text:
    Noel against Clark.
    Erk'or to Pulaski Circuit Court.

    Where, in the declaration, the statement of the sum promised to be paid by the note sued on, is illegible, as where a word in the amount of the sum may be read Jive, or four, or fine, a demurrer should be sustained.
    But if the defendant craves oyer of the note, and puts it on the record, and the note itself is legible, and the declaration may be so read as to agree with it, the defect is cured. That which before was uncertain, is rendered certain.
    This was debt on a nóte. In the transcript sent up, the Clerk had attempted a fac simile of one of the words used in the declaration in stating the amount of the note, so that, from the transcript of the declaration alone, the note appeared to be for some hundreds of dollars, bat for how many, it was impossible to say. The transcript then stated that the defendant craved oyer, which was granted by filing the original, and the defendant then demurred, in short on the record. This being joined in, was overruled, and judgment was entered on the demurrer. The note was not made a part of the record by being incorporated in any pleading; but a copy of it was inserted in the transcript, by which it appeared to 'be for four hundred and thirty dollars and twenty-six cents.
    Hempstead and Johnson, for the plaintiff:
    There is but one error in the record, and that is, that the Court overruled the demurrer to the declaration. After oyer was granted by filing the original note sued on, the note became a part of the declaration or petition. Dough., 476. The declaration or petition describes it as payable to the defendants in error; but the sum to be paid cannot be ascertained from the declaration or petition, not because it is ambiguous in the note itself, but because, in the declaration, the word to describe the sum may be fine, or five, more likely than four, the word intended to be used by the pleader. It is doubtless a slip in pleading, but still not the less fatal. In the note, the sum payable is plainly four hundred and thirty dollars and twenty-six cents. Not so in the declaration or petition.
    Here, then, there was a variance, for which the demurrer should have been sustained. The Court could not judicially know that it was the same note declared on: indeed, the legal presumption was, that, it was not, inasmuch as all pleas are to be construed most strongly against the party pleading.
    Unquestionably, in cases of contract, the allegations of sums, magnitude, and duration, are in their very nature essential to the identity of the contract; from whence it follows that they are descriptive, and must be proved as laid, unless the mode of averment show that the party did not profess to make a precise statement.'
    A scilicet can give no latitude, where certainty and precision are recquired, or make a thing material which is not so in itself.
    This is not a mere technical objection, but one of great importance, involving principles that are vital to jurisprudence.
    In the declaration, as far as the statement of the sum in the promissory note is concerned, it might as well be a blank;, because no one could tell, upon the closest examination, whether the word intended to describe a sum of money, is fine, which would be nonsense, or five, which it might be, or four, which, by a very violent intendment, it might be also. In fact, it might almost stand for any thing, and this, it is apprehended, is not the kind of certainty that is required in pleading.
    It must not be forgotten that a declaration ought to show, plainly, and certainly, all the circumstances material for the maintenance of the action; since, if there are two intendments, it shall be taken most strongly against the plaintiff. PI. Com., 202, b. This is the general and inflexible principle in all pleading; a principle founded in reason and wisdom — on the known fact that he who asks redress is capable of stating minutely the facts which will entitle him to that redress.
    As to variances, vide 1 Stark. Ev., title Variance; 7 Taunt., 399; 2 Camp., 270; 5 Taunt., 314; 12 Common Law Rep., 239; 5 Taunt., 707; 6 T. R., 771; 1 Strange, 201.
    Trapnam, and Cocke, Contra:

      This was an action of debt. The defendant demurred in short upon the record to the declaration, which was overruled by the Court, and judgment given for the plaintiff below. It does not appear from the transcript of the record before the Court, what was the objection taken to the declaration upon demurrer. From the plaintiff’s brief, it appears that the ground of objection to the declaration was a supposed variance between the sum stated in the declaration and the sum contained in the note declared upon; that in the latter, the sum stated is four hundred, while in the former, “ the closest examination could not tell whether the word intended to describe the sum of money mentioned in the note, is fine, or five, or four,” which, he admits, “ by a violent intendment, it might be.” We submit to the Court, that this is a question which could not be tried by a transcript. It would be necessary to have the original declaration, that the Court might inspect the writing itself, before they could determine whether the one or the other of those words was used. The fact that the Circuit Court, by whom the original writing was inspected, overruled the demurrer, proves there was no variance.
    . By the Revised Code, title Practice at Law, sec. 60, the parly demurring is required to express specially in his demurrer the defect or imperfection in the adverse pleading upon which he means to insist. And the Gist section makes it the absolute duty of the Court to amend all “ defects or imperfections, other than those which the party demurring shall express in his, demurrer.” The plaintiff in this case jiaving filed a general demurrer, it was the duty of the Court to overrule it, and amend the declaration, if it was >in any respect defective or imperfect.
    But even if we are mistaken in this view of the subject, we insist that the plaintiff has not prepared his case in the Circuit Court, so as to present upon the record the question which he has discussed in his brief. The note copied into the transcript has been improperly placed there by the Clerk. By the prayer and grant of oyer, the note does not become a part of the record. It was obligatory upon the plaintiff, if he wished to take advantage of any thing contained in the note, upon oyer being granted, to set it out in his demurrer. Then, and not till then, would it become a part of the record. This principle is learnedly discussed and conclusively settled in the case of Rufus Easton, for the use of William Russell, vs. John Jones, quoted at length in a note to the case of John Polk, Assignee of the Farmers’ and Mechanics' Bank, vs. Theodore Mitchell, Adm'r, 1 Harrington Rep., 433.
   Dickinson, J.,

delivered the opinion of the court:

The defendant in error, in his petition, states the note sued on so defectively, as to the sum demanded, that a demurrer would doubtless have been sustained for illegibility, had not the plaintiff in error, by craving oyer of the note, and placing it upon the record, made it a part of the previous pleading, and thereby cured this defect, which would otherwise have been fatal.

The note given upon oyer, clearly shows the amount of the indebtedness to be four hundred and thirty dollars and twenty-six cents.

The demurrer admits all the facts as set out in the pleadings, and being filed after oyer craved and granted, and the original note copied in the record, rendered that certain which was before uncertain.

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


source: Caselaw Access Project

author: Lacy, J.,

license: Public Domain

text:
    Gay against Hanger & Winston.
    Eeror to Chicot Circuit Court.

    Where the record states that at May Term, 1839, the parties appeared by their attorneys, and, on motion of the plaintiff, the plea of non-assumpsit, which had been lost, was reinstated on the rolls; and that, at November Term, 1839, the plaintiffs appeared by attorney, and leave was given the defendant, by consent of the plaintiffs, to withdraw his pleas, these entries show such an appearance of the defendant, that he can afterwards have no advantage of a defective writ or a defective service.
    Though no steps were taken in a cause, from May Term, 1838, to May Term, 1839, it was not thereby discontinued; and the defendant waived his objection, if there was any, by permitting his plea to be reinstated at the latter term.
    In an action by the assignee of a noto against the maker, if the declaration contains the usual averment, that, before the payment of the note, it was assigned, the payment to the assignor needs be no further negatived, in the breach at the conclusion or elsewhere.
    This was an action of assumpsit, commenced in Chicot Circuit Court, at May Term, 1838. The declaration, founded on a note endorsed to Hanger <fe Winston, was technically correct, stating the note to have been assigned before any part of it was paid, but not otherwise negativing the payment to the assignor, and the writ in due form. Upon the writ, Gay endorsed an acknowledgment of service. The first entry on the record is of May Term, 1839. It states that the parties appeared by attorneys, and that, on motion of the plaintiffs, and it appearing to the satisfaction of the Court that the pleadings which had been filed in the case were lost or mislaid, the plea of non-assumpsit, formerly filed, was reinstated, and the case continued and reinstated on the docket.
    At November Term, 1839, the record states that the plaintiffs appeared by attorney, and leaye was given the defendant, by consent of the plaintiffs, to withdraw his pleas theretofore filed. He being then called, judgment was entered, by default, for the amount of the note, as damages, with legal interest from January 1, 1838, when it fell due, until paid.
    W. and E. Cummins, for the plaintiff:
    The plaintiff in error, in the first place, contends, that the declaration of the plaintiffs below is wholly defective and insufficient, in not averring a sufficient breach. The declaration states the note to be payable on or before the first day of January, 1838, clearly giving the defendant below a right to pay the note to the payee, at any time after the date of the note; and a payment made at any day after the date of the note, would have been a good bar to any action brought on the note subsequently. But it would have made no difference, if the note had not been payable on or before a particular day. By the statute in force, when the note was executed, any payment made after the date of the note, at any lime, would have been a good bar to a subsequent action on the note, into whose hands' soever the note might afterwards come. It would have been a legal payment of the note, and would have released the maker absolutely from all further liability upon the note. See Steele & McCampbell’s Digest, pages 74, 75, title “Assignment,” which, we apprehend, was the law in force at the time the above note was executed. See also the opinion of this Court, in the case of Small vs. Strong, 2 Ark. Rep., 201, in which this Court seems to put the construction upon the above statute which we contend for. The statute above referred to contains the following proviso: “ Nothing in this section shall be so construed as to change the nature of any defence in law that any defendant may have-against the assignee or the original assignor.” We apprehend that this statute intended to give the maker of any assigned instrument, the right to set up, by proper pleas against the assignee, any accord and satisfaction, payment, or any arrangement for the settlement or discharge of the instrument, made previous to the assignment. The present case, however, does not require any such construction of the statute. The plaintifís themselves show that the defendant below had a right to pay the note at any day after its date; and any payment or other settlement made of the note, would have barred the assignee’s action.
    The object of the above statute seems to have been, to do away with the rules of the law-merchant, which enables an innocent en-dorsee, who receives a note before due, to recover of the maker at all events. We presume an endorsee suing the maker on such endorsement, would make out a prima facie cause of action, (which the plaintiff is always bound to do in his declaration), by averring that the note came to his hands before it was due. But is not the rule very different, where the party himself shows, in his declaration, that the defendant had a right to pay the note at any time after date, and the payee had a legal right to receive such payment? or, where the law itself gives the same rights to the parties? is not a party always presumed to have performed his contract, until the contrary is averred?
    The breach in the present case merely alleges that the defendant below did not pay the money to the plaintiffs below, nor either of them, without ever alluding to the assignor of the note, or staling that the note had not been paid to him before the assignment. We apprehend that this assignment of a breach is wholly defective.

