author: Mr. Chief Justice ENGlisii

text:
    Straugban et al. vs. The State.
    Upon the failure of the County Court to malee out, and deliver to the sheriff a list of sixteen persons qualified to serve as grand jurors, and of the sheriff to select and summon the requisite number himself, as prescribed by the statute, the Circuit Court has the implied constitutional power to direct the sheriff to summon, forthwith, the requisite number of qualified persons to serve as grand jurors for the term.
    In criminal oases, though several persons concerned in the same offence, may be jointly indicted and tried together, the verdict and judgment against them, should be several: that is, fix the fine or punishment to be paid or suffered by each.
    And where the jury return a verdict, fixing a joint fine against all the defendants, the court should send them back with directions to assess a separate fine against each: but if the verdict be received and recorded; the judgment should be arrested and. a venire de novo awarded.

      Appeal from the Circuit Court of Independence Cowity.

    Hou. Beaueort H. Neely, Circuit Judge.

      FAiEoniLD, for the appellant, Jeffrey.
    Fowler, for appellants, Stranglian and Barnett.
    The law requires the County Cotvrt, at its first term, after the adjournment of the Circuit Court, to make out a list of sixteen qualified persons to serve as grand jurors, and to deliver it to the sheriff, which persons the sheriff is required to summon, &c. And that if no such term of the County Court is held, it is the duty of the sheriff, within 20 days after the time when it ought to have been held, to summon sixteen persons so qualified, &c. And if the sixteen persons so summoned, do not attend, on the first day of the Circuit Court, then such court shall order the sheriff, forthwith, to summon a sufficient number of qualified persons, &c. Arle. Dig. Stat. (ed. oflH4&,)p. 628, secs. 4, 2, 3.
    Now this statute neither gives the Circuit Cou/rtj at any time, the power to order a ven/ire for an entire grand jury, nor to the sheriff, at any time, except withvn, the 20 days after the adjournment of a Probate Court, which, under the general law, must necessarily be more than three months before the commencement of the Circuit Court.
    The Circuit Court has no power at dll, in the premises, hut 'merely to fill vacancies — non q prima/ril/y to order an entire jury, oven on the failure of others to perform their duty. It is only after the County Coiw't had done its duty, or the sheriff has done his, and the jurors fail to come in, that the power of the Circuit Court arises — and not where the County Court and sheriff both fail to do their duty altogether. And, this is no technical objection: because, the law requires the grand jury to be summoned so long before they are called upon to act- — -that persons interested in the ompannelling of the grand jury, or liable to be indicted by it, may find out whether each person summoned is qualified or not, so 1 hat if need be, he may challenge lor cause, or for favor, individually, or to the array. See 13 Ark,. Rep. 143, 744, Stewart vs. The State; 1 Chiity’s Grim. Lam, 307, 308, 326.

      . The verdict and sentence, in this case, is a most extraordinary transposition of a rule, deemed almost universal in the common law, and among civilized nations, that each individual shall answer for his own crime only, and never be held responsible for the criminal act of others — and this, even whether their acts violating the law be separate or in concert. Here a joint penalty is indicted. Instead of finding that each defendant should pay a fine of $100, or of $300, or of any other given sum, tli q joint fine of $300 is imposed on all three, either one of whom may be made to pay it. On such an irregular verdict, a new trial ought to have been granted. 6 Johns. Rep. 69, Root vs. Sherwood; 1 Row. {Mis.) R. 24, Beall vs. Campbell; lb. 31, Wolfe & George vs. Martin; 9 Arle. Rep. 67, Hammond vs. Freeman; 1 Rill, {H~. S.) Rep. 344, Germond vs. The People; 2 Row. {Miss.) Rep. 771, Dixon vs. Richards; 5 Yerg. Rep. 308, McDonald vs. McDonald.

    OleNdeNIN, Attorney General, contra.
   Mr. Chief Justice ENGlisii

delivered the opinion of the Court.

The grounds of this appeal will appear, from the following statement of facts:

At the September term, 1852, of the Independence Circuit Court, the following order was made :

“It appearing to this court, that the County Court, in and for the said county of Independence, failed to order the sheriff to summon a grand jury, to serve for the present term of this court. On motion of the State, by her attorney, it is ordered by the court, that a venire issue, commanding the sheriff to proceed to summon a panel of grand jurors, to serve for the present term of this court, returnable forthwith.” (Sept. 6th.)
Hecoed Ektey, Sept. 7th.
“ This morning appeared in court, Ambrose Alexander, sheriff’, Ac., and returned into court, a panel of grand jurors, to enquire iu, and for the county of Independence, during tlie present term of this court; who being called, the following came, to wit: Joab il. Peel, (who was by the court appointed foreman,) Joseph Ii. Egner, Charles M. "Waugh, George ~W. Adrian, George W. Davis, James M. Jones, Thornes Elms, James P. Carter, Francis I. Capps, James H. Collum, John W. Engles, Robert Morris, and Henry Bales, making sixteen good and lawful men, of the county of Independence, who being empannelled, sworn, and charged, to en-quire in, and for the body of said county, retired to consider of their duty.

