author: Ringo, Chief Justice,

text:
    Chester Ashley, ex parte.

    In a proceeding by quo warranto, if judgment go against the defendant, he is liable to payment of costs.
    And the officers of the court may, in such case, have their fee bills made out and collect them, while the matter is stiii undetermined.
    An officer, however, is not warranted in charging in his fee bill against the defendant, any services rendered at' the instance of the plaintiff.
    But that there are some illegal charges in the bill is no ground for quashing it. The law furnishes relief in a different way. Besides, he has it in his power to correct any error in the taxation of costs by having them re-taxed by the court, or under its direction.
    Where a fee bill is issued in a case not authorized by law, it might, upon a proper application, be superseded; but a motion to quash would be irregular.
    Absent, Dickinson, Judge.

    This was a motion to quash a fee bill.
   Ringo, Chief Justice,

delivered the opinion of the Court:

At the last term of this court a motion was made by Ashley to quash a fee bill made out against him for the clerk’s fees, in the cáse of the State against him, on a writ of quo warranto. In support of the motion it is urged that there is no judgment of ouster or final judgment given in the cause. That the office or franchise, the right of Ashley to exercise which, is in question in said case, is not a place of emolument or profit; and that in cases of quo warranto the defendant is not legally liable for costs; and therefore he insists that this fee bill ought to be quashed. It may be and probably is true, that the de* fendant in such case was not, according to the ancient law on the subject, liable for costs; but however this may have been, we deem it unnecessary to inquire or decide, because, in our opinion, the question as to costs depends entirely upon statutory provisions. The 12th section of the 34th chapter of the Revised Statutes of this State provides that,u if any person shall sue in any action, and shall recover judgment, the plaintiff shall have judgment for costs against the defendant;” and other provisions of the same statute give costs in favor of the sue-cessful defendant, in all actions where “ the plaintiff might have costs in case of judgment in his favor;” and upon a careful examination and consideration of the several statutory provisions relating to the subject, we are satisfied that the same rule, as to the question of costs, applies to and must govern in actions prosecuted by or against the State. And in this respect the result must be the same, without regard to the pbject for which the action is prosecuted; be that what it may, the party succeeding is entitled to recover his costs, subject only to such exceptions as are provided for by the statutes, none of which apply to, or embrace the case under consideration; and of course, the successful party, upon the final adjudication of the case, will be entitled to a judgment for costs, against his adversary. But the fee bill in question has been made out, while the action is still undetermined, by virtue of the 31st section of the 61st chapter of the Revised Statutes of this State, which provides that “all officers or witnesses entitled to fees by this law, for services rendered in any suit, matter or controversy, depending in any court of record, may make out fee bills for such services, at the end of each term of the court wherein the same is pending, charging the party at whose instance the services were rendered.” The 32nd section of the same statute requires such fee bills to be examined by the clerk of the court in which the services were rendered, and if found correct, to be certified by him, and delivered to the Sheriff of the proper county, to be by him collected. The language here used is very comprehensive, and unquestionably applies to the fees of the Clerk for services rendered in this case, but he is not warranted in charging in his fee bill against the defendant any fee for services rendered at the instance of the plaintiff, as he appears to have done in the bill before us. It is also probable that there may be other illegal charges in the bill; yet some of the items charged are legal and properly made out? and a fee bill, in some respects, corresponding with the final process for the collection of costs. We are of opinion that it ought not to be quashed because there are or may be found in it some items illegally charged against Ashley, to whom the law furnishes adequate redress against the clerk, in a different way, for any charge illegally or improperly made therein — besides, he has it in his power to correct any error in the taxation of costs against him by the clerk, by causing the same to be relaxed by, or under the direction ,of the court; and where a fee bill is issued in a ease not authorized by law, it might, upon application, be superseded,’ but a motion to quash would, even in such a case, be irregular. The motion is, therefore, overruled.


source: Caselaw Access Project

author: Dickinson, Judge,

license: Public Domain

text:
    Justus P. Stevens against the State.
    Appeal from Pulaski Circuit Court.

    Where on an indictment for gaming, found and tried at March term, 1839, the evidence was, that the offence was committed within a year previous to the first day of January, 1839, if the jury found a verdict of guiify, the vet diet will not be disturbed because the proof was not explicit that the offence was committed within a year previous to the finding of the indictment.
    The jury were authorized to draw this inference, and having done so, it is conclusive.
    Where the evidence as to the offence in such a case was that the accused sat behind a table commonly called a faro table, dealing or drawing cards from a box, and using pieces of bone for carrying on the game — that no money was used, nor did the witness know whether he was playing for money or amusement — a conviction on this evidence will not be disturbed.
    The jury had a right to infer that the checks were valuable, or represented money.
    This was an indictment for dealing faro. The first count charged that Stevens, on a day certain, with force and arms at, &c., and within the jurisdiction of the court, unlawfully kept and exhibited a certain gaming table, commonly called a faro table, contrary to the form of the statute, &c. The other counts charged the same offence more fully. , Stevens pleaded not guilty; and the case was tried by a jury who found him guilty, and assessed a fine of one hundred dollars, for which, and the costs, judgment was entered. Stevens then moved for a new trial on the grounds that the verdict was contrary to law and to evidence, and that there was no proof that any gaming was carried on by him, or that any money whatever was bet, won or lost, at the game played by him. This motion was overruled, and thereupon he filed his bill of exceptions.
    The bill of exceptions states all the evidence given in the case, which was, that the only witness sworn stated that it was so long since, that he remembered but little about it; that he had seen the defendant at the county of Pulaski, within one year previous to January 1st, 1839, at a table commonly called a faro table, but that he did not know whether he was keeping and exhibiting it or not; that he did not know whether they were playing fot amusement or money; that they used pieces of bone, but he did not know whether they were of any value or represented money; that he did not know whether Stevens was keeping the table or not; that he was sitting behind it drawing the cards out of a box, which he believed was called dealing; and that he saw no money played for, or paid in or out. This was all the evidence. ' .
    Pike, for appellant:
    The bill of exceptions was taken in time, for it was taken so soon as the motion for a new trial was overruled. It shows conclusive^ that the verdict was not warranted by the evidence. The indictment was found at March .term, 1839, which commenced on the first Monday of March, 1839. To that day the finding of the indictment is, by law, referred. Now in order to convict, the offence must have been committed within one year previous to the said first Monday of March, 1839, and the evidence is, that it was committed within a year previous to January, 1st, 1839. It is necessary for the State, in every criminal case, to show, positively, that the offence was committed within the time prescribed by the statute of limitations. Thus, in Rex vs. Phillips, Russ, and Ry. 389, it was held, that on an indictment for high'treason, on the 8 and 9 W. 3 c. 38, by one section of which it was provided, that no prosecution shall be made for any offence “against this act, unless such prosecution be commenced within three months after such offence was committed,” it was incumbent on the prosecutor to show that the prosecution was commenced within three months.
    The plea of the statute of limitations is not known in criminal proceedings, but the plea of not guilty, puts every thing in issue, and devolves upon the prosecutor the proof of every thing necessary to show that an offence has been committed, which by law is punishable. And when the time within which the prosecution shall commence is prescribed by law, it is incumbent on the prosecutor to prove, not only that the offence was in fact committed, but that it was committed within the time prescribed by law. On this ground alone, therefore, the judgment should be reversed.
    There is, however, still another ground, and it is, that the testimony does not show the commission of any offence whatever against the law.
    The evidence shows that the defendant was at a faro table, dealing the cards, at which persons were playing with pieces of bone; but there is no proof whatever that they were playing for money, or any thing of value, or that defendant was dealing for the purpose of having gaming carried on.
    The statute (Rev, Sí. p. 270, sec. 1¡) provides for punishing every person “who shall set up, keep or exhibit any gaming table or gambling device, commonly called, &c., adapted, devised, or designed for the purpose of playing any game of chance, or at which any money or property may be won or lost.”
    It cannot, we think, but be manifest, that in order to constitute an offence against this section, there must have been either a criminal act in exhibiting the table and dealing for money or something of value, or else a criminal act in exhibiting the table for the purpose of having money or something of value bet at the same.
    To play any game for amusement, when no money or any thing of Value is bet, is not gaming, nor any offence against the law. Undoubtedly it would be an offence for any person to set down and commence exhibiting a game for the purpose of having gaming carried on; but in such case the intention must necessarily be clearly proven, in order to convict.
    What proof is there in this case, of any criminal act, or criminal intention ? For aught that appears in evidence, the whole matter was mere innocent amusement. There is certainly no proof that any gaming was actually carried on, for the witness expressly stated that he did not know whether they were playing for amusement or for money. As little was there anjr proof of a criminal intention' to induce gaming, for no language or acts of the accused are in evidence, showing such intention. No money was played for, or paid in or out.
    The accused called on no person to bet, and for ought that appears in the evidence, might have been merely amusing himself.
    To exhibit a faro table, means to set or stand at some such table, either playing or prepared to play the game of faro, for money or something of value. In order to convict any person of exhibiting a faro table, the circumstances constituting the offence must be proven, and of those circumstances the one most material and important is, that gaming was either carried on-, or intended to be carried on. No proof of those facts, or either of them, appears in this case.
    We therefore submit, that on these grounds, the judgment should be reversed. 1 .
    ClsndeNIN, Contra:

    The first point in this case is oné oh the construction of the statute, or what is a sufficient setting up, keeping, or exhibiting of a gaming table, to bring it within the provisions of the said statute. It was argued on behalf of the State in the. court below, and it is submitted to this court, that any keeping or exhibiting of any cr either of the games or gaming tables prohibited, by which persons may be induced to violate the provisions of the section of the same act against betting, is such a setting up, keeping or exhibiting, which the law intended to prevent, and that it is not necessary that money should be won or lost on the said table. In this case there does not appear to have been any money won or lost, but that checks were bet by the persons assembled around the table, and the jury had a right to presume that the checks were the representation of money, or in the language of the statute, “valuable things.” Tt is not conceded on the part of the State, that it is necessary that money should be won or lost on any of the gaming tables mentioned in the act, to bring the same within the meaning of the law: to set up, keep, or exhibit. To keep, is to bold — to retain in one’s power or possession, &c.; and to exhibit, is to “ offer or present to view — to present for inspection, to show, to manifest publicly.” In this case, the gaming table appears to have been presented to view, displayed. and manifested publicly — and therefore, without urging the fact that persons were betting checks, the lav/was manifestly violated,_and the jury could not come to any other conclusion under the state of the facts.
    This indictment was found under the provisions of the old statute, and the defendant, in accordance with the revised statute, elected to be punished under the act by which he was indicted.
    The third point in this case is, that the exceptions were not takeii until after the verdict of the jury had been received, nor was the bill of exceptions signed until some time after. For authority on this point, Lyon vs. Evans, Ark. Rep. 361.
   Dickinson, Judge,

delivered the opinion of the court:

The counsel of Stevens contends that the evidence does not sustain the finding, and that the proof ought to have showed positively that the offence was committed within one year previous to the first Monday of March, 1839, the time when the indictment was found, or that the statute of limitations, which requires the party to be prosecuted within one year after the commission of the offence, will come to his aid. We cannot see the force of this reasoning. The whole of the evidence was before the jury, and was such as to satisfy their minds that it was within the time prescribed by the statute. Such being the fact, we do not think the verdict, for that reason, ought to be disturbed.

The act under which the party is prosecuted, (Steele and McCampbell's Dig. 205,) subjects to indictment and punishment “ any person who shall be guilty of keeping or exhibiting any gaming table commonly called A. B. C., or E. O., or roulette, or rouge ct noir, or any other gaming table, or bank of the same or like kind, or any other description under any other denomination whatsoever, hr shall, in any way, either directly or indirectly, be interested or concerned in any of the aforesaid gambling tables, bank, or games, either by furnishing money, or any other articles for the purpose of carrying on the same, being interested in the loss or gain of the said table or bank, or employed in any manner in conducting, carrying on, or exhibiting said table or bank.”

The evidence is that Stevens was sitting behind a table commonly called a faro-table, that he was dealing or drawing cards from a box, and used pieces of bone for the purpose of carrying on the game. He simply states the facts, and it is for the jury to draw the conclusion whether it amounted to an exhibition or not, and it cannot be denied but that the evidence was such as clearly showed that Stevens, by dealing and drawing the cards from the box, was employed in conducting and exhibiting a gaming table or bank, and that the pieces of bone were used or furnished for the purpose of carrying on the same. It is not necessary, to constitute an offence under this act, that money should be furnished, for the furnishing of any other article is equally as criminal.

The jury, in determining upon .the case, doubtless went upon the supposition that the bones or pieces of ivory used, spoken of by the witness, represented money, or some valuable thing, in carrying on the game. They were authorized to draw this inference from the facts proved, applying to them their experience and. knowledge in the manner of conducting such games. Upon the whole, we see no good cause assigned for disturbing the judgment of the Circuit Court; the same is therefore affirmed, with costs, and the Circuit Court is hereby directed to execute its sentence pronounced in this case.


text:
    Error to Pope Circuit Court.

    Joseph Gwinn against Robert M. Roberts.
    An order, drawn by one person on another, in favor of a third, for so many dollars in merchandize, is not a bill of exchange tinder the statute- — and not assignable, so as to give the holder or assignee a right of action.
    Consequently no action can be sustained by the person to whom it purports to be assigned, against the drawer of it, on failure of the drawee to pay it.
    And the judgment of the Circuit Court quashing the proceeding bad before a Justice in such case, will be sustained, although the judgment was based upon the ground that there was no regular protest.
    The plaintiff in error commenced this action against the defendant before a Justice of the Peace, on the following writing:

      u Mr. Saugrain, Please let Mr. Chambers have thirty-two dollars and thirty-eight cents, in merchandize, in your store, and charge the same to my account, and oblige yours, this 30th of October, 1838.
    11. M. Robekts.”
    Endorsed on the back of which is the following, viz: “ I assign the within order to Joseph Gwinn. Elihu Chambers.”
    “I protest the within this 16th day of February, 1839.
    A. Saugrain.”
    On the trial before the Justice, Gwinn obtained judgment for thirty-two dollars and thirty-eight cents against Roberts, from which he appealed to the Circuit Court, and on the trial there, moved the court to quash the proceedings had before the Justice, on the ground that the order sued on had not been regularly protested by a Notary Public; which motion the court sustained, and gave judgment in favor of Roberts for “ all costs there and in the Justice’s Court, and that the appellant go without day.”
    Hempstead, for plaintiff in error:
    The court below undoubtedly took a mistaken view of the law in deciding that the plaintiffin error could not recover, because the order mentioned in the proceedings was not protested before a notary pub-lie, and which order was made the foundation of the action before the justice of the peace, or to speak more technically, was the evidence by which a recovery was had. Under the construction of sec. 13, ch. 20, Rev. Stat., this order will be considered as a bill of exchange, and governed by the..law merchant as to days of grace, protest and notice. See sec.. 14, ch. 20, Rev. St.

    This is an inland bill; and by. the lex mercatoria an inland bill is not required to be protested for non-payment, A protest is unnecessary. Chilly on bills 61; 1 Saund'. PI. and Ev. 295; 3 Kent's Com. 93.
    In'any view of the case, the wánt of a protest could only bar the hold-from receiving special damages, and never' preclude him from the right of recovering the amount of the bill; 1 Saund. PI. and Ev. 295.
    It has long been the settled rule, and practice not to consider the protest of an inland bill as necessary or material. 3 Kent's Com. 94; Bayly on Bills 167; 2 B. ánd A. 696.
    Nor is the protest of an inland bill generally deemed necessary in this country. 3 Kent's Com. 94.
    Without adducing any further authority, it must be apparent to the court that an error in law has'been committed which ought to be rectified.
   Ringo, Chief Justice,

delivered the opinion of the court:

The statute declares that the term, “ bill of exchange,” as used in this a<pt “shall be so construed as to include all drafts or orders drawn by one person on another, for (he payment of a sum of money specified therein.” From the least observation it will be perceived that the writing in question is neither a bill of exchange, draft, or order for the payment of a sum of money specified therein, because the drawee is not requested thereby to pay any sum of money whatever to the payee, or any other person. • The defendant simply requests Mr. Saugrain to let Mr. Chambers have merchandize, in his store, to the value $32.38, and to charge him, Roberts, with the amount, which was evidently the understanding of the parties, and such is the operation and legal construction of the writing, which cannot be regarded either as a bond, bill, promissory note, draft, or order, within the operation of the law merchant, nor any statutory provisions whatever in force in this State; nor can it, under any principle of law, be considered as a contract, or writing capable of being assigned in any manner, so as to transfer to and vest in the assignee or holder thereof a legal right of action against the drawer. The plaintiff, therefore, misconceived his remedy; and although the reason assigned in the record as the basis of the judgment given by the Circuit Court may not be warranted by law, yet as the judgment itself appears to be right, and in every respect authorized by facts as they appear in the record, it must be, and is hereby, in all things, affirmed, with costs, notwithstanding. the insufficiency of the reason assigned for it by the Circuit Court.


author: Lacy, Judge,

text:
    Palmer and Southmayd against Ashley and Ringo.
    Error 16 Pulaski Circuit Court.

    An attorney at law cannot be held liable for money collected, unless he refuses to pay it over on demand, or to remit according to instructions. Nor can he be held liable for claims in his hands uncollected, unless culpable negligence is proved.
    His liability depends upon the principle of agency, and he holds money, when collected, as a bailee.
    If; therefore, in a suit against an attorney, where he has receipted for notes put in his hands for collection, the plaintiff fails to prove his collection of money, and refusal to pay over'or remit, and also' faijs to prove culpable negligence, the court is' justified in ordering the jury to find as in case of a non-suit.
    Absent, Ringo, Chief Justice.

