text:
    JOHNSON AND WASH versus CHRISTIAN AND GOYNE.
    In proceedings before Justices of the Peace, in cases offorcible entry and detain_ er, a party is entitled to the peremptory challenge of a juror, as in civil case? in the Circuit or County Courts.
    This action was originally commenced by the plaintiffs in error, before a Justice of the Peace, in Tuska-loosa county, for an unlawful detainer, by the defendants.
    In the course of the trial, the defendants insisted on the right of a peremptory challenge to one of the jurors, which the magistrate refused. A verdict and judgment having been rendered in favor of the plaintiffs, the case was taken to the Circuit Court by cer-' tiorari, and reversed, on the ground, that the Justice erred in refusing the defendants the right of challenge. The plaintiffs took their writ of error to this Court; and assigned as cause for reversal, that the Circuit Court erred in its decision, in as much, as the acts of Assembly, giving the right of peremptory challenge to jurors, referred alone to trials in the Circuit .and County Courts, and not to cases like the present. .
    Ellis, for Plaintiffs.
    The question in this case turns on the right of a Justice of the Peace to refuse to allow a peremptory challenge to a juror, in a trial for forcible entry and detainer. The act of 1820 only extended this privilege of peremptory challenge to parties litigant in the Circuit Court. It did not extend even to trials in the County Courts : to these, it was afterwards extended, by another act. The language of the law, though general, must be restricted to the subject matter of the statute, and that was, proceedings in the Circuit Courts.

      That the unlimited construction is not the true one. is apparent from the consequences that would follow. We had an act which authorised a jmy of seven persons, under certain circumstances. If you admit the privilege of peremptory challenge, as given by the act of 1820, to * extend to- case's of this kind, a majority of the jury 'might be excluded.
    If arguments, from inconvenience, may be urged on. the other side, how much stronger are they on ours! We are not to expect by-standers at these ■trials, in the country. Suppose a jury set aside'by peremptory challenge, and challenges for canse. In such a case, it would often be difficult, if not impos1 sible, to obtain another jury.
    Stewart, contra.

    The act of 1820, is positive, and embraces “ all jury trials.” The words cannot be limited, in the manner contended for. The jury, spoken of by counsel, composed of seven men, however it may have been styled, does not come within the meaning of the term. A jury is composed of twelve men.
    As to the reason of the case, there'is more need of this privilege in trials in the country, under the management of the magistrate and constable, than wffiere the jury are empanneled under the regulations of the Circuit Court. But the statute is full and explicit, and needs not the aid of this reasoning.
   By Mr. Justice Hitchcock :

This was an action of unlawful detainer, brought by the plaintiffs in error against, the defendants, before a Justice of the Peace in and for the county of Tnskalcosa. The case was tried by a jury, and a verdict-was had in favor of the plaintiffs. " It was-taken by certiorari info the Circuit Court for that county-; and. was reversed upon an assignmentthat the justice refused to the defendants the right of peremptory. challenge to one of the jurors.” It has been brought into this Court by' writ of error; and the only question is, -whether in such a case, either party is entitled to a peremptory challenge.

By the 11th section of “ an act to alter and enlarge the terms of the Circuit Courts of this State,” passed December, 1820,it is enacted, “that in all juryrtrials either party may and shall have the right to a peremptory challenge to four of the jury.”

The counsel for the plaintiffs in error, contend,, that by the Common Law, the right of peremptory challenge was confined to cases of treason and felony, and that Justices of Nisi Prius could not grant any tales, prior to the statute of 35 Henry VIII, chap. 6 — - that the Court in which this proceeding was had, is a Court of special and limited jurisdiction — -that its proceedings are summary, and in derogation of the. Common Law — that the act of 1805, giving this mode of proceeding, does not give the right of peremptory challenge; nor does it give the right to grant tales— that the act of 1820, is an act relating to the Circuit Court, and that therefore, the right of peremptory challenge given by it, should be confined to that Court — and that the Legislature must have. so intended it; as in the next year they extended the same privilege, by act, to the County Court, which they would not have done, if they had considered the first act as extending to the juries in all the Courts,

• The act of 1820, giving the right of peremptorj: challenge, is general in its terms. It says, “ that in all jury trials, either party shall have the right,” &e-. The act is remedial in its character. It'was intended to confer a right not known to the Common Law. It is, therefore, entitled to a liberal construction — -sa as to “suppress the mischief, and advance the remedy.” The jury contemplated by the apt of 1805, comes within the mischief intended to be remedied, as much as any jury in the Circuit Court, if not much more. The power of the sheriff is'much greater ’here, than in the empanneling of 'jurors for the Circuit Court; and there is no reason that can be offered, for extending the right of peremptory challenge in the Circuit Court, which does not.immedi-atefy appfy tó a case of the kind now under consideration.

It is true, the title of the act in which this section is found, relates to the Circuit Court; but the title of an act does not control its provisions. It may serve to explain a doubtful matter in an act, if its meaning cannot be otherwise ascertained; but it cannot be resorted to, to restrain, limit, or control, a plain and palpable enactment; and by reference to that act, it wall be seen, that there are other matters contained in it, which do not, in the least, relate to the Circuit Court.

Neither does the Court consider the suggestion, that there is no power given by the act of 1805, to summon tales, any reason why the act of 1820 should not be extended to this case. By the Common Law, if the jury did not attend, whether by reason of death, or other cause ; or if it be reduced by challenge, so that a sufficient number do not remain, the writ of undecem decern or ocio tales, issued to force others into Court to try the issue; and the statute of 35 Henry VIII, was enacted, allowing the plaintiffs to pray a tabs de dreumstantibus, to prevent the delay of the decern tales. The statute of 35 Henry VIII, allowed the sheriff to summons the bystanders; whereas, the Common Law required the jurors to come from the vicinage or neighborhood of the cause of action. At this, day a summons of by-stahders would he good, without the statute. The power of filling up the jury is an indispensable incident to the right of trial by jury, and cannot be separated from it without destroying the value of the right itself.

That the Legislature, in the act of 1821, in re-or-ganising the County Court, in one section of which, the right of peremptory challenge of four of the jury is secured to each-party, is to be received as any evidence against the construction given, cannot be ad--xnitted. That act gave jurisdiction to the County Court in some cases, concurrent with the Circuit Court, and it also provided a jury for the Court; and without the clause in that act, giving the right of peremptory challenge, this Court would have had no difficulty in extending the provision of the act of 1820 to it.

Let the judgment of the Circuit Court, be affirmed.

       Bacon, title Statutes

         Bacon, title Juries C.


source: Caselaw Access Project

author: By Mr. Justice Hitchcock

license: Public Domain

text:
    EVANS versus WATROUS.
    Where there is a clear and substantial cause of action, set forth in a declaration, although it contains irrelevant, or superfluous matter, or duplicity, yet the defendant shall be bound to answer it.
    An attorney at law, is only liable for gross negligence; which is a question of fact, to be determined by the jury.
    An averment in a declaration, against an attorney for negligence, that he had negligently commenced a suit, and improperly dismissed it, contrary to his duty, &c. — held, to be a sufficient charge of gross negligence, to put the defendant, upon his plea.
    This was an action of assumpsit, commenced by the plaintiff, in the Circuit Court of Shelby. The declaration charged the defendant with negligence, as an attorney at law — in this, to wit, that before the. institution of the said suit, the plaintiff had entrusted to tlie care and management of the defendant, for collection and suit, a certain note or obligation, drawn by one May, in favor of one Evans, for the sum of two hundred dollars, and by one Hutchison, indorsed to the plaintiff. That suit had been commenced, and judgment obtained on the same, but that the defendant had neglected to have the proper execution issued on thereon, whereby the debt had been entirely lost to • the plaintiff. Also, that afterwards, the said defendant, being instructed by the plaintiff to commence an action against the indorser of the said instrument, had so negligently commenced the same, as to be compelled afterwards, to dismiss it, contrary to his duty and undertaking; by which, costs had been recovered against the plaintiff, and his opportunity of recovery, lost, &c.
    The defendant, to this declaration, filed a demurrer, which the Court sustained, and judgment was entered up against the plaintiff.
    By writ of error, the case was brought into this Court.
    Moody, for Plaintiff
    It is contended, that the Court erred in thus sustaining the demurrer, and rendering judgment. The declaration, I conceive to be substantially good. It is intended to contain two counts. These two 'counts may not be formally set forth, by technical words. Particular words are not necessary for that purpose. It is sufficient if there be two substantial causes of action stated : it will then be regarded as two counts; and if either be good, a general demurrer to the whole declaration, cannot be sustained. In this case, I do not admit that the demurrer-was properly sustainable in regard to either count.
    As to the first count, it is averred, that the attorney promised to collect the money; he was, therefore,, bound, in pursuance of his undertaking, to see that the proper writs of execution were issued : this, it is averred, he did not do ; and that, by subsequent insolvency of the defendant, the debt was lost. The duty of an attorney, when he undertakes to collect, does not cease with the rendition of the judgment. He is required to use all proper diligence to make the collection; and what is proper diligence, is for the Court and jury to determine.
    Peck, contra.

