text:
    LEA & LANGDON vs. THE BRANCH BANK AT MOBILE.
    1. A legal title to a note, payable to the order of the maker, can only be derived from his endorsement.
    2. Such note is of no validity until endorsed; and until'then, ' the maker cannot be sued.
    3. But when endorsed, the note becomes perfect, and the party may be treated as the maker.
    4. And if a subsequent endorser be sued, the holder may derive title to the paper, through the endorsement of the maker.
    5. The Bank cannot, as endorsee of defendant, maintain a proceeding against one (not the maker) as the endorser of a note, made payable to the order of the maker.
    6. And the certificate of the President of the Bank, that the paper sued on is really and bona fide, the property of the Bank, will not of itself, give title to the Bank, of the paper sued on.
    7. The Legislature, in requiring such certificate, did not intend a grant of power — only a limitation on a power already given.
    8. On a demurrer to evidence, where the evidence is not sufficient to maintain the issue, — the court will not award a venire facias de novo.

    [The case of Ramsey vs. Johnson, (Minor’s Reports, 418,) is overruled, by the decision in this case.]
    Bank notice, tried before Pickens, J.
    On the sec'ond day of December, eighteen hundred and thirty-seven, a notice was served on the plaintiffs in error, informing them that at the then next term of the Circuit court of Mobile, to be, held on the second after the ‘ fourth Monday in October, the President of the Bank would move for judgment against plaintiffs in error, as the endorsers of a promissory note, expressly made payable and negotiable at the said Bank, which note bore date the first day of October, eighteen hundred and thirty-six, being made by A. Marvin as maker, payable three months after date, to the order of said A. Marvin, for the sum of six hundred dollars, and protested for nonpayment.
    Attached to the notice, there was the following certificate :
    “ I, George S. Gaines, President of the Branch of the Bank of the State of Alabama, at Mobile, do hereby certify, that the note described in the foregoing notice, was, when the same was protested, and now is, really and bona fide, the property of said Branch Bank.
    “ Given under my hand this 2d day of January, 1838.

      “ George S. Gaines.”
    To this notice, the defendants below filed a plea, in the nature of nil debit.

    The plaintiffs below, to sustain their issue, introduced a note, of which the following :s a copy :
    “Dollars 600. Mobile, October 1, 1836.
    “ Three months after date, I promise to pay to my own order, six hundred dollars, for value received, negotiable and payable at the Branch of the Bank of the State of Alabama at Mobile.
    “ A. Marvin.”
    The said plaintiff produced in evidence the protest of a notary, by which it appeared, that the payment of said money was demanded at the maturity of the said the said note, at the place where the same was made payable; and refused: whereupon, the note was protested for non-payment, and notice given to defendants. It further appeared, that the. defendants had received thirty days’ notice of the motion; and it was shown, by the production of the certificate of the President of the Bank, that the said paper belonged to the Bank.
    The defendants admitted that the note was executed by A. Marvin: that their indorsement appeared thereon, and that they had received due notice of non-payment. They also conceded, that the debt was really and bona fide the-property of the Bank ; but demurred to the evidence.
    Annexed to the demurrer, there was a statement, that the plaintiffs offered to prove that the note in evidence was endorsed by Aaron Marvin, which evidence was not permitted to go to the jury.
    The demurrer was ruled by the court, not sufficient 'in law, to bar plaintiffs’ action, and judgment was therefore given against the defendants, on which they took a writ of error.
    The plaintiffs in error assigned—
    1. That the demurrer to the notice of the plaintiffs-was overruled in the court below.
    2. That the record does not disclose a case in which a motion ought to have been made or judgment rendered upon a motion against defendants.
    3. That judgment was rendered for plaintiffs below on the demurrer to evidence, when the same should have been rendered for defendants.

      4. That the court rendered judgment for damages, when the same ought to have been assessed by a jury.

      Campbell, for the plaintiff in error.

      Gayle, contra.
   ORMOND, J.

— The question presented to this court is, whether the plaintiffs below, have such a title to the note k as would enable them to maintain this action. The note being payable to the order of the maker, the legal title to it could only be derived from his endorsement. This endorsement being excluded from the jury, can the action be maintained ?

It is maintained that the certificate of the President of the Bank, that the paper sued on is bona fide the property of the Bank, will authorise the maintenance of a suit in a case like the present. It is apparent that the (/legislature had no such intention. It was not intended as a grant of power, but as a limitation on a power already granted, and to prevent the Bank from being used as an instrument for the speedy collection of debts, which did not belong to it.

The question then is, whether the Bank can maintain a suit at law, without having a legal title to the instrument sued on. No part of the charter has heen referred to, as containing this power, except the one above adverted to: As it is shown that that clause does not give the power, and as the law is not controverted, that neither a corporation nor an individual can maintain an action at law, to recover a chose in action, it follows that the Bank could not sue, at law, in its own name, either by this summary process, or otherwise, unless it had a legal title to the instrument sued on. The court, therefore, erred in overruling the demurrer.

It is, however, insisted, that this court can not render judgment for the plaintiffs in error, hut must remand the cause, that a venire facias, de novo, may issue.

On a demurrer to evidence, the only enquiry that can he made by the court is, whether the evidence does or does not sustain the issue, and judgment must be rendered accordingly. It is true that when the evidence is so loose and uncertain that no correct conclusion can be attained, the court will award a venire facias de novo.

In the case of Gibson and Johnson vs. Hunter, (2 H. Blackstone, 209,) Lord Chief Justice Eyre, delivering the opinion of all the Judges, says — “In 'case no judgment can be given, what ought to be awarded? We answer that there ought to be an award of a venire facias de novo : — the issue joined between these parties, in effect, has not been tried; and the case of Wright vs. Pindar, is expressly in point, that another venire facias should issue.”

So, in the case of Wheelwright vs. Moore, (1 Hall's Sup. C. Rep.) Judge Oakley delivering the opinion of the court, says — “When there is a demurrer to evidence, which is certain, as in the case of documentary proof, the practice is for the court to give final judgment, as on a special verdict; but where there is no certainty in the statement of facts proved, the court may award a venire de novo. In the present instance, it is evident that the whole merits of the plaintiff’s case have not been disclosed, and I think it is competent for us, in the’exercise of our discretion, to send, the case to another trial. The purposes of justice would not be subserved by giving a peremptory judgment on this record.”

Here, there is no uncertainty. The evidence is not sufficient to maintain the issue, unless we hold that the Bank can maintain the action, without having the legal title. For what purpose then should we award a venire de novo. But no such result can take place.

It is also insisted that no action can be maintained on the note in this case, as it was payable to the order of Marvin, the maker of the note.

Under the act of eighteen hundred and twelve, an endorser is authorised, after assignment, to maintain any action against the maker, which the payee could have maintained, and he is authorised to sue the endorser as in cases of inland bills of exchange.

When one makes a note payable to his own order, it is of no validity until endorsed, and until then he could not be sued; but by the indorsement, the instrument becomes perfect. If he alone is to be sued on it, he can be treated as the maker of a promissory note. (See Roach vs. Ostler—1 Manning & Ryland, 120.) If any subsequent indorser is sued, the holder may derive his title to the paper through the indorsement of the person making the note payable to his own order. (See Chit, on Bills, 25— Smith vs. Luske, 5 Cowen, 708—Cooper vs. Meyers, 10 Barnwell & Cresswell, 468— Hazlehurst vs. Pope, 5 Stewart & Porter, 197.)

The case of Tindall vs. Bright, (1 Ala. Rep. 103,) has been supposed to militate against this doctrine; but this point does not arise in that case. The point there determined is, that no action can be maintained at law, where one of several co-obligors is also an obligee in the bond.

The case of Ramsey vs. Johnson, (Minor's Rep. 419,) is in conflict with the decision here made, and in the case cited from 5th Stewart & Porter: and is to be considered hereafter as overruled.

The judgment of the Circuit Court is reversed, and judgment entered here for the plaintiffs in error.


source: Caselaw Access Project

author: COLLIES, C. J.

license: Public Domain

text:
    PARSONS & CO. vs. LEE & NORTON.
    1. Notice by an indorser, who has paid a bill'of exchangein. Bank, that he will move for judgment against his principal, at the next term of the court, loses its efficacy, by a failure to proceed on it at the term fixed for its return.
    2. Such a notice is entirely under the control of the party issuing it, until he shall move upon it, and can not be regarded as process, matter or thing depending; and consequently is not .continued in force by the statutes, which provide for cases of failure to hold a court, or dispose of the business therein.
    Error to the County court of Montgomery.
    Notice by an indorser who had paid a bill of exchange, to his principal, that a motion would be made for judgment.
    The defendants, as the indorsers of a bill of exchange, negotiated at the Branch Bank at Montgomery, having paid the same, gave notice to the plaintiffs that they would move the County court of Montgomery, to be holden on the first Monday in December, eighteen hundred and thirty-seven, for a judgment against them as drawers, according to the statute. The first proceeding upon the notice, was at a special term of that court, hol-den in February, eighteen hundred and thirty-eight, when a motion was made for a judgment, which was resisted on the ground, that the motion should have been submitted at the December term; but the objection being deemed insufficient, the motion proceeded to judgment ; and to revise the proceedings below, the case was brought up by writ of error.
    It was assigned for error—
    1. That the evidence in the court below, did not support the judgment, or authorise the same.
    2. The plaintiff below was not entitled to proceed against the defendant, in the summary method pursued.
    3. The case was not regularly in court, and should have been dismissed on the motion made; and the judgment nunc fro tunc., should not have been rendered.

      Thorington, for plaintiff in error.
   COLLIES, C. J.