It appears, that, during the term, the grand jury returned an indictment, against Carney 0. Straughan, James M. Barnett, and Jesse Jeffrey, for false imprisonment of one Lewis Merritt. At a subsequent term, the defendants entered a j oint plea of not guilty —were jointly tried by a jury, and joint verdict and judgment rendered against them for $300 fine.

Motions for new trial, and in arrest of judgment, were made and overruled.

The defendants took a bill of exceptions; from which it appears, that, on the trial, the State proved the imprisonment, as charged in the indictment, by IT. N. Merritt and Lewis Merritt, and proved, by one Ireland, that the place of imprisonment spoken of by the other witnesses, was in Independence county.

The defendants then proved, by several witnesses, who were acquainted with the general character of II. N. Merritt, that his character was bad generally, and bad for truth and veracity, and that they could not believe him on oath. Some witnesses stated that the character of Lewis Merritt was not good for truth and veracity; and others stated that they had not heard much against him, and could not say but that they would believe him on oath.

The State, then, offered to prove, by one Gray, what the defendants had said to him, about having imprisoned or taken Lewis Merritt, to which the defendants objected, on the ground, that the State could only introduce rebutting testimony as to the character of the impeached witnesses, but the court overruled the objection. Gray then stated, that Barnett and Jeffrey, or one of them, had told him that they had been down to H. N. Merritts, and taken two of the boys, but that one of them had escaped, one of the boys taken being 'lewis Merritt.

The bill of exceptions does not set out, in detail, the testimony of each witness, but states, in general terms, what was proven by the witnesses as above.

The defendants asked the court to charge the jury, that if they should find, from the testimony, that IT. N. Merritt and Lewis Merritt were not worthy of belief on oath, they should entirely disregard their testimony, and that if they found, from the testimony, that H. N. Merritt and Lewis Merrit had sworn falsely and corruptly in one point, they should disregard their whole testimony.”

The court refused so to instruct the jury, but charged them, “that the whole testimony and facts were before them, and that they should give'to each,'and all testimony, such credit as they thought it deserved.”

The defendants excepted to the admission of Gray’s testimony; and the refusal of the court to charge the jury, as moved by them.

The record states, that the defendants moved for a new trial and that it was overruled, but the motion does not appear, in the record before us, nor the grounds of it; nor does it appear, that defendants excepted to the decision of the court, overruling the motion.

1. It is urged, for the appellants, that the indictment was invalid, because the grand jury, who preferred it, were illegally • summoned; that the court had no power to order the sheriff to bring in a panel for the term, because the County Court had failed to furnish the sheriff with alist, or he had failed to summon them. That where grand jurors are summoned for the term, as directed by the statute, and fail to attend, the court can order vaocmeias in the panel supplied, but where nono are summoned, the court cannot order an original panel.

It seems to be well settled, in most of the States, that an objection to tbe qualifications of grand jurors, or to the mode of summoning, or empcmnelmg them, must be taken by plea in abatement, and that after plea in bar, and conviction, it is too late to raise such objections. Whart. Amer. Cr. Law 172, 3; People vs. Griffin, 2 Barbour's Sup. Ct. Rep. 427; The State vs. Herndon, 5 Blackf. 75; Vather vs. The State, 4 ib. 73; The State vs. Freeman, 6 ib. 248; The State vs. Williams, 3 Stewart R. 461; Collier vs. State, 2 ib, 388; The State vs. Pile, 5 Ala. R. 73. This court has made several decisions to the same effect. Fenalty vs. The State, 7 Eng. R. 630; Beverly Brown vs. The State, ib. 623; The State vs. Wm. Brown, jr., 5 Eng. R. 78; Brown vs. State, ib. 607.

In Stewart vs. The State, 13 Ark. R. 744, Mr. Chief Justice WateiNS said, “It would seem that the objections to a grand juror, or to the array, which must be pleaded in abatement, and are waived by pleading to the indictment, are such as do not appear upon the record of the court, and have to be brought to its notice by plea.”

"Without determining whether this distinction is well taken, or not, as the objection to the mode in which the grand jurors were summoned in this case, appears upon the face of the record, we will consider its validity.

It is made the duty of the County Court, at its first term after the adjournment of the Circuit Court, to make out, and deliver to the sheriff, a list of sixteen persons, qualified to serve as grand jurors, and the sheriff is required, within twenty days thereafter, to summon them to appear, at the next term of the Circuit Court of the county. Dig., ch. 94, see. 2. If the term of the County Court, at which grand jurors should be selected, is not holden, the sheriff is required, within twenty days thereafter, to select and summon the requisite number himself. Ib. sec. 3.

“ If the sixteen persons, summoned to serve as grand jurors, shallj not attend on the first day of the Circuit Court, such court shall order the sheriff, forthwith, to summon a sufficient number of persons qualified to serve as grand jurors, to supply the deficiency.” Ib. sec. 4.

It may be inferred, from tbe record in tbis case, that there was not a failure to hold the term of the County Court, at which the grand jurors should have been selected, but a neglect of the court to mate out the list, and deliver it to the sheriff, who adhering to the letter of the law, perhaps deemed himself unauthorized to select and summon them in such case.