    The declaration clearly contains but one count: it does not profess to contain more ; and this count, I am satisfied, the Court below, correctly determined to be bad. It is not the business of the attorney to issue out a writ of execution. Here, it is set forth that the suit was properly brought, but that the attorney did not sue out execution in proper time. The suing out of execution is the duty of the clerk, and not of the attorney. It is, then, averred, that Watrous promised to bring an action against the indorser, and did so, and afterwards improperly dismissed the same. This is a distinct charge of negligence in another case, and amounts to such gross duplicity in pleading, as to render the declaration bad. But the dismissal may not have been any neglect. Many cases may be imagined, in which it would be proper to dismiss.
    In regard to making the collection of the debt, by suing out execution, it would frequently be very inconvenient for the attorney to attend to it, who may not live in the same county. The Court is referred to the 4th Rule of this Court, on the subject.
    The Court is referred to 1 Comyn’s Digest, 757, letter B — 4 Burrow, 2061 — 8 Johnson's Rep. 361— Aikins Digest, 263.
   By Mr. Justice Hitchcock

This was an action brought by Evans vs. Watrous, in the Circuit Court of Shelby county, for negligence as an attorney. There was a demurrer to the declaration, which was sustained, and judgment was rendered against Evans, and one Uriah Jordan, as his security for costs.

The declaration states, that the plaintiff below, had placed in the hands of the defendant, a certain writing obligatory, signed by one Benjamin May, dated 23d January, 1826, for two hundred dollars, payable 25th December, 1826, in favor of, and endorsed by one Jesse J. Evans; that it was also endorsed by one Allen L. Mann and byqne Isaac Hutchison, who delivered it to the plaintiff; that the said defendant undertook to collect said writing obligatory, as an attorney at law, for a reasonable reward; that he commenced suit, and obtained judgment against the pay- or of the instrument, at the August term, 1827, of the Circuit Court of Shelby county ; but, that “ he wholly failed and neglected, at an early period after the rendition of the judgment, to take the proper and necessary means to have the said judgment executed by collecting from said May, the amount of the judgment and costs,” &c.; that if he had “ used due and proper diligence in suing out and prosecuting at an early period after the rendition of the said judgment, the proper and legal writ of execution, necessary to carry the said judgment into effect; that the amount of the debt and costs would have been collected from the said May, for that he was, at the time solvent;” but, that before the defendant used the necessary means to have the judgment collected, the defendant became wholly, insolvent. The declaration further aversr that after the insolvency of May, the plaintiff instructed the defendant, so being his attorney, to prosecute suit against Jesse J. Evans, the payer and first indor-ser of .the instrument, and that he undertook to do the same, with all the necessary and proper skill and diligence of an attorney * hut, that he “ negligently and improvidently, on the 27th October, 1828, issued a writ of cap. ad respondendum, from the Circuit Court of Shelby county, against said Evans, on said instrument, and at the Fall term of said Court, he contrary to his duty and undertahing as aforesaid, dismissed the said suit, whereb}'- a judgment-was rendered against the- plaintiff for costs, and that if the said suit had been correctly and skilfully 'commenced, and faithfully and diligently prosecuted, and had not been dismissed by the defendant; that he, the plaintiff, would have been able, and would have proved all facts and things necessary to have recovered judgment against the said Evans, for the amount of the debt, and that the same could and would have been collected, for that the said Evans was then solvent: but that shortly after, and before a new suit could be made effective against him, the said Evans removed himself and his effects, into the county of Perry, and shortly after, beyond the limits of this State, and the United States, leaving behind him no property from which the money could be made, and so the plaintiff avers, that by the negligence, and unskilful, and improvident'management of the said suits, he hath lost his debt,” &c.

It is contended, on the, part of the plaintiff in error, that this declaration contains substantially two counts; that the charge of negligence, in not collecting the money on the first judgment, is properly stated in one count, and that the charge of negligence, improvidence, and unskilfulness in commencing and dismissing the second suit, is properly a second and distinct count, and that the Court ought so to consider it; but that if the declaration shall be considered as one connected history of the transaction, the matters- stated are sufficient to call upon the defendant for his de¿ fence, and that the demurrer dught not to have been sustained..

By the defendant’s counsel, it is contended, that the declaration contains but one count — that there are matters set forth, proper for two counts, if for any; that it-‘is therefore bad, for duplicity ; that if the Court do not sustain the demurrer for this cause, he com tends, that the matters set forth, do not amount to such a charge of negligence or unsldlfulness, as will sustain an action for damages; that, as to the first suit, it is not the business of an attorney to see that an execution is issued, that being the duty of the clerk* under the laws of the State,, and that the clerk is liable in such case; that, as to the second suit, there is no specific ground of negligence charged ; that an attorney is only liable for gross negligence, which is not charged in this case.

Without undertaking to decide whether this declaration is to be considered as containing one or two 'counts, this Court has held that, under our statute, ’which prohibits special demurrers, where there is a clear and substantial cause of action set forth in a declaration, though it may contain irrelevant or super-flous matter, or though it may contain duplicity, yet, that the defendant shall be held to answer it.

As it respects the misconduct of an attorney, and what acts and omissions will make him liable, it may be remarked, that he is only bound to use reasonable care and skill, in managing the business of his client. If he were further liable, no one would venture to act in that capacity. He is not liable unless he has been guilty of crassa negligentia. This, however, is usually a question of fact for a jury ; and is to be ascertained by the evidence of those who are conversant with the same kind of business.

In die case under consideration, the defendant is charged with having omitted the proper and necessary means to have the judgment collected, and that if he had used due diligence in suing out and prosecuting a legal writ of execution, the money could have been made. That it is the duty of the clerks to issue the executions immediately after Court, is. admitted ; and that, in general, it is the duty of the-attorney to see that the clerks do their duty, will not be contended; but that there may not be circumstances which would require the care and attention of the attorney, after judgment, and the omission of which might render him liable,* is more than the Court is prepared to say:

As to the second suit, the defendant is directly-charged with negligently commencing it, and improperly dismissing it, contrary to his duty. This, is certainly a charge, which -unexplained, amounts to gross negligence, and is such as requires a defence. The undertaking of a suit, implies a faithful and diligent prosecution of it; and where it appears by the declaration, that there was a good cause of action, the attorney is bound to shew some reasonable excuse for not conducting it to a successful termination. • It-is, therefore, the opinion of the Court, that, under the circumstances of this case, there is sufficient matter charged in this declaration to put the defendant to 'his plea; and that a jury, under the evidence, and a proper charge from the Court, as to the general principles upon which the responsibility of attorneys is'' based, and the practice of the bar, in the conducting of suits, is the proper tribunal to settle the defendant’s liability.

The judgment must, therefore, be reversed, and the cause remanded.

        Burr. 2060. 3 Camp. 17, 19

       4 Barn. and Ald. 203-3 Barn. & Cres. 299.

       2 Wils. 328: 6 Bing. 460.


author: By Mr. Chief-Justice Saffold :

text:
    HOGG versus DORRAH.
    To sa)' of a member of the Legislature, iu reference to the future discharge of his public functions, that “ he is a corrupt old tory/’ held, not to be actiona- ' ble per se.

    Words, charged as slanderous, are to be construed neither in their most harsh» nor innocentsense; but, in their plain and common acceptation, and according to their popular use, and obvious import.
    The principle is well settled, that words may be actionable, if uttered against officers, or others in public stations of trust or profit, which would not be so, if spoken against common individuals.
    But, words to be actionable, if uttered against official persons, must relate to past conduct, implying criminality or moral turpitude, and not to the prospect of future misconduct in office.