— The judgment of the County court can not be sustained; for the notice to appear in December had lost its efficacy, by a failure to proceed on it, at the term fixed for its return. The statute directs that “ all process, matters and things depending, shall be continued, and all appearances upon returns of process shall be made to the next succeeding term in course, &c. in the event of a failure to hold a County court, or to dispose of all the business therein.” — (Aik. Dig. sec. 15, p. 248.) Tbe act under the authority of which, the special court was holden, was passed on the twenty-third of December, eighteen hundred and thirty-seven, and enacted, that all judgments and other proceedings, had at that time, should be as valid and binding in law, as if they had been at a regular term. Á notice issued by a •party himself \ (as was that in the present case,) is entirely under the control of tne party issuing it, until he shall move upon it: he may, until then, destroy it, if he think proper, or entirely abandon it, without subjecting himself to a judgment for costs. The notice, in the hands of the party, can not be regarded as process, matter or thing depending, and consequently is not continued in force by virtue of either of the statutes cited, upon the failure to hold a court or dispose of the business therein.

The judgment at February, then, was unauthorised by the notice, and must consequently be reversed. The other points made at the argument, (as the case can not be remanded,) need not be considered.


author: PER CURIAM.

text:
    SMITH vs. BLAKENEY.
    1. Where an action is brought against two defendants, and the writ is served on one only, and the plaintiff discontinues as to the defendant not served — he may, immediately after the discontinuance, issue fresh process against the defendant not served, and if he be found, proceed to judgment against him.
    2. And the recitals in the writ, that a previous writ had issued against the defendant, and the party as to whom the judgment was taken — will not avail in error — the defendant having appeared.
    Assumpsit upon a note signed “ G. F. Davis, A. K. Smith.”
    On the fifteenth of July, eighteen hundred and thirty-six, the writ issued against Davis and Smith, returnable to the July term following of the County court. The writ was returned, executed on Davis alone, and the declaration was against him, discontinuing as to Smith.
    At January term, eighteen hundred and thirty-seven, judgment on verdict was rendered against Davis, reciting dismissal as to Smith.
    On the twenty-first December, eighteen hundred and thirty-six, an alias writ, founded on the original served on Davis, was issued against Smith ; and on the twenty-seventh March, eighteen hundred and thirty-seven, a pluries issued, which was executed eleventh April, eighteen hundred and thirty-seven.
    At January term, a declaration was again filed against Smith, and judgment rendered by nil dicit.

      First. It was assigned for error, that the court erred in rendering judgment against'plain tiffin error.
    1st. Because a discontinuance was entered in the original declaration against the plaintiff in error, against whom writ was issued jointly with Davis.
    2d. Because the case was continued against Davis, and judgment entered against him, dismissing the case as to plaintiff in error.
    3d. Because the judgment was taken against plaintiff in error, upon a pluries writ issued after judgment had been obtained on the original writ against Davis.
    Second. — The court erred in refusing to quash the writ in this case, on which judgment was obtained.
    1st. Because it was a pluries writ, issued after judgment, on-the original, against another defendant.
    2d. Because the case had been previously discontinued against plaintiff in error.
    Porter, for the plaintiff in error.
    Phillips, contra.
   PER CURIAM.

— Some difficulty is thrown around this case, from the manner in which the record is presented.

An original writ issued a'gainst Smith, the plaintiff in error, and one Davis, which was served on Davis, against whom a declaration was filed — on which, the suit, as to Smith, (who was not served with process) is discontinued. Judgment was rendered, on verdict, against Davis. Previous to the judgment against Davis, and after the discontinuance against Smith, a writ is issued, reciting the issuance of the previous writ, against both, and that it was not served on Smith. After the judgment against Davis, another writ is issued against Smith, which being served on him, and a declaration filed, he appears and moves the court to quash the writ, as founded on a proceeding previously discontinued. This motion was denied, and judgment rendered against him at a subsequent term. All of the proceedings against Davis are irregularly entered in the transcript as a part of the record of this suit: when these are stricken out, there will appear only the writs and proceedings against Smith, and the recitals of a previous writ having been issued against him and Davis, is not such a defect as can be available to him.

As soon as the action was discontinued in the court below, the plaintiff in that court had the right to sue out process against Smith, and the recital of the former writ can not vitiate the subsequent process.

Let the judgment be affirmed.


text:
    PERINE et al. vs. BABCOCK.
    1. In a proceeding to try the right of property levied on under an attachment, the. court cannot reject an execution (or it would seem, the attachment) offered in evidence, on the ground that the lien of the attachment was destroyed by the giving of a replevy bond.
    Error to the Circuit court of Dallas.
    Issue to try the right of property, tried before Cren-shaw, J.
    Verdict and judgment for the claimant.
    In this case, the bill of exceptions stated, that on the trial of the cause, the plaintiffs in execution, produced and proved the issuance of an attachment by them, on the thirtieth March, .eighteen hundred and thirty-two, against the estate of Stephen Miller, an absconding debt- or, which was levied on the property in question. On the attachment, plaintiffs recovered judgment. They also proved by several witnesses, that the property was in Miller’s possession for several years, and up to the time of his absconding. They then offered in evidence an execution issued upon their judgment, which was levied on the same property, on which levy, claimant again interposed his claim, and executed bond for the trial of the right of property. To the introduction of this last evidence, claimant objected, on the ground, that a reple-vin bond had been executed by him, on the thirtieth March, eighteen hundred and thirty-two, for the property. The objection was sustained by the court, on the ground, that the lien created by the levy of the attachment, was discharged by the execution of the bond. Whereupon, the plaintiffs in execution submitted to a verdict for claimant, and excepted to the decision of the court.
    It was assigned—
    That the court erred in rejecting the execution in. evidence, and in making the decision excepted to.

      J B. Clarke, for the plaintiffs in error.
    Phillips, contra.
   PER CURIAM.

— It is evident that the rejection of the execution cannot be maintained on the reason assigned by the Circuit court in the bill of exceptions. If the lien of the attachment was destroyed by the execution of the replevy bond, it could in no manner affect the validity of the execution issued subsequently on the judgment, and authorise its exclusion from the jury. It must be that “execution” is inserted in the bill of exceptions, by mistake or inadvertance, in lieu of “ attachment.” We notice this, not because we possess the power to correct or reform the bill of exceptions, but that injustice may not be done to the circuit judge by this presumed mistake in the question actually decided by him. If the bill of exceptions is correct, (and we must so consider it, for the purposes of reversal or affirmance,) the error is apparent.

If we consider that it was the attachment, and not the execution, which was excluded, the opinion expressed by the Circuit court is nevertheless incorrect, and though formerly a question of doubt and difficulty, was finally settled by the decision of the case of McRae vs. McLean, (2 Porter, 138.)

Since the decision of that case, the same point has received the confirmation of the Supreme court of the United States—(Lucas vs. Hagan, 10 Peters.) After these repeated decisions, the point may be considered at rest.

The judgment is reversed, and the cause remanded.


author: COLLIER, C. J.

text:
    RICKS, adm'r, vs. DILLAHUNTY.
    l. The seller oí personal chattels impliedly stipulates that the '■ article sold is his own, and that he will indemnify the buyer for the loss, if the title is in another person.
    But a sale by an executor, administrator, or other trustee, forms an exception to the rule, and does not imply a warranty of title, unless there be fraud, or perhaps in some instances, gross negligence.
    3. To entitle the purchaser to recover for any defect in the quality or soundness oí the article or property sold, except under special circumstances, he must prove that the seller warranted the thing; sold to be good and sound, or that he concealed or fraudulently represented its qualities.
    4. If the warranty be express, it will extend to all defects, whether known or unknown, to the seller, unless they be such as a common purchaser might have observed at the time of the sale.
    5. No particular form of expression is required to constitute a warranty. It generally depends upon the terms, and the sense in which they are undérstood by the parties, whether they amount to a warranty, or were a mere expression of the seller’s opinion.

      6. It is not necessary for the indemnity of the purchaser, that he should in all cases require an express warranty, as in some cases the law will imply it; as, in case of one who sells provisions — a merchant abroad who fills an order for his customer, and one who sells by sample.
    7. A mere representation or expression of opinion, will not render the seller liable, unless made with a knowledge that they are false.
    8. The purchaser of personal property cannot defend against the purchase money, by showing that the property was of no value ; — the seller making no warranty and practising no fraud.
    9. A suppression of the truth also to the buyer’s prejudice, will’ render the seller liable.
    10. A contract for the sale or hire of a slave, is governed as far as the nature of the subject will allow, by the same principles that govern other contracts of sale.
    11. The hirer of a slave for a definite period, becomes a purchaser for the time agreed on, and if the slave die before its expiration, the loss must be borne by the hirer, and he cannot resist a recovery, by shewing that the act' of God prevented him from deriving a profit from the contract, unless by its terms, it provides for such a contingency.
    12. (It seems, however, that in Virginia and South Carolina, the owner is not entitled to recover hire, for the time intervening between the death of the slave, and the expiration of the term for which he was hired, but the hire must be apportioned.)
    13. (In South Carolina, ■ a sound price, contrary to the English common law, implies a warranty of soundness, by the seller of a personal chattel.)
    Error to the Circuit court of Lauderdale.
    Debt, on anote given for the hire of negroes, tried before Lane, J.
    The plaintiff in error, declared in debt against the defendant in the Circuit court of Lauderdale, on a writing, of which the following is a copy :

      “ f348. On or before the first day of January next,' we, or either of us, promise to pay Abraham Ricks, administrator of Isaac Ricks, the just and full sum of three hundred and forty eight dollars, for the hire of three negro men; namely, Dick Lockhart, Willis and Godfrey. Witness our hands and seals, this the 13th day of February, 1834.
    “Harvey Dillahunty,
    “Amos Jarman.”
    The defendant pleaded, in short—

