. Hovey et al. 5 Mass. R. 37.)ff In the same case, it was held, «that an agent, havirig authority to purchase goods to a limited extent, for his/principal, is not thereby entrusted with power by his principal, to borrow money on his credit.”

It is, however, unnecessary to cite cases to establish a principle so consonant to reason and common sense, and so well established as this. It is true, that if one be held out to the world, as the general agent of another, particular Instructions not communicated, will not prevent the agent from binding his principal, even when he acts in disregard of such particular instructions, But in this case, there was no authority delegated to buy the pork, general or special, but a mere direction to obtain it at a particular place, where it had been provided. It follows, therefore, that the seller cannot look to the defendant.

The relevancy of the second charge moved for, is not perceived.

In what manner will it aid in settling the question mooted in this case, to determine whether one partner can receive bis individual debt in payment of goods sold by him belonging to the firm ? It is probable, however, that the fact was Used on the argument of the cause in the court below, as conducing to shew the true character ^>f the transaction, and that the Sale was in fact made to McMoy; but it is not presented here in connection with the controversy, so as to make it necessary that the court should determine it: but if it were important, we should not hesitate to say, that a partner ■ would have such power.

There is no error in the judgment of the' court, and it is affirmed,


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    NAPPER vs. NOLAND.
    1. Where an affidavit in attachment states, that in consequence of the removal of the goods and effects of defendant, ordinary*^ process cannot be served on him, and the writ alleges the same thing — the proceeding is not conformable -to the statute, and ■the defect reaching to the affidavit — cannot be amended.
    2. Judgment by default, where no declaration appears of record, is revisable on error.
    3. Where the term of the court is limited to six days, judgment by default, for want of a plea taken at the return term of the writ, is irregular; and there is no di.-tinction between attachments and ordinary actions, except in the case of non-resident defendants.
    4. But where the court is authorised to continue its session, until the business before it shall be disposed, of: and where from the record, it does not appear but that the court did business after the first week — the judgment wiil be regular.
    Error to Benton Circuit court.
    Attachment. — The defendant in error sued out an original attachment, returnable to the Circuit court of Benton, against the estate of the plaintiff, upon affidavit, stating that he was “about to remove his goods and effects out of the State, so that the ordinary process of the law cannot be served upon him,” &c. The attachment being levied and returned, a judgment final, by default, was rendered-at the return term of the court, without any declaration having been previously filed.
    It is here assigned for error—
    1. That the attachment was irregularly sued out;
    2. That judgment was rendered without a declaration !

      3. That the judgment was rendered at the first term of the court.
    Martin, for plaintiff in error.
   COLLIER, C. J.

1. Where • an attachment issues on the ground that a party is about to remove his “ goods and effects,” the statute requires the plaintiff, “his agent, attorney or factor, to make affidavit in writing, that the person against whom the attachment is prayed,” “’is about to remove his or her property out of the State, and that thereby the plaintiff will probably lose the-debt, or have to sue for it in another State” — (Aik. Dig. s. 3, p. • 37.) The. affidavit declares, that .as a consequence of the removal of the “goods and effects” of the defendant below, “ the of unary process of law cannot be served on him;” and the writ of attachment states the consequence of the removal to be, that “ the ordinary process, of law cannot be served upon the same” — that is, the “goods and effects.” The proceedings on the attachment, then, are not conformable.to the statute, and the defect reaching back to the affidavit, they could not be amended in the Circuit court.

2. It has been heretofore decided by this court, that a • judgment by default, where no declaration appears of record, is reversable on error — (Wheeler et al. vs. Ballard, 6 Porter’s R. 352.)

3. Where the term of a court is limited to six-days, a judgment by default, for want of a plea taken at the return term of a-writ, is irregular — (Rather vs. Owen, 1 Stew. R. 38.) And our statutes do not distinguish be- . tween suits commenced by attachment, and in the ordinary mode of suing, except in the case of non-resident defendants — (Aik. Dig. s. 15, p. 41.)

The Circuit court of Benton, is authorised to continue its session, until the business before it, shall be disposed of. The record before us does not show when the court adjourned, o.r when the judgment was rendered, and we cannot intend it to be erroneous, inasmuch as it would be regular, if the court continued to do business after the first week.