      Semble, that if there be any exception to this rule, it is in the case of clergymen.
    This was an action of slander, instituted in the Circuit Court of Tuskaloosa*, by the plaintiff, Hogg. The declaration charged the defendant, in three counts, with having uttered of him, the plaintiff, (he being a member of the Legislature, elect from the county of Tuskaloosa,,) these following defamatory words, to wit:
    First. “ He is a corrupt old tory.’’
    Second. ' “ He is corrupt.”
    Third. “ Keep a strict watch on him, he is a corrupt old tory.”
    Each count in the declaration, contained inuendoes, that the words were spoken by the defendant, in reference to the station of the plaintiff', then held by him, and that they related to the discharge of his duties as a member of the Legislature.
    To the several counts in the plaintiff 's declaration, the defendant filed a demurrer, which the Circuit Court sustained, and rendered judgment for the defendant.
    To revérse this judgment, the plaintiff brought the case into this Court by writ of error,

      Stewart, for Plaintiff.
    I do not rely, of coarse, on any tiling like the principles of the law of scanda-lum magnatum. A man’s office, in this country, does not elevate him above his fellow-citizens,- so as to make an offence against him greater than an offence against others, merely on the ground of his exalted character : but a man in office is liable to peculiar injuries, to which others are not liable; and when he is thus injured, he has a right to rodress. It is slander to charge a man in office with principles inconsistent with his office. — 2 Esp. N. P. 496. This is the class of-slanderous words complained of in the declaration. ' The office of legislator, or ' member of the Legislature of Alabama, is not merely an office of honor, hut an office of profit also : and if injured in that office, he may sustain loss: if such a one be corrupt, he is liable to be expelled. The offence charged has a technical meaning, when applied to a man in office. If the charge be believed, it may not only subject him to pecuniary loss — not only malte him liable to expulsion — not only prevent his promotion, but it will affect his moral standing, and dishonor him.
    . These words also come under the rule of words, spoken against a man in some trade or profession. If the charge be credited, that a man in office is corrupt, he will at once, or ought to be, excluded from office.
    In offices of profit, words which import want of ability, are, by all the authorities, actionable. Indeed, either kind of imputation, that is against the ability or integrity, is by the better opinion, actionable, whether the office he merely confidential or lucrative. — Starhie on Slander, 100, el seq.

    Words calculated to injure a man in his office, it is laid down, though not spoken in reference to the office, are actionable : as to saj óf a Bishop, “he is. a wicked man,” or to call an attorney “ a cozening knave.” Words are to be considered according to the condition of him of whom they are spoken; for his liability to be injured depends on that condition. These words are clearly actionable. The authorities have gone much farther.
    The term “ tory,” in this country, is equivalent to traitor. A tory is an enemy to his country. It is not understood in this country, as it is in England, where it means an adherent to a particular political party, who are friends of monarchy and the church. Never was it used in the sense in which it has been used in very late times, in this country, since the commencement of this suit. - -It was meant as it is generally understood ampng the people, that is to say a traitor, an. enemy to his country.
    .Stewart cited Mass. Rep. 248 — 7 Johns. Rep 359. 5 Binney's Rep. 221 — 1 ibid, 184 — .1 Johns. Cas. 129.. 7 Johnson, 264.
    Ellis, contra.

    Much of the law referred to by counsel, is not applicable to the present case. It is-admitted that these words would not be actionable, if' spoken of a private individual: then, the question arises, whether they can be made aótionable by the office of a legislator. The general rule is, that if the-party would be liable to be criminally punished, for the offence, if established, then the words are actionable in themselves. — 5 Johnson's Reports, 191 — Minor’s Reports, 94, 140.
    I assume the position, that Hogg did not hold an-office, within the meaning of the Constitution. The-declaration here, shows that the plaintiff only claims for damages on account of his holding the office of a member of the Legislature. The two first counts ■make the charge as an. injury done to him, in office : •the last, does not aver the office directly; but as the words are not actionable when spoken against a private individual, the count is demurrable for that reason. In the first two counts, the plaintiff is said to be subjected to all the pains and penalties to which those are subject, who are guilty of corruption in office. What are these ? Can a member of the Legis lature be impeached? No. Is he indictable for a misdemeanor, for corruption in office ? I know no ■authority for it. If the danger was expulsion, it should have been stated. If it was deprivation of promotion, that should have been stated.
    ' But, members of the Legislature are not officers. The Constitution says, they shall “serve” &c., not, ■shall hold the office. Of certain persons, it says, they shall not have a seat in either House of the General Assembly, or he eligible to any office of trust or profit : why the distinction, if members of the Legislature hold an office of trust or profit ? — 3d Art. 2d sec. Constitution of Alabama — same Art. 24, 25, and 27th sections.

    When the Constitution comes to speak of the Executive Department, of the Governor, Secretary ot State, Sheriff, &c. the word office is employed — Aik Article of the Constitution, AAth section. So also, of the Judicial department — the office of Justice of the Peace, the Judge’s office, the office of Attorney General, &c. — Section 18.
    Officers, in the constitutional sense, would be liable to impeachment, also to indictment for corruption in office'. words like these -would, perhaps, be actionable against them for this reason, but not against members of the Legislature, who are' not so liable.
    Much of the doctrine of the English Law on this subject, is founded on the statutes giving damages for
      sc'andalnm magnalum ; but we have no such law-The two rules laid down in the case of- Onslow vs. Horn, (o Wilson 177,) are, 1st. Slander must be where the words impute a crime: 2d. Where the words are against a person holding an office of profit, and calculated to injure him therein — -or the same as to a profession.
    It is not fair to reason by analogy, from members of-Parliament to our members of the Legislature. Liberty of speech is guaranteed in this country-Members of Parliament hold their place for seven years : here, it is a temporary trust- — held only for one year. It is held, for instance, that to say of a member of Parliament, “He is a papist,” is actionable. This would surely not be law here, in reference to our Legislature.
    But, I hold that under our form of government, no action will lie for words like these. No adjudged case can be found where an action has been maintained for a charge of corruption against a member of the Legislature. Nor do I know of any case in England since that of Onslow vs. Horn, and there the judgment was for the defendant. This action, I insist, cannot be supported.
   By Mr. Chief-Justice Saffold :

Hogg instituted an action of Slander, in the Circuit Court of Tuskaloosa county, against the defendant, Dorrah.

The declaration contains three counts.

1. The first recites the plaintiff having been duly elected a representative of the county; had; taken upon himself the duties of his office ; had' taken the oath presbribed; had been admitted to his seat; and was, at the time, in the discharge of the duties of said office, when the defendant well knowing the premises, and intending, &c. to cause it to be believed, that the plaintiff -was guilty of corruption in office, and to subject him to the punishment provided by law for said offence, in a discourse held with one Cunningham, in the hearing of divers others, and in relation to the office and trust, which the plaintiff then held as aforesaid, falsely, slanderous!y, &c., uttered, and proclaimed of ban, the plaintiff, as follows — that “ ho is a corrupt old tory(meaning thereby, that he, the plaintiff,.was guilty of corruption in the discharge of his said public function and trust.)

2. In the second count, that “ he is corrupt.”

3. In the third count, that the defendant said to Cunningham, who was also a member of the Legislature, in reference to the plaintiff, and his said public function, “ keep a strict watch' on him, he isa corrupt old tory;” with innuendo to the second and third counts, similar to that in the first.

To each of the counts in the declaration, the defendant demurred. The Circuit Court sustained the demurrer, and rendered judgment for the defendant, for the costs.

This judgment on demurrer, is the cause assigned for error.

Thus, the question is presented, whether the words charged, under the circumstances, and in the manner of the imputation, are actionable in themselves, or could only be rendered so by a per quod averment. As no special damages are alleged — unless the words are actionable in themselves, the demurrer was properly sustained.

What is the nature of the imputation against, the plaintiff, alleged in the declaration ? It is necessary to determine the true import of the words complained of, in order to bring them to the test of other oases. The innuendo, it must be recollected, cannot alter, va--ry, or extend, the meaning of the words tittered. It ) can only furnish a technical definition or explanation / of an offence imputed by the words actually spoken.! The position is equally true, that in actions of this land, according to the improved doctrine of the law, the words charged as slanderous, are not to be construed either in their most harsh and offensive, nor in their most mild, and innocent, sense, as, at different periods in the history of jurisprudence, has been holden ; but are to be understood by courts and juries, as bjr the rest of society, in -their plain and common acceptation; in other words, according to their popular use, and obvious import.