If the Circuit Court looked alone to the statute, for its power to supply the omission, and were compelled to stick to its letter, it might not have been warranted in ordering the sheriff, as it did, to summon a grand jury. But the Constitution confers, upon the Circuit Courts, original jurisdiction of criminal cases, and the bill of rights, (sec. 14) declares, that no man shall be put to answer any criminal charge, but by presentment, indictment, or impeachment. A presentment, or indictment, must be made, ox-preferred by a grand jury. Eason vs. The State 6 Eng. R. 482. The Legislature have prescribed the numbex-, qualifications, and mode of selecting and summoning grand jurors. If any, or all of the jurors summoned, fail to attend, the court is expressly authorized, by the letter of the statute, to “supply the deficiency;” and, we think, it may safely be said, that if by failure, or neglect of the County Coui-t, or sheriff, no jurors are summoned, the Oir-cuit Court would have the implied constitutional power to direct the sheriff, as was done in this case, to summon forthwith, the requisite number of qualified persons to serve as grand jurors for the term. And the exercise of this power would, also, well comport with the spirit and intention of the legislation on the suN ject. Dig., ch. 94. If this power were denied to the court, the administration of the criminal law might not unfreqnently be greatly delayed, by the casual or wilful failure of sheriffs, &c., to discharge their duties. In support of this position, see Whart. Cr. Law 168; United States vs. Hill et al., 1 Brock 156; Shaffer vs. The State, 1 How. Miss. R. 238; Woodsides vs. The State, 2 ib. 655; 1 Meig's Digest, 382.

2. In the caption sent up with the indictment in this case, the pames of but thirteen grand jurors, appear. If there were i.n feet, but thirteen persons, impannelled as a grand jury, the law requiring sixteen, no indictment found by them, would be valid.

In the case of Lavillian vs. Lane & Co., 3 Eng. Rep. 374, this court, by Johnson, C. J., said: “ The record states, that twelve good and lawful men returned the verdict; but upon inspection, it appears, that there were but eleven names recorded. The record is contradictory in this respect, and whenever that is the case, the presumption is, that that portion of it is true, and sustained by the facts of the case, which is in accordance with, and answers the requirements of the law, unless the contrary shall be clearly made to appear, by exceptions taken at the time, or in some mode by which the matter may be brought before this court.”

In the case now before us, the ea/piion states, that there were sixteen good and lawful men, &c., though but thirteen names are transcribed. The only difference between this case and the one above quoted, is, that this is a criminal case, and the objection relates to the grand jury, and that was a civil action, and the objection relates to the traverse jury. Whether the same reasoning applies to both cases, need not now be decided.

There is a reasonable presumption in this case, that the clerk made an omission in transcribing the names of the grand jurors, in preparing the transcript for this court, and if this were the only error, appearing upon the record, a special certiorm'i, would be sent down, in accordance with the practice of this court, to bring up a perfect transcript of the caption. Beverly Brown vs. The State, 7 Eng. R. 623; Stewart vs. The State, 13 Ark R. 744; Cornelius vs. State, 7 Eng. R. 797.

3. In criminal cases, though several persons, concerned in the same offence, may be jointly indicted and tried together, unless they or the State elect to sever, (Digest, ch. 52, sec. 96,177,210,) yet each one is answerable for his own criminal conduct, and not for his associates, and the verdict and judgment against them should be several: that is, should fix the fine or punishment, ' be paid, or suffered, by each — but the judgment for costs may be joint. Calico & Drake vs. The State, 4 Ark. 430; Whart. Cr. Law 156, 694; March vs. The People, 7 Barbour Sup. Ct. Rep. 893; State vs. Gray, 10 Missouri Rep. 440.

In this case, when the jury brought in their verdict, fixing a joint fine against the defendants, the court should have sent them back, with directions to assess a separate fine against each; but the verdict having been received and recorded, the judgment should have been arrested, and a venire de novo awarded. 1 Chitty Cr. Law 547, 8; State vs. Arrington, 2 Murph. R. 571.

4. .The exceptions to the admission of the testimony of the witness Gray, and the refusal of the court to charge the jury, as moved by the defendants, were both waived by the motion for a new trial, it not appearing, in the record before us. that these exceptions were made grounds of the motion for a new trial, and reserved by bill of exceptions to the decision of the court overruling the motion. It is, therefore, not necessary to consider them.

For the error of the court, in refusing to arrest the judgment on the objection, that the verdict and judgment were for a joint fine, and not for several fines, the case must be reversed, and the cause remanded, for further proceedings according to law, and not inconsistent with this opinion.

Mr. Justice Soott not sitting.


source: Caselaw Access Project

author: Mr. Justice Walicidr

license: Public Domain

text:
    Iglehart vs. Moore.
    Nothing less than actual notice, or a waiver of it, would give such validity to a judgment against a non-resident, as to make it obligatory upon him: and so a judgment rendered in Tennessee, on motion without notice, against the principal in an injunction bond, then a citizen of Arkansas, in favor of a security, who had paid the debt after the dissolution of the injunction, is not of such validity as to constitute the foundation of an action in this State; although, at the time of the execution of the bond, the parties all resided in Tennessee, and the laws of that State provide for such a judgment against the principal in such case.