    This is an action of assumpsit. The declaration contains six counts upon promises by the defendants to sue and collect for the plaintiffs the seyeral notes in the several counts mentioned, and alleges that by the negligence and default of the defendants, the plaintiffs were prevented from recovering the moneys due to them upon those notes. The declaration also contains a count for money had and received. The defendants pleaded non-assumpsit. Before the trial, the counsel for the plaintiffs, after proving the signature of Ashley and Ringo to three papers, introduced them in evidence. The two first of which were receipts given by defendants, in the usual form, for certain notes received of the plaintifls to sue on arid collect. The third was a letter from Ashley and Ringo, which, .after acknowledging the receipt of Robert Finley’s two notes, payable to plaintiffs, and by them endorsed in blank, says, “ the first we have sued on in our own names, and have united a note of Smith, Hubbard & Co., for 327.25, and Williams’ note for J>471.87, in the same suit. These were all received at the same time, and all endorsed; and we have therefore sued in our own names, and brought the whole in one suit of attach-mént — and we had,previously attached for a debt, due to Hill and Henderson, of about ‡215, and for a debt due to Whiting and Stark, for $>585.71. These two last have a preference of the suit brought in our own names, as they came first to hand. We believe there will be sufficient to pay all the above, but of this we cannot be certain. We have all there is in custody of the Sheriff’s jury, by virtue of an execution, and obtained a verdict that the property was Finley’s, and subject to the execution. We consider this a strong assurance that we shall succeed on the attachments. The note not due will, we fear, be an entire loss.” The plaintiffs having read those three papers in evidence, close their case without offering any other testimony to the jury. The defendants then moved the court to instruct the jury to find as in case of a non-suit, which instructions were given by the court, and a verdict returned by the jury accordingly.
    Blackbuhn, for plaintiffs in error:
    The plaintiffs in error proved in the court below, first, by the admission of defendants, that they were partners and attorneys in the practice of law. Second, that the defendants, by their written contract, undertook, and promised the plaintiffs, to collect said several sums of money specified in said several counts, which implies an abil - ity, on the part of the defendants, to do what they had promised; and it was not necessary for the plaintiffs, on the trial in the court below, to prove that it was in the power of the defendants to collect the money on the notes, when they proved that the defendants had absolutely contracted to do it: and the defendants having pleaded non-assump-sit, admitted the continuance of that ability; for that which intervenes after the making of a contract and its execution, to bar the action, must be pleaded specially, or given in evidence on their part of the case. I Chit. Pl. p. 473. And, third, the proof of the outstanding contract of the defendants was strong presumptive evidence of their non-performance of their undertaking. An outstanding promissory note against A, is positive evidence that he was once indebted, but is only presumptive that he still is so. 3 Star. Ev. 1241. And if A is not indebted, he must plead that fact, or show it by proof upon the trial; and the presumptive testimony, produced by the proof of the contract of the defendants, was sufficient to have warranted the jury to find for the plaintiffs; and the court would not have granted a new trial in such case. 3 Stark Ev. 1247. In the case of the Executors of Sneed vs. Elmendorf. 3 J. R. 185, which was an action on the case against Elmendorf for negligence as an attorney, it was held by the court, that “when an attorney gives a receipt for a promissory note, without expressing the purpose fpr which he received it, the presumption isj thrft He received it to be collected, and that this presumption was sufficient evidence to support the action against him for negligence in not .¡suing the maker, who afterwards became insolvent;” and from this authority I would conclude, that if the receipt of a note, without saying what fpr, will raise the pre- s sumption in an action on the case that it was received by the attorneys for collection, by suit at law, the undertaking of attorn eyii'to.vGoljy./» lect money as such attorneys for the-plaintiffs, by special and positive contract, raises the presumption that they had the power and ability to do so; which presumption possibly might not be sufficient in an action on the qase for negligence to authorize a jury to find for the plaintiff, but in an action of 'assumpsit, for the non-performance of a contract, it would be conclusive until the contrary was shown; and the jury was sufficiently authorized, from the testimony, to have found a verdict for the^plainliffs.
    In the first count of plaintiffs’ declaration they allege the employment of Ashley and Ringo, as attorneys and counsellors at law, to collect two certain notes, of and ’from one Robert Finley, each for $596.51 by a stiff at law in the name of the plaintiffs, in the proper court, in a skilful manner; and on referring to the testimony on this point, we find that the whole .of these allegations was substantially proven. The breach assigned is, that the defendants did not, nor would collect the said notes by suit in a proper, skilful and diligent manner; and if it was necessary for the plaintiffs to prove positive breaches, here it is proved. As to’ the count, the testimony is, that the’ defendants did not, in the -names of the plaintiffs, institute a suit against Finley, as they were bound to have done by their retainer as attorneys at law, but sued in their own names, and thereby discharged Finley from all1 liability to the plaintiffs. Finley could plead the former action of Ashley and Ringo as assignees, &c. in bar against the plaintiffs’ subsequent action,, and if the defendants recovered judgment against Finley at their own suit, the plaintiffs had neither any legal or equitable interest therein, and could only look to Ashley and Ringo for their demand. ' The result then is that the plaintifis have lost their right of action against Finley, their obligor, by the unskilful manner in which the defendants brought the suit; and the. breach is first proven by'the testimony that the defendants did not sue in the name of the plaintiffs; second, by the case being conducted in such a manner as to deprive the plaintiffs of all right of action against Finley, upon the notes that the defendants sued on, and the court below ought to have suffered the jury to have found for the plaintifis on this count.
    The last count in the plaintiffs’ declaration is for money had and received, and the defendants gravely contend that there was no testimony given on the trial, in the court below, to support this count. They first contend that the jury could not know but that the defendants had collected the money on the notes specified in the first count, and therefore, that the jury could not find a verdict, on the special counts,-for the plaintiffs. And secondly, as soon as they approved the last count, they say that there is no proof that will establish the receipt of money by the defendants, to the use of the plaintifis. By a letter of the 7th of November, 1834, written by the defendants to the plaintifis, that was part of the testimony in the court below, and ■the plaintiffs in error set out in their bill of exceptions, and make a part of the record in this cause, in which the defendants stated that they had received Robert Finley’s note to the plaintiffs, dated January 9th, 1834, payable at six months; and also, his note to plaintifis of same date, at twelve months, each for $590.51, by letter from Messrs. Hill and Henderson, of 4th October last, “ both endorsed in blank.” “ The first we have sued on in our own names.” Then, if the defendants have not received money to the use of the plaintiffs, they have received money worth, by filling up the blank endorsement to themselves, to enable them to sue in their own names. In the case of Morris vs. Mapper, Lord Holt said that, though the defendant did not actually receive the money, yet he received a satisfaction, which is money’s worth. 2 Ld. Raymond 1007. And in Barcley vs. Gooch, where a person gave a promissory note,for the debt of another, which the creditor accepted in payment, Lord Kenyon held it to be a payment of so much money, to the use of the party, for which the assump-sit would lie. 3 Esp. N. P. Cases 571. And the court will bear in mind that this was in England, where.choses in action were not assignable. But we will find the case of Floid vs. Day, 3 Mass. Rep., more full in point: “Floid, the plaintiff, haying a demand upon one Pilsberry^, appointed the defendant, 3Bay, .her agent to recover for her a sum of money, in satisfaction of her demand; the defendant commenced a suit against Pilsberry, and the matter was then compromised, by Pilsberry’s agreement to give three hundred dollars for a discharge from the plaintiff’s demand in. full; for this sum the defendant instead of money, took Pilsherry’s note,-payable -to himself, and discharged Pilsberry, as'he was authorized to do by the plaintiff, so that she had no remedy except agains.t the the defendant. Upon this state of facts, the court decided that the-plaintiff could not maintain trover for the note, but that the defendant having, instead of money, received the note of Pilsberry, and - discharged him, the property of the note was in the defendant, and he- became immediately answerable to the plaintiff for the money, as for i so much money received by him for her use; and an action of assumpsit was her proper remedy.’ For although the defendant received no money, yet by his transaction,-he discharged Pilsberry from the plaintiff’s demand on him for moneys and he must be considered as having made himself answerable to the plaintiff for the money he ought.to have received of Pils-berry.” The above is an extract from-the opinion of the court in the case of Beardsly vs. Root, 11 J. R. 469; the same principle is to he found in the case of Denton, and others, vs. Livingston, 9 J. R. 96. See 2 Saund. 643; Ld. Raym. 1072, Clark vs. Withers. These authorities do establish the principle for which the plaintiffs in error are contending; to wit: that the defendantshaving filled up the blank endorsement, and sued in their own names, first, discharged Finley from the suit of the plaintiffs by releasing their right of action against him, and vesting it in themselves. Second, that the note received, and endorsement filled up to the defendants, was money or money’s worth, received to the use of the plaintiffs, and for which an action of as-sumpsit will lie for money had and received.
    Assumpsit lies for money, against a sheriffrfor money collected on an execution, without a previous demand. 1 Wend. 534. And against an agent, if he sells the goods of his principal and includes the amount of sale in a note to himself with other demands due him, 6 Cow. note A. 183, and in that case the court refused to grant a new trial, on the ground that the plaintiff had not shown a demand. And the rule is, when a new duty is promised to be paid, as, if in consideration of all moneys lent to the defendant he promised to pay them again on request, no actual request is necessary. ■ 1 Saund. 33, N. (2.)
    Trapnakl & Cocke, Contra:

    The two papers first offered in evidence prove nothing more than that the defendants had received certain notes of the plaintiffs for collection. The proof contained in the third paper amounts to the same. For there is nothing in the letter of Ashley and Ringo which shows that the notes against Finley were subsisting legal claims upon which judgment could be recovered. Nor does it show that Finley’s circumstances were such that they could certainly make the money. On the contrary it shows that Finley was insolvent, that there were adverse claims upon the property, and debts which would take precedence of those due the plaintiff. It shows they had immediately adopted the most summary proceeding to secure the plaintiffs’ debts by causing Finley’s property to be seized upon by attachment, and retained in the custody of the Sheriff. It is true they express a belief that there will be property enough to satisfy the several claims against Finley, embraced in the attachment suits, but even of this they were not certain. The letter, so far from furnishing evidence of Finley’s solvency, shows conclusively that his situation was precarious, and that there was doubt of his ability to pay.
    It is well settled by the authorities, that to enable the plaintiffs to recover in an action like this, it is absolutely necessary they should prove some damage sustained by the failure of the defendants to prosecute and collect the notes. To do this it would be necessary to prove that the notes in question were unsatisfied and just demands, upon which judgment could have been recovered; that the ob-ligors in the notes were solvent, of at least that the money could have been collected by the exercise of a .proper degree of skill and diligence on the part of the attorney. Merely receiving the note for collection cannot, of itself, render the attorney liable for the amount thereof, should he fail to collect. A law imposing such a liability would be at war with every principle of common sense and common justice. No prudent' attorney would ever receive a note for collection i'f, by so doing, he would become absolutely bound to pay the debt, or ever subject himself to an-action, should the debtor prove insolvent. The liability of the attorney can only begin when he has been guilty of some neglect or mismanagement, to the loss and injury of his client. That neglect and injury must be shown by positive proof on the part of the plaintiffj and will not be presumed by the court. 2 Stark. Ev. 136. The case of Stephenson vs. Eccles, 3 Bibb, 517, is directly in point, and conclusively establishes the principle for which we contend. It was an action against an attorney for neglect in the management of a suit. We infer, from the opinion of the court, that Eccles had received a note to sue on and collect for Stephenson, and so mismanaged the case as that Stephenson was non-suited. ,
    Before the trial of the suit brought by Stephenson against Eccles for his negligence, the record of the former suit, and a copy of the note on which it was founded, transcribed into the record, were given in evidence to prove the justice of the demand. The Supreme Court decided that the copy of the note was incompetent for that purpose, unless the original had been shown to have been- destroyed or otherwise out of the power of the plaintiff to produce. And even then it would not have been admissible without proof of the execution of the original. For if the original itself had been produced it must have been proven before it could have been read in evidence. A motion was made in this case, as in the one before the court, to instruct the jury to find as in case of a non-suit, which was overruled by the Circuit Court, and the appellate court say, “ the refusal so to instruct the jury was no doubt predicated upon the supposition that the justice of the debt or demand for which the former suit had been brought was sufficiently established. But this does not appear to be the case. The copy of the note, as we have already decided, was inadmissible; and as the plaintiff was non-suited in the former action, the record of that suit was no evidence of the justice of the debt for which it was brought. It was contended, however, that the plaintiff without such proof was entitled to recover the amount of the costs of the former suit. But it is clear that if the debt was not just, he could not have succeeded in the former action, notwithstanding it had been prosecuted to a final trial: at least, we cannot presume that he would have done ,so, and if he could not have succeeded in that suit, he cannot have sustained an injury by a failure to prosecute it. There being then no proof of the plaintiff’s right to recover in the former suit, the court ought to have instructed the jury as in the case of a non-suit.” In the present case no testimony whatever was introduced to prove that the several demands mentioned, in the three papers given in evidence were just. This proof was essential to enable the plaintiffs to make out their case, and having failed to produce it, the court properly instructed the jury to find as in a case of a non-suit. As there was no evidence tending to prove the count for money had and received, ■there was consequently no error as to that count in the instructions given by the court.
   Lacy, Judge,

delivered the opinon of the court:

In the case of Cummins vs. McLain and Badgett, and in Sevier vs. Holliday, decided during the present term, this court has declared that an attorney at law cannot be held liable for money ha'd and collected by him as such attorney, unless it be first proved that he either failed to prosecute the claims put into his hands for collection, with due and prop'er diligence, or that he had collected the money and had refused to pay it over on demand, or to remit it according to instructions. His liability depends upon the principle of agency, and he holds the money, when collected, in the character of bailee. • The proof in this case wholly fails to show that the claims received for collection were upon solvent persons, or that the money was ever received from them, or that there was a demand and refusal.

The evidence only proves that the attorneys executed their receipt for the collection of certain notes, and that they proceeded upon some of them, by means of attachment, to enforce their collection. The plaintiffs below, having failed to prove culpable negligence, of course the court properly instructed the jury to find as in a case of non-suit. The judgment of the Circuit Court is therefore affirmed with costs.


text:
    The State against Martin R. P. Mathis.
    EkkoR to the Circuit Court of Chicot County.

    If one only of several counts in an indictment is good, and sustained by evidence, judgment thereon may be legally given.
    Upon quashing an indictment, the recognizance becomes ineffectual, and the finding of another indictment in time is rendered very doubtful.
    Consequently, courts of justice will regard, with great strictness, any application to quash an indictment, more especially, when it comes from the defendant.
    Though the indictment contain several defective counts, if there be one which is good, a motion to quash will be overruled.
    A person who knowingly permits any kind of gaming, whatsoever, in any house, out-honse, or other building of which he is the owner or occupant, may, under the 4th section of the statute against gaming, be indicted and punished.
    An indictment was preferred against Mathis, in the court below, containing four counts; the first charging the defendant, Martin R. P. Mathis, with knowingly and wilfully permitting certain persons to frequent the house kept by the said defendant, and knowingly permitting them to exhibit a certain unlawful gaming table, commonly called faro table, at which persons were betting, winning and losing, &c.
    The second count charges the defendant with keeping a common gaming house, and there permitting persons to frequent and come and play at certain games of cards, called bluff, brag, pocre, serai up, .&c., for large sums of money.
    The third charges the defendant with permitting certain persons to frequent the house, kept by him, and then and there playing at and on a certain unlawful gaming table, called faro bank, the red tiger, and permitting said persons to play together at brag, bluff, seven up, &c., for lage sums of'money.
    And the fourth count charges the defendant, in the language of the statute, with keeping a common gaming house, and in the said house permitting certain persons to exhibit and keep a certain unlawful gaming table, commonly called faro table, &c.
    At the November term of the Circuit Court the defendant filed his motion to quash the indictment upon the ground of uncertainty, and because one count being defective, the whole indictment must be quashed; which motion was sustained; and the State sued her writ of error.
    CleNdenin, Attorney General, for the State:
    By the fourth section of the law, under the title ofCi gming,” every person who shall suffer and permit certain gaming tables, or games specified in the first section, to be carried on or exhibited in his house, shall be punished as therein prescribed. Rev. Stat. 273, sec. 1 and 4. The first and fourth counts of this indictment charge, separately, that the gaming tables and games, mentioned in the first section, were carried on and exhibited in the house of the defendant; upon these two counts the defendant might have been convicted — granting that the second and third counts are defective — for if one count in an indictment be good, although the others may be defective, it will be sufficient to support a general verdict of guilty. People vs. - Curtray, 1 J. R. 320. Indictments for misdemeanors may contain several counts for different offences, provided the judgment upon each be the same; see Arch. Grim. PI. p. 61, and authorities; from these authorities, it is argued that the first and fourth counts, being good, the judgment of the court sustaining the motion to quash, was erroneous.
    Pike, Contra:

    We take it to be a settled principle, that on a motion to quash an indictment, if there be one bad count, the whole must be quashed. Chitty lays the law down to be,that where “ a defect’is shown which induces the court thus to interfere, they must quash the whole indictment; for they cannot strike out some counts, and leave others to be determined on the trial.” 1 Ch. Cr. Lazo, 303.
    The second count charges the defendant with keeping a common gaming house, and permitting persons there to play at the games of brag, bluff, pocre, seven-up and three-up, and it is conceived by the defendant that this count charges no offence punishable under the statute. Sec. 1 of Art. hi, of the chapter on Criminal Jurisprudence, Rev. Stat. 273, provides the punishment for keepers or exhibitors of gaming tables, gambling devices and banking games, A. B. C., E. O., faro &c., for which the punishment is fine not less than one hundred dollars, and imprisonment not less than thirty days. Sec. 2 provides the punishment of persons interested or. concerned in the gambling prohibited by sec. 1; which punishment is the same as provided in the first section. Sec. 3 provides the punishment for betting on the same games; and sec. 4 provides that if any owner or occupant of any house, &c., shall knowingly permit or “ suffer any of the before mentioned games, tables or banks, or shall suffer any kind of gaming under any name whatsoever, to be carried on, &c., he shall be fined as provided in section 1.
    Every section, in an act of this kind, must be construed and interpreted in reference to the context. The first seven sections of this article are occupied in providing against a certain species of gaming, and a certain description of games, mentioned in the first section. The general words used in the first section, “ or any other gaming table, or gambling device, or bank, of’ the like or similar kind, or of any description, although not herein named, be the name or denomination what it may, adapted, devised or designed for the purpose of playing any game of chance, &c.” although very broad, manifestly include and refer to a particular species of gaming, to wit: hanks, or devices where one plays against many: and do not, of course, include the games named in the eighth section, of “ brag, bluff, pocre, seven up, &c., or any other game at cards,” the punishment of which is merely a slight fine. Two kinds of games are thus designated — one the games resembling faro, rouge et noir, &c.; and the other the small games which several persons play at once, but which are not banking games.
    That sec. 4 refers only to such games as are named, or included in the general description in sec. 1, is manifest, we think, from the magnitude of the punishment imposed, it being the same as is provided against the keepers and exhibitors of such banks, games and devices; and the general words in sec. 4, can only, we think, be considered co-extensive with the general words used in sec. L If such is not the case, while the persons who play at whist, are only punished by a slight fine, he in whose house the game is played, is mulcted in a heavy fine, and imprisoned at least one.month. Construed by the contest, and so restraining the general words, the punishment is uniform, and not unreasonable. There is nothing in this construction which is contrary to legal rules, and .therefore it should be adopted.
    The third count is liable to the same objection, and upon these grounds we submit that the decision of the court below; quashing the indictment was correct.
   Dickinson, Judge,

delivered the opinion of the court:

The defendant insists that, if one' count is'bad, the objection is good to the residue. We are by no means prepared to admit the correctness of this position; for it is clear, to our minds, that if one count in the indictment be good, although the other may be defective, it will be sufficient to support a general verdict of guilty. 1 J. R. 320. Archbold's Cr. Pl. 61, says that, indictments for misdemeanors may contain several counts for different offences, provided the judgment for each be the same. ‘ _

The power of the court to quash indictments, is discretionary. They may do it immediately, or oblige the defendant to plead or demur as they may think bests In the exercise of this discretion, they are guided by certain rules; and when the motion comes from the defendant, they are more strict than if the application is made by the prosecution; because, if the indictment is quashed, the" recognizance is ineffectual; and it might be doubtful about a good indictment being found in time. This rule is more strictly applicable to the higher offences when the ground is clear and plain, but it is presented in full force on an indictment when there are several counts, some of which are good, and upon which judgment could be given on a general verdict. It is frequently advisable, when the evidence will not support the whole charge, to insert several counts, for the prisoner may be found guilty of a part, and acquitted of the residue. If this be so, and we presume it will not be controverted, it follows, that if one count is good, and is sustained by evidence, judgment can be legally given upon it. Nor can a grand jury separate the parts of an indictment, but must either find a true bill or throw out the whole.