Allowing to the plaintiff all the benefit that can be derived from the fact, of his having been a member of the Legislature at the time, and that the words were spoken of him in reference to the discharge of his public functions, as such, what is the offence imputed to him ? In the first and third counts, it is no other than that he was a tory of an obnoxious description. It is not even supposed, by the argument of counsel, that the words were intended to impute that kind of toryism, which has long distinguished one of the political parties in England, .or that which was applicable to one portion of the American community during our revolutionary struggle, and for some time afterwards. Nor is it contended, if such were the intention, that the -words, (if ever so,) would be actionable at the present day. But, it is insisted, that by a rational intendment, the meaning must have been, that the plaintiff was a traitor or some kind of enemy to his country. According to my view, this would be the most rigid and offensive acceptation that -the words could possibly bear; and that we have no more authority thus to construe them, than in the very mild souse suggested by the defendant’s conn-sel — that it may only have been intended to impute to the plaintiff the advocacy of a particular candidate for the Presidency, to whom the defendant was, opposed. But, I must concede, that neither appears to me to be the natural and common acceptation of the term: also, that when the charge was made, or at the present day, in this State, and after the various uses that have been made of the word, there is difficulty in ascribing to it any definite meaning. I think, however, it may be' assumed, that if any thing more than general scurrility was meant, the epithet was intended to impute some political creed or heresy, which the plaintiff considered obnoxious; and that the other qualities imputed, by the adjective ‘ corrupt,’ represented the plaintiff as one possessing a heart of general depravity; and that the accompanying request, that he should be watched, implied an opinion that he was capable of disingenuousness, or artifice, to effect his sinister purposes.- The joint application of the epithets corrupt and tory, has a tendency rather to qualify and limit, than to extend the former, by confining it to political feelings or sentiments.

The second count, however, charges the imputation of corruption in the plaintiff, without any special application; the effect of which, I would understand to' be, that the plaintiff possessed a depraved heart,, rendering him capable of vicious or corrupt acts generally.

Then, the question recurs, whether words, imputing to the plaintiff, while a member of the legislature, and in reference to the future discharge of his public functions, the character of vice or depravity ; or of holding, undefined, obnoxious political tenets, are in themselves actionable.

It is considered material, that the words charged, have no special reference to any particular vote, or other act clone; nor even to the plaintiff'syxzsi conduct as a member — that the allusion is to his corrupt and tory character in anticipation of his improper conduct. The principle is well settled, that various charges, when made against officers, or others, in public stations of trust or profit, may be actionable, which would not be, if uttered against common individuals. The reason is, that persons in office, or such other stations, may loose their employment, and the profit or confidence committed therewith ;' or may be subject to prosecution and punishment for malfeasance, or other offences ; yet there are some general principles applicable to all actions of slander, to which reference must be had, in determining the effect of these words.

It is said, in an authority, read in argument by the .plaintiff’s counsel, “ that the words must charge a fact to have been committed,; for to charge a man with bad or evil intentions, is not sufficient:'''’ as, where .the defendant said of the plaintiff, “ he is a brawler and quarreller, and gave his champion counsel to kill me, and then fly the country these words were adjudged not to be actionable; for they charged no fact committed, and the purposes or intentions of a man, without action, are not punishable at law. So, where the words were, “ He is a troublesome fellow, and I doubt not to see him indicted at the next assizes, for sheep stealing these words were adjudged not to be' actionable, as not charging the party with any fact committed.

It is also said, by the same authority, in reference to words constituting scandakm magnatum, that imputations against persons in office, dignity, trust, and profit, may he actionable, which would not be held so, in case of a common person : as where it was said of the Marquis of Dorchester, “My Lord is no more to to be valued than tlie dog which lies tlicrothis was considered actionable. Other authorities to be noticed, will perhaps show, that Dorchester s case can not be regarded as law, unless under circumstances different from those presented ; and will further illustrate the accuracy of another principle, given in connection with the same, that words, charging had intentions merely, are actionable in the case of public persons or magistrates. The further remarks of the same author, appear scarcely reeoncileable with “the above: “ That where the words do not charge the person in such trust or office, with any breach of his duty, or oath; with any crime or misdemeanor, whereby he has suffered any temporal loss in fortune, office, or in any other way whatsoever, but are ■ spoken as matter of opinion as to the person’s conduct, such words are not actionable.”

I regard the case of Onslow vs. Horn, as direct authority in this case. For the present purpose, it is sufficient to notice the concluding remarks of the Chief Justice, in delivering the opinion of the Court. He says, “ the words do not relate to Mr. Onslow's past conduct in Parliament: they do not charge him with any breach of his duty, his oath, or any crime or misdemeanor, whereby he has suffered any temporal loss, in fortune, office, or in any way whatever. There is no occasion to say any tiling concerning any future presumptive contingent damages, which Mr. Onslow may possibly sustain at some future time, (no body knows when) by reason of Mr. Horne’s reflection upon him. I know of no case, whereon an action for words was grounded upon eventual damages, which may possibly happen to a man in a future situation, notwithstanding what the Chief Justice throws out in 2 Vent. 266, where ho is made to say, ‘ that where n man had been in an office of trust, to say, lie behaved himself corruptly in it, as it imported great scandal, so it might prevent his coming into that or the like office again, and therefore, was actionable.’ I think the Chief Justice went too far.” Such is the language of the Court, in Onslow’’s case. The Chief Justice there, also said, he thought his brother Leigh went a little too far, when he said the words imported that Mr. Onslow would betray his trust: “We think they mean no more, than Mr. Horne was of opinion, Mr. Onslow would break his word; but to say, he has broke his word, is not actionable — a fortiori,. these words are not actionable. ” The particular words uttered against Onslow, are immaterial to our purpose. The principle of the decision,is, that the words, to be actionable, must relate to the plaintiff’s past conduct in his office, or public duty ; must charge an. actual breach of duty, or of oath, or the commission of some crime or misdemeanor; that an action for words, is not sustainable for eventual or contingent damages, which may possibly happen to a man in a future situation ; nor is the expression of an opinion, respecting another’s inclinations ox intentions, a ground, of action.

The principle mainly relied on, in support of this-action, is, that the words were spoken of the plaintiff, in reference to his motives and conduct in office. The injury is so charged in the declaration; but, as before mentioned, without any averment of special damages, or of any colloquium, applying the imputation to any vote given, or other act committed, in the discharge of the public trust; but, with general reference to his corrupt disposition, and obnoxious character, while a member, and employed as such. Except in relation to the plaintiff’s alleged toryism, which I have attempted to shew is not actionable, what distinction can be drawn between the import of this charge, and those of liar, scoundrel, villain, &c.— Charges of the latter description, are generally considered as indicating rather the angry, reckless temper of the speaker, than the turpitude of him of whom they are spoken. It is well settled, that such imputations, when made in reference to common persons, are not actionable ; nor has any case been found, of good authority, in which words of similar import, have been so held, when spoken of one in official station, or any honorary employment or trust. It is not believed that a member of the Legislature could be subjected to conviction on impeachment for any cause, of the nature of that imputed to the plaintiff in this action, even if he could for any cause whatever, which is not admitted. It is true, a member of the Legislature is subjeot to expulsion, by the body itself ; but it cannot, for a moment, be apprehended, that the charge imputed to this plaintiff, if admitted to be true, would authorise his expulsion. An insuperable objection to this course, would be, that no crime or misdemeanor , or any particular act of moral turpitude, was charged ; nor any particular allusion made to the plaintiff’s past deportment as a member ; that an apprehension or opinion only was expressed, from his disposition and character, that he would act improperly.

In Starkie on Slander, (110) it is said, “ that to impute want of integrity to any person, who holds an office of trust or profit, is actionable.” It is impossible to determine the force and extent of such general propositions, without particular reference to the proofs and illustrations given to sustain them; this is also necessary to test their authority. Of the cases given in support of the above proposition, one was, that it had boon said of a Judge, that “his 'sentence had teen cornrplig givenAnother, where it was said of a Justice of tlie Peace, I have often been with him for justice, but could never get any thing at his hands but injustice And another, where the words were, “ He covereth and bideth felonies, and is not worthy to be a Justice of the Peace.”

The distinction between each of these cases, and the one before us, is most obvious. In all the cases cited, the words used, clearly imputed corruption or turpitude, in reference to particular official acts previously cosTimitted.

The same writer, in continuation, lays down another proposition in still broader terms; which is, that “ where a person holds an office or situation, in which great trust and confidence must be reposed in him,' words impeaching his integrity generally, and without express reference to his office, are actionable ; since they must necessarsly attach to him in his particular character, and virtually represent him as unfit to hold that office or situation.” One of the examples given to sustain this position, is a case in which it had been said of a Bishop, “ He is a wicked man.” This was held to be actionable ;' and appears to bo the strongest case referred to, of which there were many. All the rest, according to their natural import, or the construction placed upon them by the courts or juries, had reference to some particular misconduct in office, or to some breach, or violation of, or incapacity for, professional duty, and pointed to acts already done — not, as in this case, to a disposition for future mischief.