    1. A failure of consideration;
    2. A want of consideration;
    3. Fraud. ■ -
    On each of which pleas, 'issues were taken and submitted to the jury.
    From a bill of exceptions taken at the trial, it appeared that defendant took possession of the negroes mentioned in the note, under his contract of hiring, and that Willis died five or six weeks' thereafter. It was also shown, that proof was introduced from which it appeared that Willis was unwell a few days after the hiring, and so continued up to the time of his death. It was not positively proved that he was unsound at the time he was hired, nor was it pretended that there, was a warranty of soundness by the plaintiff, or that he was chargeable with fraud or deceit in the transaction.
    The court charged the jury, that to sustain the plea of fraud, the defendant must prove that the plaintiff knew of the unsoundness of the negro at the time of the hiring, and concealed it from the defendant. . But if it were shown by the evidence, that the negro was sick when he was hired, and died from a continuation thereof, a few weeks thereafter, although the plaintiff was ignorant of his sickness, yet under the plea of a failure of consideration, they must find for the defendant. If, however, the services of the negro were worth any thing, the plaintiff was entitled to recover an equivalent therefor. ;

    The plaintiff’s counsel moved the court to instruct the jury, that if there had been no breach of warranty, or no fraud, either in misrepresenting or concealing the truth in regard to Willis’ health when he was hired by the defendant, in the absence of all proof that he was then unsound, or if unsound, that the plaintiff was ignorant of his condition — the defendant could not claim an abatement from his obligation to pay hire, — which instruction, the court declined giving.
    Verdict and judgment for defendant, to reverse which, the writ of error was taken.
    The charge given, and the refusal to charge, were assigned as erroneous.
    Martin, for plaintiff in error.
    Martin, for the plaintiff in error,
    to support the grounds taken in the assignment of error, cited — (Bl. 1, B 2, 451; 2 Porter, 280; 3 Stewart, 140; lb. 322; 1 Stew. & Por. 71; 2 Stew. & Porter, 224.)
   COLLIER, C. J.

— The' charge given in this case, and that refused, present the question — Whether the unsoundness or worthlessness of a personal chattel at the tíme of its sale, constitute a defence to an action brought for the recovery of the purchase money ?

1 It is understood that the seller of personal chattels impliedly stipulates that the article sold is his own, and that he will indemnify the buyer for the loss, if the title is in another person—(3 Bla. Com. 166; Stuart vs. Wilkins, Doug. R. 18; Furnis vs. Leicester, Cro. Jac. 474; Crosse vs. Gardner, Carth. Rep. 90; Macbee's adm'r vs. Gard ner, 2 Har. & Gill’s R. 176; Chism vs. Woods, Hard. R. 531; Osgood vs. Lewis, 2 Har. & Gill’s R. 495; Defreeze vs. Trumper, 1 Johns. R. 274.) But a sale by an executor, administrator, or other trustee, forms an exception to the rule, and does not imply a warranty of title, unless there be fraud, or perhaps in some instances, gross negligence —(Forsyth vs. Ellis, 4 J. J. Marshall's R. 298; M’Ghee vs. Ellis & Browning, 4 Litt. R. 244; Peter vs. Thornton, 6 Monroe’s R. 27; Head vs. McDonald, 7 Monroe’s R. 206; 2 Kent’s Com. 374.) But to entitle the purchaser to recover for any defect in the.quality or soundness of the article or property sold, except under special circumstances, he must prove that the seller warranted the thing sold to be good and sound, or that he concealed or fraudulently represented its qualities—(3 Bla. Com. 164, 165; 2 Kent’s Com. 374, and cases there cited; 1 Peters’ C. C. R. 317; Lowndes vs. Lane, 2 Coxe's R. 363; Sexas vs. Woods, 2 Caine’s R. 48; Snell vs. Morris, 1 Johns. R. 96; Perry vs. Aaron, ibid. 129; Defreeze vs. Trumper, Ibid, 274; Holden vs. Dakin, 4 Johns. R. 421; Davis vs. Meek er, 5 ibid. 354, 395; Cunningham vs. Spier, 13 ibid. 392; Fleming vs. Slocum, 18 ibid. 403; Wilson vs. Shackleford, 4 Rand. R. 5; Reed vs. Prentiss, Adams’ R. 174; Lanier vs. Auld, 1 Murphy’s R. 138; Erwin vs. Maxwell, 2 Murphy’s R. 245; Smith vs. Miller, 2 Bibb’s R. 616; Glascock vs. Wells, Cook’s R. 262.) If the warranty be express, it will extend to all defects, whether known or unknown, to the seller, unless they be such as a common purchaser might have observed at the time of the sale— (Onslow vs. Eames, 2 Starkie’s N. P. R. 81; Williams vs. Stafford, 8 Pick. R. 250; Sweet vs. Colgate, 20 Johns. R. 196; Bonekens vs. Berons et al. 3 Rawle’s R. 32; Ex’rs of Hart vs. Edwards, 2 Bailey’s R. 306; Watts vs. Mattingly, 1 Bibb’s R. 244; Pile vs. Shannon, Hardin’s R. 55; Ferrin vs. Taylor, 3 Crunch, 270; Butterfield vs. Bur roughs, 1 Salk. R. 211; Margetson vs. Wright, 5 M. & P. 606; 7 Bingh. R. 603; 8 Bingh. R. 454.) What will constitute a warranty is not always easy to be determined. It is certain that no particular form of expression is required. It will, in general, depend upon the meaning of the terms, and the sense in which they were used or understood by the parties, whether they amount to a warranty, or are to be regarded as a representation of the seller’s opinion. If a man say of property, of which he is on a treaty of sale, that he knows its qualities, and that it is free from all defects, — his affirmation, professing to be founded upon knowledge, and not opinion or belief, should be regarded as equivalent to a direct and positive warranty, and oblige him to indemnify the purchaser for all defects existing at the time of the sale, whether known to the seller or not. Upon this point, Chandelor vs. Lopus (Cro. Jac. 4; Dyer, 75 a.) is a leading case. There, the defendant being a goldsmith, and having skill in jewels and precious stones, had a stone' which he affirmed to be a bezoar stone, and sold it to the defendant for one hundred pounds, when in truth it was not a bezoar stone. The plaintiff having recovered a judgment in the King’s Bench, the case was removed to the Exchequer Chamber, where all the judges but one, concurred in reversing that judgment, holding the bare affirmation that it was a bezoar stone, without warranting it to be such, or fraudulently misrepresenting its character, gave no cause of action against the seller. . In Duffee vs. Mason, (8 Cowen’s R. 25,) the seller said of a colt he was about selling — “There is nothing the matter with the colt: it is well and sound, and will make a fine horse.” The court submitted it to the jury, to say whether there was a warranty, or only amere expression of the vendor’s opinion, and directed them to say how the words were understood by the parties. And to the same effect, are many of the decisions in the, different States— (Chapman vs. Murch, 19 Johns. R. 290; Whitney vs. Sutton, 10 Wend. R. 413; 13 ibid. 277; Cook vs. Moseley; Swett vs. Colgate, 20 Johns. R. 203; Osgood vs. Lewis, 2 Har. & Gill, 495; Bacon vs. Brown, 3 Bibb’s R. 35; 3 Rawle’s R. 32; 7 Serg. & Rawle, 480; 10 Johns. R. 484; 4 Cowen’s R. 444; See further, Palsey vs. Freeman, 3 T. R. 57; Button vs. Corder, 7 Taunt. R. 405; 1 Moore’s R. 109; Cave vs. Coleman, 3 M. & R. 2.) It is not, however, necessary that the purchaser, in order to his indemnity, should in all cases require an express warranty. In some cases, the law .will imply it. Thus, the seller of provisions tacitly agrees that they are wholesome at the time of delivery—(1 Fonblanque’s Equity, N. X. 120, 121.) So, the merchant abroad, who fills an order for his customer residing in this country, impliedly stipulates with the purchaser, that- the goods are merchantable; and one who sells by sample, undertakes that the article to be furnished, is of the quality of the sample shown—(2 Com. on Con. 263, et post; Hibbert vs. Shee, 1 Camp. R. 113; Germaine vs. Burton, 3 Stark. N. P. R. 32; Parker vs. Palmer, 4 B. & A. 387; Andrews vs. Kneeland, 6 Cowen’s R. 354; Bradford vs. Manly, 13 Mass. R. 139; 12 Wend. R. 413, 566.)

Where there was no warranty at the timé of the sale, but a mere representation, it is not enough to show that the thing sold was not such as it was represented to be; but the purchaser must go farther, and prove such a state of facts or circumstances, as fix upon the seller a knowledge that his representation was false when he made it. Where this is shown, the seller'is justly chargeable with a fraud—(Smith vs. Miller, 2 Bibb’s R. 616; 1 Fonblanque’s Eq. Note X. 120, 121, and cases cited above.) So, if a vendor conceal the defects of property, he is chargeable on the ground of having suppressed the truth, to the buyer’s prejudice —(Smith vs. Rowzee, 3 Marsh. Ky. Rep. 527; Parkinson vs. Lee, 2 East’s R. 314; Jones vs. Rowden, 4 Taunt. R. 847.)

The general principles we have laid down, apply with all their force to a contract for the sale and hire of a slave, so far as the nature of the subject will allow— (Wheeler on Slavery, 107, et post.) The hirer of a slav.e for a definite period, becomes his purchaser for the time agreed on, and if he dies before its expiration, the loss of service must be borne by the hirer, who, if sued on his undertaking to the owner, cannot resist a recovery by showing that the act of Gocl prevented, him from deriving a profit from his, contract, unless, by its terms, it provides for such a' contingency—(Redding vs. Hall, 1 Bibb’s R. 536; Harrison vs. Murrell, 5 Monroe’s R. 359; Williams vs. Holcombe, 1 Caro. L. Rep. 365; and McClellan vs. Cook, Ala. Rep. 257.)