In 1 Chit. Crim., Law, 167, 8 and 9, and in authorities there cited, it is expressly laid down, “ that a defect in some of the counts of an indictment will not affect the validity of the remainder, for judgment may be given against the defendant for those which are valid.” in civil actions, the rale is different, because, if one part of the declaration is ill, and the jury find entire damages, the judgment must be arrested; and the reason of this distinction is, that in the latter case the jury find entire damages, and the court cannot apportion them, whereas, in the former, the court themselves regulate the severity of the sentence, and can do so according to their discretion upon those parts of the indictment that are supported. 1 Salk. 386.

We consider the question as regards the right of the court to try the defendant in case there is one good count, as well settled. Each separate count should charge the defendant, as if he had committed a distinct offence, because, it is upon the principle of the joinder of of-fences that the joinder of counts is admitted.

We will now proceed lo test the correctness of the decision of the court below, by the rules here laid down. The first section of the law prohibiting gaming; Rev. Stat. 273, declares that “every person who shall set up, keep, or exhibit any gaming table or gambling device, commonly called A. B. C., E. O., roulette, rouge et noir, or any faro bank, or any other gambling table or gambling device, or bank of the like or similar kind, or of any other description, although not herein named, be the name or denomination what it may, adapted, devised or designed for the purpose of playing any game of chance, or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor;” and the 4th section of the same act declares, that if any owner or occupant of any house, outhouse, or other building, or any steamboat or other vessel, shall, knowingly, permit or suffer any of the before mentioned games, tables or banks, or shall suffer any kind of gaming, under anj' name whatsoever, to be carried on or exhibited in their houses, or out-houses, or other buildings, or on board of any steamboat, fiatboat, keelboat, or other vessel, on any of the waters within this State, on conviction thereof, every such owner or occupant shall be punished, as is provided in the first section of this title.” It is under these sections, as necessarily connected, that the first count is found. Wc have given the subject the most mature deliberation, and come to what we think the only correct conclusion; that this count is sufficiently express in its language, and certain as to the character of the offence. He is charged with “ permitting and suffering divers evil-disposed persons to exhibit, caray on, and play upon a certain unlawful gaming table called a faro bank, in his grocery store.” And that such grocery store was kept in some such building or boat, mentioned in the statute, there can be no doubt, and is, in our opinion, sufficiently explicit. Nor can we see any serious objection to the other counts, certainly none sufficient to authorize the court to quash the indictment. Upon the whole, it is clear that the several offences, as charged, are within the letter and spirit of the statute.

The language used in the act against gaming, although not possessing great legal accuracy and precision, is nevertheless sufficiently explicit and comprehensive to include every species of gaming, be the name or denomination what it may, if adapted, devised or designed for the purpose of playing any game of chance at cards, or at which any money or property may be won or lost, and it is upon the rigid and faithful enforcement of the law, that much of the peace and good order of civil society depends.

The due and faithful administration of public justice by all the officers who are charged with this duty, would prevent much of the demoralizing influence that springs from this illegal and pernicious practice. That the Circuit Court of Chicot erred in quashing the indictment, we have no doubt. The indictment contains all the essential requisites that are necessary to charge the defendant.

The judgment of the Circuit Court must, therefore,, be reversed.


author: DickinsoN, Judge,

text:
    William M. McPherson against Henry L. Biscoe.
    EeboR, to Phillips Circuit Court.

    Where a note reads thus, " Twelve months after I promise to pay H. B., &c., it being the last payment on eight lots I have this day purchased of him, and to ■which he is to make me good title whenever this note is paid,” the omission in the commencement is a patent ambiguity, not to be explained by parol proof. The writing must explain itself.
    It will be taken to mean twelve months after date; and it is unnecessary, in the declaration, to aver that such was the meaning, for by setting out the instrument, the fact appears on its face, and is sufficiently alleged.
    This was a suit by petition and summons, against McPherson, who demurred to the petition, and for grounds of demurrer assigned:

      First: That the petition did not follow the form of the statute. Second: That in declaring on the bond sued on, it was neceessary to make averments, which are not here made.
    The petition states that Biscoe was the legal owner of a writing obligatory against the defendant by the name of Wm. M. McPherson, to the following effect: “$¡2200. Twelve months after I promise to pay Henry L. Biscoe two thousand two hundred dollars, with interest at the rate of ten per cent, per annum, from due until paid, it being the last payment on eight lots I have this day purchased of him, and to which the said Biscoe is to make me a good title, whenever this note is paid. Witness, &c. Wm. M. McPherson, [seal.]” Yet the debt remains unpaid, therefore the plaintiff demands judgment, &c.
    The demurrer being overruled, the defendant made no further de-fence, and judgment went against him.
    Pike, for plaintiff in error:
    We conceive it to be perfectly clear that the demurrer should have been sustained, because upon the face of the writing sued on there is nothing to show when it was payable, or that it was due when suit was commenced. “ Twelve months after, I promise to pay,” does not show that the note was then due, or when it was due; nor could the time when it was due appear but by some averment, as, that “twelve months after” meant and was intended for “ twelve months after date” There is no averment in the; petition drat the note was due when suit was brought, nor can its being due be inferred from the face of the writing itself. Of course, no cause of action whatever appears in the petition. Take the petition as it is, and it does not appear that the note was due; nor could the court or the jury know by what data, even if it were due, to estimate the damages.
    It is not necessary to argue the question whether any averment could have been made, so as to have shown a cause of action, in this form of action. No such averment is made, and consequently the demurrer should have been sustained.
    Ashxey & Watkins, Contra:

    Neither of the grounds dicloses any sufficient cause of demurrer under the statute; the parly demurring has not laid his finger upon the objection, and the grounds alleged are too vague and general to be treated as a special demurrer, either according to the letter or spirit of the statute.
    But the court here, according to the decision in the case of Clark vs. Gibson, at the last term, will take up the whole record, and give judgment, if so be that sufficient appear, according to the very right and justice of the cause.
    Should any question arise as to the necessity of filing a copy of the instrument sued, in addition to that set out in the body of the petition, the same question is dsscussed in other cases now pending before the court. On this subject, we would refer the court to the case of Éogers vs. Ellis, 1 Bibb 163, that the failure to insert the clause, “ whereby the plaintiff hath become the proprietor thereof,” is but matter of form and cannot be taken advantage of in the Court of Appeals, in order to show the liberal and beneficial construction which has been given to a statute, which only differs from our own in not being so broad, for the cheap and convenient prosecution of suits for the enforcement of plain liabilities; as also the question whether such an objection, if valid, is not more properly the ground of a motion to dismiss, and waived by the subsequent demurrer, which answers to the action.
    We apprehend it will not be insisted on by the plaintiff in error, that the making of a good title by Biscoe, is a condition concurrent or dependent upon the payment of the money by McPherson, so as to require an averment of performance, or readiness to perform on the part of Biscoe. The plain intent and meaning of the parties, to be gathered from the writing obligatory itself is, that Biscoe was to make him a good title whenever the note was paid. According to the authorities, no mutual and' concurrent condition can be raised upon the face of this obligation, because the promises are not one for the other, or going to the whole consideration on both sides; the consideration of McPherson’s obligation was not for the title, but upon the purchase of eight lots, upon which this obligation was not the only, but the last payment. The consideration was then split up and divided. The defendant had to make more than one payment before Biscoe was to make the title, as this obligation expresses a day certain for the payment of the money, but not for the making of the title. The conditions, if they can properly be termed such, are wholly independent; and for a supposed breach on the part of Biscoe, in not making a title, McPherson must resort to other remedies.
    But it is claimed that this judgment should be reversed, because the obligation sued on is informal — because no time of payment is specified. The obligation which the demurrer confesses, reads thus, “ Twelve months after, I promise to pay Henry L. Biscoe, &c.,” and bears date the 22nd day of March, 1837.
    The only question which arises here, according to the decision of this court in the cases from Chicot county, decided at this term, is, whether the instrument sued on, in this case, of itself, affords sufficient internal evidence of an obligation on the part of McPherson to pay Biscoe a certain sum of money ? For the statute, taken altogether, amounts simply to this: the petitioner says to the defendant, “I hold your note — you owe me a sum of money — I want it.”
    The statute of Kentucky authorizes this remedy, by petition and summons only where the writing is evidence, so directly and unequivocally on its face, of a debt due in money, as that no averment is necessary to show that the plaintiff is entitled to the debt demanded. Kinkaid vs. Higgins, 1 Bibb 352. And it was accordingly decided that bonds with collateral conditions will not authorize petition and summons; becausé the plaintiff must set out the whole truly — and the debt is due or not due — as the condition has been broken or not broken — performed or not performed — and that statute admits of no such averments. Pool, <fyc.,vs. McCaughan, 6 Monroe, 336.
    Our statute, however, which authorizes the legal owner or holder of any bond or note, for the payment of any money or property, to sue thereon by petition in debt, is broader than the Kentucky statute, and it seems to me that our statute, which authorizes a suit by petition, for damages upon a property note, must necessarily open the door to averments.
    But it can hardly be urged that it was necessary for the petitioner, in this case, to have made any averment, as contemplated by the Kentucky decisions. For the petitioner to have alleged the true time of payment, intended in this instance, would have been rather by inuendo than an averment.
    By parity of reasoning, the courts of Kentucky have decided that petition and summons will lie upon a note payable at a particular place; for although a demand may be necessary to put the defendant in default, yet the geueral breach is sufficient; or in other words, that no averment of presentment was necessary. Bank of Kentucky vs. Hickey, 4 Lit. 226. So it will lie against a surviving obligor, as an averment of the death of the other is unnecessary. Moore's ex'rs vs. Gwathmey, 4 Bibb 334.
    But does not the instrument sued on, in this case, import an obligation on the part of the plaintiff in error to pay a sum of money, with sufficient certainty, without the necessity of any averment or inuendo as to the time of payment.
    A note payable generally is payable on demand. Whitlock vs. Underwood, 2 Barn, and Ores. 157. The time of payment is part of a contract, and if no time of payment be expressed in a note, the law adjudges it payable immediately, and parol evidence is inadmissible to show a different time of payment. Thompson vs. Ketchum, 8 J. R. 189; Bacon vs. Page, 1 Con. Rep. 404; Cranmer vs. Harrison, 2 McCord’s Rep. 246.
    But if the obligation in this case be not due in presentí, after the making of it, it will, by reasonable intendment, be construed to mean, to be due twelve months after date. The computation of interest, upon the judgment, appears to have been made with this view, and in any event is not for too much, and the plaintiff in error has suffered no injury thereby.
    In the case of Grubb vs. Harris, 1 Bibb, 567, it was decided that a petition and summons will lie on a note for the direct payment of money — executed before the passage of their statute — a decision applicable to the case now before the court, should any such question be raised.
   DickinsoN, Judge,