The case of the Bishop, appears to rest on a principle peculiarly applicable to clergymen — that whatever tends to destroy public confidence in their moral virtue, and Christian purity, must deprive them of that respect and veneration, which is indispensable to the success of their profession. .On this principle, it is held, in the United States, as well as in England, that to charge a minister with drunkenness, is actionable without -laying a colloquium of his office or profession, and without proof of special damages-(McMillan vs. Birch -Shaddock v. Briggs. ) In the case last refer ed to, Chief Justice Barker concludes the opinion of that Court, thus : “ a minister of the Gospel is separated from the world by his public ordination, and carries with him constantly, whether in or out of the pulpit, superior obligations to exhibit, in his whole deportment, the purity of that religion, which he professes to teach. He is as much in office, when retired to the bosom of his family, as when employed in public duties; and his example in the practice of all moral virtues, and particularly of temperance, is not the least of the duties incurred by his profession.”

But the law is conceived to be different in respect to other persons; even as to those in offices of trust ■and profit, or other public stations. It appears, from the references already made, that there is at least, a shade of distinction: that in the latter cases, the imputation may point to some particular misconduct previously acted, in violation of official or professional duty. The principle adopted in Brooker vs. Coffin, is not strictly applicable to the case of officers, so as to require to be actionable, a charge, which, if true, will subject the party to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment: yet, bj^ analogy, it is entitled to its influence in requiring that the actionable words shall point to the particular misconduct, imputed as criminal or vicious.

The case of Oakley vs. Farrington, is more in point. The plaintiff complained as a Justice of the Peace, and charged the slanderous words to have been spoken of him in relation to his office. The words Were, “ Squire Oakley is a damned rogue.” It did not appear from any circumstance, that the words were spoken of the plaintiff in his official capacity. The Court ruled, that the words spoken of a common person, would not be actionable ; and although they were spoken of á magistrate, as they had no relation to his official character or conduct, they were no more actionable, than if he had not been ^ in office.

The case of Lindsey vs. Smith, further illustrates the true principle. In that case also, the plaintiff was a Justice of the Peace, and declared for an injury as'such, in reference to a trial had before him between the defendant, and one Abner Wood. He alleged, in substance, that the defendant said of him, “ he had been feed by Wood, and that he, the defendant could do nothing, when the magistrate was in that way against him,” A verdict having been obtained for the plaintiff, the defendant moved in arrest of judgment, on the ground, mainly, that the colloquium did not state that the words were spoken concerning the cause, and the plaintiff''s conduct in relation to it. The Court remarked, that the slanderous intent and application of the words had been established by the verdict;' that the innuendo could not supply the place of the colloquium, but that there was the competent colloquium to give point and application to the words if found, as the jury must have found, them to have been spoken, with a scandalous and malicious intent..

These two latter cases fully sustain the principle of those previously referred to, that actionable words, e.ven in reference to'officers, and all public functionaries, (perhaps clergymen excepted,) must point to previous official misconduct, implying criminality or moral turpitude. This restriction must be observed, ox a boundless field of litigation would open before - us ; and thus far only, consistent with the genius of our government, can the licentious use of words, be checked and punished.

The province of the jury, in deciding, whether or not, there is cause of action, is only to determine the effect of the evidence, and the common acceptation of the words charged, when, from the form of the expression, their import is equivocal. In other respects, it is a question of law, whether the imputation be actionable.

From this view of the case, we are of opinion, the judgment below, must be affirmed.

       2 Esp.Ni. Pr. 496, 7.

       2 Esp. Ni. Pr. 499.

       3 Wilson 177.

       1 Binney, 178

       13 Mass.Rep 248

       5 johns. rep. 188

       1 Johns. Cas. 129.

       7 Johns. Rep. 359.


author: By Mr. ‘Justice Hitchcock :

text:
    STARNES & CO. versus PIERCE.
    la actions against officers, for failure to return process at a particular day, tlie< Courts are privilegcdtohear any matter of ccpiily in excuse for the failure — ■ And where the amount involved is under twenty dollars, such excuse may* be shewn by the oath of the officer*
    This action was brought before a Justice of the Peace, in the county of Jefferson, to recover of the defendant, the sum of seventeen dollars and eighty four cents. The defendant was a constable, and the cause of action, was, his failure to return process on an attachment, in favor of the plaintiffs. The Justice having rendered judgment in favor of the plaintiffs, the case was taken, by appeal, to the Circuit Court. The Court below, permitted the defendant to shew, by his own oath, that he had a sufficient excuse for his failure to return the process; and the cause was reversed. The plaintiff, thereupon, took a writ of error..

      Ellis, for Plaintiff
    Contended, that on failure to comply with the statute, the liability of the constable was fixed ; and if not so, still the excuse offered was no sufficient exculpation. The party should be held strictly responsible, according to law. He does not shew any excuse for the delay. He excuses himself because another attachment came to his hands on the same clay ; and he could not make enough to satisfy both. The order of sale in question, was first received,- though the other was on the same' day; and the oldest order should have been first complied with. At any rate, the order should have been returned in due time, according to law. The contention about which attachment should be first satisfied, was an additional reason for making due return, as there was a probability presented to him, that he would be made liable if he committed a failure.
    Peck, contra.

    This is, in fact, an action of debt against the constable, for not paying over money, and not properly a motion for failing to return the order of sale. There was no intentional wrong, and the Court very properly made an equitable adjustment of the matter. The Court heard all the circumstances on both sides, and decided in favor of the constable. The plaintiff only excepted to the right of the Court to go into the ecjuitablé circumstances, and not to the sufficiency of the excuse.
   By Mr. ‘Justice Hitchcock :

The plaintiffs in error, brought their action before a Justice of the Peace for Jefferson county, against the defendant, who was a constable, for failing to return an order of sale, on a judgment in favor of the plaintiffs, against one Shoffeit, on an attachment, and for failing to return the money made on said sale, to-■the magistrate who issued the order. The debt claimed, is seventeen dollars and eighty four cents. Judgment was rendered for the plaintiffs, by the magistrate ; from which there was an appeal to the Circuit Court of said county; where the' judgment. was reversed, and the case is brought here by writ of exror.

At the trial before the Circuit Court, a bill of exceptions was taken, which presents the matters relied on here, to sustain the writ of error. The sum being under twenty dollars, the case vras tried by the Judge without pleadings or a jury.

The failure to return the order was proved by the magistrate. The Court determined to hear evidence going to show an excuse on the part of the constable, for failing to return the- order, and for that purpose, permitted the constable to be sworn, and received his statement on oath. To the opinion of the Court, determining to hear the circumstances of excuse, the plaintiff excepted.

It is contended, that the Court erred,

1st. In determining to hear any evidence of an excuse ; and,

2d. In deciding that the matter of excuse was sufficient.

As to the first point, it has always been decided, that the Court has the power to hear any matter of equity, in excuse for an officer’s not returning an-execution, or any other process required to be returned at a particular day; and when the party has failed to make his éxcuse at law, a bill in chancery has been allowed to enjoin a judgment obtained. -The reasonableness of this decision is apparent; and to'say -that an officer should be made liable, at all events, for every failure to return process at a particular day,-without giving him any right to excuse his default, would be subversive of the first principles of justióe.

'There is, therefore, no error in the first assignment.

The second assignment is not presented by the bill of exceptions. The sufficiency of the excuse was not drawn in question, directly, by any thing therein contained, and this Court is not authorised to revise the-decision of- the Court upon that point. A bill of exceptions does not draw the whole matter into examination ; but only the point to which it is taken; and the party must lay his finger on the points which arise, either in admitting or refusing evidence or matter of law, arising from a fact denied, in which he is overruled by the Court. Here, the party was overruled in his exception to the power of the Court, to receive evidence of any excuse for failing to return the order of sale. But no question is raised as to the-sufficiency of that evidence.

The judgment must, therefore, be affirmed. •

       8 Johns. Rep. 496, 3d ed.


author: By Mr. Justice Hitchcock :

text:
    THE MAYOR AND ALDERMEN OF TUSKALOOSA vs. WRIGHT.
    The books of a Corporation, are evidence against the Corporation, and between-the members thereof, but not in their favor, in a suit brought against the body, by a stranger.