      Chilly on Pleading.page 325, says: “ The breach of the contract, being essential to the cause of action, must in all cases be stated in the declaration.” Taking the above breach to be true, to its fullest extent, does it show that the defendant below ever did violate his contract? It certainly does not; for any thing that appears, he may have fulfilled his contract, by paying the assignor before the endorsement of the note, which was all he ever contracted to do.
    On the page above referred to, Chilly goes on to say, that “ The breach must obviously be governed by the nature of the stipulation. It should be assigned in the zuords of the contract, either negatively or affirmatively, or in zuords zuhich are co-extensive zuilh the import and effect of it.” Does the above breach comply with the above rule? Most certainly not. The above rule is also laid in 1st Tidd’s Pr., 390. See also 1st Saun. Pl. and Ev., 163, where it is said, “The breach must be assigned in terms co-extcnsive with the contract, and not be too narrow. Thus, in an action by the assignee, heir, or executor, the breach should be, that the defendant did not perform ike act to the original contractor or the plaintiff; and so if it be against an assignee, &c.” The above is directly in point in the present case. Here the assignees sue, and their breach makes no allegation of non-payment to^the assignor. At page 326, (1 Ch. Pl.) Chitty says, “But if the action be by or against an assignee, heir, or executor, the breach should then be in the disjunctive.”
    The above authorities seem to us conclusive as to the insufficiency of the breach in the declaration in this cause.
    In the next place, the plaintiff in error contends that the proceedings of the Court below, at the May Term, 1839, are wholly erroneous. From the May Term, 1838, or rather from the filing of the declaration, and issuing the writ, no one step has been taken in the cause up to the May Term, 1S39. Suppose the writ had been regularly served on the defendant below, in due time, before the May Term, 1838, could the Court below, after a lapse of two terms, without any steps whatever taken in the cause, or any mention made of the cause for that time, upon the records of the Court, or any appearance of either party, legally take jurisdiction of the case, or consider the cause in Court? We conceive, even if there had been legal service of the writ, the party could only be required to appear according to the exigency oft he writ; and if the plaintiff failed, at lire return term of the writ, to prosecute his suit, he would unquestionably lose the benefit of his service, and would be under the necessity of instituting a new proceeding. In this case, however, there is no service whatever which can be recognized by this Court. If, then, we are right in the above view of the matter, at the May Term, 1839, the Court below had no jurisdiction whatever over the cause, and could not legally notice or take any steps in the cause, unless the defendant expressly waived the necessity of process or service, and appeared to the action. The record states, that “ the parties came by their attorneys.” There is confessedly no cause in Court. The defendant does no act whatever; but the plaintiffs, on mere motion, without notice to the defendant, and without his consent, reinstate the cause in Court, and reinstate upon the record the plea of non-assumpsit, which-the entry stales had been lost. The defendant made no waiver of his .rights by his appearance, (if the Court can consider the statement that “ the parlies came by their attorneys,” amounts to an appearance;) for there was nothing to appear to; and his merely being in Court, could not give the Court jurisdiction over him, in a cause of which he was wholly ignorant. He does not appear to the action, nor does he do any one act. The plaintiffs below reinstate the cause, and pleas of the defendant, on the record, without the concurrence of the defendant. We apprehend that under the decisions of this Court, in several cases from Chicot county, recently determined, the above proceedings are wholly erroneous. In the case of Smith vs. Dudley, 2 Ark. Rep., 60, this Court decide that a record cannot be proved but by the record itself, ór by a duly certified transcript; and that where an inferior Court undertakes to reinstate- a record, the mode of proving the record before the Court must appear, or this Court will not presunae that it was correctly-proved. In this case, the plaintiffs below reinstate upon the record, not their cause only, but also a plea of the defendant, which was (if there ever had been one,) a part of the record, and could not be reinstated, without first proving, in the mode pointed out in the above decision, its previous existence. In the case of Webb vs. Hanger & Winston, 2 Ark. Rep., 126, this Court say, “It is a settled principle, that unless it appears affirmatively upon the record that the defendant was regularly brought into Court, in accordance with the statutory provisions regulating the mode of bringing actions, or that he consented to proceed without process or notice, the Court could not exercise any jurisdiction over the subject matter.” The above language is very broad, and directly applicable to this case. The defendant below, in this case, made no waiver of either process or notice, and never consented to any proceeding of the plaintiffs below.- This Court also lay down the same rule in the case of Clark vs. Grayson, 2 Ark. Rep. 149. The Court, therefore, had no right to reinstate this cause, nor to reinstate the plea of the defendant upon the record, without notice to the defendant, or a waiver of notice by him, unequivocally made; and its doing so is clearly erroneous, and cannot be binding upon the defendant below.
    At the fall term of the Court, in 1839, the defendant below did not appear at all. The plaintiffs below very kindly consented, however, that the defendant below might withdraw his pleas previously filed. As no pleas of any kind are copied into the transcript, there are no means.of knowing what pleas the above entry alluded to. We presume it alludes only to the plea of non-assumpsit, which the plaintiff had reinstated upon the record at the previous term, as there is no mention made of any other plea previous to the above entry in the record. The record does not show that the pleas mentioned were withdrawn, or what disposition was made of them. Immediately after the entry of consent of plaintiffs to defendant to withdraw the pleas, the Court give judgment by default against the defendant. This judgment is wholly erroneous.
    In the first place, the record shows that there were pleas upon the files of the Court; and although the plaintiffs consent to their being withdrawn, yet there is no statement showing that they were withdrawn; and, in all probability, the plaintiffs were themselves guilty of laches in not taking issue on those pleas; and the defendant may not have been under any obligation, even supposing him to be in Court, to take any further steps in the cause until the plaintiffs had responded to the pleas filed. The question is, whether, while those pleas were standing upon the record, undisposed of, the plaintiffs below had any right to judgment by nil dicit, or default? The plea oí non assumpsit, which seems to have been one of the pleas on the record, must have concluded to the country, and left nothing wanting to a complete issue, but the similiter of the plaintiffs. In the case of Wooster vs. Clark, 2 Ark. Rep., 101, the Court decide that where a defendant failed to file a similiter to a replication, concluding to the country, and thus refused to make up an issue, the plaintiff had no right to a judgment by nil dicit. This is a much stronger case than the one just cited. Here the defendant had done every thing which he was bound to do, to make up an issue; and if no issue was formed, it was the fault of the plaintiffs, and by their neglect they could not deprive the defendant of his right to have a trial upon the plea. The Court further decided in the case last cited, that the plaintiff is bound to proceed to a trial of the issues upon the record, and cannot overlook them, and take judgment by nil dicit. This decision is conclusive in the present case. The plaintiffs below should have had a trial upon the pleas, before taking judgment.
    In the next place, the plaintiffs below had no right to a judgment by default, under any circumstances. There never had been any service of the writ in the cause, which the Court could recognize. In the case above cited, of Webb vs. Hanger & Winston, 2 Ark. Rep., 126, this Court say, that it must affirmatively appear upon the record that the defendant must have been regularly brought into Court, according to the provisions of the statutes regulating the mode of bringing actions, or that he consented to proceed without process or notice. Under this decision, the pretended acknowledgment of service of the writ could not be recognized bj the Court, unless the defendant had afterwards in Court appeared, and waived service. This the defendant did not do. The plaintiffs lost the benefit of the acknowledgment of service of the writ by defendant, by not proceeding in the suit for two terms after the writ, if it had ever been of any avail. There was then no service of any writ upon the defendant, which compelled him to appear at the time when judgment was given; and there being no obligation upon him to appear, there was not, nor could there be, any default in not appearing, nor could he lose any right by failing to appear. See Gilbreath vs. Kuykendall, 1 Ark. Rep., 50. The Court, in this decision, say, “ The defendant’s right to insist upon a valid writ, and a legal service thereof upon him, before he was bound to appear, or subject to the legal consequences of a default for not appearing, unless waived by himself, must be admitted. No such waiver, either in fact or in law, expressed or implied, is shown by the record, and none can be presumed.'1’’ In this case, there is no pretence of service of the writ, nor any waiver of defendant. By what right, then, could the plaintiffs below claim a judgment by default? Bat according to the statement of the record, defendant was not in default, for he had pleas on file, undisposed of. See Moore vs. Watkins and others, 1 Ark. Rep., 268.
    Pike, Contra:

    Although the -acknowledgment of service was invalid, the record shows a sufficient appearance of Gay. The record shows that he had before filed a plea; that the plea being reinstated, he came and moved for leave to withdraw it. Much less than this would compel this Court to consider that he had fully appeared.
    There is very high authority for the position, that a Court of general jurisdiction is not bound to show expressly on the record, that there was service of process, or an appearance; and that, if nothing of the kind appears on the record, it will be intended,-in a superior Court.
    Thus, in Peacock 'vs. Bell, 1 Saund., 73, which was error from a judgment in assumpsit of the Court of the county Palátine of Durham, whose jurisdiction was of such promises only as were made within the limits of the county, the declaration did not aver that the goods, on sale of which the promise was made, were sold within the county; and so it was alleged for error, that it did not appear but that the goods might have been sold in another place. It. was agreed that many judgments from inferior Courts were daily reversed for that cause. But the Judges first went on to show, that in respect to the Palatine Court, questions of jurisdiction stood on the same footing as they would on error from a superior Court. They then add, that the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court, but that which is expressly so alleged; and though the Court of the county Palatine is inferior to the Court of King’s Bench, yet that does not prove it to be an inferior Court, in the sense that it ought to certify every thing precisely; for the Common Bench is inferior to this Court, but yet it is an original and superior Court, of which the law itself takes notice, and so is the Court of the county Palatine; and, consequently, the omission in the declaration is no error, because it shall be intended that the contract was made within the jurisdiction, if it shall not appear to the contrary.
    True, this was a question of local jurisdiction, but that only makes it the stronger; for it is a case of much more difficult intendment than the regular service of process. And even the lowest Court is never required to show expressly that its process has been served, not even where it proceeds in a criminal matter.
    In Rex vs. Venables, 1 Sir., 630, which was a certiorari from a criminal conviction by justices, it was moved to quash it on the return, for want of showing a summons or appearance of the defendant. “Sed per curiam. We will not presume they acted unlawfully: a summons is certainly necessary; and the justice is punishable if he proceeds without. You never show notice to the parish that is to be charged in orders of removal.” In the same case, in 2 Ld. Raym., 1405, the Court said, that it not appearing by the order that there was no summons, they would intend the justices having jurisdiction, proceeded regularly.

    In Rex vs. Cleg., 1 Sir., 575, Eyre, J., said, “It not appearing this order was made in the absence of the party, I think we must take it to be a regular proceeding.” And so it was held in the case of The King vs. Peclcham, Carth. 406. The Court said, where a summons was necessary, they would presum'e there was one, unless the contrary appeared;/or all jurisdictions are presumed prima facie to act according to law.” Fortescue, J., said: “It is certain that natural justice requires that no man shall be condemned without notice; for which reason, I think the order will be gopd, because it does not appear to us that he had no notice. Are we to suppose the sessions have proceeded contrary■ to right and justice, and that, loo, in a case where they have undoubted jurisdiction? In the case of servants’ wages, the jurisdiction is given only in husbandry; and yet, orders have been held good where it did not appear the service was in husbandry; for the Court said they would intend it so, unless the contrary appeared.” Salk., 442. The Chief Justice at first doubted; but at the next term, it was moved and confirmed, without opposition.
    Mr. Nares remarks, that “ wherever a summons is necessary, the Court presumes one, unless the contrary appears; for all jurisdictions are presumed to act prima facie according to law.” Mares on Penal Conv., 10, cited 21 Wend., 47. Mr. Nolan remarks, “It is usual and proper to state that the defendant was summoned, and that he either appeared in consequence thereof, or neglected to do so. But it is not in strictness necessary that this should be averred on the face of the proceeding, as the Court will intend that it was, unless the contrary appear.” 2 Mol. Poor L., 269, cited 21 Wend., 48. See Com. vs. Moore, 3 Pick., 194.
    In Rex vs. Clayton, 3 East., 61, Lord Ellenborough said: “ The law has been settled by so strong a series of decisions, from the time of Lord Holt down to a very recent period, that every intendment shall be made in favor of an order of justices, that we must see whether, by any intendment that can be made, the present order can be supported.”
    In Brown vs. Wood, 17 Mass., 68, speaking of an objection to,the probate of a will, Jackson, J., said: “ Upon the common presumption in favor of every judicial tribunal acting within its jurisdiction, we must suppose that all persons concerned had due notice.”

      In Hart vs. Seivas, 21 Wend., 40, these authorities were all reviewed, and the Supreme Court of New-York held that it was not error, though neither service of process nor appearance was stated in the record of a Court of general jurisdiction. The Court said that they were asked to withhold from the Common Pleas of New-York, a Court of general jurisdiction, that favorable intendment, on a return to a writ of error, which Westminster Hall accords to the most humble and limited branches of the English Police. CowbN, J., said: t£ I do not understand it to be denied that the records of that Court are entitled to the same favorable interpretation with our own, nor that every in-tendment in favor of official, moral, and prudential accuracy, honesty, and care, is due to them, which would be applied to the Courts of Westminster Hall, or to this Court. Why, then, are we asked to withdraw from the Superior Courts the maxim which we extend even to all the graver transactions of private life — Omnia prcesumuntur legitime facia, donee probetur in contrarium? Co. Lilt., 232, b. Has history shown their general corruption, and stamped them with suspicion? That is not pretended. Is there any authority in this or any other Common Law Court, against such intendment? I have found none. None was cited by counsel on the argument; none has been found by either of my learned brethren; and I am therefore bold to say that none can be found. I inquired for an authority a full term and vacation since, and all research has been vain.” Again, he said, that the proper course for the defendant, if not properly served with process, was to move to set aside the proceedings for irregularity. “Why,” said he, “did the defendants below lie by, and bring error? If they had not been regularly served, did they doubt the Common Pleas would set aside the proceedings?” In Mellish vs. Richardson, 9 Bing., 125, all the Judges of England laid it down that the proper object of a writ of error is to remove the final judgment, with the premises, which are, “the pleadings between the parties; the proper continuance of the-writ and process; the finding of the jury upon an issue in fact, if any such has been joined; and, lastly, the judgment of the inferior Court.” They do not mention the writ, or any memorandum on the record of service of process, or appearance.

      Certainly-it is more consistent with justice, as well as more proper, considering what is due to the Circuit Courts, that a party, if he has not been regularly served with process, should first apply there for relief. It would be intolerable if any fomenter of suits should mouse about among the old records of this country, and bring up here for reveral every case in which the record failed to show regular service of process, or any appearance. Great injustice would be done to the Courts below, and the jurisdiction of this august tribunal grossly misused, contrary to the most obvious dictates of justice and equity. It is unnecessary to say, that it is not intended, by the slightest allusion., to insinuate that this writ of error has thus proceeded. But clearly such a course might be practised.. And while the party can have ample relief below, if he makes no application there, but lies by, and then comes here upon such grounds, every intendment which can legally be made in favor of the Court below, should be entertained. Cases brought up like this, show no error in law committed by the Court; and ask this Court to settle no question of interest or importance, but tend only to vex and disturb the Court with applications for redress, which should properly have been made to the original tribunal.
    In Foot & Beebe vs. Stephens, 17 Wend., 483, the Supreme Court of New-York first went on to declare the Courts of Common Pleas to be Courts of general jurisdiction. They said that the power of these Courts was, to hear, try, and determine, according to law, all actions local to the county in which they sat, and all transitory actions, wherever the cause might arise. They went on to discuss this matter at length, and showed, conclusively, that a Court, with the jurisdiction and powers of our Circuit Courts, was a Court of general jurisdiction. They then quoted and affirmed the rule laid down by Clinton, Senator, in Yates vs. Lansing, 9 J. R., 437, that “an inferior Court shall, when questioned, show that it acted within its jurisdiction; whereas, in Courts of general jurisdiction, it is presumed, until the contrary appear.” And the remarks of Savage, C. J., in Wheeler vs. Raymond, 8 Cowen, 314, that, with respect to Courts of general jurisdiction, averments of the facts on which the jurisdiction is founded, are unnecessary. So the declaration of Marcy, J., in Shumway vs. Stillman, 6 Wend., 453, that the judgment of such a Court, though a foreign one, is conclusive, unless it appears, by the record, that the defendant was not served with process, and did not appear in person, or by attorney, or these facts be shown by proof aliunde.