In Virginia and South Carolina, a different rule has been adopted. In’those States, it is held that the owner', is not entitled to recover hire, for the time intervening between the death of the slave and’the expiration of the, time for which he was hired, but in such a case, the hire must be apportioned—(George vs. Elliott, 2 Hen. & Mun. R. 6; Bacot vs. Parnell, 2 Bailey’s R. 424.)

In South Carolina, it has been repeatedly adjudged, that the payment of a sound price implies a warranty of the soundness, by the seller of a personal chattel— (Timrod vs. Shoolbread, 1 Bay's R. 324; Rouple vs. McCarty, 1 Bay’s R. 480; Lester vs. Ex'ors of Graham, 1 Const. R. 183; State vs. Gaillard, 2 Bay’s R. 19; Barnard vs. Yates, 1 Nott & McC. 142; Missroon vs. Waldo, 2 ib. 76; Crawford vs. Wilson, 2 Const. R. 353.) Whatever commendation these decisions may claim from the moralist, they certainly derive no support from the English common law.

In the case at bar, .the instructions to the jury maintain the principle, that it is enough for the purchaser of personal property to show that it was of no value, though the seller may have made no warranty, nor have prac-tised a fraud upon him. In thus supposing the law to be, the Circuit court erred: — its judgment is therefore reversed, and the cause remanded.


author: ORMOND, I.

text:
    EVANS vs. GORDON.
    1. Protest is not necessary to enable a plaintiff to maintain an action on a promissory note, or inland bill of exchange — and where an averment of protest is made, the fact being immaterial, is hot necessary to. be proved.
    2. Evidence that the note sued on is not the property of plaintiff, may be given under the general issue.
    3. Where judgment is not rendered on a demurrer to a plea, — it will be presumed after judgment on an issue to the country, that the plea was waived.
    4. The payee of a note made to him as administrator, may sue on the note in his own name, and so, also, the endorsee of a promissory note received by him as administrator, may maintain action on the note in his own name.
    5. The judgment of a court, when right, will not be disturbed because rendered for a wrong reason.
    6. A demand of payment of a note made payable at a particular place, is not. necessary to enable the holder to maintain action, though it may be matter of defence, for the defendant, if he was ready to pay at the time and place appointed.

      7. The name of a'plaintiff appearing endorsed on the back of a note, does not impair his right to recover.
    Error to the County court of Wilcox county.
    Assumpsit on a promissory note, payable in Bank.

    To an action of assumpsit, brought by the defendant in error against the plaintiff in error, as the maker of a promissory note, payable and negotiable at the Branch Bank at Mobile, to the, order of Thomas'Evans, and endorsed to the defendant, the plaintiff in error pleaded the general issue, and also that the note was not the property of the defendant in error, in his individual capacity. Issue was taken on the first plea — to the second, there was a demurrer. In the progress of the cause, a hill of exceptions was filed by thé plaintiff in error.,
    The bill stated, that the plaintiff offered the note and protest in evidence, to which defendant objected, as the protest did not set forth, that the maker was notified of it — when the same was withdrawn. Defendant proposed to introduce a witness, to prove' that the note was not the property of plaintiff in his individual capacity, but as the executor of the estate of on^^fs^^ete^or-don; but the court refused to receiveutl'0-^^t?r^3^^ili|e-cause the witness was an endorser onihq ante and therefore interested in the event of the sai. Defentfanuihien moved the court to instruct the juryMi&triB2£$££iJcL Jot find a'verdict for plaintiff, inasmuch aSfatljp pi-ojes¿OT a notary had not been produced in evidencef!s€ttingforth, that the note had been protested for non-payment, after demand and refusal of payment at the bank: and inasmuch as it was averred, in the declaration, that the note was presented for payment at the bank, and payment refused, such presentment and refusal ought to be proved. But the court thought the averment immaterial, and not necessary to be proved, and that it was unnecessary to produce in evidence the protest of a notary public, setting forth the matters above stated, on a promissory note payable in Bank. To all of which defendant excepted.
    Verdict and judgment for plaintiff — to reverse which, the writ of error was sued out.
    It was assigned for error--

      1. That there was no such cause of action produced in evidence, as sustained the declaration, and authorised judgment thereon.
    2. The court below erred in rendering judgment upon a verdict, on an issue to the country, when an issue in' law was joined on the demurrer to the second plea, which was not disposed of.
    '3. The court erred in giving judgment for plaintiff, he not having stricken the name of It. G. Gordon, the plaintiff, from the cause of action sued on, before judgment— he being an endorser thereof.
    4. The court erred in giving and refusing the several instructions, as shewn in the bill of exceptions.

      Porler, for the plaintiff in error.
    Phillips, contra.

      Porler, for the plaintiff in error,
    contended, that although the protest of such note is not essential, yet when it is averred in the declaration, it is incumbent on the party making the allegation, to prove it — (1 Selwyn’s N. P. 315, note 16.) To shew that there was error, in rendering judgment upon the verdict, on an issue to the country, when an issue was pending in law, he cited, Minor, '93; 1 Stewart, 37; ibid. 412. There was no authority for rendering judgment, without first striking off the name of Gordon, who was an endorser — (1 Selwyn, 286, and notes G. and E.) The witness, Evans, ought not to have been excluded — (5 Cowen, 23, 155; 1 Selwyn, 315.) The cases cited shew that endorsements may be struck nut at the trial. If they are not, the paper must be held to he transferred during the trial, or before — (1 Marsh. 555; Pitts vs. Keym, 1 Stewart, 155.)
    Phillips, for the defendant in error.
    It was not necessary that the endorsee should have prosecuted the maker to insolvency, before the institution of the action against the endorser, as the note on which the suit was founded was payable in bank — (Aik. Dig. 329, 330.) The court would consider, that the note was duly protested, and notice given, until the contrary was shewn. It was competent for the plaintiff below, to sue in his individual character — (1 Chitty’s PI. 205, 206; 2 Williams on Executors, 1149.)
   ORMOND, I.

— As the declaration contained an averment, that the note was protested for non-payment, it is insisted that it was necessary to prove it. Protest not being necessary to maintain an action on a promissory note or inland bill of exchange, the averment of protest being of a fact entirely immaterial, it was not necessary to be proved. The case referred to in 1st Selwyn’s Nisi Prius, note 16, has no application here, as the decision turned on an act of parliament.

It is also insisted, that the court erred in rendering judgment, the issue in law being undisposed of. The matter pleaded in the second plea, if it could have been given in evidence at all, was admissible under the general issue. As no judgment of the court seems to have been liad on the demurrer to that plea, we must presume that the plea was waived. The defendant below offered to introduce Thomas Evans, the first endorser on the note sued on, to prove the fact stated in the second plea, which evidence, the court rejected, on the ground that the witness was interested. It is very clear, that the witness had no interest in the suit, but it is as certain that the evidence was wholly immaterial. If the defendant in error held the note, as the representative of A. G. Gordon, he had the legal title, and if it had been made directly to him in his representative character, he could have sued in his own name, disregarding the description of his title. It follows, of course, that he could sue as endorsee, when there was no such description. The evidence, therefore, should have been excluded, as wholly irrelevant. The judgment of the court was right, and will not be reversed, because it was rendered for a wrong reason.

It was also insisted, that as the note was payable at a particular place, no recovery could be had without proving a demand at the place of payment. We are clearly of opinion that no such demand was necessary to maintain the action; but that it was matter of defence for the defendant, if he was ready to pay at the time and place appointed.

In the case of Irvin vs. Withers, (1 Stewart, 234,) a majority of the court held, that a failure to aver and prove a demand in such a case, was cured by verdict; the minority holding that no demand was necessary. In the latter opinion, we concur.

The name of the defendant in error appearing on the back of the note, did not impair his right to recover. It was doubtless endorsed in blank, for the purpose of collection in bank, and the note not being paid, the endorsement being merely formal, the title to the note still remains in him, and the endorsement of his name on the back,'must be considered a mere nullity. The failure to erase an endorsement which can have no legal effect, certainly cannot be considered a valid objection, and was so decided by this court in the case of Pitts vs. Keyser, 1 Stew. 154. Let the judgment be affirmed.


text:
    BELL et al. vs. KING.
    1. If a defendant in execution have property in the county, it is the sheriff’s duty to levy upon it, unless it be exempted from seizure by law.
    2. The lien of an execution does not depend upon contract, but is given by law, and imparts to the elder the right of satisfaction, in preference to one that has subsequently gone into the sheriff’s hands.
    3. Yet this preference of an older over a younger execution creditor, does not excuse the sheriff from a levy of the latter execution, where the property is not needed to satisfy the former.
    4. A return of nulla bona cannot, be justified by the proof of a prior lien, unless the executions creating it were actually levied.
    Error to the County court of Montgomery county.
    This was a motion against Bell, as sheriff, suggesting, that he could have made the money on an execution} issued from Montgomery County court, in favor of the defendant in error, against Garrett, Couch and Hooks. On the second day of June, eighteen hundred and thirty-five, the fi. fa. was received hy Bell, as sheriff. The execution was returned nulla bona. The only property shewn to have been in the possession of either of the defendants, was four horses and a sulky, worth the amount of the execution, which belonged to Garrett.
    It was admitted that a title to a piece of land, was in Garrett, worth from one thousand to fifteen hundred dollars ; but Garrett was not in possession, nor was it shewn that Bell had any knowledge or notice of Garrett’s title to said land. It was proved that King’s attorney ordered Bell to levy on the horses and sulky of Garrett.
    Bell then proved that two executions against Garrett, one for fourteen hundred and forty-two dollars, in favor of one Freeman, and one for two hundred dollars, in favor of Martin, were issued, and came into his hands as sheriff, before the execution of King, and both these executions were returned, “no property.” There was no evidence that Bell had levied or sold the personal property under either execution. Upon this evidence, the court charged, that the fact of the sheriff’s having older executions in his hands against Garrett, was no excuse, unless he had sold the property under such older executions,— to which exception was taken.
    The error assigned, was the charge of the court below.
    Dargan, for plaintiffs in error.

