author: ORMOND, J.

text:
    GOODWIN vs. LLOYD.
    1. If a witness, whose deposition has been taken on the ground oY his being about to leave the State, remain until the trial of the cause, — his deposition cannot be read in evidence.
    2. But the failure on the part of a witness, thus situated, to put his determination of leaving the State into execution, until alter a term of the court has elapsed, will not deprive the party of the benefit of his testimony, if he leaves the State before the trial of the cause.
    3. And his death, within the State, before he executes his determination of leaving it, affords as good ground for using his testimony, as his absence from the State, at the time of the trial. ' 1
    4. The maxim of the law, that the right to personal property, draws to it the possession, is true only, when the possession by another is consistent with the possession of the owner, — as in the case of a bailment.
    5. A chose in action at common law is not assignable; but
    6. A transfer of a chose in action for a valuable consideration, vests such an interest in the transferee, as a Court of Equity will enforce, and a court of law protect, if the assignee sue in the name of the assignor.
    7. But where the possession of the property assigned, is held by another adversely, and under a color of title, and the owner would be driven to an action to recover his possession — it is a mere chose in action, and the transferee cannot maintain action in his own name.
    This was an action of detinue for slaves, brought by the defendant in error. The plaintiff assumed title to the slaves, sued for under a contract of purchase from one Harwood Goodwyn. The proof on the part of the defendant in error was, that Robert Goodwyn, the defendant below, had given to his son Harwood two negro girls, which went into Harwood’s possession, and so remained for about two years. The slaves were then redelivered to Robert Goodwyn, and other slaves, the subjects of suit in this action, received by Harwood in exchange. Harwood Goodwyn remained in possession of the last mentioned slaves, for about the space of three years; and whilst sick and absent from home, Robert Goodwyn took them into possession, and had so remained, notwithstanding frequent demands made by Har-wood. The slaves were then sold by Harwood Good-wyn to the plaintiff in the action, Lloyd, — and a bill of sale executed, on sufficient consideration.
    The defendant offered testimony conducing to show, that the slaves in controversy, had been lent, and not given to his son Harwood.
    Upon this state of facts, the court was requested, on the part of the defendant, to instruct the jury, — ‘that if the defendant had the adverse possession of the slaves, at the time they were sold by Harwood Goodwyn to the plaintiff, — then the plaintiff was not entitled to a recovery in that suit.’ The court refused this instruction; and charged the jury, that if they believed the sale was absolute and bona fide, then the plaintiff was entitled to a recovery; — notwithstanding the defendant might have had wrongful possession of the slaves, at the time of the sale to the plaintiff; and plaintiff máy never have had the actual possession.
    The plaintiff, as part of his testimony, proposed reading the deposition of a witness, which had been taken under the statute authorising the depositions of witnesses, to he taken, who are about to leave the State. The defendant below objected, on the ground, that the witness had remained in the State, after his deposition had been taken, until a term of the court had elapsed. It was in proof that the witness was dead; and that up to the time of his death, he had expressed his determination to leave the State.
    The court overruled this objection to the deposition, and suffered it to go to the jury.
    On this charge, to which exception was taken, a verdict was rendered for the plaintiff.

      Street, for plaintiff ill error.

      Erwin, contra.
   ORMOND, J.

— There was no error in the admission of the deposition. The statute authorises it to be taken when the witness is about to leave the State: should he remain until the trial of the cause, it cannot be read. But his failure to put his determination of leaving the State into execution, until after a term of the court had elapsed, would surely not deprive the party of the benefit of his testimony, if he left the State before the trial of the cause. His death within the State, before he executed his determination of leaving it, certainly affords as good grounds for using his testimony, as his absence from the State, at the time of the trial. If not within the letter, it is certainly within the spirit and meaning of the law.

The remaining question is, whether the transaction detailed in the testimony in this cause, was not the sale and transfer of a chose in action, and if so, whether the purchaser can maintain an action for the recovery thereof, in his own name.

The-general division of personal property, is into things in action and things in possession. A right merely to recover the possession of a chattel hy a suit, is a chose in action, as much so, as a bond or promissory note. In the latter case, the instrument is merely evidence of a right to recover a sum of money from another. In the former, the. chattel being in the possession of another, if the possession is withheld, the true owner, neither in legal contemplation, nor in common parlance, can be said to have the possession; but having the right of property, he has the right to recover the possession.

It is a maxim of the law, that the right to personal property draws to it the possession; but this is true only when the possession by another, is consistent with the possession of the owner, as in the case of a bailment. But when such possession is held adversely, where the thing is held under a claim of title, and the owner is driven to an action to recover his possession, it is a mere chose in action.

That a chose in action is not at common law assignable, or, in other words, that the right to sue for and recover the possession, cannot be transferred to another, is an •ancient doctrine of the common law — (Coke’s Litt. 214, A.; 2 Black. Com. 397.)

A transfer of a chose in action for a valuable consideration, will, however, vest such an interest in the transferee, as a court of equity will enforce, and a court of law protect, if the assignee sue in the name of the assignor-

There can then be no doubt that the transaction disclosed in the testimony, is the transfer of a chose in action, and this is admitted by the defendant’s counsel; but he contends that the rule does not apply, when the possessor of the chattel is a mere wrong-doer, which he insists is the predicament of the plaintiff in error. Without determining'now, whether cases may not exist, in which the act of a mere trespasser or wrong-doer would operate no change of the possession, we will proceed to enquire what is the attitude of these parties.

The plaintiff below, it is true, proved a gift from the plaintiff in error, to his son, Harwood Goodwyn, in the first instance, and confirmed afterwards, by an exchange for other slaves, on a valuation made by the father himself : that the property thus obtained, remained in the possession of Harwood Goodwyn two years, and was taken out of his possession by the plaintiff in error during his absence from home — that he frequently demanded the possession of the property, which was refused by the plaintiff. The plaintiff offered evidence, conducing to prove, that the original transaction between him and Harwood Goodwyn, was a loan. The slaves remained in the possession of the plaintiff in error about four years, when Harwood sold his right in the slaves to the defendant in error.

It is manifest that the plaintiff in error not only held the slaves adversely to Harwood Goodwyn, but also that he held under color of title, which may account for the extraordinary apathy of Harwood Goodwyn, in suffering the possession of the slaves to remain so long undisturbed. That the possession of the plaintiff was adverse to Harwood Goodwyn, is too clear to admit of controversy. The statute of limitations would have commenced running at least from the demand of the slaves, and the refusal to deliver them, if sufficient time had elapsed, and the bar of the statute had been interposed. Such being the position of the parties, it is clear that the right of action could not be transferred by a sale of the slaves. No adjudged case has been cited to show that such an action can be maintained. The absence of all authority is persuasive to show what the law is. Indeed, so seldom has it been attempted to establish the principle, that the industry of the counsel for the plaintiff in error, has enabled him to furnish the court with but two cases, in which the point in question has been ruled.

In the case of Stedman vs. Riddich, (4 Hawke’s R. 29,) this point was expressly determined. Chief Justice Taylor says: “But I know of no authority for the position, that a vendee or assignee may sue for property in his own name, which the vendor or assignor, at the time of the sale, could only recover by suit. It seems to me that much of the mischief which the rule designed originally to prevent, would still arise under such a practice, and it is not called for by the necessity of trade or commerce, or any of those causes which introduced the relaxation.”

So, also, in the case of Stogdale vs. Fergate, (2 Marshall’s Rep. 136,) the Chief Justice, giving the opinion of the court, expresses himself thus: “ A chose or thing in action is contra-distinguished from a chose or thing in possession. If it be not in possession, it must be in action, and so vice versa. It follows, therefore, if the plaintiff was not in possession of the hogs at the time of the sale, that the right of action could not have been thereby transferred to his vendee; and that he was not in possession, is evident.” These cases are conclusive on the point involved in this casó.

We have been referred by the counsel for the defendant, to an opinion expressed by Judge Story, in the case of the brig Sarah Ann, (2 Sumner’s Rep. 206,) in which he is reported to have said: “I know of no principle of law, that establishes that a sale of personal goods is in-invalid, because they are not in the possession of the rightful owner, but are withheld by a wrong-doer.— The sale is not under such circumstances the sale of a right of action, but is a sale of the thing itself, and good to pass the title against every person not holding the same under a bona fide title for a valuable consideration, without notice; and a fortiori against a wrong-doer.”

Entertaining the profoundest respect for the opinions of that eminent jurist, we feel constrained to dissent from an opinion which appears to be in hostility with well established principles.

Although the reporter has transferred the above remarks of Judge Story into the abstract of principles decided in the cause, it does not appear to us that the point was necessary to be determined in that cause — and that it was merely stated by him as an illustration. The case was on the Admiralty side of the Circuit court of the United States, for the first circuit. One question was, whether the master of a vessel which was stranded, and which he had abandoned to the underwriters, was not only the agent of the owners, but also retroactively the agent of those who might become owners of the ship, if the abandonment was actually and justifiably made.

Although the principle above stated, might aid in the solution of that question, and he thus brought in aid of the argument, it was certainly a point not necessary to be determined in the decision of the cause, and therefore not entitled to the weight of an adjudged case. And, again, the judge merely states, that the effect of a sale under the circumstances supposed, would be to vest the title in the purchaser; how the right thus acquired could be enforced, is not stated, nor whether it could be enforced by the transferee in a court of law, which is the sole question before this court.

It is also urged, that the rule had its origin in a state of society different from ours — that the reason of its adoption has long ceased to exist — and that this court must adapt the law to the exigencies and wants of society. We cannot think so. Many of the reasons which influenced its adoption, must always exist in any mode of society, so long as wealth gives influence, and power is superior to weakness.