But for the first, and second grounds taken by the plaintiff, the judgment must be reversed, and as he could qo,t proceed below, it will be unnecessary to remand the §ase,


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    FOSTER vs. WHITE.
    1. The answer of a garnishee cannot operate so as to aifect the right of other persons, by the fiction of filing it at July term, and endorsing on it, that it is to be considered as if filed six months before. The answer must be considered as filed at the time it was in fact filed.
    2. It is a duty imperative on a garnishee, before final judgment, to make known that he has received notice of a transfer of the notes, which are the evidence of his indebtedness to the defendant.
    3. And, in such case, judgment cannot be rendered against the garnishee.
    Error to the County court of Tuscaloosa.
    Attachment. — This proceeding was garnishment, sued out by the plaintiff in error, against the defendant in error, in the court below, calling on the defendant to disclose whether he was not indebted to one Joseph B. Rice, against whom the plaintiff had obtained a judgment.
    The defendant appeared, and filed his answer, on oath, as follows:

      “ Garnishee answers, that he purchased a stock of goods of Joseph B. Rice, about the 12th day of October, 1837, at the price of |8654 00, for which garnishee gave said Rice several promissory notes — one for' $1000, payable on the first day of January, 1838 — the precise number and amounts of the remainder of said notes, garnishee "does not remember. They were for different amounts. All the notes, except the thousand dollar note aforesaid, were drawn negotiable and payable at the Bank of the State of Alabama, at Tuscaloosa,'and were to fall due on the 12th' day of October, 1838, or thereabouts.
    “ Garnishee further answers, that he received a notice in writing, from Joseph B. Rice, dated 23d December, 1837, informing him that said Rice had transferred the notes aforesaid, to his creditors, in lieu of his own debts, which notice was received by' garnishee, before service of the writ of garnishment. Said notice did not state to what particular person" or persons these notes had been transferred.
    “ Garnishee farther states, that previous to this answer, and before service of garnishment, he received notice from one Robert Cook, that the note above mentioned, for flOOO, due 1st January, L838, had been transferred to him. The note was paid by garnishee, and ,; taken up before service of garnishment, as well as he can recollect. Garnishee further states, that he received no notice of the remainder of the notes aforesaid having been transferred, except as above 'stated, from Rice to himself, before the service of the garnishment, or before the 30th January, 1838, the day and time at which this answer is taken, and considered as made and filed. On the 1st June, 1838, garnishee was shewn a receipt, signed by Austin Richardson, and dated Washington county, Alabama, 20th March, 1838, by which it appeared, that the several notes given by garnishee to Joseph B. Rice, had been endorsed to one Thomas W. Richardson, on the 20th December, 1837, by Rice. Garnishee was informed by the receipt, that the notes were held by said Austin Richardson for collection, or to be deposited in the Bank at Tuscaloosa by him. Garnishee did not see the notes, but was informed they would be in bank at ma~-turity, and were then in said Austin’s possession.
    “Garnishee further states, that said Joseph B. Rice was indebted to him previous to .the service of the garnishment, in the sum of $199 87, and is still so indebted, which he claims to set-off, if he should be considered indebted to said Rice. Garnishee knows of no property of said Rice, in the hands of any other person — nor does he know of any person who is indebted to said Rice; and having fully answered, prays to be dismissed, <fec.
    “Sworn to and subscribed, nunc pro tunc, as of the January term, 1838, in open court, this 21st July, 1838.”
    Upon this answer, the plaintiff moved the court for judgment against the garnishee; which motion the court, refused, and discharged the defendant with costs.
    From this judgment, the plaintiff prosecutes a writ of error to this court, and assigns for error, the refusal of the court to render judgment against the garnishee, on his answer.
    Phelan, for plaintiff in error.

      Crabb, contra.
   ORMOND, J.