      Geo. GoldfJiwarf.p, contra.

      Dcirgcm, for plaintiffs in error,
    contended that the oldest ji./a. binds the property — (1 Conn. R. 590) — and if the sheriff sells under the junior execution, he is liable to the plaintiffs in the elder. After a levy, if the sheriff discover older executions sufficient to exhaust the property, he may return the younger nulla bona. — (Champe-nor’s ads White, 1 Wend. 92.)
   COLLIER, C. J.

— The only question brought to the view of the court in this case, Is this:

Can a sheriff who has returned a fieri facias, nulla bo-na, when a motiop is made against him, founded upon a suggestion (under the statute) that with due diligence, the amount thereof might have been collected of the defendants in execution, successfully resist the motion, by showing that he had older fieri facias’ in his hands, of an amount equal to the entire value of the defendants property, unless he also show that these executions, entitled to a prior lien, were levied on that property ?

The mandate of the fi. fa. directs the sheriff, that of the goods and chattels, lands and tenements of the defendant, he make the amount thereof, «fee. If the defendant have property within the county, it is the sheriff’s duty to levy upon it; unless it be exempted from seizure by the law—(Frost vs. Dougal, 1 Day’s Rep. 128.) The lien of an execution does not' depend upon contract, but is given by the law, and imparts to the elder the right of satisfaction, in preference to one that has subsequently gone into the sheriff’s hands. Yet this preference of an older over a younger execution creditor, does not excuse the sheriff from a levy of the latter, where the property is not needed to satisfy the former, as where the creditor waives his priority or gives day, which, in the case before us, might possibly be inferred. But without resorting to any such inference, we think it clear, that a return of nulla bona, cannot be justified by the proof of a prior lien, unless the executions creating it were actually levied. In the case of Champenor’s ads White, (1 Wend. R. 92,) the-proceeds of the property were actually appropriated to the payment of the oldest Ji.fa.- — a circumstance which very materially distinguishes that case from the present.

The defence set up, if allowable at all, must be upon the supposition that the sheriff may be proceeded against by the older execution creditors for a neglect to make the money upon the Ji. fa’s in their favor; and thus be charged to an extent greatly beyond the value of the property which was subject to levy. It cannot be endured, that a sheriff shall be allowed to excuse himself from one neglect of duty, by interposing another. In principle, this would be to off-set one wrong, by showing that the party had committed another. Besides, it does not appear that the plaintiff, Bell, did not dispose of the older executions, as he was instructed to do; and even if he did not perform his duty in regard to them, it is by no means certain that the plaintiffs in those executions will ever require him to make good to them the consequence of his neglect. So that if the defence interposed by the plaintiffs in error was permitted to avail, it would so happen that the defendant in error might lose his debt, though the defendant in execution had ample property liable to levy and sale. The judgment of the County court must be affirmed.


author: ORMOND, J.

text:
    M'CUTCHEN, adm'rx, vs. M'CUTCHEN.
    X. Objections raised to the time of filing a plea in abatement, . founded on the rules of court, -must be made in the court below, and cannot be entertained in the Supreme court.
    2. The right of an administrator to the possession of the personal property of his intestate, is not impaired by an injunction forbidding its distribution.
    3. Judgment for defendant .on a plea in abatement, whether it be an issue in fact or in law, is, that the writ or bill be quashed, —and a respondeas ouster therefore is not awarded. -
    Error to the Circuit court of Jackson county.
    Detinue for a slave.
    The plaintiff brought an action of detinue in the court below, against the defendant, to recover a slave. -
    The defendant pleaded in abatement of the suit, that previous to the institution of the suit, she had filed her bill in chancery, claiming said slave as her own property, by virtue of a deed of gift from her husband, the plaintiff’s intestate, and praying that the plaintiff be restrained from distributing said slave as part of the estate of said intestate, and that an injunction restraining such distribution was in full force. To this plea, the plaintiff demurred. The demurrer was overruled, and final judgment rendered in favor of the defendant.
    The plaintiff assigned for error—
    1. That the court erred in receiving the plea, as it did not appear that it was filed in proper time;
    ,2. In overruling the demurrer;

      3. In rendering- a final judgment without granting the plaintiff leave to reply to the plea.

      Robinson, for plaintiff in error.

      Parsons, contra.

      Robhison, for plaintiff in error,
    cited 2 Porter, 260, to shew that the plea of defendant below ought not to have been sustained, not 'being filed in proper time. The court was wrong in overruling plaintiff’s demurrer to the plea, as it was entitled of no term of the court — (1 Chitty’s PL 448; 1 Tidd. 588) — and because a former suit of defendant against plaintiff, could not be plead in abatement of the action — (1 Chitty’s PI. 443; 1 Saund. on PI. and Ev. 17, 18.) Judgment final ought not to have been rendered without leave to reply — (Aik. Dig. 277.)
   ORMOND, J.

— The first assignment of error rests for support on the twelfth Rule of Practice, which is, that “ No plea in abatement shall be received, if objected to, unless by the endorsement of the clerk, it appear to have been filed within the time allowed for pleading.” It does not appear from the record, that any objection was made by the plaintiff to the filing of this plea: we can not therefore presume that such was the fact. To permit the objection to be made here, when it was not made in the court below, would be productive frequently of great injustice, as the pleadings, if entitled at all, are generally entitled of the proper term. The record would not itself disclose the true time of filing the plea, and if it did, it might be that the delay was caused by the plaintiff himself. In this case, it appears that an office judgment for failing to plead, was set aside, and leave given the plaintiffs to file their declaration, and to the defendant to file her plea. In every view that we can take, there is great propriety in. requiring'the objection to the filing of the plea, to be made in the court below. The demurrer merely questions the legal sufficiency of the plea — not the time of filing it. This was so determined by this court, in the case of Callison vs. Lemons, (2 Porter’s R. 145.)

But the plea itself is clearly bad. The right of the plaintiffs to the possession of the personal property of their intestate, is not impaired by an injunction, forbidding its distribution. It is both their right and their duty, to take the necessary steps to have the property of their intestate in a condition for distribution, when the proper time arrives ; or to answer any other exigency which the law might cast on them, as the representatives of the deceased.

In the case of McGowen and wife vs. Young, (2 Stew’t, 276,) an action of trover had been commenced for the conversion of four slaves. On the trial, the defendant offered in evidence the record and proceedings in a chancery suit, by which it appeared, that the plaintiff had been enjbined from removing the property in question, out of the State. But the court held that this did not bar the action, although the residuary interest was in the defendant. So, in this case, the injunction forbidding distribution of the slave in question, did not at all interfere with the right of the plaintiffs to the possession of the slave, as the representatives of their intestate. What would have been the result, if the injunction had been, that no suit'should he instituted by the plaintiffs at law, to recover the possession of the slave, it is not necessary now to determine. It is sufficient that the present bears no analogy to such a case. The court below, therefore, erred in not sustaining the plaintiffs demurrer to the defendant’s plea.

The third assignment of error is not well taken. The judgment for the defendant on a plea in abatement, whether it be an issue in fact or in law, is, that the writ or bill be quashed: there was therefore no error in not awarding a respondeas ouster. But for the error pointed out, the judgment must be reversed, and the cause remanded.


text:
    STEPHENSON vs. PRIMROSE.
    1. By the law merchant, the endorser of a promissory note stipulates with the endorsee', and each subsequent holder, in the ordinary course of, business, that if demand of payment is made by the maker at its maturity, and due notice of the nonpayment given to him, — he, himself, will pay the note.
    2. No precise form of notice is required, — it may be verbal or in writing:
    3. And where the parties all reside in the same city, it-is necessary in order to fix the endorser’s liability, that he be personally informed of the dishonor of the note, either verbally or in writing: or a notice should be left at his dwelling house or place of business.
    4. Therefore, where the holder, within proper time after the dishonor of the note, leaves a verbal or. written notice, at the endorser’s counting room or place of doing business, but it is not shewn to have been left during the hmirs of business, all the parties residing in the same city, — such notice would not be sufficient.

      5. But if the party entitled to notice, absent himself from his place of business during the hottrs of business, without leaving any one to attend to his interest, — the holder will be excused from giving notice there.

    6. But if the endorser - has used the precaution to obtain an assignment of all the effects of the drawer or maker, to be applied to the payment of the paper endorsed, he cannot claim an exemption from liability, because he has not had regular notice of the dishonor of the bill or note.
    7. So, if he has protected himself by taking collateral security, sufficient, to cover the endorsement, he impliedly waives his legal right to notice.
    8. Though, to this rule, there might be an exception.

      9. A room to which a man is accustomed to resort, but in which it is not shewn, that he carries on any regular trade or employment, cannot be considered his place of .business.