      Ex members of a town corporation, are ex necessitate, competent witnesses in a suit by a stranger, against the body.
    This ca'se originated dn an action of assumpsit,. brought against the plaintiffs in error, in the Circuit Court of Tuskaloosa. The plaintiff declared, for a certain sum of money, allowed to him by resolution of the corporate authorities of the town of Tuskaloc-sa, in settlement of his- accounts as marshal. The books of the corporation were produced in support of the claim, by which, it appeared, that the sum demanded had been allowed to the plaintiff, as charged in his declaration. The defendants contended, that the resolution had been passed in mistake, and offered to shew by the same books, the passage of a subsequent resolution of the Board of Aldermen, rescinding the first, but the Court below rejected the last resolution offered by the defendants.
    The defendants then produced certain of the ex-members of the corporation, who had been in office •at the time when the resolutions were passed, whom the Court excluded. Judgment having been had in favor of the plaintiff, the case was brought into this Court by writ of error.
    Wilson, for Plaintiff
    The question here, arises, can the marshal of the town (Wright,) subject the •corporation to debt by means of their own books, without permitting all that appears on the books, with reference to the same subject, to go to the jury ? I contend that this is not allowable. It is taking a defendant’s own statement against himself, and at the same time garbling that statement. The book introduced in evidence, was the property of the corporation; and if they may be forced out of the hands of the owners, to be used as evidence against them, all that they disclose with reference to the same subject matter, should go together to the jury. Suffering part to be read, and excluding the rest, was like introducing, in an action at law, the defendant’s answer in chancery, and reading part of it against him, without permitting him to read the rest.
    The plaintiff below in this case, had a right to prove his account against the corporation, without resorting to their book, but as he chose to resort to it, he thereby entitled the corporation to use it also on the same subject. To admit the first, and to exclude the second, would be making an unfair use of the book of the corporation, As well might an individual, with whom I had pecuniary dealings, come into my office, take up some of my memorandums in which I had entered a charge against myself, and hold me accountable to that amount, without permitting another memorandum to be used in my favor, of a like private nature, also entered by myself, going to show that the debt so evidenced was paid off and discharged. It is not that we would prove by the book of the corporation, that Wright’s account was false, but that the debt was -removed by payment and set-off.
    In regard to the second point: I contend that the Court erred in rejecting the evidence of John Owen, and others, because they had been members of the corporation at the time of these transactions. There is a distinction between a private and public corporation. The members of the former may have an interest that will render them incompetent to give testimony ; but it is different with the others; There, the interest, if any, is slight — of a public character, and so remote, that it is no objection. Such is^the corporation in this case: and the interest of the members-belonging to it, is not'such as will justify their exclusion from giving testimony. The inhabitants of a town have an interest in its welfare and prosperity j but it is not such an interest as will render them incompetent witnesses in a suit, in which the corporate authorities of the town become a'party. Commoners, in England, were not good witnesses •; for, if the common were extended or contracted, their private rights were thereby affected.
    Ellis, contra.

    Wright declared in one of the counts of his declaration on an, insimul computassent

      assumpsit. This record, introduced on the part of the plaintiff, sustains this count. It shows the accounting together, as charged. Wright was then present. Orders made at other times, when he was not present, are not admissible. It has been compared to introducing the admissions of a man against him. What then ? Because you prove what a man has admitted, may he prove every thing that he has said on the subject? Certainly not. He can only prove what he said at the same time he made the admissions — not what he said three days afterwards, the other party not being present. The general rule applicable to this case, is, that the books of a corporation are evidence against them, not for them.
    When the subsequent orders of the corporation were rejected bjr the Court, it was attempted to introduce these same men who made those orders, to impeach the former settlement. It was, in effect introducing a defendant to impeach his own settlement. Such testimony is not competent. These subsequent orders too, condemned the first settlement as wrong. If they had made a wrong settlement, they were responsible for the error. Here was a direct interest. They were interested to defeat this suit, and thus to free themselves from legal responsibility.
    In regard to the competency of members of a corporation, as witnesses in behalf of that corporation, I hold the rule to be, that they are inadmissible, unless it can be made appear, that it is from necessity that they are introduced. The case may be assimilated to that of rated parishioners: these, being bound to pay the rates assessed for the poor of the parish, are not competent witnesses to prove a donation to the parish. — 5 TermR. 174. In the present case there is an obvious interest, All the members of the corporation are interested in being released from the pay-meat of the amount due the plaintiff; and there does not appear to be any necessity for the introduction of these men as witnesses.
   By Mr. Justice Hitchcock :

This was an action of asáumpsit, brought by the defendant in error against the corporate authorities of the town of Tuskaloosa, to recover the sum of one hundred and eighty dollars and forty three cents, which he claimed; it being the amount allowed him by a resolution of the Board of Mayor and Aider-men, upon a final settlement of his accounts as marshal of the town, and which was dated the 5th of September, 1831. The plaintiff read to the jury the entry of the proceedings of the corporation, as it appeared from the record book of their proceedings. The defendant then offered to read from the same record book, the proceedings of the board upon a subsequent day, to wit, the 8th September, 1831, rescinding the first resolution, re-stating his account, and reducing the amount. It appears that the plaintiff was present at the meeting of the board on the 5th, when his account was allowed, and assented to the settlement; but that all the subsequent proceedings were had in his absence, and against his consent.

The Court refused to permit the subsequent proceedings to be read to the jury. The defendant then offered as witnesses to establish their defence, and to prove they were not indebted to the plaintiff, sundry ■witnesses, who, it appeared, were the mayor and aldermen of the town at the time of the above stated transactions, but who were not in office at the time they were offered as witnesses. The Court excluded their testimony, and would not permit them to be sworn. To the exclusion of the above testimony, and the reject ion of the witnesses, a-bill of exeep-tions was taken, and which, is assigned for error here.

It is laid down in 1 Starkie on Evidence, (292,-) that the books of a corporation, containing a register of their public acts, are evidence between the members of the body, or against the body, for they contain the mies and regulations to which they are all subject, and to which all are privy: but, they are not evidence for the corporation against a stranger. This, as a general rule, would undoubtedly apply to this case. But the plaintiff’s counsel contends, that the plaintiff below, having introduced the books, has. thereby made them evidence, as well for, as against the corporation, so far as they relate to the subject matter in controversy, on the ground that the admissions of a party must all be taken together.

The introduction of the books, by the plaintiff below, was confined to the establishment of a contract between him and the corporation, for such the resolution of the board must be held to be. It was a distinct admission of a debt, upon a subject properly within their control, and about which they could bind the body, and the effect of which they could, not impair, by any subsequent revocation by themselves, unaccompanied with the assent.of the plaintiff below. The introduction of it was, therefore property rejected.

But, in the exclusion, of the witnesses, the Court conceive there was error. They were not parties to the suit, at the time they were offered as witnesses, | and it now seems to be admitted, that the inhabitants of corporations and quasi corporations, such as- coun-I ties, towns, parishes, cities, &c. though they may [be collectively interested in a suit, are nevertheless, lcompetent witnesses. This is from the necessity [the case. These witnesses were not rejected on the [ground that they were incompetent to impeach the settlement made on the 5th September, hut because they were members of the board at the time of the settlement, and because it must be inferred they were inhabitants of the town when they were called to testify. They are considered by the Court as competent witnesses, and that their testimony should have been received, so far as it might be applicable to the issue before the Court, under the ordinary rules of evidence. For this error, the cause must be reversed and remanded.

       1 Day, 35-5 Cowen 416, 1 N. Hamp. R. 273, 1 Johns. 486, and other cases cited by Starkie 145.


author: By Mr. Justice Thornton :

text:
    BURKE versus ADKINS, et ux.

    Debt, suggesting a devastavit,is maintainable, on ajodgment by default, obtained against the representatives of an estate ; either before, or after the issuance of a fi. fa.

    Burke, plaintiff in eiror, having obtained a judgment by default, in the Circuit Court of Shelby, against the estate of one Porter, brought his action of debt, suggesting a devastavit against the present defendants, representatives of the same. The declaration of the plaintiff was demurred to, and judgment was rendered by the Court, in favor of the defendants.
    The only question presented in this Court, was, whether debt suggesting a devastavit would lie against the administrators; d.e bonisprqpriis, without an averment of the issuance of a fi. fa. and the return of I nulla bona thereto, on the judgment obtained againstf the estate.
    Moodt and Ellis for Plaintiff
    cited 2 Chitty’s\ PI. 484, ’5, 1 Chittfis VI. 47.

      Peck, contra.

    1 Comen, 734, 736, 739 — 1 Johns. Cas. 276.
   By Mr. Justice Thornton :

This was an action of debt, suggesting a devasta-vit, in the Circuit Court of Shelby county, brought by the plaintiff in error against the defendants, upon a judgment by default, before that time rendered, in favor of the plaintiff, against Mary M. Porter, (now the wife of the defendant Adkins,) and one McKinney, as administratrix and administrator of Mitchell A. ‘Porter, deceased.