In England, as well as in this country, the rule has indeed been relaxed, as the wants of society, in its progress, demanded. And the relaxation, so far from weakening, has imparted vigor to it, by restraining it within its legitimate bounds. The rule is the foundation of the law against champerty and maintenance, which, by the decision of the court in the case of Holloway vs. Lowe, (7 Porter, 488,) has been considered law in this country.

Even if in our opinion, the law was of questionable propriety, we should hesitate long, before we would undertake the abrogation of a principle, coeval with the very foundations of the common law.

Let the judgment be reversed, and the cause remanded, to enable the plaintiff, if he can, to establish another title.


source: Caselaw Access Project

author: COLLIER, C. J.

license: Public Domain

text:
    BICKERSTAFF vs. PATTERSON.
    1. Notice to defendant, or advertisement, is not necessary in a case of attachment against an absent defendant, where the judgment is not rendered until after the expiration of six months from the issuance of the attachment.
    2. Where the sheriff returns, to a writ of attachment, that he has levied on certain property — it will be intended that the property levied on was that of defendant in attachment.
    Error to the Circuit court of Mobile.
    Attachment against an absent debtor, tried before Pickens, J.
    In this case, the sheriff returned that he had levied the attachment on sundry articles, without adding that the articles levied on were the property of defendant: judgment was rendered against defendant, and the property levied on, condemned to satisfy the judgment.
    The plaintiff in error assigned:
    That the suit commenced by an attachment. There was no levy upon any property of the defendant in attachment, nor did he ever have any notice by advertisement, or otherwise: nor did he ever appear to the action.
    Thornton, for plaintiff in error.
   COLLIER, C. J.

— The reversal of the judgment of the Circuit court, is sought on these grounds:

First — That it does not appear the plaintiff had'notice of the pendency of the attachment previous to judgment —or that the same was advertised.

Second — The sheriff’s return of the levy of the attachment does not state that the property seized was the plaintiff’s in error.

The first point was decided adversely to the plaintiff in Murray vs. Cone & Park, use, &c. (at this term.)

The second ground, we think, cannot be sustained. The sheriff is an officer placed under great responsibility by the law, which defines his duties. He pledges to the public, under the solemnity of an oath, his integrity and diligence;, and consequently, every reasonable in-tendment must be made in favor of the regularity of his official acts. When he receives process, requiring him to levy upon the property of a particular individual, and he returns if according to its mandate, with his endorsement, stating that lie had levied the same on property, (particularly describing it,) we must intend that the property seized belonged to the defendant; because the process only authorised a levy upon his effects.

In the present case, the sheriff acknowledges the receipt of the attachment, and returns it, with his levy endorsed on sundry 'articles of furniture. These we must intend to have belonged to the plaintiff in error — they were sufficient to give the Circuit court jurisdiction. Its judgment is consequently affirmed.


author: GOLDTHWAITE, J.

text:
    QUIGLEY, adm'x, vs. PRIMROSE.
    1. The statute of this State does not destroy the distinction which the law merchant recognizes, between foreign and inland bills of exchange, and promissory notes; nor does it make the same rules applicable to their securities.
    2. The terms of the statute are, that the law merchant, applicable to each., several class shall prevail, instead of the provisions previously in force in this State, with relation to assignable securities.
    3. No protest is necessary to fix the liability of the endorser of a promissory note — a demand of payment at the time and place provided for it, with notice of such demand to the endorser, is all that the law requires.
    4. A plaintiff is not held, in an action against an endorser, to strict proof of the time or place of demand of payment of a promissory note, when laid under a scilicet, and, in most cases, may make his proof conform to the legal effect of his declaration.
    Error to the Circuit court of Mobile.
    Assumpsit on a promissory note, payable in bank, tried before Pickens, J.
    In this case, judgment for plaintiff was rendered by nil dicit.

    The plaintiff in error assigned as error:
    That the declaration did not contain a sufficient cause of action, whereon to recover of the plaintiff in error, being sued on the endorsement of her intestate, of a note negotiable in the Bank of Mobile; and that it did not contain a proper and legal averment of demand made of the maker, and of protest and notice thereof to the endorser.

      Thornton, for plaintiff in error.

      Dunn, contra.
   GOLDTHWAITE, J.

— The plaintiff in error insists—

1. That her intestate is not liable, as endorser, unless a protest of the note is averred in the declaration, and shewn in evidence; and

2. That the averment of the time when this note was presented for payment, shews no demand of the maker at the place provided for payment, at the time when it became due; and therefore, no cause of action is shewn.

1. It is supposed by the counsel for the plaintiff in error, that our statute places promissory notes payable in bank, oh the same footing as foreign bills of exchange, and that they are to be governed by the same rules; but this supposition is not warranted by the act, which is as follows: “Hereafter, the remedy on bills of exchange, foreign and inland, and on promissory notes payable in bank, shall be governed by the rules of the law merchant, as to days of grace, protest and notice.”

It was not intended by this act, to destroy any distinction which the law merchant recognizes, between foreign and inland bills, and promissory notes; nor to make the same rules applicable to each of their securities; but the intention of the statute, as indicated by its terms, is, that the law merchant, as applicable to each class, shall prevail, instead of the provisions previously in force in this State, with relation to most assignable securities. No protest was necessary by the law merchant, to fix the liability of the endorsers of promissory notes — a demand of payment at the time and place provided for it, with notice of such demand, was all that the law required, or nr.v reyiires; a:i 1 if such a demand is shewn by the declaration, this objection cannot prevail.

2. .But it is said that no such demand is shewn. The averment of the declaration is in these words: “The said plaintiff avers, that afterwards, to wit, on the 28th day of March, when said note became due and payable, according to the tenor and effect thereof, the same was duly presented,” &c. By the rules of the law merchant, this note became due on theSüth March, allowing three days grace, and if in point of fact, presented on the day stated in the declaration, the endorser would have been discharged. But the plaintiff is not held to strict proof of time or place, when laid under a scilici!; and he is authorised, in mosteases, to make his proof conform to the legal effect of the declaration. f-Iere the material matter to be averred was, that the note, when due, was presented; and the allegation that it was on the twenty-eighth of March, being wholly inconsistent with this allegation, may be rejected. The authorities are all concurrent to prove that this objection cannot avail the party. — (Chitty on Bills, 851; Bynner vs. Russel, 1 Bing. 23.)

Let the judgment be affirmed.


text:
    MURRAY vs. CONE et al.
    1. In debt on foreign judgment, plaintiff is entitled to damages, to the extent of the interest allowed, at the place where the judgment was obtained.
    2. But in such a case, in the absence of a plea, the case ought to be submitted to a jury, on an enquiry of damages, and the statute of the place of the contract, which ascertains thé value of money, ought to be produced, or the usage proved.
    3. Where judgment is not rendered in attachment against an absent defendant, until after the expiration of six months from the issuance of the attachment, if is no ground of error, that notice was not given to the absent defendant of the issuance of the attachment, or the pendency of the suit either by mail or publication.
    4. The affidavit of one who describes himself as agent of the plaintiff in attachment, is a sufficient compliance with the statute, to warrant the issuance of an attachment.
    Error to the Circuit court of Russell county.
    Debt, in attachment on foreign judgment.
    This was an action of debt on a judgment obtained against defendant in Georgia. There was no appearance, and judgment was rendered against him for a larger amount than was claimed in the declaration. To reverse the judgment so obtained, a writ of error was sued out.
    The errors assigned are stated in the opinion of the court.
   COLLIER, C. J.

— It is insisted that the judgment, in this case, should be reversed, for these reasons:

1. The judgment is by default, and for a larger sum than is demanded by the declaration.

2. No notice was given to the plaintiff in error of the issuance of the attachment, or pendency of the suit.

3. The affidavit on which the attachment was sued out, was not made either by the defendants, or their agent or attorney.

1. The declaration discloses as the cause of action, a judgment recovered by the defendants in the Superior court of the county of Hall, in the State of Georgia, for the sum of two thousand one hundred and sixty-three dollars, and eighty-five cents. Though the action is (as it should be) debt, yet a judgment final is rendered by default, for the sum of twenty-five hundred and nine 61-100 dollars, in damages.

We imagine that the judgment was swelled to an amount beyond the debt claimed, by the addition of interest thereon. That the defendants are entitled to damages beyond the recovery in Georgia, to the extent of the interest allowed there, is indisputable; but to show what that is, they should have submitted the case to a jury, in the absence of a plea, on an inquiry of damages; when they might have produced the statute, or if there was none, proved the usage of Georgia, which ascertains the value of money there. The neglect to pursue this course makes the judgment erroneous—(Peacock vs. Banks, Ala. Rep. 387; Evans vs. Irvin & Dunlap, 1 Porter’s R. 390; Evans vs. Clark, ibid. 388; Richardson vs. Williams, 2 Porter’s R. 239.)

2. In respect to the second objection, it may be remarked, that the attachment law was new-modelled in eighteen hundred and thirty-three. The acts previously existing were to some extent omitted, and new provisions added, and even the old law, so far as retained, was greatly varied in its terms. It is not now necessary to give notice, either through the medium of the post office, or by publi; advertisement, to a non-resident defendant. The plaintiff in attachment may, if he know where the defendant resides, transmit him a notice by mail, or when his residence is unknown, he may apply to the judge or justice issuing the attachment, who w.ll prescribe the manner of tiie advertisement. If, however, all this is delayed, the only consequence is, that the plaintiff can take no judgment within six months—(Aik. Dig. s. 15, p. 41.) Had the law have remained unchanged, we should have followed the decision of this court in Harris & Farrow vs. Clap, (Ala. Rep. 328.) The record shows that the judgment was not rendered until more than six months after the issuance of the attachment. The objection, then, is not well taken.