    10. And if the holder of paper call at a room thus resorted to, for the purpose of giving notice to its occupant of the dishonor of a note endorsed by him, at a time when he is absent: — the holder is not excused from giving notice: especially where the endorser has a dwelling house and livery stables within the same city, the latter of which, he personally superintends.
    Error to the County court of Mobile.
    Assumpsit on a promissory note.
    This action was brought by the holder against an endorser, who pleaded the general issue, and a verdict was rendered, and judgment entered up against the defendant.
    . On the trial of the case, the plaintiff proved the note, endorsement and protest. B. Stanton, one of the firm of Labuzan & Stanton, who were the last endorsers on the note, was then produced, on the part of the plaintiff, who proved that he anticipated the non-payment of the note, some days before its maturity, and in order to be able to fix the liability of defendant, he enquired where Stephenson’s place of business was, and was informed that it was in an upper room in a house in the city of Mobile. On the day the note was protested, he called twice at the room designated, and enquired for defendant, with a view of giving him notice — he found no one but a servant, who giving an equivocal answer, he put the note in the post office. He also left a notice at the room in question.
    Another witness proved, that the room in question was the defendant’s place of business, hut that defendant had a dwelling house in the city, where he then resided, and also kept a livery stable, which he superintended himself.
    Plaintiff then read in evidence, a' deed made by one White, the maker of the note, conveying the property for which the note was given, to defendant, as an indemnity against the note — The property, however, only sold for one thousand dollars.
    The court charged the jury, that the law made it necessary, in order to hind an endorser, that he should have notice, and if residing in the city, a verbal notice, or notice in writing, left at his residence, counting room, or place of business, on the same day,' or day after the protest. If they were satisfied from the evidence, that defendant in this case had such notice, they would find for the plaintiff;- or if defendant had secured himself by taking a deed of trust on the property or effects of the maker of the note, they might find for .plaintiff, although defendant had no notice of protest, &c. But if the indemnity was insufficient, proof of demand and notice was indispensable. Exceptions were taken by defendant to the charge.
    Plaintiff in error assigned—
    1. That evidence was admitted Which was inadmissible ;
    2. That the chage of the court was incorrect in point of law.
    Campbell, for plaintiff in error.
   COLLIER, C. J.

— The points made at the argument arise out of the bill of exceptions, and present these questions:

First. — Is the omission to give notice to an endorser, of the non-payment of a promissory note, excused by proof, that the holder, within the proper time after its dishonor, left a written or verbal notice at the endorser’s counting-room, or place of doing business, where all the parties reside in the same city?

Second. — If aa endorser has. secured himself by a mortgage or lien on the property of the maker, does he thereby waive his right to notice of a demand and refusal?

Third. — Can a room to which a man is accustomed to resort, but in which it is not shown, that he carries on any regular trade or employment, be considered his place of business — and if the holder of paper call at a room thus resorted to, for the purpose of giving notice to its occupant of the dishonor of a 'note, endorsed by him, at a time when he is absent, is tiro holder excused from giving notice; especially where it appears that the endorser has a dwelling house and livery stables within-the same city, the latter of which he personally superintends?

First. — Every endorsement of a promissory note, constitutes in itself a new and substantive contract. According to the law merchant, the endorser stipulates with the endorsee, and each subsequent holder, (in the ordinary course of business,) that if a demand of payment is made of the maker at its maturity, and due notice of the non-payment to given him, then, lie himself will pay[the note. The undertaking of the endorser is conditional: contemplating some act to be done on the part of the holder; and before his liability becomes absolute, it must be shewn, either that a performance of the condition was prevented by some act of the party entitled to claim its benefit, or that he has waived the necessity of performing it.

No precise form is required in giving notice to an endorser. Its object is to inform him of the failure of the maker to meet Ms engagement with promptness, and to advise him that he will he looked to, for payment, in order that he may take measures for his indemnity; and any means of communicating this information, whether verbally or in writing, will be sufficient— (Shed vs. Brett, 1 Pick. Rep. 401; Mills vs. the Bank of the United States, 11 Wheat. Rep. 431; Reedy vs. Seixas, 2 Johns. Cases, 337; Smith vs. Whiting, 12 Mass. R.6; Cowles vs. Harts, 3 Conn. Rep. 516; Solarte vs. Palmer, 7 Bingh. Rep. 629.)

1" the case before us, the note was made payable at the Bank of Mobile. The parties both resided in that city, so that according to a well established rule, it was necessary in order to fix the endorser’s liability, that he should have been personally informed of the dishonor of the note, either verbally or in writing; or a notice should have been left at his dwelling house, or place of business. Either mode would have been sufficient, but one or the other was essential, unless the plaintiff, by his own act, prevented it— (Williams vs. the Bank of the United States, 2 Pet. Rep. 96; Ireland vs. Kip, 10 Johns. Rep. 490; 11 ibid. 231; Bank of Columbia vs. Lawrence, 1 Pet. Rep. 578; Smedes vs. the Utica Bank, 20 Johns. Rep. 372; 3 Kent’s Com. and cases'there cited.) It is not pretended that a personal notice was given tO' the plaintiff, but only that a room'inthe city (understood by the holder to be his place of business,) was twice visited for the purpose of giving him notice of the dishonor of the note — that he was not in the room at either of these visits, nor was any one else, but a servant, who, to the witness’ enquiries, returned an equivocal answer. The holder made no farther effort to find the plaintiff, but deposited a written notice in the post office, for him. Conceding that the place at which the plaintiff was sought, was his place of business, and still we think the effort to give notice was insufficient. It is indispensable to the holder’s right of recovery, to prove that the endorser has been duly advised of the default of the maker; or to shew a sufficient excuse for the failure to give him notice. Now, to make the excuse available, it should have been shown, not only that the witness called at the plaintiff’s place of business, but it should appear further, that the visit was made at a seasonable time — viz. within the hours of business. Then, it may be supposed that he should be there in person, or if absent, that his clerks, or others, were there, to receive and communicate a notice to him; but when the hour for relaxation, or rather the period for the suspension of business shall have arrived, the man of business should be sought rather at his dwelling house, than elsewhere.

In Shed vs. Brett and Trustees, (1 Pick. Rep. 413,) a notary public testified, that when the note became due, he went with it, at the request of, the endorsee, to the place of business of the promisors, and: found it closed, no person being there, of whom he could make a demand. It was objected, that the testimony did not prove a demand, nor a sufficient excuse for it. The court considered, that what was done was sufficient, if the witness could state that he went to the place of business of the makers, in business hours, but unless he could state this fact, the demand was not excused, and the endorser was not liable.

In Crosse vs. Smith and others, (1 M. & S. 545,) an effort was made to give notice to the drawers, of the nonpayment of a bill of exchange, by sending it to their counting-house during hours of business, on two successive days, knocking there, and making sufficient noise to be heard by persons within, and waiting there several minutes — the inner-door being locked. This was considered sufficient, without leaving a- written notice, or sending it by the post.

And in Goldsmith and others vs. Bland and others, (Bailey on Bills, 127, or late ed. 224, note 1,) with the view of charging the defendants as the endorsers of two foreign bills, and to prove notice, it was shown by the plaintiffs, that they sent a clerk to th'e defendant’s counting-house, between four and five o’clock in the evening —-nobody was in — the cleric saw a servant girl, who said no one was there, and he returned, having left no message with her. Lord Eldon, who presided on the circuit, told the jury, that if they thought the defendant ought to have had somebody in the counting-house at the time, he was of opinion that the plaintiffs had done all that was necessary, by sending their clerk- — that the notice was in law sufficient, if the time was regular, &c. The learned Lord doubtless intended to refer to them the question of fact, whether the call was made at the defendant’s counting-house, within business hours, and nothing more; for this fact being found affirmatively, the law determined the sufficiency of the excuse to give notice.

Goldsmith and others vs. Bland others, says Mr. Justice Washington, (2 Peters’ Rep. 101,) decides “that it was sufficient to send a verbal notice to the defendant’s counting-house, and if no person he there in the ordinary hours of business to receive it, it is not necessary to leave or send a written one. “The principle of this decision is,” says that learned judge, “ that the counting-house of the defendant, is the place in which the holder was entitled, during the regular hours of business, to look for the person for whom the notice was intended, or for some one authorised by him to receive it”— (See further, Bowes vs. Howe, 5 Taunt. R. 30; 4 T. R. 456; 1 B. & Pul. 394.)

This, we think, authority ample to show that a drawer or endorser of a bill or note, may be sought within the regular time after the dishonor of either, at their places of business, for the purpose of giving them a notice, and if absent during the hours of business, without leaving any one to attend to their interest, the holder will be excused from giving notice. In the case before us, it does not appear that either of the visits to the room in which the plaintiffs carried on business, was made within business hours, and as the excuse for omitting to give notice was incomplete, without proof of that additional fact, the judge of the County court, in not thus qualifying his instructions to the jury on this point, mistook the law.

Second. — If an endorser has used the precaution to oh-tain an assignment o!f all the effects of the drawer or maker, to be applied to the payment of the paper endorsed, he cannot claim an exemption from liability, because he has not had regular notice of the dishonor of the hill or note. The reason why he is entitled to notice is, that he may Lake the necessary measures to obtain payment from the parties liable to him, and if notice be not given, it is a presumption of law, that he is prejudiced by the omission; but if the endorser has already obtained a transfer of the entire estate of the drawer or maker, he would have nothing to gain by a notice, and consequently, could not be injured by the want of it. So, if the endorser has protected himself from loss, by taking collateral security sufficient to cover his endorsement, he has impliedly waived his legal right to require proof of demand and notice. We do not undertake to determine, that this latter proposition is universally true: be this as it may, it will be time enough to enquire whether it has its exceptions, when a proper case shall arise.

As the effect of an assignment of property, or a collateral security, upon the general rights of an endorser, is for the first time brought before this court,-it may not be out of place to enquire how the question stands upon authority. Corney vs. Da Costa, (1 Esp. R. 302,) is the earliest case that has fallen under our notice. In that case, it appears that the defendant was sued as the endorser of a promissory note. To secure him against the makers default, he had taken of their effects, an amount equal in value to the note. Mr. Justice Buller said it was undoubtedly true, that an endorser should have notice of the dishonor of a note, but that was not the case, where he could not suffer from the want of it. The maker had waived his right to insist upon a notice, and was liable at all events. In Brown vs. Maffey, (15 East’s R. 222,) Mr. Justice Bayley cites Corney vs. Da Costa, and says it was decided upon the ground, that it “ would have been a fraud in the endorser, to call upon the maker, because, before it became due, the maker had deijosited effects in his hands, to answer the amount of his endorsement, and therefore, he had no right to complain of the want of notice.”