The declaration contains two counts, differing only in this, that in the first, there is an averment of the issuance of a fi. fa. upon the judgment, and a return thereon of nulla bona, which is omitted in the second count. There was a general demurrer to both counts, and judgment pronounced in favor of the defendants; which is now here assigned for error. Both these counts aver a judgment to have been had by default, against the representatives of the intestate, and a de-vastavit committed, to the value of the debt demanded. That the facts, of assets received, and wasted by the representatives, constitute a liability to a recovery, de bonis propriis, is not controverted; nor is it denied, that the first named of those facts, is established by the judgment by default. The propriety of the judgment below, however, is endeavored to be maintained, by contending, that the averment of a fi. fa. and return of nulla bona, is a necessary one; which being omitted altogether in the last count, renders that defective ; and not being properly averred, or sufficient in itself, as set forth in the first, vitiates also that count. Now, with regard to the first count, taking it for granted that those allegations are necessary, I think they are alleged with sufficient legal effect. But, from an examination of the authorities and precedents, I find that the action is maintainable, before- any Ji-fa. issued on the judgment against the representatives.

A leading case on this head of the law, is Wheatly vs. Lane, where the declaration was demurred to expressly for that supposed defect, and held to be sufficient. In the note to that case, by Sergeant Williams, it is explicitly declared, that either mode is good — that is, that the action will lie before any execution issued on the judgment, or after execution issued ; but, that it is usual, first to sue out a fieri fa-cias t on the judgment, and upon the sheriff’s-return of nulla Iona, to bring the action, and state the judg-. ment, the writ and return in the declaration, and on the trial, the record of the judgment, the fi. fa. and the return, will be sufficient evidence to prove the case. Upon principle, this would seem clearly correct, and the only reason for averring the judgment itself, is, ita lex scripta est; for, according to the well settled rules of pleading, facts themselves, and not the evidence of those facts, constitute the pleadings.— Now, this action of devastavit, is founded on the fact, .of assets received by the representatives, of - which the judgment is only evidence; and the further fact of waste, of which, though the return of nulla bona to a fi. fa, when one has issued, is demonstrative evidence; yet the fact can be established, if no such fi. fa. has issued, by other, equally satisfactory proof. From this view of the case, both of the counts are good; and therofore, the judgment rendered against the plaintiff on demurrer, must be reversed, and the cause remanded.

       1 Saund. 216.

       1 Saund. 219, b, note 8, and the authorities there cited.


author: By Mr. Chief-Justice Saeeold :

text:
    RICHARDSON versus WILLIAMS.
    The rate of interest in any one of the United States, is not a matter which the Courts ex. officio, can notice, but is a question of fact, to be ascertained by ajury.
    The Courts are not bound judicially to know, that, an instrument declared on, as made “ at Virginia, to wit, in Greene county,’’ was executed in the State of Virginia — and where nothing is shewn by which to infer that the State cf Virginia ivas meant, it will be presumed that “ Virginia” was some place in the county, where'the action was brought.
    Debt was commenced by Williams, in Greene Circuit Court, on a sealed note. Tbe plaintiff declared on the instrument, averring the same to be made at “ Virginia, to wit, in Greene county.” After judgment by default, for want of plea, Richardson took a writ of error to this Court. The question here, among other immaterial assignments of error, was, whether the Court below erred in rendering judgment for the plaintiff, without a jury, as the instrument declared on was executed in the State of Virginia ; and the interest of that State could not be computed without a jury having first ascertained the rate, there allowed by law.
    Stewart, for Plaintiff.
    Ellis, contra.

   By Mr. Chief-Justice Saeeold :

This suit was instituted by Williams, in Greene county. The action is debt, on a sealed instrument, for three hundred dollars, which, from the indorsement on the writ, appears to have been credited with fifty dollars, in 1820. The declaration is in the usual form, averring an indebtedness to the amount of the bond: thus — “For that whereas, the defendant, Richardson, and one Paulin Anderson,” (against whom this suit is not brought,) “ heretofore, fo-wit, on the 22(1 day of Maxell, 1819, at Virginia, to wit, in Greene county, by their certain writing obligatory, sealed with their seals, and now shewn to the Court here,’’ &c. acknowledged themselves indebted in the said sum of money, “ and if not punctually paid, to carry interest from- the date.” The record further shews, that at the trial term, the parties came by their attor-nios, and the defendant saying nothing in bar, judgment was rendered against him. It also appears that the writ had bfeen duly executed.

Richardson, the defendant below, having sued out this writ of error, assigns as causes-, various objections to the declaration and judgment.

1st. That the debt declared for, and that recovered, are variant.

3d. The bond is not made part of the record, nol-is ojmr given of it, so that the Court can know if .judgment was given for the proper amount.

,4th. The judgment is for too much.- .

6 th. Interest is recovered by w,ay of penalty.

With respect to these four assignments, it will suffice to say, no oyer was craved of the bond sued on. The declaration contains the usual proferí in curia. No discrepancy is perceived between the debt sued for, and that for which the judgment was -rendered, unless it be, that the judgment is for less than appears to have been due, of which the plaintiff in error cannot complain. Nor does it appear that interest was computed before the maturity of the debt. • The amount is believed not to exceed six per cent, from the time appointed for payment until the date of the judgment; from which it results, that if the Court was au-thorised, under the circumstances, to allow any rate of interest, there was no error on any of the points noticed.

The 5th assignment is, that the plaintiff was dead before the commencement of the suit, which was un~ known to the defendant during the pendency thereof. The opinion of the Court, on this, as a preliminary point, has already been expressed — that the exception cannot prevail in this Court. We think, if the fact be true, which is not admitted by the adverse counsel, it constituted error in fact, which might have been resisted in the Court below; and as the record shews nothing of the kind, bat implied the contrary, it is an objection which we are not at liberty to notice.

2. The assignment, numbered second, deserves more consideration. It is, that the Court erred, in giving judgment for damages or interest, without a jury, as the bond was made in Virginia, and the Court cannot judicially know what is the rate of interest in that State.

If we are authorised to assume the fact, that the instrument was made in the State of Virginia, the exception is well founded in principle, and authority. This Court, as well as others, has frequently decided, that the rate of interest in a different State, is a matter which, the Courts ex officio, cannot take notice of; that it is a fact which must be ascertained by a jury. But the question here, is, can the Court judicially know, or assume the fact, that this bond was executed out of this State. The declaration charges, that it was made “at Virginia, to-wit, in the county of Greene,” State of Alabama. The State of Virginia is not expressed : the words “ at Virginia,” are mentioned in [the usual form of laying 'a venue within the jurisdiction; and which, however unnecessary in transitory actions, is a very common mode of declaring.— [Then, as the Virginia in question, is described, and laverred in the declaration to be, a place in the counIty of Greene, can the Court judicially know the con-Itrary ? By what warrant can we say there is not in that county some district or settlement — some town, hamlet, or villa, known and called “ Virginia.”

In the case of Garner vs. Tiffany, Wyman & Co. this Court said, where it appeared on oyer that the note sued, on was executed at “Fayetteville,” that the Court could not judicially know, that that place was notin this State 5 on the contrary, was bound, from the description given of it in the declaration, to conclude it was in the county of Madison. Though it may appear more natural and customary to name a place “ Fayetteville” than Virginia,” the principle is the same in reference to either. Had the declaration described the contract as having ’ been made in “ the’State of Virginia,” the principle would have been different; it would have been the same as recognised by this Court, in the case of Peacock vs. Banks, of Evans vs. Irvin & Dunlap, and of Evans vs. Clark.

Courts may judicially notice the geographical divisions of the Union into separate States, and of their own States into counties; but the topography of the country is subject to a different rule. In respect to the latter, the Courts will not judicially know the contrary of facts, implied by the state of the pleadings. In this case, the judgment by nil elicit, implied an admission of a contract, in all material respects, such as described in the declaration. This was the doctrine of the Court of King’s Bench, in Deybel's case.— There, the prisoner was confined on a charge of having been found on board a vessel within four leagues of | the coast between the North Foreland and Beachey Head, or within eight leagues of some other part of I the coast, in violation of an act of Parliament. The return on the writ of habeas corpus, did not state that the vessel was discovered within eight leagues of the coast | of the county of Suffolk, but within eight leagues of I a place in a part of the coast, called Suffolk. The Court held that, they could not say, judicially, that there was no place on the coast between" the North Foreland and Beachey Head, which was called Suffolk. And as respects an additional averment in the return, that the vessel was discovered within eight leagues ox Orfordness, in the county of Suffolk, they said they could not know whether Orfordness, which was averred to be part of the county of Suffolk, might not be an isolated part of it, situated on the coast, between the North Foreland and Beachey Head ; and if so, there was nothing on the return to shew, that the vessel was discovered within the limits mentioned in the act of Parliament. That the proper course would have been “ to have stated negatively, that the vessel was found within eight leagues of a part of the coast of Great Britain, not between the North Foreland and Beachey Head, to wit, within eight leagues of Orfordness, in the county of Suffolk:’

It is true, on that occasion, the Court held great strictness to be necessary, because the liberty of the party was involved ; yet they professed to act on the general principle of judicial cognizance, and said it could not extend to the particular parts of counties, and their local situation.-(See also, Henry versus King. )

In this case, a plea of the general issue, or any other, which did not imply an admission of the contract, as charged in the declaration, would have created a necessity for the intervention of a jury to ascertain, as well the debt as damages.