3. Upon looking into I ho record, we think this reason is not suslaiued. The individual making the affidavit describes himself as the agent of the persons for whose use the suit was brought. Though net nominally so, they are for most purposes the plaintiffs — they complain; they are responsible for costs; and to them belongs whatever may be recovered. The affidavit, then, in this respect, meets the requisition of the statute. But, for the first cause considered, the judgment must be reversed, and the ease remanded.


text:
    GAZZAM vs. KIRBY.
    1. In general, if there be a special parol agreement for the performance of any duty, no action will lie, until the duty has been actually performed.
    2. And if the contract has been executed, the agreement to pay the money becomes absolute, and a recovery may be had upon the appropriate count for an indebitatus assumpsit.

    3. If a party undertake to do work by a fixed time, or in a particular manner, but fails to perform it within the time, or according to the manner agreed; he cannot recover on the special contract.
    4. But if the work dons was of va’uc to the defendant, plaintiff may recover oil a quant uni mend:.

    5,1 the work bo so illy executed, as to b • of no benefit to the Je.endaut, the p.aintidf is not entitled to recover any thing ; not even for materia. - furnished.
    6. If the work perforan u is of less value to a defendant, when completed, alter a stipulated time, than it would have been, had the contract been performed with punctuality, — it is competent for him to reduce the recovery by shewing that fact.
    7. And, in such a case, the contract is good evidence to shew what estimate the parties originally placed on the work.
    Error to the Circuit court of Mobile.

      Indebitatis assumpsit for work and labor, tried before Pickens, J.
    On the trial of the cause, the plaintiff offered in evidence, a written contract, executed by the parties, a copy of which is appended; to the reading of which, under the declaration, the defendant objected, but was overruled, and tlie contract read to the jury. The plaintiff then introduced evidence, conducing- to shew, that the work had been done substantially, as required by the contract, excepting as to time. The defendant introduced evidence tending to shew, it had not been so done. Evidence was given also, shewing that while the work was in progress, the defendant had'conveyed the property to some one else; and that such purchaser, after the work was finished, had used it. The work was not completed, until a few weeks after the time mentioned in the contract, hut there was no evidence that any injury had resulted to defendant from that circumstance.
    The court charged the jury, that if they were satisfied from the evidence, that the work was done substantially, as required by the terms of the contract, they were au-thorised to find for the plaintiff the amount specified in the contract, although the work might not have been completed, for a few weeks subsequent to the time stated in the contract — to which exception was taken.
    The contract was as follows:
    “ Memorandum of an agreement made and concluded between A. H. Gazzam, of the one part, and Martin Kirby, of the other part, witnesseth: That the said Kirby agrees to fill up with sand and earth, a strip of ground adjoining land claimed by Gordon in the Favre Tract, beginning at a ditch, and extending south eighty feet, and to commence at a hillock or margin thrown up by the water, and extending out to the eastern limits of Water street, to be filled up above high tide. The costs of the plank for curbing along the sides, to be paid by said Gazzam, and when the said lot shall be so idled up, said Gazzam shall pay the said Kirby twelve hundred dollars, and said Kirby binds' himself, to have the work finished, in one month from this time, or sooner, if he can. Dated in Mobile, 17th March, 1836.
    (Signed,) “A. H. Gazzam,
    “Martin Kirby.”
    Yerdict and judgment for plaintiff, to reverse which, a writ of error was sued out.
    The plaintiff in error, assigned:
    1. That the court erred in permitting the written contract to be read to the jury.
    2. The court erred in charging, that the plaintiff could recover the amount specified in the contract, though the work was not completed within the time prescribed by it.
    Thornton, for plaintiff in error.
    Campbell, contra.

      Campbell, for the defendant in error,
    to support the judgment below, cited 4B.&P. 355; Buffer’s N. P. 139; Doug. 651; 7 John. 132; 4 Gowen, 564; 10 John. 36; 5 Mass. 391.
   COLLIER, C. J.

— The material inquiry in this case is, if one person agrees to perform certain work and labor for another, within a specified time, and that other undertakes to pay an agreed sum of money on its performance, and the work is done, though not within the stipulated time, will an action lie to recover so much as the person performing it deserved to have for his labor?

In general, if there be a special parol agreement, for the performance of any duty, no action will lie until the duty has been actually performed; yet, if the contract has been executed, the agreement to pay money becomes absolute, and a recovery may be had upon the appropriate count, for an indebitatus assumpsit. Go. if a party undertake to do work by a fixed time, or in a particular manner, but fails to perform it within the time, or according to the manner agreed, he cannot recover upon the special contract; because, to entitle himself to its enforcement, he must allege and prove a performance according to its terms. But he is not remediless, if the work he has done was of value to the defendant, he may recover on the quantum meruit. If the work, however, is so illy executed, as to be of no benefit to the defendant the plaintiff is not entitled to recover any thing— not even for materials furnished. / ad if work is of less value to a defendant, when compkLd after a stipulated time, than it won id have been, had the contract been performed with punctuality, it is competent for him to reduce the recoverv, owing that fact. Is, if the price of labor had fallen between the time when the work should have been and was performed, or if it enhanced to a less extent the value of the property on account of the delay — or if the price originally agreed, was too much. We merely mention these, as instances, without pretending to say what precise limitations should be placed upon such a defence, — that there might, be cases of injury to a defendant, so remote as not to allow of their being considered in diminution of damages, we think more than probable-(3 Starkie’s Ev. 1768, 1769, 4 Wend. R. 290.)

In this case, the hill of exceptions informs us that the work was executed within a short time after the expiration of the period agreed on, and we must infer without any objection from the plaintiff in error, as none is shown. Moral justice, as well as law, then, declare that the plaintiff should make compensation. Though the contract was out of view, unless to show what estimate the parties originally placed on the work, there was no objection to its admission for that purpose. It was conclusive to show the maximum of the damages the jury could render, and served to prove the value which the plaintiff himself once placed on the work; yet the defendant may have given other evidence to this point. At any rate, it was not conclusive upon tiro plaintiff, and he might have lessened the verdict, by the introduction of any legal proof — (2 Starkie’s Ev. 97, and cases cited in notes.)

But it is objected, that the jury, in their inquiries, were restricted by the charge of the court, and were informed that the measure of damages should be the price agreed to be paid by the contract of the plaintiff.

The instructions of the judge to the jury, we think, do not authorise such an interpretation. They are explicitly informed, that “ they were authorised to find the amount specified, in tire contract;” if the work was performed substantially, as it contemplated, except, as to time. He does not say to them, that that must be the .measure of their finding-only that it may. In this, as wc have shown, there is no error. If no evidence was given, as we may well suppose, from the silence of the MU of exceptions, !" Uimimsh tin' damages the Ciitcvion-fixed by the contract, seems to us to have been the only guide for the jury to follow.

Wc are of opinion that the judgment of the Circuit court must be affirmed.


author: GOLDTHWAITE, J

text:
    WHITMAN & HUBBARD vs. THE FARMERS BANK OF CHATTAHOOCHIE.
    L No authority is given by statute to a notary public, to certify a fact in regard to a bill of exchange, independent of the protest.

      2. If written evidence be by the court improperly suffered to go to the jury, to prove a fact indispensable to support the action, and competent evidence conclusively proving the same fact, be afterwards offered and received — the error of admitting the improper evidence is not cured. And, in such case, the error of allowing the improper written evidence, can only be cured, by withdrawing from the jury the written evidence offered, as it cannot be known which of the two modes of proving the fact, was relied on to support the action.
    3. Haeh party to a bill of exchange or promissory note, whether by endorsement or mere delivery, has, in all cases, until the day alter he has received notice, to give or forward notice to his prior endorser, and so on till the notice reaches the drawer.
    birr or to the Circuit court of Montgomery.
    Assumpsit on a bill of exchange, tried by Crenshaw, J.
    At the trial of this cause, the plaintiffs to the action gave in evidence the bill of exchange described in the declaration, and a protest for its non-payment on the day it became due, in which the notary had certified that he dc,posited in the post office at Mobile on the same day. notices of the protest for the drawers and endorsers, under cover, addressed to D. Hudson, Escp, Assistant' Cashier Columbus, Georgia. They then offered in. evidence a certificate, which was in the following terms: “ Columbus, Geo. I do hereby certify, that on the 17th day of May, 1837,1 deposited in the post office in this place, notices addressed to the following persons, at Montgomery, Ala., viz: to Walsh & Fitzpatrick, Wm. T. Brame, T, W. Brame, Whitman & Hubbard — advising them of the non-payment of a draft drawn by Whitman & Hubbard, on Edward Hanriek, for $10,000. And that on the 20th May, 1837,1 deposited in the post office, notices addressed to the following persons, at Montgomery, Ala., viz: to Robert Harwell, Wm. T. Brame, Thomas W. Brame, and Whitman & Hubbard, advising them of the nonpayment of a draft drawn by Whitman &. Hubbard, on Edward I-Ianrick, for $10,000. D. Hudson, Cash.
    I affirm and attest the truth of the above certificate.
    D. Hudson, Notary Public.”
    Which letter was under his notarial seal. This evidence was objected to by the defendants to the action, but ad • mitted by the court. It was subsequently proved, that, the defendants had admitted (after the bill was due and protested) that they owed the amount, and that they had promised to pay it.
    On this evidence, the defendants moved the court to instruct the jury,- that to charge them, notice of the nonpayment should have been sent to the place of their residence, or the post office nearest to them; which charge was refused; and the jury was instructed, that if they believed from the evidence, that the residence of thr drawers was -unknown, and that the notices were sent to the agent of the plaintiffs, at Columbus, Georgia, and by him to the place of their residence, such notice was recoverable.
    The errors assigned were two fold:
    1. As to the admission of the evidence objected to;
    2. As to the charge given, and refused to be given, by the court.