    So.the remark of Sutherland, J., in the same case, 'that “ every presumption is in favor of the jurisdiction of the Court.” The Court then, among other things, remarked: “It is unreasonable, and contrary to presumption; to suppose a judgment recorded by a Court in all its important forms, without the usual notice.” Parties, judges, and every participant, would become tresspassers, they say, by enforcing a judgment obtained without notice, and even an action would not lie upon it. And all this is based upon the presumption, that attorneys, and all concerned, have proceeded headlong to a judgment, without notice.
    Were it not for the very explicit declaration of this Court, that the writ is a part of the record brought'up on error, we should be much inclined to doubt that position. The case of Mellish vs. Richardson, expressly rejects any such conclusion; and it is sustained by cases on this side of the Atlantic. McFarland vs. Townsend, 17 Wend., 440, was a case where an action was commenced by a writ of nuisance, and a declaration afterwards filed in case. The defendant copied the writ into the demurrer book, and, among other grounds of demurrer, assigned a variance between the writ and the declaration. The Court held, that, since the practice has prevailed of not setting out the writ in the declaration, the only way in which the defendant could take advantage of a bad original, or a variance between the writ and Court, was by praying oyer, and setting out the writ. The defendant there had not done so: and the Court said, that nothing wasjudicially before them but a declaration, appearance, and demurrer. They further expressly declared, that, in no case could the defendant crave oyer of the writ, for the purpose of demurring, or pleading a variance in abatement: and, if oyer is demanded, the plaintiff may disregard it, and proceed to judgment. “The Courts,” said they, “have, for a long time, refused to grant oyer of the writ; and have, also, refused to set aside the proceedings on motion for a variance between the original and the declaration. If an attempt were made to reach the objection on a writ of error, by alleging diminution, and praying a certiorari to bring up the writ, the defect would be cured, after verdict, by the statute of amendments. In other cases, the writ of error would be defeated by allo.fving (he original to be amended, or permitting a new one to be filed. In short, there is no longer any form in which the defendant can taíce advantage of a variance between the original ¡writ and the declaration, except in cases where he has been arrested and held to bail.” See, also, Rogers vs. Rogers, 4 R., 485; Hole vs. Finch, 2 Wil., 393; 1 Saund., 318, n. 3; 1 Ch. Pl., 438-9; Stephen, 69, 421, 425; Ball vs. Bank of Utica, 6 Cowen, 70.
    But whatever may be the opinion as to the decision in New-York, we think it clear, as well as just, as laid down in the case first quoted, that, if the record virtually shows that the defendant appeared, and if the fact of appearance can, with no very violent effort of presumption, be intended upon the record, the judgment should be supported. If an imparlance, and a default, show an appearance, as was held in Hart vs. Seixas, certainly an application by the defendant for leave to withdraw pleas, which the record shows that he had filed, clearly proves that he has no right to complain here, that he had no opportunity to be heard. Taking the whole record here together, we do not see with what show of propriety the defendant below can allege that he had no knowledge of the proceeding below.
    The objection to the breach is invalid, and if good on demurrer, it was cured by pleading over.
    No objection was taken below to re-instating the plea. The case, itself, never was re-instated; nor does it appear ever to have been off the docket.
   Lacy, J.,

delivered the opinion of the Court:

At the May term, 1839, the record states, that the parties to this suit appeared, by. their attorneys, and, “on motion of the plaintiff, it appearing to the satisfaction of the Court, that the pleadings which had heretofore been filed in the case, had been lost or mislaid, thereupon the plea of non assumpsit was re-instated.” The case was then continued. At the November term, 1839, the record further shows, that the plaintiffs appeared, by attorney, and leave was given the defendant, by consent of the plaintiffs, to withdraw his pleas, and judgment was thereupon entered by default. These entries, unquestionably, prove a voluntary appearance on the part of the defendant, first, by filing his plea, and, afterwards, by withdrawing it. He can, therefore, take no advantage, either of a defective writ, or of a defective service. But it is said, that, as there were no steps taken in the cause from May term, 1838, to May term, 1839, the cause was, by operation of law, discontinued and out of Court. This position we deem not at all tenable. Upon the plaintiff’s motion, at the May term, 1839, the defendant’s plea, before put in, which had been either lost or mislaid, was re-instated by the Court, upon the rolls. To this re-instatement the defendant did not object. His failure to do so precludes him from excepting to the opinion of the Court below, upon this point. Leave was afterwards granted him, by consent of the plaintiffs, to withdraw his plea.

The only remaining inquiry now is, was the judgment ,by default properly rendered? This is an action of assumpsit upon a promissory note, assigned by Pendleton Hill to the plaintiffs below. The only objection taken to the declaration is, that it contains no breach that the money was not paid to the assignor before assignment. The breach, we think, contains a sufficient allegation. It alleges, “tfiat, before the payment of said promissory note, it was assigned by Hill to the plaintiffs.” This is, certainly, a good and sufficient averment, and substantially conforms to approved precedents. The party was bound to pay, before the assignment, to no one but Hill; and if the note was assigned before payment, it unquestionably negatives the supposition that the money was paid to the assignor. The judgment of the Circuit Court must, therefore, be affirmed, with cost.


author: Dickinson, J.,

text:
    Reeder against Murray.
    Appear from Conway Circuit Court.

      A writ without the seal of the Court affixed, is a mere nullity.
    "When a judgment, in a suit brought by attachment, is reversed for an insufficient writ or insufficient service, taking an appeal, or suing out a writ of error to the Supreme Court, is an appearance ; and on the return of the case, the party must appear, as if he had been served with a summons.
    Murray sued Reeder in the Court below, and issued a writ of attachment. The writ being returned not served, he sued out an alias, which was executed; and Reeder gave bond and retook the property. At the return term, Reeder moved to quash the writ. His motion was overruled, and he making no further defence, judgment went against him. As the case was disposed of upon a point not touched by the arguments of counsel, they are consequently omitted.
    Fowler, for the appellant:
    Linton, Contra:

   Dickinson, J.,

delivered the opinion of the court:

The r.ecord sent up is certified to he full and complete. The parties have raised no question as to its correctness, and, consequently, this Court must take it as true. It is'of no consequence, in the consideration of this case, what steps were taken subsequent to the issuing of the alias writ of attachment; for, by the record, it appears that the Clerk omitted to seal the writ, as is required by the statute. Revised Code, p. 777, sec. 2. And as there was no such appearance by the appellant as cured the want of a seal to the writ, he was not bound to plead or make any defence thereto. Judgment reversed, and case remanded for further proceedings; and the case, upon the return thereof to the Circuit Court, to stand for hearing, as though the appellant had been legally served with a valid writ of summons, more than thirty days prior to the nest term of said Court.


text:
    Byrd against Tucker.
    Error to Pulaski Circuit Court.

    He who excepts to an opinion of the Court, must reserve his points at that time, and the bill of exceptions must state that the transaction occurred, during the progress of the trial.
    But the bill needs not be signed while the trial is progressing, but may be signed after judgment, and during the same term; and where the Judge certifies that the party excepted at the trial, and the bill of exceptions sets out the whole matter as it transpired at ,the trial, it is sufficient.
    Where the defendant pleaded, as offset, a note assigned to him against the -plaintiff, and the plaintiff replied that the note was assigned after suit commenced, and writ served, with a traverse that it was assigned before; and'the defendant rejoined, that it-was assigned before, with a traverse that it was assigned afterwards, to which there was issue: Held, that the onusprobcmdi rested on the plaintiff, and it devolved on him to prove that the note was assigned after suit brought and writ served.
    The assignment itself is prima facie 'evidence that it was made on the day it purports to have been made; and under such issue, it was only necessary for the defendant to produce the note and assignment.
    .This was an action of debt. Tucker sued Byrd on a bond for one hundred and fifteen dollars. Byrd pleaded nil debel,. and a second plea of set-off, upon two notes; one for $105, given by Tucker to S. S. Sanger, and by Sanger endorsed to Byrd, on the 12th of December, 1840; and one for $37 50 cents, given by Tucker to R. C. Byrd, and by R. C. Byrd endorsed to the defendant, W. J. Byrd, on the 12th of December, 1840. The writ in the case issued on the 25th of January, 1841, and served on the 28th.
    The plaintiff demurred to the plea of set-off, on the ground that thé small note was not within the jurisdiction of the Court, and the Court could in no way adjudicate upon it; and joined issue to the plea of nil debet. His demurrer was overruled, and he replied to the plea of off-set, that the two notes mentioned in it were assigned to the defendant after suit commenced and writ served; without this, that they were assigned before suit commenced or writ served; concluding with a verification. He further replied, that he did not owe the money claimed in the plea of set-off, or any part of it. To this second replication, the defendant joined issue. To the first, he rejoined, that the notes were assigned before suit commenced and writ served; without this, that they were assigned afterwards; concluding to the country. On the trial, the defendant offered in evidence, as a bill of exceptions states, a note executed to Sanger, of the date, for the amount, and of the tenor set out in the plea, but endorsed “ Pay to W. J. Byrd, Dec. 12, 1840; Sept. 20, 1840.” The plaintiff objected to its introduction, on account of the variance, in the statement in the plea, of the date of the assignment. The objection was sustained. The defendant then struck out the words and figures “ Sept. 20th, 1840,” from the assignment, and then “ offered in off set the note and endorsement,” which the Court refused to receive as evidence of a set-off. The defendant then withdrew the small note; and the Court gave judgment against the defendant for the amount of the note sued on, and interest. No evidence was given on either side, except the note sued on, and those offered to prove -the set-off. The trial was had, and judgment rendered, on the first day of April, 1841; and the facts as to the evidence offered, and the decisions thereon, were stated in a bill of exceptions, filed on the second day of April. There was no showing on the record, or in the bill of exceptions, that the points were saved while the trial was proceeding, unless that was shown by the expression in the bill of exceptions, three times-repeated, “the defendant excepted, and hereby excepts.”
    Hempstead and Johnsou, for the plaintiff:
    The first error is, that the Court ruled that there was a variance and misdescription in the note for one hundred and five dollars, offered by the defendant below to sustain his plea of set-off.

      Second. That the Court refused to receive the said note, and assignment thereon, to support the plea of set-off, after the words'and figures “Sept. 20th, 1840,” were stricken out and erased.

      Third. The Court permitted the due-bill for thirty-seven dollars and fifty cents to be withdrawn, after it had gone to the Court, sitting as a jury.
    The plea of set-off is nothing more than a ’cross action; and no greater certainty is required, than would be in a declaration upon an assigned promissory note.

      The question, then, is, whether the date of an assignment is material in a declaration, to enable the plaintiff to recover?
    A reference to the forms of pleadings, shows that an assignment needs not be dated; and, if dated, that it needs not be averred or proved at the trial. See forms in 2 Chitty's Pleading; 1 Harris’ Modern Entries; X Chitty's Precedents.