delivered the opinion of the court:

There is a patent ambiguity on the face of the instrument which is incapable of being explained by parol proof. The writing must explain itself. This it certainly does. The terms “ twelve months after I promise to pay,” surely means twelve months after the date of the instrument, that bears date on the 22nd day of March, 1837, and twelve months thereafter it became due and payable. The bond was given for the purchase of certain lots, and the plaintiff in error was to receive a title whenever the purchase money was paid. The payment of the purchase money was a precedent condition to the execution of the title deed. The terms above quoted, certainly do not mean twelve months after the making of the conveyance, because it is expressly agreed that the purchase money shall be first paid. The parties fixed a time for the payment of the bond — that time is twelve months after its date, and as that time had expired before the institution of the suit, the defendant will be held, liable upon his agreement. It is unnecessary to aver separately a substantive fact, which appears upon the face of the instrument itself, for by setting it out the fact itself is sufficiently alleged. The patent ambiguity is explained by the bond, and that which by carelessness and inattention seems to be doubtful, becomes fixed and certain the moment the date of the instrument is inspected.

The judgment of the Circuit Court must therefore be affirmed with costs.


text:
    Ringgold, Adm’r, against Newkirk and Olden.
    Appeal from Independence Circuit Court.

    The obligation and effect of a guarantee executed in New Orleans is governed by the law of Louisiana.
    By the civil law, and the law of Louisiana, no consideration is necessary to be expressed in the guarantee, or to be proved at the trial upon it.
    But the guarantor cannot be held liable unless the creditor uses reasonable diligence to make a demand on the original debtor, and gives notice of non-payment to the guarantor.
    This was originally a motion for allowance made by the appellees in the County Court of Independence county, against the appellant as administrator of Charles Kelly, deceased. At January term, 1838, of the County Court, the appellees filed there a paper somewhat in the shape of a declaration, by which they-claimed a debt of $806 12, and stated that on the 6th of March, 1833, Kelly made his promise in writing, and delivered it to the appellees, by which he, by the style of Montgomery, Kelly, & Co., guaranteed the payment of a bill of the same date to the appellees, made by Randolph and Keethley for $806 12: whereby he became liable to pay that sum according to the tenor and effect of said writing; and although the sum specified in the writing has been long due, that neither Kelly, nor Ringgold his administrator, had paid it, or any part of it.
    The County Court allowed the sum of $806 12 against the estate, with $233 70 damages.
    The appellant presented his petition to the Circuit Court, at June term 1838, for a mandamus to the County Court, commanding that tribunal to grant him an appeal: which petition was allowed, the mandamus issued, and the County Court granted the appeal.
    When the case came into the Circuit Court the appellant moved to dismiss the suit for want of a bond for costs, which motion was overruled, and he then filed his plea in abatement, in which he alleged the non-residence of the appellees: and that they have not filed, or caused to be filed with the Clerk, a bond, with security, for costs. On demurrer to the plea it was declared insufficient.
    On the trial in the Circuit Court, the court, notwithstanding the objections of the appellant, admitted the following writing in evidence, to wit:
    M ¡$806 12. - New Orleans, March 6, 1833.
    “ We hereby guarantee the. payment of bill of this date to New-kirk and Olden, by Randolph and Keethley, for eight hundred and six dollars twelve cents. Mqktgomery, Kelly, & Co.”
    This writing, together with the bill of goods sold to Randolph and Keethley, was all the evidence in the case.
    The appellant objected to the admission of the guarantee because it showed no consideration, and was therefore void by the statute of frauds; because the bill of goods was barred by the statute of limitations; and because no notice of the non-payment by Randolph and Keethley of the bill of goods was ever given by the appellees to Kelly or his administrator.
    The Circuit Court rendered judgment in favor of the appellees for $>806 12, and Ringgold appealed.
    Fowler, for plaintiff in error:
    It is contended, in behalf of Ringgold, that the Circuit Court erred in sustaining the demurrer to his plea in abatement. Such plea was a proper mode of taking advantage of the facts that Newkirk and Olden were non-residents, and had filed no bond for costs, as required by the statute. See 1 Ark. 247, Means vs. Cromwell and Gulhrey, and case of Clark, vs. Gibson. 2 Ark. 109. The old statute, in relation to bonds for costs, which applies to this case, is broader than the present statute, which governed the case of Clark vs. Gibson, and that of Dillard vs. Noel, (2 Ark. 449,) and requires that non-resident plaintiffs shall, before they institute any suit “ in the courts of this Territory,” file a bond for costs — clearly meaning every court — not only circuit, but county and supreme. Vide, Steele and McCamp. Dig. 314, 315. Such plea ought, therefore, as it was formal in all parts, and good in substance, to have been sustained, and the suit abated thereon.
    How far Ringgold’s right to take advantage of such error, in this court, was waived by the entry on the record of said Circuit Court, &c., is respectfully submitted to this court, with the single suggestion, that as there was no pleading over, it was but a judgment nil dicit, and as such, the erroneous decision upon said plea may be reached and corrected by this court.
    But supposing that the plea in abatement has been passed too far to recal our steps, there is abundant cause for reversal set forth in the bill of exceptions, and expressly reserved for revision here.
    There was no allegation in the declaration, or any pretence of proof, that payment had been demanded of Randolph and Keethley, and ■notice of their failure given to said administrator or his intestate. It is a general and well settled principle of law, and a rule to which the case before the court cannot form an exception, that guarantors are only collaterally liable on the failure of the principal debtor to pay the debt, and that a demand of the principal, and notice of his failure to pay to the guarantor are indispensable. Bee 6 Pet. Cond. Rep. 627; 7 Cranch Rep. 69; 2 Pet. Cond. Rep.AYl\ 12 Wheat. Rep. 515.
    The cause of action is improperly stated in the declaration — and debt cannot be sustained upon such a collateral undertaking — assump-sit is the proper and only form of action. And for this reason the judgment should be reversed.
    Further, the County Court, in which the claim was originally filed, had no jurisdiction of the subject matter; the Court of Probate having jurisdiction thereof properly; and the County Court having no such powers of adjudicating granted by the Constitution and laws of the State. If the County Court had not jurisdiction, neither had the Circuit Court, by appeal: and should this court reverse the judgment of the Circuit Court, and direct the Circuit Court to dismiss the appeal for want of jurisdiction, acquired through the County Court, which clearly had none, it is respectfully asked of this court that a superse-deas be awarded to the said County Court, setting aside and vacating the original judgment.
    Pike, Contra:

    The points taken in the assignment of errors are:—
    That the declaration is insufficient;

      That the Circuit Court rendered judgment without jurisdiction— and when they could only reverse the judgment rendered by the County Court;
    That the claim had not been regularly filed and notice given according to law;
    That the form of action was misconceived — being debt instead of assumpsit;
    That the court erred in sustaining the demurrer to the plea in abatement;
    Error in admitting the writing in evidence;
    That there was no evidence of the partnership of the appellees;
    That there was no allegation or proof of demand made on Randolph and Keelhley, and refusal by them to pay, or of notice thereof to Kelly or Ringgold.
    We will take up these objections in the order of time to which they apply.
    First, then, it is alleged that the claim had not been regularly filed, and notice given according to law. To this we reply, that by section 62, of the administration law, under which the County Court acted, the party claiming the allowance was required, at least fifteen days before the sitting of the court, to file with the Clerk his claim, together with the nature and amount of the same; which claim, so filed, it is provided, should be a sufficient notice to the executor or administrator. Ter. Dig. 73. In the present case, the term of the County Court commenced on the first Monday in January, A. D. 1838: and on the 18th of November, 1837, a notice of the claim was filed in the shape of a declaration. It does 'not appear on the record whether the writing sued on was then filed or not, but as no objection was made on that ground in the County Court, it must be presumed that it was filed in time, or, if not, the objection was waived by the administrator. Moreover, he appeared in that court, and appealed to the Circuit Court, and therefore could not now have any advantage of the objection, even if it existed.