      Goldihwaile, for the plaintiffs in error,
    contended, that it was not the duty of the notary to give the notice ob • jected to below, and could not therefore be proved by his seal — (Morgan vs. Van Ingen, 2 John. 204.)
    Porter, for defendant in error,
    thought that proof of the admission by defendants below of their liability, and their promise to pay the amount of the bill, sufficient to sustain the judgment, and that the court would intend, that the verdict was found on the competent evidence. The incompetent evidence might have been rejected below, and yet there was sufficient testimony to sustain the case of the plaintiffs. Concerning notice of non-payment of the bill, and protest, he cited Aik. Dig. 327; McGrew vs. Toulmin, 2 Stew. & Por. 428; Worsham vs. Goar, 4 Porter, 441.
   GOLDTHWAITE, J

— By the rules of the common law, the fact of notice, when requisite to charge the drawer or endorser of an inland bill of exchange, was necessary to be proved by witnesses in the same way as any other fact given in evidence, and could not be established by the certificate of a notary. The act of eighteen hundred and twenty-eight, section one, (Aik. Dig. 327,) enacts, that “the protest of a notary public, which shall set forth a demand, refusal, non-acceptance or non-payment of any inland hill of exchange, or other protestable security, for money or other thing, and that legal notice, ex - pressing in the said protest, the time when given of such fact or facts, was personally or through the post office, given to any of the parties entitled by law to notice, shall be evidence of the fact or facts it purports to contain, and entitle the holder of such security to the dama ges to which, by law, he may be entitled.” It is clear, that no authority is given by this act to any notary, to certify a fact independent of the protest. In the present case, the protest was legal evidence, that notices were placed in the post office at Mobile, and sent under cover, to D. Hudson, at Columbus — but it was not competent for him, or any other notary, to make evidence by giving a certificate as to the manner in which he subsequently forwarded those notices to the defendants, or sent others to them to fix their liability. It was erroneous, therefore, in the Circuit court, to admit this certificate, and the subsequent proof of an admission of liability and promise to pay the amount of the bill, did not cure the error, for we are not informed whether the one or the other mode of proving the liability of the defendants, was relied on in the court below, if the effect of this objection was to be avoided, after the admission of the evidence, it could only be by withdrawing from the jury, the certificate objected to.

2. The charge winch was requested, seems to have been this: That it was necessary, in order to fix the li' ability of the defendants, that notice should have been forwarded to them from Mobile, when the bill was protested. Such, however, is not the law. It was only incumbent on the holder of the bill in Mobile,- to give notice to those to whom they looked for payment, and each party, on receiving notice, is allowed one day to give notice to those liable to him. The general rule is given with much distinctness and precision by Chitty, in his Treatise on Bills, page 520. It may be quoted thus: “It is usual for the holder only to give notice to the person from whom he immediately received the bill or note, especially if he is ignorant of the residence of the other parties; and if so, his neglect to give notice to the other prior endorsers, and to the drawer, cannot, on any sound principle, deprive either of the endorsers of the right to proceed against the person who endorsed to him, and all prior parties, provided he in his turn has duly forwarded notice. The rule is, therefore, clearly settled, that each ■party to a bill or note, whether by endorsement or mere delivery, has, in all cases, until the day after he has received notice, to give or forward notice to his prior endorser, and so on till the notice has reached the drawer.”

The rule thus laid down by Chitty, was substantially the one given in charge to the jury, as they were instructed that it was not necessary that notice should be sent from Mobile, if the holders there of the bill were ignorant of the residency of the drawers or endorsers, but that if sent to the agent of the plaintiffs at Columbus, and by him to the defendants, it was sufficient in law to charge them, in this charge there was no error, and if the defendants below had wished one more specific and definite, it was their duty to have asked it.

For the error in admitting the evidence objected to, the judgment is reversed, and the cause remanded.


text:
    KENNEDY vs. GEDDES & CO.
    L A promise in writing to accept a bill of exchange not in ess/:, is, in law, a sufficient acceptance, if the bill be taken on the faith of such promise.
    2. A collateral, written, or a mere verbal promise to accept a bill, made after it is drawn, may also amount to an acceptance.
    3. But a mere verbal promise to accept a bill of exchange, not yet drawn, is not such an acceptance, as will in law bind the acceptor, even if made to the person in whose favor the bill is drawn.
    4. The non-suits, (two of which equal a verdict,) embraced in the statute of eighteen hundred and seven, (Aik. Dig. 283, s. 135,) must be such as continue to the end of the term.
    5. Thus, — two non-suits, taken in a cause, at different terms, each of which is set aside before the end of the term, arc not equal to a verdict.
    Error to the County court of Mobile.
    Assumpsit on a bill of exchange. The cause of action, in this case, was a bill of exchange, orally accepted by defendant. Also, for damages sustained by plain tiffs, by reason of a breach of contract by defendant, in. refusing to accept a draft, after having promised and undertaken to accept (be same.

      The record showed, that at February term, eighteen hundred and thirty-six, a non-suit was taken, after a jury sworn, and a new trial granted.
    At the February term, eighteen hundred and thirty-seven, after a jury came, &c. a non-suit was again taken, which was set aside.
    On the trial, plaintiffs proved, that defendant, sometime between the first of January and fifteenth of March, eighteen hundred and thirty-four, agreed to accept a bill, to be drawn on him by one Carpenter, who was credited by Geddes, on condition of the acceptance by defendant of his bill. Plaintiffs asked defendant to state distinctly, whether he would accept, for goods to be sold to Carpenter, to which defendant answered, that he would so accept. A draft was drawn on defendant, by Carpenter, in favor of plaintiffs, for goods sold to Carpenter, after said agreement, and in pursuance ®£ it. The date of the bill was the fifteenth of March, eighteen hundred and thirty-four, in pursuance of the agreement aforesaid, and the amount, including interest, was four hundred and forty-nine dollars, and sixty cents, payable four months after date. The bill was presented by witness to defendant for acceptance, and defendant desired witness to leave the bill, and call in a day or two: when witness called, defendant declined accepting the bill. The bill was presented within one week after it was drawn. Defendant also subsequently in a conversation with witness, admitted he was bound for the bill, but said he would never accept or pay it.
    Plaintiffs also proved that they had served on defendants counsel, a notice to produce the bill op the trial. Defendant offered no evidence, but requested the court on this evidence, to instruct the jury, that the plaintiffs could not recover in this action, without producing to the jury the hill declared on, which the court declined. Defendant further requested the court to instruct the jury, that the evidence produced, was not sufficient to maintain the action, as declared on. hy plaintiffs, hut the court declined so to instruct, and instructed the jury, that if they believed, the bill was made and drawn on the agreement mentioned by the witness, and that defendant had agreed, to accept such a bill, although before it was drawn, and if the bill was within the terms of the agreement, and they believed it to be in the possession of the defendant, that although not produced, notice having been given to the defendant to produce it, and although not accepted — still defendant might recover in this action. 'To which, refusals to charge, and charges given, defendant excepted.
    Plaintiff in error assigned:
    1. The court erred in overruling the motion to enter judgment for the defendant below, because of two non-suits having been suffered by plaintiff below.
    2. There did not appear to have been any declaration filed by the plaintiff below.
    3. The court erred in refusing to charge that the plaintiff below could not recover, without the production'of the bill of exchange.
    4. The court erred in refusing to charge as required by the defendant below, that the evidence produced by the plaintiff below, wan not saiFici.cnt to maintain the action.

      5. The court erred in the charge which it gave to thi jury.

      Thornton, for plaintiff in error.

      Dunn, contra.
   ORMOND, J.

— The view wo take of this case, renders it asnecessary to consider hut two of the points raised in the cause.

There was no error in the refusal of the court to enter judgment for the defendant in the court below, on the ground, that the plaintiff below had suffered two non-suits. The non-suit spoken of in the statute, is one which continues 'to the end of the term, as is manifest not only from the statute, but from the reason of the thing.

“No more than two new trials shall he granted in the same cause; and two non-suits shall he considered equal to a verdict against the party suffering the same.” Thus, we see that a non-suit is put in juxta-position to a verdict, and the evil intended to he remedied, was the vexation of numberless suits for the same cause of action.

The remaining question is, whether in law there was an acceptance of the bill of exchange, which is here attempted to be enforced. The evidence is, that the plaintiff had previously accepted and paid two hills of exchange, drawn by one Carpenter, in favor of the defendants in error, for provisions furnished Carpenter. That before the bill in question was drawn, the defendants en-quired of the plaintiff whether he would accept any further for goods to be sold to Carpenter; that defendant said he would accept. The goods were accordingly furnished to Carpenter, and the hill drawn: when it was presented Tor acceptance, the plaintiff in error retained the bill — said he would call on the defendants in a day or two, but declined accepting at that time.

Whether a verbal promise to accept a hill not in esse, will, in law, amount to an acceptance, is now, for the first time, presented to this court; and, in a country so highly commercial as ours, is a question of the utmost importance.