      Ajpjpeal from the Circuit Court of Independence Cou/nty.

    Hon. Beaufort H. Neely, Circuit Judge.
    Fowler, for the appellant.
    The law of tbe land in force, where a contract is made, enters into every contract, and becomes a component part thereof: and more especially a particular statute, providing for a particular class of contracts to be made a part of a record and of a judicial proceeding, enters into such contract.
    Such a contract is not only a virtual, but an express waiver of notice; and, also, a full power and authority for rendering up the judgment — as much so as a power of attorney to confess a judgment. It is an agreement on the record, in the proceeding in which that bond is filed, that upon a certain contingency, the court, on motion, shall render a particular judgment- against the obligors: and is as binding on the party as the confession of a judgment on the record.
    And Moore cannot legally extricate himself from the conclusive effects of the judgment, on the ground that he resided in Arkansas, at the time it was rendered onl/y — when it is clearly shown, that he had submitted himself to the jurisdiction of the court of Tennessee, when he resided, m that State.

    If the judgment here sued on was eonelusim in Tennessee, it is equally so in Arkansas : and no defence can be set up to it here, unless such defence would have been sustainable, also, in Tennessee. See Ba/rlmum vs. Hopkins, 11 Ark. R. 162/ Ehmtvs. May-field, 2 Stew. {Ala.) R. 129/ Hampton vs. MoOonnell, 4 Oon. R, 243/ Westerwelt ys. Lewis, 2 MeLecm R. 513/ McElmoyle vs. Cohen, 13 Pet. R. 326.
    Such bonds, given under statutes of Tennessee, draw even the sureties into the cause, in which the bond is given, and make them so far pa/rties to it, as to give the court jurisdiction to render judgment against them. See Black vs. Caruthers, 6 Hump. R. 91/ Hubba/rd vs. Cole, 9 Yery. R. 503.
    In such cases, the act of Assembly, under which the bond is given, gives the sweeties sufficient notice of the motion for judgment. And no notice, in fact, of such motion is necessary. Hi/nchi/rds exr. vs. Brickell, 2 Hayw. Rep. 50 / Turner vs. Creer, 4 Hayw. R. 239/ JSfewman vs. Campbell, Mart. <& Yery. Rep. 65.
    By entering into the bond under the statute, the surety submits to the summary judgment. See Love vs. MeCool, 1 Tenn. R. 331; Reardon Ex parte, 9 Ark. Rep.

    CuRRAN & Gallagher, for the appellee.
    The only question presented in this case, is, whether a non-resident of a State can be concluded by the adjudications of that State, founded upon construetiv e notice.

    That such a judgment rendered in Tennessee would not be conclusive in this State, and that the facts stated in the replication to the third plea are no avoidance, it is sufficient to refer to Ba/rk-ma/n vs. Hopkins et ah., 6 Eng. R. 157/ HeArcy vs. Kitchwn et al., 11 How. (S. C.) Rep. 165, and the cases there cited by the courts and counsel.

      Eaiechild, also, for appellee.
    A judgment in Tennessee* will have tlie same elfect liere as there, only after it is established that the Tennessee court had proper jurisdiction by notice or waiver of notice, to give judgment. See, in addition to the two cases cited by dther counsel, Borden vs. Fiteh, 15 J. B. 125/ Shum-wmj vs. /StUfaiCMi, 4 Cow. 295/ Rogers vs. Colemmi, Ha/rcUn 4Í6; 5 Wend. 102/ 13 ib. 415.
    SjDecial forms of statutory notice have no extra-territorial force. Cow. & IlilVs Foies 912/ Buehancvn vs. Ruolmr, 9 Fast (new ed.) 104/ Farthmcm vs. Jones, 2 Yerg. 484/ Kelhj vs. Iloojper, 3 Yerg. 394.
    Executing the injunction bond was not the beginning of the action in which the judgment sued on was obtained. The motion, on which judgment was rendered, was the beginning of the suit, and void here, because no notice was given.
   Mr. Justice Walicidr

delivered the opinion of the Court.

The action was debt, upon the record of a judgment, rendered in Tennessee. The defence, relied upon, is, that the court, rendering the judgment, had not, by notice, or otherwise, acquired jurisdiction over the person of the defendant, who was, at the time the suit was instituted, and the judgment was rendered, a non-resident of the State of Tennessee.