      Second: That the declaration is insufficient. By sec. 62 of the same law, Ter. Dig.,p. 73, the County Court was required to proceed to the trial upon all claims offered for allowance, in a summary manner without the forms of pleading. The paper treated by the appellant here as a declaration, was in fact only a notice, of the nature and amount of the claim, and is every way sufficient in that view. It describes the instrument on which the liability depended, and nothing more was necessary. But if insufficient, the appearance in both courts waived all objection to it.

      Third-. That the plaintiffs misconceived their action. No form of action is used in the County Court. No such actions as debt or as-sumpsit are used there: and the statement in the notice as to the demand of a debt is mere surplusage, and cannot vitiate. How could the County Court determine such a point, if it had been raised there? No demurrer to the notice could be filed; and all that court could do, was simply to look to the evidence, and see if it warranted an allowance. And the remarks of this court in Jeffery vs. Underwood, 1 Ark. 119, apply as forcibly here as in that case. It is there said, that because an action befoe a justice is styled in the summons an action of debt, docs not make it so. “ There is no law,” said this court, “ requiring the species of action to be stated, in the summons. It is in every point of view immaterial; and being inserted, must be regarded as surplusage. The ground of action must be described, but the species of action need not be stated.”

      Fourth: That the Circuit Court rendered judgment without jurisdiction; and when they could only reverse the judgment rendered in the County Court. By see. 34 of the administration law, Ter. Dig. p. 63, upon an appeal from the Court of Probate to the Superior Court, the appellate court was required to “ proceed in that case on the merits, as though no trial had ever taken place in said cause; and to give such judgment or decree, as the court below ought to have done.” And by sec. 7 of the law concerning County Courts, Ter. Dig. p. 160, the Circuit Court was to proceed “to try the same,” and to enter up judgment on appeal. If judgment was against the appellant, it was for costs — if against the administrator, &c., the proceedings were to be remanded to the County Court, and there held as a voucher. The constitution left these laws in force; and if the general superintending control given the Circuit Court over the County Court and Justices of the Peace, merely authorized the superseding and re-reversing of judgments of the County Court, and look away the power of trying cases on appeal from the County Court de novo, then it had the same effect as to appeals from Justices of the Peace: a position, we believe, never yet assumed. The act of November 7,1836, (see Pamph. Acts 197,) allowed an appeal from the Probate to the Circuit Court, “ according to the existing laws regulating appeals from the County Courts.” And by sec. 3, of the act prescribing the powers of the Circuit Court, approved the same day, (Pamph. Acts, 181,) the Circuit Court was vested with cognizance and legal jurisdiction, of all actions and pleas, &c., and all suits and demands relative to estates, &c., whether brought before said court by original or mesne process, or by certiorari, or appeal from any inferior court; to give judgment and award execution, and have the same power to do so, as belonged to the Territorial Circuit Courts. And these laws were fully in force when this case was determined.

      Fifth: That the Circuit Court erred in overruling the plea in abatement. What was that plea? It was that the plaintiffs were non-residents, and that the said plaintiffs have not, according to the form of the statute in such case made and provided, filed or caused to be filed, with the clerk, bond with security for costs. The plea, even if the matter could have been pleaded, is utterly wanting in that certainty required in every plea in abatement. It avers that “ no bond has been filed with the clerk." With What clerk ? If the court were to give the allegation any meaning, the plea would amount to this: that the plaintiffs had filed no bond for costs in the Circuit Court — a kind of negative pregnant, from which to infer that they had filed one in the Probate Court. And this defect alone was. fatal on demurrer, because defects, even in form, will vitiate a plea in abatement; and this is a defect in substance. Moreover, the plea commences in bar, and this is another defect.
    But the plea in abatement came too late. The defendant had already entered a general appearance, and moved to dismiss the suit; and after doing so could not plead in abatement. Nor do we believe that he could take the objection in the Circuit Court, on an appeal, after omitting to make it in the Probate Court. He waived it in that court by going to trial — for, as the court decided in Means vs. Crom

      well, 1 Ark. 247, it was matter in abatement merely; and after going to trial he could not have advantage of it, any more than of any other matter in abatement not arising puls darrein continuance.

      Sixth: That there was no proof of the partnership of the plaintiffs. No such proof is necessary, where the firm name contains the names of all the partners. It is only necessary where a person sues as plaintiff who is not named in the firm, as where the firm is A., B., and Co., and A., B., and C. sue. 1 Saund. Ph and Ev. 288, 289; Waters vs. Paynter, cited Chit. B. 389. The rule is perfectly well settled, that where the contract is expressly made with one of the members of the firm, no joint interest need be proved. Collyer 405; Evans vs. Mann, Cowp. 369; Ord vs. Portal, 3 Camp. 239; Smith vs. Hunt, 2 Stewart, 222. Here the contract is made with Newkirk and Olden, and they are the only persons who sue.

      Seventh: That the writing sued on should not have been admitted in evidence: and that there was no proof of demand on Randolph and Keethley, and of their refusal to pay, and of notice thereof to Kelly and Ringgold. The objection to the writing was that it showed no consideration: and that the bill of goods to Randolph and Keethly was barred by the statute of limitations.
    The last objection presents not the slightest difficulty. For, first, Newkirk and Olden were beyond seas, i. e., beyond the State, as the appellant himself shows upon the record, and therefore not barred. Second: the account between Randolph and Keethley, and New-kirk and Olden concerned the trade of merchadize between merchant and merchant; and therefore there was no bar. Third, the writing was executed March 6, 1833, and suit was brought in the Probate Court in Nov., 1837, and therefore five years had not elapsed. And lastly, it would not have followed, even if the bill had been barred, that therefore the writing was.
    As to the consideration: there is no case which gives any color to this objection, except Wain vs. Walters, 5 East 10; where the guan-antee was, “ Messrs. Wain & Co., I will engage to pay you by half past four this day, fifty-six pounds and expenses, on bill that amount on Hall:” where the Court of King’s Bench held the guarantee void, because no consideration was expressed in it. But in Slapp or Sladt