In the case of Pillans vs. Tan Mierop, (3 Burrows’ Rep. 1663,) it was for the first time held, that a promise hy the defendant, in writing, to accept such a bill as the plaintiff should in about a month’s tijme draw upon the credit of a third person, amounted to an acceptance of the bill. This decision was afterwards qualified hy Lord Mansfield, in the cases of Pierson vs. Dunlop, (Cowper, 573,) and Mason vs. Hunt, (Douglass’ Rep. 296,) by making the right of recovery to depend on the fact, whether the bill was taken on the faith of the promise to accept. To the same effect are the cases of Clarke vs. Cock, (4 East, 60,) and Wynne vs. Raikes, (5 East, 514,) but even with this exception, Lord Kenyon, in the case of Johnson vs. Collings, (1 East, 98,) considered that it was carrying the doctrine of implied acceptances to the utmost verge of the law.

In the United States, the doctrine on this interesting subject, appears to stand on the same footing with the latter English decisions. In Coolidge vs. Payson, (2 Wheat. 61,) Chief Justice Marshall thus states the law: “Upon a view of the cases which are reported, this court, is of the opinion, that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who afterwards takes the bill on. the credit of the letter a virtual acceptance, binding the person who makes the promise.”

So, in the case of McEvers vs. Mason, Hodgson & Co., (10 Johns. R. 207,) it was held, that a promise in writing to accept a bill of exchange, will not, in law, amount to an acceptance, unless the bill was taken on the faith of such promise—(See also Goodrich & De Forest vs. Gordon, 15 Johns. Rep. 6; Schimmelpennich vs. Bayard, 1 Peters’ R. 283; Mayhew vs. Prince, 11 Mass. R. 54; Banorgee vs. Hovey, 15 Mass. R. 11; Parker vs. Greele, 2 Wendell’s R. 545.)

It appears very clearly from the cases cited, that it is now well settled, hoth in England and the United States, that a promise in writing to accept a bill of exchange not in esse, will he in law an acceptance, if the bill be taken on the faith- of such promise. It seems equally certain, that a collateral, written, or a mere verbal promise to accept a bill, made after the hill is drawn, may amount to an acceptance. But will a mere verbal promise to accent a bill not yet drawn, be an acceptance of the bill after it is drawn, even if, as in this case, it is made to the person in whose favor the hill is to be drawn?

Waiving, for the present, the consideration of the question, that, in this case, there was no premise to accept for any precise sum, and also waiving influence which the statute of frauds might exert over it, as being a promise, not in writing, to {t answer for the debt, default or miscarriage of another person,” we know of no case in which it has been determined that a promise to accept, under such circumstances as the present, has been held to be an acceptance of the bill when drawn.

It is perhaps to he regretted, that any acceptance, other than one written on the bill, should ever have been received as valid; at all events, we do not feel authorised to go beyond the clear and precise rule laid down by Chief Justice Marshall, before cited from 2 Wheaton.

In this case, not only was the promise not in writing, hut it was uncertain for what amount the bill was to he drawn, when it was to be drawn, and when payable; the court, therefore, erred in not rejecting the evidence.

As the cause must be remanded, no notice is necessary to he taken of the assignment that there is no declaration, as the defect can be supplied before another trial.

Let the judgment bc-reversed, and the causo remanded.


text:
    SINGLETON vs. GAYLE.
    1. The representative of one who, at an administrator’s sale, purchased for an inadequate price, slaves assumed to be subject to a mortgage which had lost its lien, is a necessary party to a bill filed by the mortgagee seeking to foreclose the mortgage, to protect the interest of creditors; and without making such representative a party, no decree can be had in the cause.
    2. An executor who has one of the slaves in possession, should also be made a party to the bill.
    3. Where a complainant neglects or refuses to make the necessary parties defendants to hie hill, after objection made — the court will be authorised to dismiss the bill without prejudice.
    4. A bill to foreclose a mortgage, where the record contains no proof of the execution of the bond and mortgage, will be dismissed.
    5. A record in chancery must shew affirmatively all the evidence necessary to sustain it.
    6. Where the language of the master’s report is such as to warrant the belief that the bond and mortgage had been produced before him and proved, it will be sufficient: but where the report does not warrant such'a belief — the production and proof before him of the bond and mortgage will not be presumed.
    7. The report of a master before a decree of reversal, and on which report the decree is in some measure founded, cannot be afterwards considered.
    8. The statute making an instrument of writing evidence of the debt or duty for which it was given, does not apply to suits in chancery.
    9. Before a decree is pronounced, on a bill taken pro confesso, the court must he satisfied by sufficient evidence, of the justice of complainant’s demand — (Aik. Dig. 288.)

      10. The answer of one defondani in chancery, eannot bs read as evidence to charge a co-defendant.
    11. Notice of the existence cf a lien, admitted by one who purchased at an administrator's sale under the lien, cannot bind those who claim under the purchaser.
    12. Nor does such notice-' admitted, supercede the necessity of proving the lien, when it is attempted to be enforced.
    13. A decree cannot be rendered against defendants, as executors de son tort, who are not sued in that character.
    14. Where one is charged as administrator of an estate, a decree cannot be rendered against him as a purchaser, with notice of a lien in favor of a complainant, seeking to enforce the lien.
    15. No decree can bs had against a purchaser without notice of a lien, unless his vendor, who was a purchaser with notice, be made a party.
    Error to the Circuit court of Monroe, exercising chancery jurisdiction.
    Bill of foreclosure, tried before Lipscomb, J.
    This case was before the Supreme court, at July term, eighteen hundred and twenty-eight — (See 1 Stewart, 566, where the case is reported at length.) It was remanded with a view, among other things, of enabling the complainant to make additional parties defendants. This duty, it appears, was neglected by complainant, and a decree rendered against him below — to review which decree, the case was again brought up to this court.

      Hopkins, for the plaintiff in error.

      Gayle, contra.
   ORMOND, J.

— The view which we take of this case, venders it iimccessa:;/ to consider most of the points which have been raised in the very elaborate investigation which the case has received.

The canse has been pending in our courts fourteen years. It was before this court in the year eighteen hundred and twenty-eight, when a decree was made reversing the decree which had been rendered in the Circuit court, and remanding the cause for further proceedings — (1 Stewart, 566.) The cause was again heard in the Circuit court, anil the bill dismissed, from which a writ of error is prosecuted to this court.

The bill is filed to foreclose a mortgage on a number of negroes, which it is alleged had been executed by Matthew Gayle, to the plaintiff. After the death of Matthew Gayle, the negroes so mortgaged were sold, subject to the mortgage of the plaintiff, and purchased by Mary Gayle, widow of Matthew Gayle, deceased. Before the finding of the bill, Mary Gayle had also departed this life. It is our opinion, that her representative is a necessary party in this cause, to protect the interest of creditors, and that without making such party, no decree can be had in the cause — (4 Porter’s Rep. 245.) The executor of Billups Gayle, should also have been made a party, as the record discloses that one of the negroes purchased by Mary Gayle is in his possession, as the executor of Billups Gayle.

It is true, as a general rule, that a bill will not be dismissed for want of proper parties; but as no final decree can be made in the cause until the parties are all before the court, — if after the objection is made for want of proper parties, the complainant neglects or refuses to make the necessary parties, the court will be authorised to dismiss the bill, though in such cases it would be proper to dismiss without prejudice. In this case, this objection was taken when this cause was here in eighteen hundred and twenty-eight. The court then held, that the bill should not have been dismissed for that defect, but that the bill should have been amended. No steps have since been taken to remedy this defect by the complainant. He must, therefore, abide the effect of his supine negligence.

The decree of dismissal is sustained on another ground: there is no proof whatever in the record, of the execution of the bond and mortgage. Indeed, it does not appear that either the bond or mortgage have ever been produced in the cause. The bill contains, as exhibits, two instruments, which are alleged to be copies of the originals, and it is stated that the originals will be produced on the trial.

It is, however, supposed by the complainant’s counsel, that the bond and mortgage are proved by the report of the master, which is in these words: “Additional report, made 8th March, 1828 — Richard Singleton, by virtue of the claims contended for in the bill filed in this cause.

“Principal, $1100

“ Interest to 8th March, at 7 per cent, 1276 91

As the record in a chancery cause must show affirmatively all the evidence necessary to sustain it, it follows that this cannot be received as proof of the execution of the bond and mortgage: it does not profess to be any thing more than a mere calculation of the amount due at the time of making the report, and cannot be received as proof of the deeds. This point was expressly ruled by this court, in Wilkins & Hall vs. Wilkins, (4 Porter’s R. 246.)

If the language of the master had been such as to warrant the belief, that the bond and mortgage had been produced before him and proved, it would be sufficient; but we do not understand from his report, that he intended any thing more than a mere calculation of interest.

But this report, such as it is, was made before the reversal of the cause in this court in eighteen hundred and twenty-eight, which reversal was founded in part on this report of the master. It cannot, therefore, be now considered for any purpose.

It is maintained by the counsel for the plaintiff in error, that the statute making any instrument of writing, whether under seal or not, evidence of the debt or duty for which it was given, unless its execution is denied on oath, — applies to this case, and dispensed with the necessity of further proof.

We are of opinion, that the act does not apply to suits in chancery. The law regulating proceedings in chancery, (Aik. Dig. 288,) declares that “ before a decree is pronounced on a bill taken pro confesso, the court shall be satisfied by sufficient evidence of the justice of the complainant’s claim or demand — As in the analagous case at law of a judgment by default, no proof would be necessary, it follows very conclusively, that it was not intended the act should apply to suits in chancery. —(See the ease last cited.)

It is also insisted, that the admission by John Gayle, administrator of Matthew Gayle, of the justice of the complainant’s demand, is sufficient proof. Waiving, for the present, the consideration of the question, whether an admission will in any case dispense with proof of the execution of a deed — such admission, if made, will not dispense with proof in this case. The persons in whose possession the negroes in controversy are, have answered, and do not admit the allegations of the bill.