    The plaintiff, in showing title, is not bound to set out any more than will enable him to recover. There is not a solitary decision which lays down any doctrine, in contravention of the forms referred to; in none of which, is the date of an assignment pleaded as material. The reason is, that the title of the assignee is as perfect by an endorsement or assignment in blank, without any date, as with it. If there is a date, it is surplusage, and may be stricken out, before or at the trial, which of course could not be done, if it was at all material.
    The plea of set-off describes the note correctly, and the date of the assignment to the plaintiff in error, by the payee, is set out under a videlicet, on the 12th day of December, A. D.T840.
    The date is no part of the description of the assigned note. If the assignment was made subsequent to the commencement of the suit, the plaintiff below could only avail himself of that fact in a replication, properly setting it up. This was done, and issue taken; and the only proof required to sustain the matter in the plea, was, that the assignment was previous to the suit.
    If a declaration merely state that a promissory note was made such a day, though it bear date a different day, the variance will not be fatal. 2 Camp., 307; Pasmore vs. North, 13 East., 516; Purcell vs. Macnamara, 9 East., 157.
    If the endorsement be dated on a different day to the date of the bill, state the day accordingly; but even this is not necessary. 2 Ch. PI., 152, note (12). Mode of stating endorsement: — “And the said C. F. then and there endorsed and delivered the said last mentioned bill of exchange to G. H., who then and there endorsed and delivered the same bill to the said plaintiff.” 2 Chitly, 154.
    . The date or time of endorsement or assignment is not material; and in the case of Reynolds vs. Beering, 4 Doug. Rep., 189, it was decided that “ a note or bill endorsed even after the action brought, may be set-

      off, except where the endorsement is merely colorable and collusive between the endorser and the defendant, in order to defeat the plaintiff’s demand.”
    This is a full endorsement. A full and blank endorsement are stated in the same manner, the legal effect of both being the same. Lazoes on Pleading, Marg., p. 346.
    The statute law of the State requires that a blank assignment shall be taken most for the benefit of the defendant. The plaintiff below occupied, with respect to the plea of set-off, the attitude of a defendant. Clearly, the 12th of December, 1840, would' be more to his advantage than the 20th of the previous September; because there might have been dealings between the obligor and payee, between the first and second period, that might be set up against the assignee by the original obligor.
    Both dates were previous to the institution of the suit; and it is humbly conceived that a more technical objection was never sustained in a Court of justice; not technical merely, but without the shadow of foundation, cither in common sense, common law, or statute law. Besides, the objection was a captious one — the last resort of a drowning man catching at straws.
    The Court ought to make any intendment against a mere captious objection. 1 Ti R., 117. Supposing the assignment would admit of two intendments, that shall be preferred which shall support the pleading. 6 T. R., 134. How the Court came to the conclusion that the assignment was made on the 20th of September, (supposing the date to be material), is utterly incomprehensible; because there was a‘date that accorded with the plea, and all that can be said is, that more was in the endorsement than plea.
    Besides, before the note actually went to the Court sitting as a jury, objection was made, and the objection sustained. The words “Sept. 20th” were immediately stricken out, in open Court, which made it exactly conform to the plea. It was immediately re-offered, and the Court refused to receive it.
    Undoubtedly, each party has exclusive control over his own testimony until it has actually gone to the jury. This is like a case of incompetency in a witness: objection being sustained, his incompetency can be removed by release; and the Court cannot again exclude him, or legally prevent him from testifyng. This is the constant practice, settled beyond dispute. The Court erred in permitting the smaller note to be withdrawn. It had actually gone to the Court, as a jury, and could not be withdrawn.
    Our statute of set-off, intended to provide for the settlement of transactions between parties without driving them to a circuity of action; but in vain has it been attempted, if such technicalities are to be countenanced. 4 Douglass, 181; 9 East157.
    Pike, Contra:

    The first question presented by the record is, whether the bill of exceptions was properly taken, so as to have become a part of the record. Clearly it was not. The record does not notice its filing. It is not shown that the defendant saved his points at the trial, and had leave to file his bill of exceptions the next day, or that it was filed by consent. And under the former decisions of this Court, it cannot be considered a part of the record.
    If, however, the Court should look upon it as a part of the record, then other questions will arise. Protesting against the bill of exceptions being, considered at all, we proceed to consider those questions.
    First, the plaintiff in error alleges that the Court erred in rejecting his note of $j 105, when first offered in evidence. The principal issue, which he was attempting to support, was, that the note was, in fact, assigned before the suit was commenced. That fact he had to prove by competent testimony. The assignor would nave been a competent witness to prove that fact. Spring vs. Lovett, 11 Pick., 417. By the issue, as made up, the affirmative devolved on the defendant. He had rejoined to the plaintiff’s traverse, that the notes were assigned before suit brought. He had alleged that the note was assigned on the 12th of December, 1840; and he produced a note endorsed— « Pay W. J. Byrd, 12th Dec., 1840 — 20th Sept., 1840.” Clearly this was a variance. Which was the true date of the endorsement? Both could not be. It seems more like a direction, by Sanger, to pay the note on the 12th of December. We, therefore, think, that there was a variance. i