Bond and others vs. Farnham, (5 Mass. R. 170,) was a case in which the plaintiff, to obviate the necessity of notice to the endorser, proved, that before the note was payable, the maker had assigned all his property to the defendant, for his security against his endorsement. The court considered, that notice was not essential to the plaintiff’s right of recovery, and say, “ The case most analagcus to this, is, where a drawer of a bill had no effects in the drawee’s hands. He cannot insist upon a demand upon the drawee, for he could not expect an acceptance, and he suffers no injury by the want of it. The endorser of a note resembles the drawer of a bill. Although once having effects, as he had a demand on the maker, yet he has afterwards withdrawn from the maker all his property, to enable himself to meet his own endorsement, and had not, when the bill was payable, any remedy, unless, perhaps, the miserable one of seizing the body of a man worth nothing.” In Barton vs. Baker, (1 Serg. & Rawle’s R. 334,) the court cite, with approbation, Bond and others vs. Farnham, and thought it not unreasonable to presume, that an endorser, situated as was the defendant in that case, took upon himself to provide for the paper endorsed by him. This question was also considered in the Mechanics' Bank of New York vs. Griswold, (7 Wend. Rep. 165,) and the conclusion attained, that where an endorser is amply indemnified by the maker, or where he has taken an assignment of all his effects to meet his responsibility, he cannot resist a recovery by insisting on the want of notice.

Prentiss vs. Danielson, (5 Conn. Rep. 176,) was a case in which the maker of a note had conveyed certain property to the endorser, to indemnify himself against his liabilities and endorsements on account of the maker the property conveyed was an insufficient security. The qourt held, that if an endorser receives security to meet a particular endorsement, he waives a demand and notice in respect to that endorsement, but not as to any other. ■ But inasmuch as the defendant was implicated for the maker to the full amount of the property conveyed, aside from the note in question, and as his liability growing out of the endorsement of the note was extinguished, before the security was given, the conveyance of the property for his indemnity, did not have the effect of reviving it. And in Tower vs. Durell, (9 Mass. R. 332,) the principle decided in Bond and others vs. Farnham, is recognised; but the court determine, that where an endorser of a promissory note, believes a demand to have been duly made on the maker, and that notice has been duly given to himself, and believing himself therefore liable, takes measures for his indemnity, this will not excuse the holder from proving a regular demand and notice.

The last case we shall notice, is Mead vs. Small, (2 Greenl. R. 207.) In that case, the endorser had taken a mortgage on real estate, which was a svffcienl security for the amount of the note endorsed — The court decided that “ if the endorser has protected, himself from eventual loss by his own act, in taking security from the ma_ ker, such conduckmust be considered as a waiver of the legal right to require proof of demand and notice. And we are of opinion accordingly, that the facts before us clearly shew such a waiver in the present case.”

The court also said, that the facts presented a stronger case for the plaintiff, than Bond and others vs. Farnham. There, the property pledged was not a sufficient indemnity, but it was all the maker had — while in the case before them, the security was ample — (See also Chitty on Bills, 203; 3 Kent’s Com. 79.)

The inferences dcducible from the cases cited, are — ■

1. Where an endorser, before the maturity of the note, obtains an assignment of all the maker’s property, to meet his responsibility, he impliedly waives his right to insist on a demand of payment, and notice of non-payment.

2. Where the endorser receives of the maker a collateral security, whether by mortgage or otherwise, to indemnify him against the consequences of his endorsement, if the security be sufficient, the maker’s default will fix the endorser’s liability% without the previous steps of a demand and notice.\ The judge of the County court stated the law to the jury as we have laid it down in our second inference, so that the verdict could not have been influenced by any consideration growing out of the deed of trust; for it clearly appears, that the property covered hy the deed was far from being an adequate indemnity.

3. The term “•business,” in common parlance, means that employment which occupies ¿he time, attention and labor. That which a man occasionally engages in, as opportunity offers, or inclination prompts, is, for the time being, his business; yet, so far as the question we ar.e examining is concerned, the law .uses that term, to indicate a regular and legal employment — not one that is occasional,' irregular-or illegal, .And a place of business must be understood’to be a.place actually, occupied, either continually' or at regular periods, by a person or his_ clerks, or those in his employment. If business is trans- • acted there sometimes, but át ho statéd periods, the occupant, his clerks, &c., cannot be-supposed to be there at any other time to receive nqtice of the dishonor of paper. To make a room a place' of business, in contemplation of law5 the employment must be of a nature not criminal. Thus, a place at which a band of'freebooters are accustomed- regularly to assemble to divide their unholy thrift, or at which the gambler■ statedly exhibits his arts, to allure the idle and incautious, cannot be regarded as their places of business: for their employments being de-1 nounced as criminal, the law will nót preáume that they should be at the places, at which they are carried on, when they are absent; and consequently, does not consider an ineffectual effort to give them notice there, equivalent to personal notice.

It was shown at the trial, that the only business pursued by the plaintiff, was that of keeping a livery stable at another part of the city, than that, at which, the room he was sought, was situated — that he superintended it in person, and was frequently there. It also appeared, that the plaintiff had a dwelling house in the city, where he resided, and though he might often be found at the room, there was no proof that he carried on any particular business there. These facts clearly show that the room was not used by the plaintiff for any regular business, but his place of business was his livery stable; and either there or at his dwelling house, should he have been sought. We deem it unnecessary to determine, whether the instruction moved upon this point should have been given, considering the terms in which it was aslced: as the judgment must be reversed upon the first ground, the plaintiff, should it become necessary upon a second trial, can modify his motion for instructions, in conformity with the law, as we have ascertained it.

Judgment reversed, and cause remanded.


text:
    HOUCK vs. SCOTT.
    1. After judgment of -respondeas ouster, upon a demurrer to a plea in abatement, — no other plea in abatement can be allowed.
    Error to the Circuit court of Morgan county,
    Appeal from the judgment of a justice of the peace, tried before Judge Lane.

    This action -was originally commenced by the plaintiff against the defendant, before a justice o.f the peace, where he obtained a judgment against the defendant. From this judgment, an appeal was taken to the Circuit court of Morgan county. The defendant pleaded in abatement of the suit, that he was a resident freeholder of Limestone county. To this plea, the plaintiff demurred. The court sustained the demurrer, and gave the defendant leave to plead over. The defendant then filed a second plea in abatement, embracing the same subject matter as the first. This plea, the' plaintiff moved the court to strike out; which motion, the court refused, and to which refusal, the plaintiff excepted. The plaintiff then demurred to the second plea, which the court overruled, and rendered judgment for the defendant. These matters were assigned for error.
    Parsons, for plaintiff in error,

      McClung, contra,
   ORMOND, J.

— The judgment of the court of respondeat ouster, after sustaining the demurrer of the plaintiff to the first plea filed in abatement was correct; but it Was error to permit the defendant to file another plea in abatement. After judgment of respondeat ouster, no other plea in abatement can be allowed —(Cresswell vs. Vaughan, 2 Saunders’ R. 40, 41.) This being the law, the court should have rejected the second plea filed in abatement, which the motion of the plaintiff to strike out was equivalent ■ to, and which should have been granted.

It follows, by necessary consequence, that as the plea Was not authorised, and should have been rejected by the court, that the plaintiff’s demurrer to it should have been sustained.

The judgment is reversed, and the cause remanded.


text:
    ADM'RS OF WEATHERFORD vs. WEATHERFORD.
    1. Where judgment is rendered de bonis propriis, when it should he de bonis intestatis, —the Supreme court will only reverse, and render.
    2. A judgment rendered at a term of a court unauthorised by law, is erroneous.
    3. Statutes appointing the times, for courts to be holden, are public acts, and will be judicially taken notice of.
    4. A statute, where no time is fixed for the commencement oí its operation, takes effect from its passage.
    5. Where the Legislature passed a statute on the twenty-second December, eighteen hundred and thirty-six, requiring the courts of a particular circuit to be holden at a particular time ; and on the twenty-third December, eighteen hundred and thirty-six, enacted a statute upon the same subject, — providing that the act should not take effect until the first day of August after its passage : — It was held—
    1. That the passing of the last statute did not repeal that of twenty-second December.
    2. That though one of the courts of the circuit was not provided for in the act of the twenty-second December, yet the omission could not influence, as the court so omitted should "be holden at the time appointed by the pre-existing law, though it should conflict with some other court in the circuit: — in which event, the judge appointed to the circuit, should call to his aid another judge.
    This was an action of assumpsit for money lent, laid out and expended, &c. to and for the use of the intestate of the plaintiffs in error. There was a verdict and judgment for defendant in error, on the plea of non-assump-sit.

      The writ was dated twenty-ninth February, eighteen hundred and thirty-six, and the entry of judgment was— “At a Circuit court began and held for the county of Co-necuh, on the first Monday of March, A. D. 1836.”—
    It was here assigned in error — ■
    1. That the judgment was de bonis propriis;

    2. That the court was held at a time not authorised by law.

      Parsons, for plaintiffs in error. .

      Porter, contra.
   COLLIER, C. J.

— Two points have been made by the plaintiffs in error.

1. The judgment is rendered de bonis propriis, when it should have been de bonis intestatis.

2. The judgment was rendered at a time when the law did not authorise the court to be holden.

First. — The cause of action, as shown by the declaration, being a liability incurred by the intestate of the plaintiffs, there can be no doubt, but the judgment should have been rendered de bonis intestatis. But as the judg* ment of the Circuit court would either be reversed and rendered, or corrected as for a clerical mistake under the statute, and the case could not be remanded,-r-we proceed to consider the second point.