To this plea, the plaintiff filed the following special replication:

Preclud/i non, because, he says, that he, the said Charles Moore, was, on the 7th day of April, 1840, and had been for a long time, continuously next before that day, and continued to be, for a long time continuously next thereafter, a citizen, and resident]of Perry County, and State of Tennessee, and being such resident citizen, and then and there so domiciliated, he, the said defendant, and one William K. Waddy, who was also then and there a resident citizen of, and domiciliated in- the said coirnty of Perry, and State of Tennessee, exhibited, and filed, their certain bill in chancery, commonly called an injunction bill, with and before tbe chancellor of tbe Western Division of the said State of Tennessee, in the court of chancery, then, and afterwards holden at Huntingdon, in said State, said court, then and there, having jurisdiction thereof, in which bill, they, the sail Charles and William 3L, were the complainants, against William and Cornelius Fellows, defendants thereto, praying, in said bill, amongst other things, a writ of injunction, enjoining and restraining the said W. & C. Fellows from enforcing and collecting a certain judgment at law, rendered previous to that time, in, and by the Circuit Court of said county of Perry, in favor of the said W. & 0. Fellows, against the said Charles and William IL, as partners for a debt of nine hundred and ninety-eight dollars. And that the said Charles and William K., then being so domiciliated, on the 7th of April, 1840, solicited the said Michael to become their security in, and to, an injunction bond,* for the purpose of obtaining said writ of injunction against the said judgment at law, and on their earnest solicitation, especially of Charles Moore, the said Michael consented to become such security for them, and thereupon, then and there, the said Charles Moore, and William K. Waddy, principals, and the said Michael, security, executed their bond of that date, whereby they bound themselves unto the said William and Cornelius Fellows, in the sum of nineteen hundred and ninety-six dollars, for the payment whereof, they thereby, then and there, bound themselves, their heirs, &c., jointly and severally. The condition of which bond and obligation, was, that whereas the above bound Charles and William K., had that day filed their bill of complaint in the clerk’s office of the chancery court at Huntingdon, for the Western Division, composed of the counties of Perry, &c., against the said William and Cornelius Fellows, and had prayed for, and obtained an injunction upon the matters set forth in said bill, then should the said Moore and Waddy prosecute their suit on said bill with effect; or, in case they fail therein, should pay to the said William and Cornelius Fellows; all such costs and damages as might accrue in consequence thereof, and to stand to, perform, and abide by, such order, judgment; and deeree, as might be made by said court, touching said injunction, then that obligation was to be void, else to remain in full force and virtue. Which said obligation and bond, on the same day of the date thereof, was filed with the said bill, in the office of the clerk of said court of chancery, at Huntingdon aforesaid, in said State of Tennessee, and thereby became a record of said chancery court, and a part of the proceedings in said suit in chancery, where the same still remains on file as such record, and, therefore, cannot be now here in court shown, and thereupon in pursuance of an order, previously made by the said chancellor, the said judgment at law was enjoined and stayed in conformity with the statute in such cases made and provided. And, afterwards, such proceedings were had in the said court of chancery, at Hunting-don, upon the said injunction bill, that, on the 2d day of August, 1842, in the said court of chancery at Huntingdon aforesaid, before the said chancellor, it was, by him, the said chancellor in the said court of chancery, ordered, adjudged, and decreed, that the said bill be dismissed, and the injunction theretofore granted dissolved; and it was, then and there, further considered, by the said court of chancery, that the said defendants, William and Cornelius, recover, of the said complainants, the said Charles and William K., and of the said Michael, their security in said injunction bond, the sum of twelve hundred and ninety-one dollars and sixty cents, the amount of the judgment enjoined, with interest up to that time; also, the costs in that behalf expended. All of which will more fully, and at large appear, by the record thereof, still remaining in said court of chancery at Huntingdon aforesaid, in the said State of Tennessee, and which decree and judgment, so then and there rendered, was in conformity with the statute and laws of the said State of Tennessee, in such cases made and provided. Whereby, and by the execution of said injunction bond, as aforesaid, the said Charles and William 3L, so being, then and there, resident citizens of, and domiciliated in said county of Perry, in the State of Tennessee, by force of the statute of said State of Tennessee, in such cases made and pi’ovided, as principals in the said injunction bond, and the said Michael, their security, submitted themselves, voluntarily, to the jurisdiction of said court of chancery, at Huntingdon aforesaid, and then and there, virtually consented, and agreed, by the execution of said injunction bond, according to the form of the statute of said State of Tennesse, in such cases made and provided, and then in full force, and as such entering into the contract, so made by said injunction bond, and becoming, and constituting a part thereof, that upon such dissolution of said injunction, the judgment last aforesaid, should be so rendered against them, the said Charles and William K., and Michael, for the amount of the principal, interest and costs of said judgment at law, so enjoined as aforesaid, and that the said Charles and "William 3L, by the execution of the said injunction bond, then and there as aforesaid, thereby, then and there farther consented, and agreed, that, according to the form of the statutes of the said State of Tennessee, in such cases made and provided, and then and there in full force, and as such entering into and constituting part of the contract and obligation of the said injunction bond, upon the dissolution of such injunction, so granted, and upon such judgment so being rendered against them, and the said Michael as aforesaid, upon such injunction bond, and that upon the said Michael, as their security as aforesaid, paying the amount of said judgment last aforesaid, or any part thereof, that he, the sale Michael, as such security, might obtain and recover a judgment, by motion, against them, the said Charles and William K., as such principal obligors in said injunction bond, for the full amount of whatever might be so paid by the said Michael, as such security, with interest thereon, on such judgment so rendered upon the dissolution of the injunction against them, in said court of chancery, where said last mentioned judgment was rendered as aforesaid, and thereby, then and there, voluntarily, submitted themselves to the jurisdiction of said court of chancery, for that purpose, and fully waiving any, and all other notice of such motion, and fully authorizing the said court of chancery, upon the payment of such sum of money, by the said Michael, so 'adjudged, against them, as their security, or any part thereof, and upon the mere motion of the said Michael, without any other notice whatever, to render up a judgment against them, the said Charles and "William K., in favor of the said Michael, for the amount of money so paid, by the said Michael, with interest thereon, or for which he might be bound by said joint judgment. And he, the said Michael, says, that, after the entering up of the said judgment against the said Charles and William K., and Michael, as aforesaid, that he, the said Michael, as such security, before the rendition of the said judgment in said declaration mentioned, to wit: on the first day of September, 1842, paid to the said William and Cornelius, on said last mentioned judgment, rendered in their favor, the sum of eleven hundred and three dollars, and forty-four and a half cents, and the interest on which sum, up to the date of the rendition of the judgment in said declaration mentioned, amounted to the further sum of two hundred and thirty-four dollars and fifty cents; whereupon, he, the said Michael, by motion without writ, as in his declaration is alleged in that behalf, and for said sum of money, so paid by him, with interest, before the same court of chancery, at Huntingdon aforesaid, in said State of Tennessee, obtained, against the said Charles and William K., the identical judgment which is in his said declaration mentioned, as he had a lawful right to do, according to the form of the statute of the said State of Tennessee, in such cases made and provided, and then and there still in full force, and according to the tenor and the legal obligation of the said injunction bond, and said proceedings so had thereon as aforesaid, as will appear by the record thereof, still remaining in the said court of chancery, at Huntingdon aforesaid, as is in the said declaration alleged. Wherefore, and by which means, he, the said Michael, says, that the said Charles had legal notice of the pendency of said suit by motion, in which the said judgment, in the said declaration mentioned, was rendered against them, the said Charles, and the said William K. Waddy. And this, the said Michael, is ready to veryify, &c.”