The answer of John Gayle, if proof against him, is not proof against them. No rule of chancery is more conclusively settled, than that the answer of one defendant in chancery, cannot he read against another. With as little plausibility can it be contended that the notice which Mary Gayle had of the existence of the mortgage, at the time of her purchase of the negroes, will operate as an admission, and bind those claiming under her. Notice of the existence of a lien, will surely not supersede the necessity of proving the lien, when it is attempted to be enforced.'

The complainant’s counsel insists, that those in possession of the negroes, may be considered as executors de son tort of Mary Gayle. If it were true, that their acts would subject them to liability as such, they are not sued in that character; therefore, no decree can be had against them as such — (Toller’s Law of Ex’rs, 36, 37; 4 Munf. 143.)

It is also insisted, that as John Gayle admits that he has three of the mortgaged négroes in his possession, a decree may be made against him for them, as the administrator of Matthew Gayle. By his answer, he shows that he claims two of them by purchase from Levin Gayle, who purchased them from Mary Gayle: the other belongs to the estate of Mary Gayle. It is a sufficient answer to this, that he is not proceeded against as a purchaser with notice, but he is charged as administrator of Matthew Gayle. In the latter character, he is clearly not liable, as by the sale to Mary Gayle, the property passed-out of the estate of Matthew Gayle.

In addition, it must be remarked, that as John Gayle claimed two of the negroes in his possession, by virtue of a purchase from Levin Gayle, who had purchased from Mary Gayle, no decree could be had against John Gayle, without making the legal representatives of Mary Gayle parties to the suit.

In a case circumstanced like this, it was improper to dismiss the bill generally, — it should have been dismissed without prejudice to any suit the plaintiff may hereafter think proper to institute.

The decree of the court below, must therefore be so far modified, as to dismiss the plaintiff’s bill, without prejudice to any suit he may hereafter institute. The complainant must pay the costs of this court, and of the court below.


text:
    MUSSINA vs. BARTLETT.
    1. A defendant, who does not regard the mandate of the subpoena, is understood to have set at defiance the authority of the law, and to place himself in contempt of the process of the court, and is subject to attachment.

      2. As a general rule, a defendant who is in contempt, cannot be heard before the court, and is not allowed to contradict the allegations of the bill, or bring forward any defence, or allege any new fact.
    3. Nor is he allowed to appear and contest the complainant’s demand, before the clerk and master to whom the bill was referred to take an account — but the inhibition can be removed at any time by filing a full and complete answer.
    4. Where a defendant, served with a subpoena in chancery, neglects to appear, so that the bill is taken pro confesso against him, and referred to the clerk and master to take and report an account, it is not necessary that it should appear from the report made under the reference, that the defendant had notice of the time and place of taking the account.
    5. A mortgage is regarded in equity, as a security for the debt, and when it becomes forfeited, the mortgagee may take proceedings to make the security available, if so authorised by the terms of the mortgage.
    6. Where a party executes a mortgage for the security of several sums of money, to fall due at different times, — upon default in the payment of the debt which first falls due, the mortgage, pro tanto, becomes forfeited; and the mortgagee may proceed for a foreclosure and sale of the mortgaged premises:—
    '7. Though the mortgagor may stop proceedings by paying or tendering what is due upon the mortgage.
    8, Where a party executes a mortgage for the security of several sums of money, payable to the same person, and to fall due at different times, if on default, in the payment of the first sum, the mortgagee file his bill to foreclose the mortgage, and pending the suit the other debts fall due, it is competent to take an account of all the debts intended to be secured, and to decree a sale for their payment.
    9. Where a bill for the foreclosure of a mortgage, and a sale of the mortgaged premises, has been pendiug,, and the defendant served with subpoena, for several terms, it is competent to refer the bill to a master, to take and report an account, to receive his report, and render a final decree in the case at the same term.
    10. It is not necessary in a decree for the foreclosure of a mortgage and a sale of the mortgaged premises, to prescribe some future day, for the payment of what may be due upon the mortgage, before a foreclosure and sale.
    11. The sheriff is competent to execute a decree for the sale of mortgaged premises, upon the foreclosure of the mortgagor's equity of redemption, and the decree need not require a return of the proceedings thereon to the court.
    Error to the Circuit court of Mobile, exercising chancery jurisdiction.
    Bill of foreclosure, tried before Harris, J.
    In this case, the defendant failed to appear and answer, and the bill was referred to the clerk and master to take an account. The defendant appeared before the master to contest the claim of complainant, and exceptions were filed to the report, which were overruled. The defendant was foreclosed of his equity of redemption, and the mortgaged premises ordered to be sold, unless the amount claimed was paid by defendant.
    To reverse this decree, a writ of error was taken, and the following errors assigned:
    1. There was no service of subpoena upon the plaintiff in error: nor any appearance by him in the cause, until after judgment pro confesso was taken against him, and order of reference made to the master.
    2. The chancellor overruled plaintiff’s exceptions to the report of the master.
    3. The report of the master was made to the court unreasonably soon after the order of reference, thus depriving plaintiff of his legal right of contesting the same: there being no rule prescribed by the chancellor for the course of his procceeding. ,
    4. The final decree ordered the mortgaged premises to be .sold, without giving any reasonable day of payment to the plaintiff in error, or directing any report of his proceedings thereon by the master to be made to the court.

      Thornton, for plaintiff in error.

      Campbell, contra.

      Thornton, for plaintiff in error.
    There Was no service of process or appearance, before the order pro confesso, and therefore the exceptions of defendant to the report of the master, ought to have been sustained — (Aik. Dig. 287; 3 Bibb, 1.) The report was premature, because made without express directions prescribing the mode of proceeding — -(Aik. Dig. 289.) The final decree should have given day to the plaintiff in error, by decree nisi— and the report of the master should have been made to a future term of the court — (2 J. J. Marsh. 117; 1 Mon, 66; 1 Bibb, 526, 528; Hard. R. 520; see Pirtle’s Digest, 2 vol. 93.)

      Campbell, in support of the decree below,
    contended, that the master is not required to give a notice to any party, unless required to do so in the order of the court making- the reference, or by a rule of the court — (Hoffman’s Ch. Pr. 520.) The chancellor never makes such ah order when the party is in contempt, as a matter of course — (4 Hen. & Muni'. 483; Jac. Ch. R. 30; 4E. Con. Ch. & 344; Hoffman’s Ch. P. 520.) When mortgaged premises are ordered to be sold, no time for redemption is allowed in the decree — (4 John. Ch. R. 140; 5 Ohio R. 544 ;/9 Price,- 80.) The report and decree were not made-'too soon — (Aik. Dig. 288.) Equity will notice in-stalments falling due upon a mortgage, after the commencement of the suit — (Adams et al. vs. Essex et al. 1 Bibb; 149 ;-3 Pow. Mort. 903; 1 Paige, 450; 5 Paige, 40.}-.
   COLLIER, C. J.

— In the arguments at the bar, the following points have been raised upon the assignments of error:

1. Where a defendant, served with subpoena in chancery, neglects to appear, so that the bill is taken pro con-fesso against him, and referred to the clerk and master to take and report an account, is it necessary that it should appear from the report made under the reference, that the defendant had notice of the time and place of taking the account?

2. Where a party executes a mortgage for the security of several sums of money, payable to the same person, and to fall due at different times, if on default in the payment of the first sum, the mortgagee file his bill to foreclose the mortgage, and pending the suit the other debts fall due, is it competent to take an account of all the debts intended to be secured, and to decree a sale for their payment.

3. Where a bill for the foreclosure of a mortgage, and a sale of the mortgaged premises, has been pending, and the defendant served with subpoena for several terms, is it competent to refer the bill, &c. to a master, to take and report an account, to receive his report, and render a final decree in the case at the same term?

4. Is it necessary, in a decree for mortgage, and a sale of the mortgag'd scribe some future day for the paymeij due upon the mortgage, befo're a foretjosurt

5. Is the sheriff competent to execu sale of mortgaged premises, upon the mortgagor’s equity of redemption, and should not thq decree require a return of the proceedings thereon to court.

1. By the second section of the act of eighteen hundred and twenty-three, “to regulate proceedings in chancery suits,” (Aik. Dig. s. 14, p. 287,) it is provided, that if the defendant docs not file his answer within the time prescribed by law, after the service of subpoena, “ the bill •shall be taken pro covfesso, and the complainant, if he deem'it necessary, may take an attachment to compel an answer.” A defendant, who does not regard the mandate of the subpoena, must be understood to have set at defiance the authority of the'law, and to place himself In contempt of the process of the court. It is on this legal assumption, that he subjects himself to an attachment. And, according to the practice prevailing in the English Chancery, a party who does not regard its pro. ceás, or is disobedient to its orders, is considered as in contempt, and, as a general ride, cannot be heard before the court; (Vowles vs. Young, 9 Vesey, jr. 172,) certainly not to contradict statements, or state any new facts on his own part. In -vs. Lord Gort, (1 Hogan, 77,) a motion was made for a receiver, on process to a sergeant-at-arms. The solicitor of the defendant, who was in contempt, opposed the application. The Master of the Rolls observed: “The general rule is, that when a party is'in contempt, he will not be allowed to oppose the relief sought by the plaintiff, by contradicting the allegations in his bill, or bringing forward any defence, or alleging new facts; neither will he be heard by affidavit, except it be made with a view of purging his contempt. But he may be heard to direct the attention of the court to any error or insufficiency in the plaintiff’s own case, as made by the bill.”