, Second. — Previous .to the twenty-second December, eighteen hundred and thirty-six, the Spring term of the Circuit court for the county of Conecuh, was required to be holden on the first Monday in March. On that day, a law was enacted, entitled “An act to change the time of the courts of the eighth judicial circuit of the State of Alabama;” the fifth section of which is as follows: “That hereafter, the Circuit courts of the first judicial circuit, shall be commenced and holden as follows: In the county of Conecuh, on the third Monday in March; in the county of Monroe, on the fourth Monday of March; in the county of Washington, on the second Monday after the fourth Monday in March; in the county of Baldwin, on the third Monday after the fourth Monday in March; and in Mobile, on the fourth Monday after the fourth Monday in March, and continue in session until the business is ended” — (Acts of 1836, pp. 8.) On the twenty-third December, eighteen hundred and thirty-six, a law was passed, entitled “An act, the better to organise the Circuit courts of Biobile county, and to regulate the proceedings therein, and for other purposes;” the second section of which is in these words: “ That from and after the passage of this act, the Spring term of the first judicial circuit shall be holden at the times following, to wit: In the county of Conecuh, on the third Monday in March, in each and every year, and continue one week; in Monroe, on the fourth Monday in March, and continue one weelc; in Clarke, on the first Monday in April, and continue one week; in the county of Washington, on the second Monday in April, and continue one week; in the county of Baldwin, on the third Monday in April, and continue one week; and in the county of Mobile, on the fourth Monday in April, and continue until the whole of the business is disposed of.” This statute then provides for the fall terms of the circuit, and contains several regulations in regard- to juries in Mobile county, and concludes with the following proviso: “Provided, This act shall not take effect until the first day of August next.”

The first statute, it will he observed, is silent, in regard to the Spring term of the Circuit court of Clarice, yet this omission can have no influence upon the act, so far as it may be operative. That court should have been holden at the time appointed by the pre-existing law, even though it should conflict with some other court in the circuit; so as to make it impossible for the same judge to hold both. A difficulty of the kind once occurred in the organization of the courts of the second circuit. .By an act of the sixteenth January, eighteen hundred and thirty-four, the courts of Wilcox and Bibb were directed to be holden on the same day, and both were actually holden — the judge appointed to the circuit, calling to his aid another judge, to hold the Spring and fall terms in Bibb county, for the year eighteen hundred and thirty-four.

A statute, according to the settled rule in the courts of the United States, and of the States of the Union, where no time is fixed for the commencement of its operation, takes effect from its passage —(1 Kent’s Com. 426, and cases there cited.) Taking this as the true rule, the act of the twenty-second December was in full force, when that of the twenty-third December was enacted; and the question now is, did the latter statute" either expressly or impliedly repeal the former. It is clear, that it is not an express repeal, for the act of the twenty-third of December no where notices that of the twenty-second. Nor can we.conceive how it can operate an implied repeal— they do not come in coflict — the statute of the twenty-third is suspended in its operation by the proviso we have quoted, until the first day of August next after its passage, and could not until that day, annul, by its repugnance, a pre-existing law. The question, then, of a repeal by implication, could not arise until the last act became operative, and then not sooner than the time appointed for the Spring circuit in eighteen hundred and thirty-eight, before which, the-legislature, by a subsequent enactment, removed all difficulty.

Dwarris, in his treatise on statutes, says that “An act cannot be altered or repealed in the same session in which it is passed, unless there be a clause inserted, expressly reserving a power to do so” — (pp. '673.) The author refers to no adjudicated case, and the view we have taken of the present case, relieves us from enquiring whether the fact of both acts having been passed at the same session of the legislature, makes a difference favorable to the plaintiffs, as it is clear it does not prejudice them.

The judgment complained of, having been rendered at the term of a court, hoi den at a time unauthorised by law, though the proceedings have all the forms necessary to give to it validity, it is nevertheless erroneous. The statutes appointing the times for the courts to be holden, are public acts, and must be noticed by this court.

The judgment of the Circuit court must therefore- be reversed, and the cause remanded.


author: ORMOND, J. COLLIER, C. J.

text:
    INNERARRITY vs. BYRNE.
    1. Evidence which has prima facie no pertinence to the Issue,is rightfully rejected.

      2. Where a party claims the benefit of an exception to this rulé, he must bring himself within it by pleading or proof.
    3. Grants made by the Spanish authorities in this country, after the date of the treaty of St. Ildefonso, (1 October, 1800,) except those to actual settlers acquired before December twentieth, eighteen hundred and three, — are null and void.
    Error to the Circuit court of Baldwin county.
    Trespass, to try title, before Paul, J.
    In this case, plaintiff, to support his action, offered in 'evidence, a grant (from the Spanish government to one Forbes, under whom plaintiff claimed,) dated February sixth, eighteen hundred and six. ( The evidence was rejected, on the ground that the grant was made by a government which had no power or authority to make /such a grant. Defendant had a verdict, and the exclusion of the grant as evidence was assigned as erroneous.
    Thornton, for plaintiff in error.

      ■Campbell Sp Porter, contra.
   ORMOND, J.

— This was an action of trespass, to try title.

The plaintiff below, who is the .plaintiff in this court, relied on a grant from the Spanish government, to John Forbes & Co., for the premises mentioned in the declaration, and proposed, by testimony, to deraign title front Forbes■& Co., to himself. The court rejected the grant, on the ground that the Spanish government had no authority to make- such grant. The case is brought here for revision.

The grant bears date the seventh of March, one thousand eight hundred and seven. It has been solemnly determined by the Supreme court of the United States, in the case of Foster & Elam vs. Neillson, (2 Peters’ Rep. 309,) and again in the case of Manuel Garcia vs. Samuel Lee, that all grants made by the Spanish authorities, after the date of the treaty of St. Ildefonso, (1st Otcobér, 1800,) excepting only those to actual settlers, acquired before December twentieth, eighteen hundred and three, were null and void. The grant of the land in question, being at a time, when, according to the decision of the two cases referred to, the Spanish authorities had no power to make a grant — must be held null and void.

The counsel for the plaintiff in error does not attempt to maintain the proposition, that the grant of the land in. question is valid per se, but insists that the decision of the court prevented him from introducing other testimony, by which his grant, or a portion thereof, might have been rendered valid.

It is true, that the court will not interfere with a party, by dictating to him in what order he shall produce his testimonyyet, it is certainly as clear, if testimony is offered, which in itself is inoperative and void, .and is not proposed to be connected with any thing else which may give it validity, the court, if desired, cannot refuse to reject it.

In this case, the grant, of itself, was absolutely void; it might- have constituted a link in the plaintiff’s chain of title, if he had been able to show an act of Congress, securing to him the land in question, or a portion of it, as has been done in some cases of Spanish grants, which were not embraced by thfe act of Congress of eighteen hundred and four. But surely the court could not presume that such was the fact, and refuse to exclude a Void grant, because, by some act entirely extrinsic to it, the party might be able to show a good title.

We have been referred to the- case of Spears vs. Cross, (7 Porter, 437,) decided at this term, as governing this case. There, the judgment was reversed, because the court refused to permit a warrant issued by a justice of the peace, on the part of the State, to be read in evidence,-in an action brought for a malicious prosecution, because no affidavit -in writing was produced, although an offer was made to prove that the oath was in fact taken, though not'committed to writing. The correctness of the decision of the court below, turned on the fact, whether an affidavit in writing was necessary in such cases or not. To make this case parallel with that, it should appear, that testimony which ought to have been received, was rejected.

The case of Reed vs. the Brashers, (3 Porter’s R. 375,) has also been referred to; but in that case, the evidence rejected was pertinent to the issue, though not sufficient of itself to maintain the action, and therefore improperly rejected.' In this case, the evidence offered being a,void grant,’was not good of itself, for any purpose, and therefore properly rejected.

We cannot interpret the silence of the bill of exceptions, to mean any thing else, than that the cause was rested on the validity of the Spanish grant, found in the record.

The judgment of the court below must be affirmed.

COLLIER, C. J.

— The great earnestness with which the plaintiff’s counsel has pressed this case upon the court, induces me to add a remark or two, to what has been said by his honor, Judge Ormond. Neither Spears vs. Cross, or Reed vs. the Brashers, bear any analogy to the present case. In those cases, the evidence rejected was clearly. legal, and tended to establish the issue, though in itself insufficient, and consequently, according to all rule, was admissible,'as forming a necessary link in the proof, by which a right was to be established. Here, the paper rejected was not only illegal, but absolutely void, and in itself, proved nothing. If the plaintiff would have relieved it from this objection, he should have shown, or have offered to show, that vitálity had been imparted to it in the manner prescribed by the acts of Congress relating to titles to land lying south of latitude thirty-one, in this State. Until this was done, the paper was clearly inadmissible. In Clendenning & Bulkley vs. Ross, (3 Stewart & Porter, 267,) this court decided, that that evidence was rightfully rejected, which frima facie had no pertinence to the issue, and that to have authorised its admission, the party offering it, should have shown that it was pertinent. So, in the adm’r of Gee vs. Williamson, (1 Porter’s R. 320,) in the court below, a record was given in evidence, which was insisted on error, to have been improperly received. This court determined, that the record was wholly inadmissible as evidence, unless it had been preceded or accompanied by explanatory evidence, showing its relevancy. And in Wiswall vs. Ross & Earle, (4 Porter’s R. 330,) this court say: “If the competency of any matter as testimony depends upon some fact, of which there is no proof, there is no error in rejecting such matter, when presented alone, and without an offer to prove what might make it competent evidence.” These cases fully maintain the principle on which we place our judgment in this case; though perhaps the reasons in the present case are stronger in favor of a rejection of the evidence, than in those cited— (See also Jenkins vs. Noel, 3 Stew. R. 60; the Union Bank of Maryland vs. Ridgely, 1 Har. & Gill’s R. 324.)

Again, it is a well settled rule, that where a party claims the benefit of an exception, he must bring himself within it by pleading or proof. The acts of Congress which give validity to some grants for land south of thirty-one, which would otherwise be void by Treaty of St. Ildefonso, are exceptions to the general operations of that Treaty, and before such grants can be received as evidence of title, proof of confirmation must be adduced. The consequence is, that the judgment must be affirmed.

GOLDTHWAITE, X, did not sit — having been of counsel.