      Whether there was or not, the first thing which it devolved on the defendant to prove was the fact, that the endorsement was actually made before suit commenced. Until he proved this fact, he could not be allowed to read the note in evidence. It was no evidence against Tucker, unless it was assigned before suit commenced. He could not have read it to a jury even, until that fact was proven. The two issues, united, devolved upon him the necessity of producing such a note as was stated in his plea, the date of the assignment of which, if date it bore, should be the 12th of December, and of proving that such note was, in fact, assigned on'that day, or before the institution of the suit. No note could be evidence for him, unless it answered the description, and had been assigned before suit commenced. The true date of the assignment proven, the note was good evidence against Tucker: until then, it was no evidence at all, as he could oply charge Tucker by means of such a note, assigned before a certain date. To produce the note merely, was to produce no evidence. This preliminary proof he never offered to make. A deed is no evidence, unless duly recorded. Can you read the deed in evidence first, and afterwards proceed'to establish that it was recorded? An award not made by a certain day, is in a particular case not valid. Could you first read the award in evidence, and afterwards prove when it was made?
    When the note was first offered in evidence to -the Court, it was not only offered without any such evidence, without making any attempt to lay a foundation for introducing it, by first proving the actual date of the assignment, but, in place of a note even purporting to have been assigned on the 12th of December, a note was offered with a double date to the assignment. After offering this note, he offered in evidence the smaller note, and there seems to have rested. The record then states, that'the plaintiff moved to- exclude the first note, for misdescription; and that the Court sustained the motion, and refused to allow it to be received as a set-off. It' was again “offered in offset,” and the Court again refused to receive it as evidence of a set-off.
    The record is improperly made up, and the motion first made was incorrect in form. A party cannot move the Court, when sitting as a jury, to exclude testimony; but, if it has been read, merely to disregard it.
    When a jury is trying a cause, there are three stages in the process under which facts are ascertained. First, a party may object to apiece of evidence being read(or detailed) to thejury; and the judge is then called on to decide whether the evidence offered conduces to prove the facts to be ascertained: that is, whether it is or is not relevant. In deciding this question, the Court gives no judgment as to the weight of the testimony.
    The second, is that by which the weight of evidence is determined: that is, how far it conduces to prove the facts to be ascertained. This is for the jury.
    The third, is the stage at which the judge declares to the jury, that,' if certain facts are ascertained, the law is so and so, upon those facts.'
    In the first place, the Court is to decide whether evidence shall be read to the jury at all. The motion then is, properly, to exclude. But, when the Court sits as a jury, no such motion can be made. The Court then unites in itself all the functions of judge and jury. It cannot be asked to prevent testimony from being read to itself; and, when read, the only question is, whether the Court will or will not disregard it. If there is a variance, it must disregard it absolutely, because no additional testimony can cure that fault; but, if it is relevant, but merely insufficient, or, if it constitutes no proof, until some preliminary fact is proved, then the proper decision is, that it will be disregarded, unless such additional facts are proved.
    Such must be taken to have been the decision of the Court in the present case. The parties were bound to have offered all their evidence to the Court. When offered, the Court would then judge of its sufficiency. They offered the two notes, and made no effort to introduce further proof. Whether the Court was right or not, in first refusing to consider the note, on the ground of variance, is a matter of no importance. The second date being stricken out, the note was offered again; and, if the Court then decided properly, its first decision made no difference. The Court refused to receive it as evidence of set-off. On what ground does not appear. They did not inform the defendant that further proof was necessary. They were not bound tb do so. It was his duty to make out his case at once. If they were bound to do so, it was not necessary to show, on the record, that they did so. The note certainly was no evidence of offset, because no proof was offered as to the date of its assignment. The decision must, therefore, be regarded as having been made upon the sufficiency,. and not on the relevancy of evidence, and therefore,' in any event, was correct; that is, it is correct, whether the proof as to the date of the assignment was, in its nature preliminary, or merely additional.
    It would be doing great injustice to an inferior tribunal, to permit a party to submit his case to the Court, without the intervention of a jury; and, by presenting a portion, only, of his testimony, procure a decision which, though correct in its general result, and on all the evidence offered, is, still, in the mere letter, not strictly technical or formal; and-then reverse that decision, which might and would have been different, if he had produced all the testimony which the issues, on his part, required.
    We have assumed'that it was necessary for the defendant, by evidence aliunde, to prove the date of the assignment. That point, we apprehend, it is not necessary to argue. Another quéstion arises on this record, of which the defendant in error claims the benefit. He demurred to the plea of offset, because it set up a note for less than one hundred dollars, and required the Court to adjudicate upon it.
    According to the decision of this Court, in the case of Berry vs. Lintont each note is the amount in controversy. This small note is exclusively cognizable before a justice of the peace; and being without the jurisdiction of the Circcuit Court, it could, neither by declaration nor pica, obtain jurisdiction of the subject matter. If it can, then the jurisdiction as to that note is concurrent with that of justices of the peace. The plaintiff had a vested right, by the constitution, to be sued on that note before a justice of the peace. To bring it into the Circuit Court, to be there adjudicated, is to commit a fraud on the constitution.
    Hempstead, in reply:
    The gentleman says, that the bill of exceptions is no part of the record, and makes a general reference to the decisions of this Court to sustain the position. The object of a bill of exceptions is, to preserve the evidence of facts, which, in the ordinary course of proceeding in the Courts, would not otherwise appear of record. When signed by the judge in the capacity of a Court, it is, emphatically, a part of the record, and, as such, is entitled to faith and credit.' If a bill of exceptions is reduced to form, and signed by the judge or judges presiding during the term, it becomes a part of the record, and no objection can be taken. A term of Court is considered as but one day in law; and hence it is, that a bill of exceptions, signed at any time daring the term, is deemed to be signed while the cause is before the Court, and while the Court possesses full and entire control over it.
    The process and pleadings may be amended, judgment arrested, a new trial granted, — which show that the Court have fall control over a cause at the term at which trial was had; and it is apprehended that it is not necessary to cite authority to sustain so plain a position.
    In the case of Medberry against Collins el al., 9 Johns. Rep., 345, an alternative mandamus has been issued, commanding the judges and assistant justices of the Court of Common Pleas of Chenango county, to sign and seal a bill of exceptions, &c. One of the judges signed the bill of exceptions, and two of them made a separate return under their hands and seals. On reading the return, a motion was made for a peremptory mandamus: per curiam, “The fact stated in the return of the two judgés, that the bill of exceptions was not tendered at the tried, but presented to the judges, individually, after the term had ended, is sufficient cause for denying the present motion. The facts attending a trial are extremely liable to be mistaken or forgotten, if they are not reduced to writing at the time, and presented distinctly to the Court during the continuance of the term. As this bill was not' tendered until the subsequent vacation, we will not now award process to compel the judges to sign it. The reasons upon which the Court refused to grant a like motion in the case of Sikes vs. Ransom, 6 Johns. Rep., 279, apply to this case.” In this latter case, it is laid down, that a bill of exceptions ought to be tendered at the trial, though the practice is to allow the counsel to tender it afterwards. I Bos. & Pull., 32. According to the decision in Wright & Sharp, 1 Salk., 288, the Courts are not bound to seal a bill of exceptions tendered at the succeeding term of the Court. For, as Lord Holt observed, “if this practice should prevail, the judge would be in a strange condition. He forgets the exceptions, and refuses to sign the bill: so an action must be brought.” The counsel should have attended to the bill, and have seen that it was correct at the January-term.
    It would be a dangerous precedent to take compulsory measures against judges, and make them answer, at their peril, to a statement of facts, tendered to them at a subsequent term.
    In the case of Clark against Butcher, 19 Johns. Rep., 246, a motion was. made to quash a writ of error and bill of exceptions. It appeared that the bill of exceptions had been presented to the judges of the Court of C. P. individually, out of the Court, and was signed 'and sealed by them separately, and without any notice to the opposite party of the time of its being so,signed. Per curiam — The bill of exceptions iu this case is irregular. The exceptions should be settled by all the judges sitting together as a Court. Separately or individually, they cannot act judicially, or as a Court. Though a bill of exceptions may be signed after trial, or after the Court has adjourned, it should be by-all the judges acting together as a Court. In a similar case, at the last term, we ordered the bill of exceptions to be sent back to the Court of Common Pleas, that the judges might consider of it and sign it while together.”
    These cases do nothing more, in fact, than declare what the general practice is, as derived from the common law.
    In the case of Gardner vs. Baillie, 1 Bos. & Pull., 22, it is said, per curiam, that a bill of exceptions is no part of the record, till after judgment. If it were, the Court ought to take it into consideration before judgment, which is never done. The bill of exceptions is carried into a Court of error, and there annexed to the record. Being for the benefit of the party who tenders it, and remaining in his possession, it is in his breast to employ it or not. Regularly, it ought to be ten-, dered at the time of trial, and sealed by the judge, in Court; and though the practice is, to allow the counsel to tender it afterwards, and some expense may arise to the parties before it is settled, yet this is not a regular course of proceedings upon which costs can be incurred.

      The decision in the case of Lyon vs. Evans, el al., 1 Ark. Rep., 361, cannot, it is apprehended, bo carried further than the decisions referred to; and, that the same principle was intended to be established. Our statute law only contains general provisions respecting bills of exception. Rev. Stat., C., 116, Sec. 106, 107, 108, and 109.
    As to proving an assignment, a party is not required to do so, unless there is a plea, supported by affidavit, denying the assignment, and stating that the assignment or assignments on such instrument were forged. Rev. Stat., (title Assignment,) sec. 4,p. 107. The only answer which needs be made to this part of the gentleman’s argument, is, that no such plea, supported by affidavit, appears in the record.
    The only issue was, whether the assignment was made before or after the institution of the suit. Whether the note was assigned on the 29th of September, 1840, or on the 12th of December following, both dates were before the commencement of suit. So that the production of the assignment supported the issue.
   Lacy, J.,

delivered the opinion of the Court:

A preliminary question has been raised and discussed at the bar, which we will notice before we proceed to determine the main point in controversy. It has been said, in behalf of the defendant in error, that there is no bill of exceptions in the record. It is true, as argued, that he who excepts to the opinion of the Court below, must reserve his points at that time, and the bill of exceptions must state that the transaction occurred during the progress of the trial. The bill needs not be signed while the trial is progressing, but it may be signed after judgment, and during the continuance of the term at which the trial was had. In the present instance, the Judge certifies that the plaintiff in error excepted to the points that were ruled against him upon the trial; and the bill of exceptions sets out the evidence that was offered and rejected by the Court. This clearly shows that the bill of exceptions was properly taken, and constitutes a part of the record.

The cause was tried upon the pleas of nil debet and set-off. The plea of set-off shows two causes of action, the one within the jurisdiction of a justice of the peace, and the other within the jurisdiction of the Circuit Court. The averment upon the small note, within the jurisdiction of a justice, was attempted to be supported by the production of the note. This evidence was withdrawn by the party producing it,"'"without objection; and the averment in regard to the small note should then have been excluded from the plea. The case then went to trial upon the other part of the plea. This part of the plea of set-off státes, that S. S. Sanger assigned, on the 12th day of December, 1840, to the plaintiff in error, a note which he held on the defendant. To this plea the defendant replied, that the note was assigned since the commencement of this suit, and issue taken thereon as to the date of the assignment. Upon the trial,, the plaintiff in error offered the note and the assignment in evidence, which were rejected by the Court. The assignment is in these words:'“Pay to W. J. Byrd, Dec. 12, 1840, Sept. 20, 1840. S. S. Sanger.” The point now to be decided is,.upon whom rested the burden of proof? The defendant in error pleaded affirmative matter negatively, and thereby took upon himself the onus probandi. It lay upon him to show that the note was assigned since the commencement of the suit? Has he done so? Certainly not. He has introduced no evidence upon the point. The production of the note established, prima facie, that the note was assigned prior, and not subsequent, to the commencement of the suit. The true date of the assignment corresponded with the plea of set-off, and the words “ Sept. 20,1840,” were surplusage, and so should have been treated by the Court. Upon the,production of the note, and the assignment, the proof of the plaintiff in error was complete, and conclusive of the issue; the defendant failing to produce any other or further proof contradicting th aprima facie presumption. The judgment of the Circuit Court must therefore be reversed, with costs, the case remanded, and leave given the parties to amend their pleadings, if asked for.


text:
    Wilson against Fowler.
    Error to Pulaski Circuit Court.