      vs. Lili, 1 Camp. 242, and 9 East 348, where the guaranty was, “ I guarantee the payment of any goods which J. Stadt delivers to J. Nichols;” Lord Ellexbouough said, that by the guarantee there appeared a sufficient consideration for the defendant’s promise to be answerable, if any goods should be delivered. In eco parte Minet, 14 Ves. 191), Lord Eldoií expressed the strongest disapprobation of Wain vs. Walters, and said that there was a variety of cases contradicting it; for the undertaking of one man for the debt of another, does not require a consideration moving between them: and in ex parte Gardom, which came before him soon after, where the guarantee was, “ whatever cotton twist you may dispose of to Mr. Thomas Tapp, we agree aud engage to guarantee the payment of the same,” 15 Ves. 287, 288, he said it was an agreement within the meaning of the statute, to pay for the debt of another person. Taking these cases together, the difference seems to be, that in Wain vs. Walters, nothing is stated on the face of the guarantee, but an absolute promise to pay, subject to no contingency, and not shown to be founded on any consideration, either of benefit to the party promising, or of loss to the party to whom the promise is made. The other cases are cases of conditional gnarantee, and founded on a sufficient consideration.
    It is true, that where it appears distinctly on the face of the guarantee, that the goods have already been sold, the price of which is guaranteed, the guarantee is without consideration; as where the guarantee was, “ I guarantee all Mr. Anderson has bought of yon to Tuesday last,” Lyon vs. Lamb, quoted in Long on Sales, Rand’s Ed. 51.
    Where the guarantee was, “ I herewith hand you drafts, drawn by Mr. Wallis, and accepted by Mr. Bromley, and endorsed by R. Burns; and should the bills not be honored when due, I promise to see that they do so;” the guarantee was held sufficient. Morris vs. Stacey, Holt, N. P. C. 153; so a guarantee for “arrears now due,” was held void, in Wood vs. Benson, in the Exchequer Chamber, in 1831, by Lord. Lyndhurst. And see Morley vs. Boothby, 10 J. B. Moore, 395; S. C. 3 Bing. 107.
    But wherever you can, by reasonable construction, collect from the guarantee the consideration, it is sufficient. Per Tindal, Chief Justice, in Newbury vs. Armstrong, 4 Car. and Payne N. P. C. 59; S. C. 1 Mood. and Malk. N. P. C. 589: and he said that the cases of Wain vs. Walters, and Saunders vs. Wakefield, had been carried to the extreme verge of the law. Theobald on Pr. and Surety, 16.
    In the present case it does not appear on the face of the guarantee that the goods sold to Randolph and Keethly had been either purchased by or delivered to them when the guarantee was executed; and the instrument may as well be construed to read “bill of this date for goods to be purchased;” as “ bill of this date for goods already purchased.” At all events, the presumption.is, the date of the bill and the guarantee being the same, that when the guarantee was given, the goods had not been delivered: and if by any reasonable construction the court can infer that the goods were either sold or delivered upon the credit and guarantee of Montgomery, Kelly & Co., the guarantee is sufficient. That the guarantee is sufficient, if the goods were delivered after it was given, see Clark vs. Burdett, 2 Hall 198.
    And the case last cited contains a conclusive answer to the objection that no demand of payment was made on R. and K., nor any notice of their refusal given to Montgomery, Kelly or Ringgold. The court there said that they did not understand “ that such a demand and notice are necessary to be proved, as conditions precedent to the plaintiff’s right of action. The guarantee of the defendant is not a conditional, but an original undertaking, collateral to the promise of the vendee of the goods; and the defendant cannot set up as a de-fence any negligence of the plaintiffs, in calling upon the vendee for payment, unless, at least, he can show, that such negligence has been the cause of injury to him.” And this doctrine is amply sustained by the case of Duval vs. Trask, 12 Mass. 156, and People vs. Jansen, 7 J. R. 339.
    Furthermore, we would submit to the court, whether, if the writing here sued on was valid and sufficient by the laws of Louisiana, where it was made, to charge the person or persons making it, and by that law imported a consideration every way sufficient, it can, by the courts of this country be declared void, because it does not express the consideration in the manner required by own local statute? Does not, in this respect, the lex loci contractus govern, and is not a contract, valid in the State where it is made, valid every where?
    Guarantors, by our law, answer to the conventional sureties of the French law, who are said to be such as intervene by the agreement of the parties in the different contracts, as in contracts of loan, of sale, of letting, and the like; for instance, if a person borrows money, and has a surety who obliges himself to the lender to restore the loan; or buys something, or takes a lease, and has a surely who obliges himself for the payment of the price or rent. 1 Evans' Poihier on Obi. 386. By that law a person may engage himself as surety lor any debt- or whatever, id. 393 — for any obligation whatever — id. 395; and the engagement may be made, by’a simple agreement, either by an act before notaries, or under private signature, or even verbally; but if the object is'more than a hundred livres, testimonial proof of a verbal signature is not admitted. Id. 400. And it is of no consequence whether the engagement of a surety be contracted at the same time as the principal obligation, or at a different time before or after. Id. 403.
    So in the Civil Code of Louisiana, suretyship is defined to be u an accessary promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not.” Code, Art. 3004. And there is no provision in that code, either that the collateral agreement or guarantee shall be reduced to writing, or that if reduced to writing it shall express a consideration.
    An action, therefore, on this guarantee could be supported in Louisiana, the locus contractus. Is it not sufficient, therefore, in the courts of this State? Maevius says that the lex loci contractus is to govern, first, as to the solemnities of the act or contract; and secondly, as to the effects caused thereby. Story, Conf. of Laws 196. Burgun-dus says, that in every thing which regards the form of contracts, and the perfecting of them, the law of the place where .the contract is entered into is to be followed: that as to the reducing of the contract to writing, the solemnities and ceremonies, and generally, as to every thing which belong to the formation and perfecting of it, the custom of the place where it is made is to govern. Ib. Herlius lays down the same rule, that when the law imposes any form upon the business (actus) the law of the place where it is transacted is to govern. Id. 198. Huberus lays down the doctrine as follows— that “ all business and transactions, in court and out of court, whether testamentary or inter vivos, regularly executed according to the law of the place, are valid every where, even in countries where a different law prevails, and where, if transacted, they would have been invalid, lb. Boullenois lays down, among others, the following rules: First: The law of the place where the contract is entered into, is to govern as to every thing which concerns the proof and authenticity of the contract, and the faith which is due to it, that is to say, in all things which regard its solemnities or formalities. Secondly: The law of the place of the contract is generally to govern in every thing which forms the obligation of the contract, (le lien du contrail) or what is called vinculum obligationis. Thirdly: The law of the place of the contract is to govern as to the intrinsic and substantial form of the contract. Ninthly: These rules are to govern equally, whether the contestation be in a foreign tribunal, or in the domestic tribunal proper for the controversy. Id. 199, 200. And Story, upon these and other authorities equally stringent, lays down the rule to be, that, u generally speaking, the validity of a contract is to be the law of the place where it is made, if valid there, it is, by the general law of nations, jure gentium, held valid every where, by tacit or implied consent. Id. 201. And in another place he settles the precise point here in question: where he says: “ Thus by the English and American law, contracts falling within the purview of what is called the Statute of Frauds, are required to be in writing; such are contracts respecting the sale of lands, contracts for the debts of third persons, and contracts for the sale of goods beyond a certain value. If such contracts, made by parol, (per verba) are sought to be enforced elsewhere, they will be held void, exactly as they are held in the place where they are made. And so the like rule applies, vice versa, where parol contracts are good by the law of the place; but would be void, if originally made in another place, where they are sought to be enforced, for want of certain solemnities, or for want of being in writing. Story 219. And see Alves vs: Hodgson, 7 T. R. 241; Clegg vs. Levy,
      3 Camp. 166/ Vidal vs. Thompson, 11 Martin 23/ Story on Conf. of Laws, 526.
    It is not to be doubted that the law is as here stated; and it results, as of course, that the instrument of guarantee, sued on, being sufficient by the law of Louisiana to charge the appellant, it is sufficient here, although it does not comply with the local statute of frauds— and this being established, the whole case is determined: for the other objections are perfectly futile and unsubstantial.
    We may remark in conclusion, that the appellant asserts that the Circuit Court acted without jurisdiction. That may be. The case of Goings vs. Mills, 1 Ark. 11, determines, if we are not mistaken, that the mandamus irregularly issued — that the proceedings in the Circuit Court were unauthorized and void, and that the cause should there have been stricken from the docket, and the papers remanded to the Probate Court, the duty of which court would then have been to proceed upon the judgment as if no appeal had been allowed. We have no objection to this case being thus disposed of; inasmuch as our judgment there was for two or three hundred dollars more than was adjudged to us by the Circuit Court.
   Lacy, Judge,

delivered the opinion of the court:

In inspecting the record in this case we find some difficulty in determining in what court the suit was originally commenced. There are several entries denominating the court as the County Court of Independence, and others showing it was the Probate Court of that county. It is clear that the first tribunal had no jurisdiction in the' premises, and it is equally manifest that the latter had. Taking the entries, however, separately and connectedly together, we think the record shows that the proceedings were had before the Probate Court. The writ of mandamus sued out was directed to the Judge of the Probate Court, and the judgment or allowance was entered up before the Probate Court.

The only question to be decided is, as to the effect of the guarantee. It is contended on the part of the appellant, First, that it is void, because it does not show any consideration, as required by the statute of frauds; and secondly, that there was no proof of a demand on Randolph and Keefhley, of their refusal to paj, and of notice to the appellant. If the first question turned upon the principles of the common law, it might be somewhat questionable whether the guarantee contained sufficient consideration. But this is a guarantee executed in the city of New Orleans, and of course the civil law, the lex loci, fixes the appellant’s liability. This frees the case from all difficulty; for the civil law is express upon the point, and holds the guarantee to be good without proof of consideration. It goes upon the principle, that he who undertakes for another, shall be bound by his agreement; and that he cannot exonerate himself from his contract, by alleging that he received no consideration for its execution. According to the civil law the party who enters into an agreement voluntarily is bound by his stipulation, and he who accepted the guarantee looks to it for the ultimate fulfilment of the original undertaking. According to the Louisiana Code “ suretyship is an accessary promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the. debtor does not.” Louisiana Code, Art. 3004; Herries vs. Canfield, 9 Martin 385; Woods' Civil Law 227. Pothier says, “suretyship is a contract, by which a person obliges himself on behalf of a debtor to a creditor for the payment of the whole, or a part of what is due from such debtor, by way of accession to his obligation. The contract which intervenes between the security and the creditor is not an agreement of beneficence, for the creditor, by this contract, receives nothing more than is due him. He only procures a security for what is due him, without which he would not have contracted with the original debtor.” Pothier on Obl., part 2, ch. 6, p. 365.

The obligation of the security towards the creditor is to pay him in case the debtor should not satisfy the debt, and the property of such debtor is to be previously discussed or seized, unless the security should previously have renounced the plea of discussion, or be bound in solido jointly with the debtor, in which case the effects of his engagement are to be regulated by the same principles which have been established for debtors in solido.” 11 L. R. 211, Union Bank vs. Forstall; 2 Greenleaf 341; 4 Greenleaf 72; 17 Serg. and Rawle 354; 8 Cow. 168. It is a stipulation to pay in case the original debtor does not, and it is an auxiliary obligation. The right which the security would have of referring the creditor to the discussion of the principal debtor, is a right in equity as well as in strict justice. The creditor ought not to be allowed to enforce the payment of the security without notice of the non-payment of the principal debtor. A debt should be paid rather by those who are the real debtors, and who have profited by the contract, than by those who are debtors for others; a security, or guarantee, being but an engagement collateral .to, and arising out of the original obligation. Poth. on Obl. 236, and 269; 12 East 227; 1 Domat C. L. 205; 1 Cranch 181; 3 Cranch 311; 1 Cond. R. 366; 1 Mason 368. In Douglass, and others, vs. Reynolds, and others, Peters 127, Judge Story uses this language: “ By the very terms of this guarantee, as well as by the general principles of law, the guarantors are only collaterally liable, upon the failure of the principal debtor, to pay the debt. A demand upon him, and failure on his part to perform his engagements, are indispensable to constitute a casus fcederisP The creditor is not bound to in- fj stilute any legal proceedings against the debtor, but he is required tof| use reasonable diligence to make demand, and to give notice of the || non-payment. The guarantors are not to be held to any length oftt/ indulgence of credit which the creditors may choose; but have a right to insist that the risk of their responsibility shall be fixed and terminated within a reasonable time after the debt has become due. The objection taken by the defendant below to the want of notice of non-payment by Randolph and Keethley, upon the bill for which Montgomery, Kelly & Co., became the guarantors, is, in our opinion fatal. The judgment of the Circuit Court must be reversed.