In Heyn vs. Heyn, (Jacob’s R. 49; 4 Cond. Eng. Ch. R. 25,) the defendant was served with subpoena, but declined answering, and stood out all process of contempt. The case was then set down for hearing, and an order obtained for taking the bill ¡>ro covfesso, and a decree for an account before the master. The defendant, at the next term thereafter, moved that he might be at liberty to put in his answer forthwith, which he undertook to do, and to pay the costs occasioned by his contempt, and that all further proceedings as to the bill being taken ■pro confesso, be stayed, the defendant submitting to such decree as the court should think fit. The Lord Chancellor, in delivering his opinion, said: “I apprehend that when the bill i« taken pro ronfesso. the defendant is not at liberty to go before the master without an order; but the accounts are to be taken ex jparle, and they may charge him with whatever they can. My Apprehension is, that after suffering the cause to go on till a decree is made pro confesso, he cannot be relieved, and permitted to come in as a party to the account for his own benefit, except on paying all the costs, and on a special application — and I think there is a necessity for such an order.” —(Maynard vs. Pomfret, 3 Atk. 468; Clark vs. Dew, 4 Cond. Eng. Ch. R. 344.) Thus, we think it vew satisfactorily appears, that a defendant who is in contempt, will not be allowed to contradict the- allegations of the plaintiff’s bill, bring forward any defence, or allege any new facts; and that one against whom a bill is taken jiro confesso, for a failure to appear and answer on service of process, is in contempt, we think, quite as clear; and he cannot consequently insist upon a right to appear before the clerk and master, to whom the bill has been referred to take an account—(4 Hen. & Munf. R. 483.) A defendant here, will have no just cause to complain that he has not been allowed to contest the plaintiff’s demand before the master, since the inhibition results from his own neglect or perverseness, and may be removed at any time-“by filing a full and complete answer” to the plaintiff’s bill—(Aik. Dig. s. 18, p. 288.) While, according to the English practice, a defendant can only be relieved from the consequences of such a con-, tempt, by application to the court, and submitting to such terms as it may impose-(4 Cond. Eng. Ch. R. 25 and 344.)

2. A mortgage is regarded in equity as a security for the debt. When it becomes forfeited, so as to authorise the mortgagee to take proceedings to make the security available, must depend upon the terms of the mortgage. In the case before us, the plaintiff in error stipulated with the defendant, to pay him several sums of money at different times, and conveys to him a lot in the city of Mobile, conditioned that the conveyance shall be void, if these sums shall be paid at the periods agreed on. Now, we consider it clear, that upon default in the payment qf the debt which first fell due, the mortgage, at least pro tanto, became forfeit, and the mortgagee might proceed for a foreclosure and sale'of the mortgaged premises. The mortgagor, it is true, might have stopped the proceeding, by paying or tendering so much as was then due upon the mortgage — (Saunders et al. vs. Frost, 5 Pick. Rep.) But having failed to do this, and suffered the case to progress till the other instalments became due, how can lie with propriety say to the mortgagee, that you shall only have your decree for so much as was due when you exhibited your bill? It frequently so happens, that the property mortgaged consists of one entire parcel, which could not be divided, or would be greatly lessened in value b.y division. Suppose, in such a case, a decree should be had for a sale, before the entire sum intended to be secured fell due, could the mortgagor insist uponbeing paid the excess produced by the sale? We apprehend not. If he could, the right to coerce a sale upon the first default, instead of being beneficial, would often be injurious to the mortgagee, if he were to avail himself of it.; for having sold the mortgaged premises and paid over the excess, his security would be gone, and he thrown upon the personal responsibility of the mortgagor. In such a case, there could be no doubt but the powers of equity would be competent to make such disposition of the money, as to charge it with the satisfaction of the other instalments, provided for by the mortgage. The mortgage, we have said, becomes forfeit by the first default,’ and suit may be immediately brought. If, pending the case, other sums become due, what principle of equity inhibits their recovery in the same suit. The bill, if properly drawn, would disclose the entire case, accompanied with copies of the mortgage, bonds, notes, &c., so as to enable tlic-court to render perfect justice between the parties. But the question does not rest alone upon its intrinsic justice. In Smith vs. Shuler, (12 Serg, & R. Rep. 240) it was determined, that an ejectment might be maintained on a mortgage payable by instalments, before all the instalments became due. so as to let the mortgagee into possession — (See also Eastabrook vs. Moulton, 9 Mass. 258.) We cite these cases merely to show that the mortgagee’s right to subject the security to the payment of his debt, is complete upon the first default. But Adams et al. vs. Essex et al. (1 Bibb's R. 149,) is directly in point. In that case, it appeared that a mortgage had. been executed to secure the payment of a sum of money by instalments. Upon a failure to pay the first instalment, the mortgagee brought his bill to foreclose : pending the bill the last instalment became due, and the Circuit court rendered a decree for all the sums secured by the mortgage. In the Court of Appeals, two questions seem to have been raised: 1st. Was not the suit prematurely commenced ? 2d. Was the mortgagee entitled to a decree for more than was due on his mortgage at the time his bill was filed?

In regard to the first question, the court say, that the case before it, being a suit in equity, ought rather to be “governed by the liberal principles which govern in covenant, assumpsit and special agreements, than those technical and rigid rules which are applicable to the action of debt only. Wc are, therefore, of opinion, that the suit was properly commenced, although but one of the instalments was due at the filing of the bilí”

In respect to the second question, it is remarked, “that the chancellor having once jurisdiction of the cause, ought not to turn the parties round at the hearing, to begin de novo; but should go on to finish the controversy. In the case before the court, the last instalment became due before the cause was heard, so that the chancellor might well, as he has done, embrace the whole case in the decree.” This conclusion seems to us so just iu itself, that wo are disposed to adopt as correct, the principle upon which it proceeds.

8. The bill, in this case, was pending for more than a year after the service of a subpoena on the plaintiff in error, and the decree was not rendered until the third term of the court after it was filed. Under these circumstances, the plaintiff cannot complain that the cause has been hurried to a close with unreasonable despatch. By the fifth section of the act of eighteen hundred and twenty-three, already cited, it is enacted, that “it shall not he required to file a replication to an answer; and in all bases whore the answer is filed ten days before the sitting of tiie court, or the bill is taken pro confrsso for want of an answer, the cause shall be heard and determined at that term, if practicable, unless on good cause shewn, either party continue the same.”—(Aik, Dig. s. 17, p. 288.) This statute clearly authorises a final decree at the same term at which the order taking the bill' pro confesso is made. In Coates’ executrix vs. Muse’s administrators et al. (1 Brock. Rep. 534,) a case uninfluenced by any statute or rule of court, Chief Justice Marshall said that the practice in the Circuit court for the Virginia district was to let the report of a master in equity, which was esteemed in any degree complex, lie to a second term for consideration and exception, In plain cases, the report is commonly acted- oh at the first term. Now, whether this point be considered as controlled by our statute or not, the practice of acting on reports at the first term, is to be governed by the court in its discretion, if the apt is placed out of view,

4. It is the practice in England, upon the foreclosure of a mortgage, for the decree to direct, upon the nonpayment of the principal and interest due, at a given day, that the mortgagor's equity of redemption be forever gone, and that the title vest in the mortgagee — (4 Kent’s Com. 173; 3 Powell on Mortgages, 998, 999.) Though this is the general practice, yet, sometimes the mortgagee prays for and obtains a decree for the sale of the mortgaged premises, under the direction of an officer of the court, and the proceeds of the sale will, in such a case, be applied .towards the satisfaction of a mortgage, and the excess, if any, paid over to the mortgagor.

'The practice.of naming some future day in the decree, When the money ascertained to be due should be paid, and previous to wliich day, the mortgagor's equity should not be foreclosed, proceeded, doubtless, from a consideration of,the great injury frequently done to mortgagors,by wresting from them estates largely more valuable than the debts secured, without paying them the difference. To avoid such injustice, the English chancery not only gave day by the decree of foreclosure, but would actually enlarge the time of payment upon the application of the mortgagor, even more than once, especially if the mortgagee’s security is considered ample — (3 Powell on Mortgages, 998, 999; 4 Kent’s Com. 173.) Though .such is the origin of this practice, yet, it is adhered to in the most of the States of the Union, notwithstanding it is the practice of all of them, (except some three or four,) instead of rendering a decree for a strict foreclosure, to direct a sale of the mortgaged premises, and the payment of the excess to the mortgagor. The practice has, in general, been tacitly acquiesced in, like many of the legal notions we have drawn frdm abroad, without enquiry whether it is applicable to the state of things here; hence it is, many rules of law arc recognised as in force, long after the reason of their adoption has ceased. In England, it lias been questioned by high authority, whether chancery, in its desire to prevent injury to the mortgagor, had not gone too far: for Lord Eldon himself regretted, that that court had ever varied the agreements of the parties in such cases —(Anon. MS. 2 Mad. Ch. 492.) And in Ireland and Scotland, it is said ¿the rule docs not exist, -'for courts in these countries never interfere in the manner in which courts of equity do in England. to protect 1 hr borrower against the immediate payment of money vested in land. On this account, money is in those countries more frequently lent on mortgage than in England—(2 Madd. Ch. 492, n.) In Ireland, the decrees are always for a foreclosure and sirle of the mortgaged premises, and though it is usual in practice to prescribe some day, within which payment is to be made, the time is never enlarged-- (3 Powell on Mortgages, 962.) Tills question was considered by Chancellor Kent, in Perine vs. Dunn, (4 Johnson’s Chanc. Reports, 143,) who there says that “the rule and the practice apply only to cases of strict foreclosure, where, by -the decree, the equity of redemption is barred, and the complete title is vested in the mortgagee. The rule does not apply to cases of decrees for. the sale of the mortgaged premises, according to our usual practice. The mortgagor, in such cases, is not subjected to a severe and absolute forfeiture of all his right, but he has the chance of the surplus moneys arising from the sale, and is placed upon the same footing of equality with debtors against whom judgments are rendered, and executions awarded at law.” Considering the contract of the parties, there can be no well founded reason for extending the time of payment to any period beyond the decree: to do so, "is but giving to the mortgagor an indirect bounty for his want of punctuality.