To this replication, tbe defendant demurred. Tbe special causes of tbe demurrer, present two grounds. First, That tbe replication is argumentative. Second, That tbe matter set up is not a sufficient reply to tbe defence set up in tbe plea. Tbe Circuit Court sustained tbe demurrer, and rendered final judgment thereon for tbe defendant.

Tbe first ground of demurrer is of minor importance, going only to the form of tbe replication; and concede it to have been well taken, which we incline to believe tbe case, it might have been disregarded as surplusage, if tbe substantial averments presented a sufficient reply to tbe plea, which we will proceed to consider.

It is admitted, by tbe replication, that Moore, at tbe time tbe motion was made, and tbe judgment in favor of Iglehart was rendered, was a resident citizen of Arkansas; and, therefore, under the decision of this court, in tbe case of Barkman vs. Hopkins, was not affected by a judgment rendered upon constructive notice; (whatever may be tbe effect of a judgment so rendered as between resident citizens of tbe State, in which tbe judgment is rendered); but tbe replication is based upon tbe ground, that, notwithstanding this, Moore is bound by tbe judgment, because, by tbe tenor and legal effect oft the injunction bond, which was executed by him whilst a citizen of Tennessee, be submitted himself to tbe jurisdiction of the court in which tbe suit was pending; and, thereby, expressly waived tbe necessity of notice, and agreed to abide tbe summary proceeding by statute, which dispensed with tbe necessity of notice.

If we concede that such was the effect of tbe injunction bond, and that Moore, by executing tbe same, did really consent that upon tbe dissolution of tbe injunction, judgment should be rendered against him, without notice, not only in favor of tbe obli-gees in the bond, but, also, in favor of the security, in tbe event that be should pay tbe penalty of the bond, or tbe damages by reason of its breach, then, no doubt, the replication would be sufficient ; because, a party may, without notice, make himself a party to a suit by entering bis voluntary appearance, or be may, by agreement, waive bis right to notice, buttbe very fact of waiving, pre-supposes a knowledge that tbe suit bas been brought, or an anti - cipation that it may be brought; and, therefore, when such agreement is made, it is either with a knowledge of the fact, or in anticipation of it, an admission that he will, at his peril, take notice of the proceeding, and abide by the judgment rendered.

But the question is, was the agreement made? The counsel for Iglehart contends that it was, by force of the bond, in connection with the statutes of Tennessee. .

The authorities which he cites, only tend to show the construction given to the statute in Tennessee, and the validity of a judgment rendered under it in that State. As between the citizens' of the State of Tennessee, we will not say but that such would be the effect of a judgment so rendered. But in actions in personam the rule laid down in Mills vs. Durgee, 7 Cranch 481, only extends to judgments in which the court has acquired jurisdiction of the person of the defendant by actual notice, by his appearance to the action, or his waiver of the necessity of notice, or where the said defendant is a resident citi'zen of the State in which the judgment is rendered, at the time the suit is commenced, and has had constructive notice, and not to judgments rendered upon con- . structive notice against non-resident defendants. Such was the construction placed upon the decision of the Supreme Court of the Unitad States, in Mills vs. Durgee, by this court, in Barkman vs. Hopkins, 6 Eng.; and such, also, is the construction given to it by the Supreme Court of the United States in a late case, (DeArcy vs. Ketchum, 11 How. Rep. 175,) in which it was held that an action would not lie upon a judgment against a non-resident defendant, who had not been served with actual notice of the suit. Fowler vs. Parks, 3 Mason Rep. 280, and Pickett vs. Swan, 5 Mason Rep. 42, substantially affirm the same qualification of the rule laid down in Mills vs. Durgee. See, also, Williams vs. Preston, 3 J. J. Marsh. 601.