We cannot perceive on what principle the judgment of the court can be successfully assailed. The defendant states, in his answer, that he has received notice of the transfer of the notes made by him to Rice, which notice was given by Rice before service of the garnishment, but without informing him to whom the notes were transferred, further than that they were transferred to his creditors. That since then, aud before the filing of the answer, he had received particular notice to whom the notes were transferred. The answer is made on the twenty-first July, eighteen hundred and thirty-eight, and has an endorsement, stating that it is filed as to the January term, nunc pro tunc.

The answer cannot operate so as to affect the rights of other persons, by the fiction of filing it in fact at the July term, and endorsing on it, that it is to be considered as if filed six months before. It must be considered as filed .at the time it was in fact filed, and if the defendant had not then disclosed the notice he had received of the transfer of the notes, a judgment against him, as garnishee, would not have protected him against a recovery on the notes — (See Colvin vs. Rich, 3 Porter, 175, where this point is expressly decided.) It was not only his privilege, but it Was a duty imperative on him, at any time before final judgment, to make known that he had received notice of the transfer of the notes.

It is not necessary, in this case, to consider the question, whether any notice is necessary to protect the interest of the holder of a note, made negotiable and payable at bank, from the effect of a garnishment against the maker, as notice was, in point of fact, given.

The judgment of the court below is affirmed.


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    GRIFFING vs. HARRIS.
    1. In an action by the endorsee of a note, against the endorser, the maker is a competent witness, as his interest is balanced.
    2. The admission .of indebtedness, made by the subscriber of a promissory note, is prima facie only, and does not extend to the endorser — the endorsement is a post factum act.
    Error to the Circuit court of Mobile.
    Assumpsit on a note — tried by Hams> J.
    The defendant in error, as the endorsee of a promissory note, declared against the plaintiff, (as the endorser,) in the Circuit court of Mobile. The case was tried on the general issue. On the trial, the plaintiff in error proposed to prove by the maker of the note, that at the time the note and endorsement were made, the defendant had in his possession some valuable papers and documents, which were the property of the witness; and that he gave the note, with the plaintiff’s endorsement as security, to the defendant, for the purpose of recovering the possession of these pape's and documents, and with the express understanding, that they should be delivered up. And the plaintiff proposed further to show by the witness, that he had, after the making and endorsement of the note, demanded the delivery of the papers and documents, but the defendant declined complying with the demand, and had not yet delivered them to him. The plaintiff in error then executed to the witness, in open court, a release of all damages, costs and charges, which he (the plaintiff,) might sustain in the event of a recovery against him in this cause. But the court refused to allow the witness to give evidence — and thereupon the plaintiff in error excepted, and prosecuted his writ of error to this court.
   COLLIER, C. J.

It is difficult to conceive for what cause the evidence of the maker of the note was excluded, in an action against the endorser: surely not because he was interested in the event of the suit, for it was entirely immaterial to him what judgment the court rendered. If the endorsee was unsuccessful, he might immediately resort to the maker, who could not set up in his defence, the verdict and judgment in favor of the endorser. So, if the endorsee were to recover of the endorser, the latter might directly charge the maker; and, in either event, the interest of the witness would be balanced.

There is no pretence for excluding the maker as a witness in such a case, on the ground that he is a party to the paper in suit. By subscribing the note, he admits an indebtedness — prima facie only — but even this admission does not extend to the endorser: the endorsement is a post factum act.

In every view in which the case has presented itself to us, we are persuaded that the Circuit court erred in the rejection of the evidence, and the error is manifested by authorities. so direct and ample, that we will content ourselves with a mere reference to them, without adding any further reasoning of our own — (Kennon vs. McRea, 2 Porter’s R. 389; Standefer vs. Chisholm, 1 Stew. & Por. R. 449; Todd vs. Stafford, 1 Stew. R. 199; Bent vs. Baker, 3 T. R. 27; Jourdaine vs. Lashbrook, 7 T. R. 601; Ridley vs. Taylor, 13 East’s R. 175; York vs. Blott, 5 Maule’s R. 71; Legge vs. Thorpe, 2 Camp. R. 310; Staples vs. Okines, 1 East’s K. 332; Bayley on Bills, 418, et post; 1 Sanders on Pleading, 366, and cases cited.)

The judgment must be reversed, and the case remanded.