Besides, it must be remarked, that real estate is subject to levy and sale under a fieri facias in this country, the issuance of which is authorised immediately after judgment. Now,.if it were required by a decree of foreclosure to give day to the mortgagor, a mortgagee would be in a less favored condition than a judgment creditor, though he had been so industrious as to secure his lien by contract. Suc.h a distinction cannot be endured — it would be incompatible with justice, and calculated to disturb the harmony of the law; and as the reason of it has ceased, we cannot give it our sanction — (Higgins vs. West, 5 Ohio R. 554.)

• 5. The decree, in this case, is unusually brief. It merely confirms the report of the clerk and master, (which ascertains the amount due upon the mortgage,) •adjudges that the mortgagor’s equity of redemption be foreclosed, and that the mortgaged premises be sold according to law, unless the sum ascertained to be due, be paid by him. That it was competent for the court to have directed the sale to be made under the direction of the clerk and. master, we have no doubt; yet, as the decree is silent in that regard, we‘think the execution is provided for by law, through the agency of a sheriff. The act of eighteen hundred and seven, “ concerning executions, and for the relief of insolvent debtors,” (Aik, Dig. s. 15, p. 162,) authorises the issuance of a venditioni exponas -to the sheriff, to make the amount of the decree by a sale of the property mortgaged; and the acts in regard to the notice, and time and place of sales under executions oh judgments at law, sufficiently indicate the proper course- of procedure by the sheriff, in a case like the- present.

'The sheriff would, of course, make'his deed to the purchaser, and return by endorsement on the process how he had executed it. If there was an excess of money produced by the sale, to that, as in ordinary cases, the mortgagor would be entitled; and the powers of the court over the sheriff, and the maimer in which he had performed his duty, would be as ample as if the clerk and master had been substituted as a commissioner.

After considering all the points raised, our opinions are, that the proceedings of the Circuit court, though somewhat untechnical, are not erroneous; and the decree is consequently affirmed.


author: ORMOND. .T.

text:
    GAYLE vs. PRESTON.
    1. A denial, in a casein admiralty, of the allegations of the petition, and concluding to the country, is the tender of an issue to a jury, and cannot be tried by the court.

      2. And the tender of such an issue is a request for a trial by jury, and precludes the court from determining the truth oí the facts put in issue.
    Error to the County court of Mobile, exercising Admiralty jurisdiction.
    The defendant in error filed his libel below, against the steamer Fox, for sundry goods, wares and merchandise, furnished for the use of the vessel. The plaintiff in error answered, denying the truth of the allegations contained in the libel, which he prayed might be enquired of by the country. The court, by its decree, condemned the vessel, her tackle, apparel and 'furniture, for the payment of the debt, with interest and -costs. To reverse which, a writ of error was taken, returnable to this court.

      Thornton, for the plaintiff in error.

      Porter, contra.
   ORMOND. .T.

— This was a petition, in the nature of a libel in admiralty, filed in the County court of Mobile county, by the defendant in error, against the steamboat Fox. A monition issued, and was returned, executed. A replevin bond was executed by the master of the boat. An appearance was afterwards entered in the following words: “And Andrew .T. Gayle, who claims the said boat as his own, which claim is admitted by the court, int^vening for his interest, answers and says, that he denies the truth of the allegations contained in said bill; that the said allegations, and every part thereof, are untrue, and this he prays may be enquired of by the country.” The court afterwards rendered judgment, without the intervention of a jury. ^ This is the error assigned:

The statute provides that all issues, at the request of either party, shall be tried by a jury. The answer, in this case, denying the allegations of the petition, and concluding to the country, was a tender of an issue to the jury; and could not be tried by the court, without some waiver which does not appear on the record. The tender of an issue in these terms, must he understood to be such a “request” for a trial by the jury, as would preclude the court from determining the truth of the facts put in issue.

Let. the judgment be reversed, and the cause remanded.


text:
    CURRIE vs. THOMAS.
    1. Independent of statutory enactments, money cannot be lawfully paid to the clerk of court, in vacation ; or in any manner than as the officer of the court, in term time—
    2. As, on plea pleaded, when the cause of action is admitted to a partial extent; in the case of tender; and when money is paid into court in satisfaction oí a judgment.
    3. But, in these cases, the money is presumed to be brought before the court, and placed in the custody oí the clerk, as the fiduciary of the court.
    4. The only case in which a clerk is authorised by statute, to receive moneys, is, in satisfaction of a recognizance, entered into by defendants, who have allowed judgment to pass against them at the first term on petition and summons — (Aik. Dig. 275.)
    Error to the Circuit court of Barbour county.
    Assumpsit on a promissory note, tried before Picket, J.
    The defence, in this case, was, that a former action had been brought against defendant, by one Pugh, on the identical note, and that the defendant had paid the amount called for by the note, to the clerk of the court, whose receipt for the same was produced. Objections were made to the evidence, relied on to make out the de-fence, on the ground, that the clerk was not authorised to receive the payment —which were overruled by the court. Yerdict and judgment for defendant.
    The errors assigned were- -
    1. That tile court erred in overruling the several objections to the admission of the testimony offered by defendant ;

      2. Iii giving judgment for the defendant, upon the verdict, when no plea was filed.

      Por!ei\ for the plaintiff in error.
   GOLDTHWAITE, J.

— There arc several stages in the proceedings of- a case, in which the clerk of a court is by law authorised to he the holder of the moneys which may be paid into court. Thus, on plea pleaded, when the cause of action is admitted to a partial extent, and denied as to the residue. So in the case of a tender — So, also, when money is paid into-court in satisfaction of-a judgment. In all these cases, however, the money is presumed'to be brought before the court, and as it can have no custody of money, it of necessity remains with the clerk, as the fiduciary of the court. But independent of statutory enactments, no case is remembered.in which money can be lawfully paid to the clerk in vacation, or in any other manner than as the officer of the court in term time, and the receipt of which is always shewn by some, record of the'court, or some proceeding yet on paper, but progressing to a record. To permit this officer to receive demands which have not been reduced to judgment, would bring about consequences of a most mischievous tendency, unless received at a time when he is presumed to be under the immediate control of the court — that is in term time, and then only in those cases where the performance becomes a duty imposed by the peculiar organization of the court.

We will now ascertain how far such a duty is imposed on-himliy statute. The ninth section of the act entitled “ an act to regulate the proceedings in suits at common law,” authorises the clerk to receive satisfaction of, and discharge the recognizance entered into by defendants who have allowed judgment .to pass against them at the first term on petition and summons —(Aik. Dig. 275.) And by the act of eighteen hundred and thirty-four, entitled “ an act to provide a more summary mode of collecting money from clerks,”' it is made their duty to receive and account for all such sums of money as may be paid to them by either party, as well after as before the issuance of execution.

Before the enactment- of this last statute, a summary remedy had been given against clerks as well as against sheriffs and coroners, for failing or refusing to pay over monies collected or received by them. This act autho-rises a judgment against the securities as well as the officers, and hence we must conclude that it refers only to such monies as they are by law authorised to receive. Such has been the previous decision of this court in the cases of Barton vs. Lockhart, (2 Stew. & Por. 109,) and Bobo & Johnson vs. Thompson, (3 Stew. & Por. 385.)

It is not pretended that the money was received by the clerk in any one of the stages of the cause in which he was authorised to receive the money at common law; and -the case is not covered by any of the existing enactments. Indeed, the admission of the evidence as proof, to the extent for which the court admitted it, can alone be maintained on tlie hypothesis, that a plaintiff, when he commences a suit, confers a general authority on the clerk of the court to receive the demand he has sued for.

The payment having been made to the clerk, at a stage of the suit when the law did not authorise him to >-eceive it, was not such a payment as can in any manner affect, or prejudice the claim of the plaintiff.

Let the judgment be reversed and the cause remanded.


author: PER CURIAM.

text:
    M'GILL vs. HAMMOND.
    X, Where a writ of error is prosecuted on a judgment at law, and annexed there appears a decree in chancery, — the two cases cannot be thus confounded so as to authorise this court to consider the errors assigned on the decree.
    Error to the Circuit court of Monroe county.
    In this case, a writ of error was sued out, to reverse a judgment in debt, of the Circuit court of Monroe county, and a decree of Hie same court, exercising chancery jurisdiction, in a case between the same parties, Was appended to the transcript sent up!
    The error assigned was, that the court below erred in dismisssing complainant’s bill.

      Phelan, for plaintiff in error.
    Porter, contra.
   PER CURIAM.

— The only error assigned is, that the court below erred in dismissing the complainant’s .bill for the cause áientioned in the decree. The writ of error is not prosecuted in the case in equity, and the decree, which is appended to the proceedings in this suit, is no part of the record, and ought not to have been attached to it.

If there is error in the decree dismissing the bill, it is a matter which can be examined when that decree is sought to be revised; but the two. cases at law and in equity cannot be confounded together, and made one case, for any purpose.

Let the judgment be affirmed.