The authorities relied upon by counsel, which hold a judgment in Tennessee valid upon constructive notice, and under tbe rule in Mills vs. Durgee, equally so in every other State, do but affirm the general rule, when the judgment is rendered upon actual notice, without affecting the rule in Barkman vs. Hopkins.

As regards an express agreement to waive the necessity of notice, or an implied agreement, when considering the statute of Tennessee, and the inj unction bond together whilst we admit that judgment might well be rendered upon the dissolution of the injunction, upon the bond without notice, we are not prepared to go further, and concede that, by the terms of the bond, or the law under which it was executed, there was any agreement between Iglehart, the security, and Moore, the principal in the bond; that in the event that Iglehart, after the judgment upon the bond, should pay the same, or any part of it, that Iglehart should take judgment against Moore for such sum, without notice'of the suit or motion for that purpose.

The right of action, in favor of Iglehart, against Moore, arose after the rendition of the judgment, and upon the payment of the money, as security for Moore. And whether he elected to proceed by an ordinary action in assumpsit, or by motion under the statute of Tennessee, no judgment could properly be rendered without proof that the money was so paid. The defendant had as much right to contest this, in the one form of action, as the other; and unless the defendant had been, at the time the suit was commenced, a resident of the State of Tennessee, he could not be reached or affected by constructive notice, because, the Legislature of Tennessee could neither, by its process, send its officers beyond the limits of the State, nor (for a like reason) send forth its constructive notice, which could not be more effective. ¥e have no reference, of course, to proceedings m rem. In them, the court acts upon the thing within its jurisdiction. But in proceedings vnp&rsonam, nothing short of actual notice will make the judgment of the court obligatory upon the non-resident defendant. Judge Stout says, in Fowler vs. Parks: “ No Legislature can compelí any person, beyond his own territory, to become a party to any suit instituted witbin its domestic tribunals. Tbe principle seems universal, and is consistent with tbe general principles of justice, that tbe Legislature of a State can bind no more than tbe person, and tbe property witbin' its territorial jurisdiction.” And in bis Conflict of Laws, p. 547, tbe same judge says: “ In respect to suits in personam, by a mere personal citation, viis eb modis, sucb as by putting up a citation, or by edital citation, there is no pretence to say, that sucb mode of proceeding can confer any legitimate jurisdiction over foreigners, who are non-residents, and do not appear to answer the-suit.”

Moore, at tbe time this proceeding by motion was commenced, was domiciliated in Arkansas, and nothing less than actual notice, or a waiver of notice, would give sucb validity to tbe judgment as to make it.obligatory upon him.

Tbe statute laws of Tennessee did not enter into, and constitute apart of tbe contract, by which Moore and Iglehart became bound to Fellows, in the sense in which it is contended for by the counsel of Iglehart. Tbe statute, which they' insist, comes in aid of tbe contract, relates to tbe remedy, and not to tbe right. Tbe legal effect of tbe bond was not in issue. It bad performed its office, and been merged into tbe judgment. Tbe suit was not upon tbe bond, but upon a cause of action arising after tbe judgment upon the bond had been rendered. At the time this right of action accrued, Moore was a non-resident of tbe State of Tennessee.

If Iglehart, as tbe security for Moore, paid tbe judgment rendered against him, or any part of it, be is, no doubt, entitled to recover tbe money so paid, by an action in indebitatus assumpsit, but before he proceeds to take judgment against Moore, be must give him notice of tbe suit, so that be may contest tbe facts upon which a recovery is sought to be bad against him.

We think, therefore, that tbe demurrer to “the replication was properly sustained. Let tbe judgment be affirmed.

Absent, Mr. Justice Scott,


author: Mr. Chief Justice English

text:
    Hempstead vs. The Auditor.
    The Swamp land Agents, elected under the act approved 12th January, 1853, are entitled to their salary from tlie time fixed by law for their offices to go into operation, and their official duties to commence; which was upon their Districts being laid off by the commissioners, and the maps and plats of the lands in then- respective Districts being furnished by the Auditor, and not from the date of their commissions.

      Appeal from the Cvretidt Cowrt of JPulasM Qowvty.

    lion. .William If. Feild, Circuit Judge.
    S. II. Hempstead, for tlie appellant.
    1. That tbe appellant, having been elected Swamp Land Agent, given bond, taken the oath of office, and received a commission, was entitled to compensation from the date of his commission.
    2. That the 6th section of the swamp land act does not deprive him of compensation: but merely increases his powers on reciv-ing “books &c.,” as therein provided.