    Where the defendant,in a civil suit movecTfor a change of venue, under the act of November 30, 1840, and his motion was overruled, if he did not except to the opinion of the Court, but afterwards appeared upon a writ of inquiry, and introduced evidence in mitigation of damages, and subsequently moved for a new trial, and excepted to the opinion of the Court refusing it, he waived thereby his objection to the overruling his motion for a change of venue.
    It is a general r-ule, to which there are few objections, that he who abandons one point or position, and selects another, must rest his cause upon the latter; and if that be adjudged against him, he will hot be allowed to return to the first point, which he has voluntarily relinquished.
    The effort in this case to mitigate the damages, the motion for a new trial, and the bill of exceptions, were equivalent to an appearance and a plea.
    In a suit by au attorney for his fee, where, of three witnesses, two state that the charge was not unreasonable, and the "third does not state positively that it was unreasonable, though he strongly insinuates such an opinion, it was the province of the jury to compare and weigh the testimony, and if they give a verdict for the whole amount, their finding is according to the preponderance of the proof, and will not be disturbed.
    This was an action of assumpsit, instituted in the Pulaski Circuit Court,1 by Absalom Fowler, as an attorney at law, for $¡1000, his fee for defending Wilson, who was indicted, for the murder of Joseph J. Anthony, a member of the House of Representatives of this State, in tbe Hall, whilst tbe House was in session; the said John Wilson being at the time Speaker of the 'House.
    On the tenth of March, which was tbe tenth day of tbe return term, a judgment by default was rendered against Wilson, and a writ of inquiry awarded to the same term. On the twelfth day, on his affidavit, the judgment was set aside, without costs, or terms to plead.
    On the next day, Wilson filed a paper, purporting to be a notice that he would, “on Friday morning next,” of that term, during the sitting of Court, make application to remove the suit, under the statute in such case made and provided, to Pike county.
    On the 19th day of March, Wilson moved the Court, on affidavit, to remove the case to Pike county, where he resided; which motion, on the 22d, was overruled. Afterwards, March 31st, a second judgment by default was rendered against Wilson, and a jury assessed the damages, in favor of Fowler, at one thousand dollars; upon which finding, a judgment was rendered.
    On the first day of April, 1840, the defendant, by attorney, moved the Court to set aside the verdict on the writ of inquiry, on the ground of excessive damages, and that the verdict was contrary to evidence; which motion was overruled. The defendant thereupon filed a bill of exceptions, on which all the evidence given on the inquiry of damages, was incorporated.
    The bill of exceptions sets out, that Albert Pike testified that'the plaintiff below was one of Wilson’s counsel, in his defence for the murder of said Anthonj', in the House of Representatives; and, with other counsel, defended Wilson at the trial in Saline Circuit Court, and also on an application íbr a change of venue: that fees of attorneys, in criminal cases, vary, according to the magnitude of the cause and the ability to pay: that the case in question was one of the jfirsf magnitude: that seven hundred or one thousand dollars would he a reasonable fee, in a case of the magnitude of Wilson’s, and for the services rendered by Fowler in that case: that witness knew of no established rule regulating fees in criminal cases; but that they depended on circumstances: that witness was one of the counsel for the Notrebes, and received $1000 for his services: that the three Notrebes were indicted together, but only one of them was tried: that where there are a number of counsel associated in the same case, it is his rule to make the same charge as if he had the sole management; but in several cases heretofore, he has taken a smaller fee, on account of several attorneys being employed: that generally $500 is a good fee, and he has not charged $1000, except in the said case of Notrebe. Notrebe wras better able to pay than Wilson: that he is not intimately acquainted with Wilson’s circumstances, but believes he has several negroes, and was, at the time of the murder of Anthony, connected with the Real Estate Bank: 'that it was the impression of witness, that John W. Cocke was disposed to charge more than five hundred dollars, and that he knows that his fee was a matter of compromise and reference to three lawyers: that Wilson’s case was one oí greater difficulty than Notrebe’s: and that not long after Wilson’s trial, Fowler sent a note by witness, requiring a fee of $1000 from Wilson.

      FREDERICK W. Trapna.de testified, that the criterion of charges for defending criminal cases, “is to be found in the magnitude of the offence, and the breach of the party charged with its commission:” that “ the offence with which Wilson was charged was of a very heinous character, and the case an aggravated one:'” that the charge of a fee is also in some measure regulated by the number of attorneys engaged, according to the practice of witness: that he would not think “ one thousand dollars an unreasonable fee in the case of the State against Wilson.” That ho was employed to defend the Notrebes, all three of whom were indicted together, at the Post of Arkansas, and received one thousand dollars; and that a nolle prosequi was entered as to all but one of them: that Mr. Pike also received $1000 for his services in defence of the same case: that the older Nofrebe is a wealthy man: that witness, Pike, and Freeman were engaged in Notrebe’s defence: that Trapnall & Cocke were to receive $500 of Wilson, for John W. Cocke’s services in his case: witness is not certain that Fowler attended to Wilson’s case throughout the sitting of the examining Court: “that one thousand dollars is an unusual fee, but that the case of Wilson was a most unusual and extraordinary case: that Notrebe’s case was one of much less difficulty: that the fees of witness and Pike, in Notrebe’s case, were adjusted after the trial.
    Chester’Ashley, on the part of the defendant, testified, that he was retained by Wilson in the case referred to: that he was aiding as counsel at the Court of Inquiry, 'which lasted three or four days: that Fowler hadgbeen retained by G. D. Royston, at Wilson’s instance: that witness, Childress,^Cocke, and Fowler, defended Wilson, after the cause was removed to Saline county, &c. &c. That Chil-dress received $300, on account of prompt payment being made to him: that witness charged Wilson $500, and received his obligation therefor; and that he considers that sum an ample fee for his services: that Cocke was to receive the like sum of $500: that it was a case of the first magnitude; and had witness been sole counsel, he should have charged a thousand dollars, and perhaps more. That $500 is the lowest fee he would charge in a criminal case, where the party was able to pay. That in cases where there is associate counsel, it has never been his practice to charge as much as he otherwise would, the labor and responsibility being less; and that there is a difference in the amount of the fee, where there are several and where only one attorney is employed. Witness appeared for Wilson in his professional character, although his relations with Wilson were of the most friendly kind; and that witness had understood that the relations between Fowler and Wilson were not of the most friendly character; that witness had understood something to the effect that Fowler was employed by Wilson, to prevent his retainer on the part of the prosecution; and that the services of said Fowler were considered important and essential.
    Hempstead and Johnson, for the plaintiff:
    There are two errors assigned, upon which the plaintiff relies to reverse the judgment rendered in the Circuit Court. First: The cause ought to have been removed to the county where the plaintiff in error resided. He brought himself within the provisions of the Act of the General Assembly, approved November 30th, 1840; and the only question is, whether the Act conflicts with the State Constitution. By that instrument, the State is to be divided into convenient circuits, each to consist of not less than five nor more than seven counties; and each Circuit Court, inter alia, to have original jurisdiction in all matters of contract, where the sum in controversy' is over one hundred dollars, with a general power to issue all necessary writs, to carry into effect their general and specific powers. The Legislature could not, directly or indirectly, deprive the Circuit Court of any of its constitutional jurisdiction, or constitute any other criterion of jurisdiction, than that established by the Constitution, which, in matters of contract, is a sum over one hundred dollars. This principle is plain and incontrovertible; but it is confidently asserted, that it can have no application to the Act of the General Assembly which has been referred to. The case of Noell vs. Dillard, decided by this Court, does not touch the present question.
    Does that Act deprive the Circuit Court of its jurisdiction, or in any way infringe upon it? Certainly not. No contract is annulled; none impaired; no right to enforce it taken away; not even a single principle of evidence changed. No change is proposed, but the simple removal of a cause from one Court to another, co-ordinate in power, and with precisely the same means to carry out that power. The Legislature have complete power over the remedy, in all cases of contract. The law under consideration affects the remedy, touches not the right. Whether the law is unconstitutional or not, is to be decided on a scrutiny of that instrument, and not by adjudicated cases. Cited, Pamphlet Acts of Ark., 184Q, p. 4; Constitution, Art. 6, sections 3, 4, 5, “Judicial Department,”
    Second. A new trial ought to have been granted. The right of trial by jury would be the mere emptiness of sound, unless a power existed somewhere to grant new trials in civil causes. An erroneous judgment, in point of law, may be reversed, and set aside in many ways; but a general verdict can only be set right by a new trial, and this a party litigant is entitled, to, where there is a reasonable doubt that justice has been done. The doctrine of granting new trials in civil causes, has undergone a great change, commensurate with the improvement in jurisprudence. Anciently, a new trial depended upon mere discretion; and if refused, the party was without redress, nor could it be assigned as error. But nowit depends upon a sound legal discretion, and may be reviewed, so as to attain the ends of justice. Where the question is involved in great doubt and obscurity, is of great value, and binds the right for ever, the Court will grant a new trial, where in an ordinary case they would refuse it. Excessiveness of damages is a good ground for a new trial, even in actions for torts, in which Courts are averse to setting aside a verdict for that cause.
    The record in this case shows that the damages are excessive; and if there is one solitary reason why if should not have been granted, it will be difficult to comprehend it. It is too plain a'queslion to be argued. 2 T. R., 4; 3 Taunt., 91; 2 Wils., 244; 1 Strange, 691; 9 J. R., 45; 12 J. R., 234; 10 J. R., 443; 5 Cowen, 351; 8 Cowen, 214; 7 Cowen, 613; 2 Wend., 352; 5 Cowen, 106, show that new trials will be granted where the damages are excessive.
    Fowler, Contra:

    The errors assigned are, that the Court improperly, overruled Wilson’s motion to take the case home, and his motion to set aside the finding of the jury. And upon what but motions could error be predicated, as this case was defended by nothing but motions, and may emphatically be called the case of motions!