But it is contended, that in Boardman vs. Ewing, this Court adopted a different rule. There, it will be observed, the case was essentially different. The question of locality did not arise on the pleadings : there was no averment that “ the city of New York” was in the State of Alabama.' ■ The question related alone to the sufficiency of an affidavit to take the depositions of a witness, who was therein stated to reside in the city of New York. The depositions could be legally taken only on a shewing of the non-residence of the witness. The affidavit, from the object in view, strongly implied the fact, but it was not expressed, otherwise than by naming the city in which he resided." Thus, on a mere matter of evidence, the question was presented, whether we would understand the place to be the City of New York, in the State of New York, or some city of the same name in Alabama. I consider the principle entirely different; and that there is nothing in the case last referred to, inconsistent with the current doctrine, by which" we have been, ari¿ are yet governed, in reference to the venue in pleading.

We say, the judgment must be affirmed.

       1 Ala. R. 167.

       Ala. Rep. 387

       Porter’s Rep. 1 Fed. 390.

       1 ibid. 383.

       4Barn. & A1 2-!3 — 8 Searg. & Lowb. 413.

       2 Barn. & Al. 301.


text:
    BURFORD versus CUNNINGHAM, et al.

    Whether a defect, existing in the indorsement of a writ, is available on demurrer, where a party has craved oyer, arid filed that demurrer in time: or, whether there may not bca proper caso for demurrer, after a judgment by default— (¿UiBTH.

    BtU. after a judgment by default, a party will not be permitted* by demurrert to evade that rule of practice, which prohibit? all dilatory pleas without the con-sentof the adversary, after the time for filing those pleas has expired.
    In this case, the plaintiff, Burford, instituted an action of debt, in the Circuit Court of Jefferson, to re-1 cover'of the defendants, the amount of a promissory! note. The' indorsement-of the cause of action, on} the writ, described it to be a sealed note, without set-1 ting ont the seals, and the declaration was in the common form upon a writing obligatory, but omitted a description of the seals. At the trial term, a judgment by default, for want of a plea, was rendered against the defendants, which was opened on affidavit of merits, and permission given to plead. The defendants demurred generally, to the declaration and writ; which demurrer, the Court sustained, and gave the plaintiff leave to amend. The plaintiff having-declined to amend, took his writ of error to this Court, and assigned the action of the Court below as aground for reversal.
    Peck, for Plaintiff.
    The objection here, not having been taken at the appearance nor trial terms — nor when judgment by default was entered, was sought to be available when the case was opened on an affidavit of merits.
    The defect, if it was a rtiaterial one, was clearly abateable only on plea, and at the appearance term. But the objection is immaterial.
    According to the English practice, a defect in the writ could not be taken advantage of, - on demurrer. The practice is the same here. — Aik. Dig. 278 — 1 Minor's Rep. 885, 392 — 1 Stewart’s Rep. 17, 275 — 2 Stewart, 130 — Minor's Rep. 102.
    Ellis, contra.

    The rule is, that when a demurrer is filed, it reaches back to the first defective pleading. When oyer of the writ and indorsement was craved in this case, they became part of the record, and the variance apparent, was fatal.
    It is of no consequence when the demurrer is filed, so that the defect complained of is a material one.
    Here, we are notified of being sued on a promissory note, and at the trial a bond is produced against us. — Lee vs. Adkins, Minors Rep. 137.
   By Mr. Justice Hitchcock :

This was an action brought by the plaintiff in error against the defendants, in the Circuit court of Jefferson county. The writ is in the debet and dctinet, for two hundred dollars. ' The endorsement on the back of the writ, describes a promissory note dated the 6th of February, 1830, due the 25th December,. 1831, for two hundred dollars, stating it to be signed and sealed by the payors. There are no seals set out opposite to the signatures. The declaration is in the common form of an action of debt on a writing obligatory, describing such an instrument as is set forth in the endorsement of the writ, except the seals. Á judgment by default was taken at the trial term of the Court, for want of a plea, and at the same term the defendants asked leave to open the default, filing affidavits setting forth an excuse for not having pleaded in time, and swearing to a defence on the merits; upon which the Court set aside the default, and gave the defendants leave to plead. The defendants then craved oyer of the writ and endorsement, and demurred generally to the “ writ and declarationas not being sufficient “ in law for the plaintiff to maintain his action against them, and that they were not bound by the law of the land to answer the -same.” No mention is made of the endorsement, in the demurrer, but the exception is to the writ and the declaration. The Court sustained the demurrer, and gave the plaintiff leave to amend, which he declined doing, but has brought the case here by writ of error.

The Circuit Courts are invested with authority to control the pleadings in cases before them, and may, in the exercise of a sound discretion, grant motions to set aside defaults, and allow pleas and demurrers to be filed. This should, however, be always exercised with a due regard to the rights and interests of the opposite party, and never be permitted to be used for the purpose of delay, or to the hindrance of justice. That the shewing in this case presented proper grounds for setting aside the default, for the purpose of allowing a plea to the merits of the action, is apparent. The party swore that he had a defence to the merits, and that he had employed counsel at the appearance term, to file his plea, but that it had not been done, though he had supposed it had. The plaintiff had, however, by this default, acquired an advantage which should have protected him in his rights, at least so far as to have insured him a trial on the merits.

By the 10th Rule of Practice, a default duly entered, protects the plaintiff from any plea, while the party is in default. By the 11th Rule, a default may be set aside on timely application, and’an affidavit of merits. And by the 12th Rule, no plea in abatement shall be received, if objected to, unless by the endorsement of the clerk, it appear to have been filed within the time allowed for pleading. It has been decided by this Court, “ that an endorsement is not an ■essential constituent of a writ, and that no advantage can be taken of the want of it, after the return term.” Also, that in a case where the endorsement describes a note under seal, and the declaration describes a promissory note, with a scroll and judgment by default, this Court would not consider the variance sufficient to reverse a judgment, even if the Court would look to the endorsement for that purpose.b Also, that the endorsement will not be looked into, to reverse a judgment, upon an alleged variance, between the endorsement and the declaration, except upon plea in abatement.

In the case of Lee vs. Adkins, the Court refused to reverse, on special demurrer, because oyer was not craved of the endorsement on the writ. This Court lias, in various other instances, and invariably, discouraged defences of this kind, not going to the merits, and particularly when the defendant has been in default.

In this case, this defence could not have been made by plea in abatement, at the time this demurrer was filed. It would have been in express violation of the ,12th Rule, before quoted. Had the Court the power to permit the party to evade the force of that rule, by filing a demurrer ? and is a demurrer a proper mode of taking advantage of such a variance? This latter question has never been distinctly presented before, In the cases before cited, the question has been presented incidentally, and the cases have been disposed of on some other ground. While special demurrers were allowed by law, there could, perhaps, be no objection to them: but now, that no demurrer shall have any other effect than that of a general demurrer, it is proper to enquire, whether a general demurrer reaches a case like this. A general demurrer, it will be admitted reaches only to matter of substance. It must appear on the face of the preceding pleadings., and so far as appears by reference to Chitty’s Pleadings, goes behind the declaration.

In this case, the allegation is, that the writ and declaration are not sufficient, in law, to sustain the action. If we look at those alone, without reference to the endorsement, the demurrer cannot be sustained, for there is no variance between them, and there is no defect upon the face of either. Without, however, deciding whether, when the party comes intime, and craves oyer of the endorsement on the writ, and demurs, his demurrer would not be sustained, or whether tli ere might not be a proper case for a demurrer after judgment by default is opened- — I am clearly of tlie opinion that after a judgment by default, the Court has not the power to allow the party, by way of demurrer, to evade the penalty of the 12th Rule, 'which prohibits all dilatory pleas, without the consent of the part}", after .the time for filing those pleas has expired. It is sufficient that these technical defects, are allowed, when taken in time. It is, therefore, the opinion of the Court, that the judgment should he reversed, and the cause remanded, with ■leave to the defendant to plead to the merits of the action.

       2 Stewart, 130

       1 Stewart, 17.

         Ala. Rep. 92.

       Ala.Rep.187.

       Aik. Dig.277.

       1 Chitty 700