    A statute relied upon by the plaintiff in error, approved on the 30th day of November, 1840, entitled “An act to enlarge and extend the provisions of the fourth section of a law in the Revised Statutes,” &c., under the head of “ Practice at Law,” is believed to be in violation of the Constitution of the State, and in'contravention of an opinion heretofore given by this Court, in the case of Dillard vs. Noel. 2 Ark. 449. If so, Wilson can certainly derive no benefit from it in this case. The 4th section, which the latter act is designed to modify or repeal, provides that suits shall be instituted, “when the defendant is a resident of this State, either in the county in which the defendant resides, or in the county in which the plaintiff resides, and the defendant may be found;” and that no “resident of this State, who has not absconded from justice, shall be arrested on a capias in any. county, other than that of which he is a resident.” See New Code,p. 619.
    This Court, in the case of Dillard vs. Noel, declared the substance of said 4th section, as above referred lo, to be in conflict with the Constitution; and declared that in matters of contract, it was the amount in controversy which must fix the jurisdiction, and that wholly regardless of “ the residence of the parties, or either of them;” and that where process could be served on a defendant, so as to give jurisdiction of his person, the Court could not be legislated out of such constitutional jurisdiction, and restricted down by residence, if, then, the Legislature had no power to say that John Wilson should not be sued for a thousand dollars, in the Circuit Court of Pulaski county, from whence does it derive its power to declare that when suit is brought against him, he shall, on application, have the case transferred to Pike, for trial, merely because he resides there, without showing any cause whatever? Can the Legislature indirectly do that, and do it constitutionally, which they are expressly prohibited from directly doing? To remove a cause thus, and without any showing whatever, is it not as palpable a-divestment of its jurisdiction, as if the Court were, in the first instance, prohibited from taking cognizance at all? No reasonable distinction, it is believed, can be drawn between the two cases.
      Further, in this case, the jurisdiction had attached, by legal service of process on Wilson; and Fowler had obtained legal rights under it, in conformity with the Constitution, before the act of 1840 had passed. Could they be wrested from him by ex post facto legislation?
    Suppose for a moment that this last act is constitutional. Did Wilson comply with its spirit and meaning, or with its letter? The first section provides, that the application to remove must be made “ on or before the first day of the said Circuit Court to which the summons may be made returnable.” Would not a fair construction of that clause require a party to make his application by the first day of the term, or, at any rate, before or at the calling of the cause? Wilson neglected to make his application; and when the cause was called, on the tenth day of the term, an interlocutory judgment was entered against him. By his own laches, then, he forfeited the right, if any ever existed, of making the application to remove; and on this ground alone, it was properly overruled. The setting aside the judgment by default was, impliedljr at least, upon condition that he would plead to the merits, although, in his affidavit, he made no showing that he had any defence; and, after a default regularly entered, he came too late with his motion and affidavit, to take the case home, in order to discharge himself /rom his just liabilities.
    The fourth section of the act of 1840, requires (hat “the party applying for a removal” shall “ give notice to the plaintiff, or his attorney, of record, at least five days previous to said application, which notice shall be served as in other cases,” &c. This Wilson utterly failed to do. His paper, purporting to be a notice, and marked filed on the 13th of March, was never served on Fowler, as other notices; and the statute expressly requires that such notice should be served. A filing among the papers is not sufficient; it must be served, as other notices. How are other notices to be served? In the New Code,page 622, sec. 21, it is expressly provided, that “whenever, in the commencement or progress of any suit, it shall be necessary to serve any notice on either party to such suit, such notice may be served either, first, by an officer,” áse.; “second, by any person who would be a competent witness,” áse. And in section 22, “ every such uotice may be served in like manner as a writ of summons,” &c. In section 12, page 621, it is directed that a summons may be served by reading, by delivering, or leaving a copy, &c. Were any of these indispensable requirements complied with by Wilson? Who would think of serving a summons, or a notice to take depositions, simply by filing it among the papers of the case? Everyone, at first blush, as well as upon mature reflection, would pronounce it idle and absurd. Yet such an act would stand precisely upon the same ground as the notice in this case. It would be a nullity, as the paper filed as a notice is here not even a part of the record. It is a notice, and one not of course, required to be given during the progress of the cause; and the law authorizing it must be strictly complied with; otherwise, it cannot be regarded as any part of the proceedings, is improperly on the record, and the motion predicated thereon was rightfully overruled. The pretended notice is, that application would be made on “Friday next,” without fixing any date; and this Court cannot know judicially on what day of the month “Friday next” would come; nor is there any thing in the record to aid that judicial knowledge. The notice is therefore defective on its face. Is there any thing appearing in the record, by which the plaintiff below waived the defects of the notice, or want of service? It does not even appear that the plaintiff was present when the motion to remove was made.
    The motion is not shown, by the record, to have been predicated upon an affidavit, as positively required by the act of 1840. On the 19th of March, it is true, an entry was made that said Wilson then filed an affidavit; but the entry does not show what the substance of the affidavit was, rior does any appear among the papers, as filed on that day, or any other day. There is also a paper copied in the proceedings, which appears to be an affidavit made by John Wilson, before L. R. Lincoln, Clerk, on the 13th of March, 1841, but which is not filed in the case, and, as far as the paper speaks for itself,, was not sworn to before the said Circuit Court, but before the Clerk, out of Court; consequently, the oath was not administered by any officer competent to administer it. It is, consequently, invalid on its face, and in no manner connected with the case, and, with the notice, ought to be excluded, as improperly incorporated into the transcript. Therefore, the application to remove the cause.was correctly refused, both because the pretended law of 1840 was not complied with, and because that enactment is in derogation of the State Constitution, and void.
    The paper purporting to be a bill of exceptions in this case, forms no part of the record. It does not purport to have been taken, or that the evidence was taken down, or that any note thereof was made, at and during the inquiry of damages: but was filed on a subsequent day of the term, is ex parte, and amounts to nothing but a memorandum of the Judge of the Circuit Court. If Wilson appeared before the jurjq with his witness, in mitigation of damages, why was the evidence not reduced to writing then? The reason why bills of exceptions are required to be filed, or the evidence reduced to writing, during trial, is, that recollection of its details may afterwards fail to embody it correctly; at least, this is one principal reason. They can only be filed, or reduced to writing, subsequently, by consent, and none appears in this case. See 1 Ark. Rep., 557, Gray el al. vs. Nations; 2 Ark. Rep., 14, Lenox vs. Pike, and authorities referred to in the latter case. See also 5 Conn. Rep., 717; 9 Wheat. Rep., 651; 1 Peters Dig., 333; 4 Peters, 102; 11 Peters, 185.
    But admit the bill of exceptions. The evidence therein contained fully sustains the finding of the jury, who are the sole judges of the facts established by the evidence, where there is any evidence whatever to support their finding. Before it can be set aside, it must manifestly appear to be based upon no evidence whatever. Where the evidence leaves the matter in doubt, the finding should not be disturbed; because it is settled by the tribunal, to which it is peculiarly granted to weigh the evidence and find the facts. In the present case, where hangs the preponderance of evidence ? It most unquestionably sustains the finding of the jury to the fullest extent. And even were it left doubtful, neither the Court below nor this Court could legitimately touch the assessment of damages.
    As to bill of exceptions, see also 10 J. R., 312, léanme vs. Barker; and particularly 5 Conn. Rep., 721, Walton vs. The United States.

   Lacy, J.,

delivered the opinion of the Court:

We will not discuss the subject in regard to the application for a change of a venue, because that point does not properly come before us upon this record.

The question whether the Legislature has power to change the venue 'in civil and in criminal cases, is a point of great magnitude and much delicacy, upon which we neither intimate nor give any opinion.

The defendant, by failing to except to the opinion of the Court, overruling his motion for a. change of venue, unquestionably waived his objection, and he cannot now be permitted to insist upon it here.

This inference is deducible from the facts stated in the record. Upon the writ of inquiry, he produced a witness to mitigate the damages. By this act, he then submitted himself to the verdict of the jury; and, consequently, he cannot now be allowed to put in issue the .correctness of the decision of the Court, refusing him a change of venue. A change of venue is a personal privilege, and the party has certainly a right to waive it. Again, the defendant below, upon the filing of his motion for a new trial, and taking his bill of exceptions, showed an entire willingness to have his cause tried in the Circuit Court, where it was commenced; and his motion for a new trial, and his bill of exceptions, expressly contrádict the supposition that he desired a change of venue.

Having then voluntarily waived a personal right, he cannot now allege that he was prejudiced by adjudication by the local Court, where he had consented that the cause should be tried. To adopt a different rule from the one here laid down, would be to introduce into the science of special pleading the utmost confusion and uncertainty, which is equally forbidden by the dictates of sound policy, and by all the well settled principles of practice in Courts of justice.

There are certain regular progressive steps, which the pleader is bound to adopt and follow, in all judicial proceedings. 1't is a general rule, to which there are few exceptions, that he who abandons one point or position, and selects another, must rest his cause upon it; and if that is adjudged against him, he will not be allowed to return to the first point, which he has voluntarily relinquished. The law supposes each party to ^understand his own cause, and it therefore holds him bound by bis election. This principle lies at the very foundation of all just reasoning, as well as all judicial investigation, and so it has been repeatedly determined by this Court.

Had the defendant appeared and pleaded to the action, and judgment had gone against him, he certainly would not have been permitted to come in and object to the local jurisdiction of the Court that tried the cause. His effort to mitigate the damages, his motion for a new trial, and his bill of exceptions, are all equivalent; to an appearance and plea. By making a compound issue of fact and of law, and referring its decision to the judgment of the Court, he thereby placed himself exclusively upon that ground; and the law holds him bound by his own choice.

The only remaining point to be determined, is, — are the damages excessive, or is the verdict contrary to evidence ?

This suit was brought by the plaintiff below, to recover certain fees, alleged to be due him as an attorney at law. The proof clearly supports the verdict. There were but three witnesses sworn upon the trial. Two of them deposed, that the fee charged, which was one thousand dollars, (and which corresponded with the verdict), was not unreasonable. One other witness, called on behalf of the defendant, does not state positively that the charge made was unreasonable, but he strongly intimates such an opinion. It was the province of the jury to compare and weigh the testimony. In the present case, they appear to have discharged their duty, and found according to the preponderance of the proof. The judgment of the Circuit Court must therefore be affirmed, with costs.