      3. That there is no such anomaly in our law as an officer without any right to compensation.
    Mr. Attorny General CleNdeNIN, for the Auditor.
    The relator in this case was not entitled to a mandamus. Ilis duties as State Land Agent did not, and could not, commence until he was furnished with the books, maps, or plats of the Swamp Lands in his District. See sec. 6 of the act entitled “'An act amendatory of existing laws regulating the landed interests of this State,” approved January 12th, 1853.

      Anri the existing laws of tbe State were not changed in regard to the office of Land Agent until he was furnished by the Auditor with the maps and plats. See section 38 of same act above referred to.
   Mr. Chief Justice English

delivered the opinion of the Court.

On the 12th of December, 1853, Bernard E. Hempstead filed a petition for mandamus against the Auditor, in the Pulaski Circuit Court, alleging in substance, that he was elected, by the General Assembly, at the sesison of 1852-53, Land Agent, for the "Washington District, under the provisions of the act of the 12th January, 1853,amendatory of existing laws regulating the landed •i/nierest of this State.” That, on the 14th of March, 1853, after his election, he took the official oath, and executed the bond, prescribed by the 5th section of said act; and, on the 17th of the same month, was duly commissioned by the Governor. Certified copies of the oath, bond and commission, are exhibited.

That ho thus became one of the five Swamp Land Agents, elected and qualified under said act, and as such, entered upon the duties of his office, and from thence forward continued to act as such, and ever had been, and still was ready to discharge all the duties incumbent on him by virtue of said act, and claimed to be entitled to receive a salary and compensation, as such Swamp. Land Agent, at the rate of eight hundred dollars per annum, payable in the manner specified in said act.

The petition continues as follows:

“Your petitioner further represents, that he procured a well bound book, wherein to enter each location or purchase of land; and in discharge of what he then, and still conceives to be his duty, sold swamp land, from time to time, as such Swamp Land Agent, and received Swamp Land Scrip or certificates therefor, and made report to the Auditor of Public Accounts, in accordance with the 16th section of said act, touching the operations of his office, for the year 1853, ending on the 30th day of June, 1853, whereby it was made manifest that 7,427.84 acres of 1st class, 2,84T.68 of 2d class of swamp lands, bad been sold, and entered at that office, and for which was received by your petitioner, properly assigned to the State, according to the law in that behalf provided, 14 Treasurer’s Certificates, amounting to $1,851 54; 32 pieces of 1st class Swamp Land Scrip, for 160 acres each; and IT pieces of 2d class Swamp Land Scrip for 160 acres each; and which scrip and certificates wei’e cancelled according to law; all of which more fully appears, by a copy of the report of your petitioner, ending the 30th June, 1853, marked Exhibit O., and prayed to be taken as part of this petition, the original having been returned to the petitioner, by the Auditor of Public Accounts, the said Auditor not considering’ the petitioner as Land Agent, until the maps and plats were furnished to your petitioner; and the Auditor also returned to him the land scrip sent with said report, and which was afterwards paid, and deposited with the Treasurer, as hereinafter shown: and which return will show the date of the purchase, by whom purchased, residence of the parties, section or part of section, township and range, the number of acres of swamp land of the 1st class and 2d class, and the locality thereof, in the Washington District, up to the 30th June, 1853, amounting, in dollars, up to the last mentioned time, to $6,651 54; and which swamp land certificates and scrip have been deposited and turned over to the State Treasurer, by your petitioner, in accordance with law; as well as scrip received the half year ending with the 31st December, 1853, without any reservation of salary, compensation, or fees; and that the petitioner has received nothing since his qualification as Swamp Land Agent, and entering upon the duties of his office, and which deposits and payments to the Treasurer will more fully appear by reference to the certificate of John II. Crease, Treasurer of Arkansas, dated Tth December, 1853, marked Exhibit _Z?., and prayed to be taken as part hereof.”
“Tour petitioner represents that the Auditor of Public Accounts, although requested, has refused, and still refuses, to make settlements with your petitioner, and draw his warrants on the Treasurer, for the salary of jour petitioner, quarterly or otherwise, howsoever, payable out of the lands sold, or the proceeds thereof, when in truth, and in fact, your petitioner, under the said law, is well and legally entitled to the same.”

Prayer for writ of mandamus against Christopher 0. Danley, as Auditor, &c., requiring him to audit the account of petitioner, as Swamp Land Agent, at Washington, for his salary, at the rate of $800 per annum, from the llth of March to the 30th September, 1853, and to draw his warrant on the Treasurer therefor, or that he show cause, &c.

The court, on the presentation of the petition, ordered an alternative writ of mandamus to issue, to which the Auditor made the following response, in substance:

That he did refuse and still refuses, to make settlement with the petitioner as Swamp Land Agent, for the office at Washington, and to draw his warrant, as such Auditor,' on the Treasurer, for the salary of petitioner as Swamp Land Agent, quarterly or otherwise, in manner as set forth in said writ, because respondent was advised that by the law of the land, the petitioner was not, on the said 30th day of September, 1853, in office as such Land Agent, and could not legally discharge any of the duties appertaining to his said office of Land Agent, and because the petitioner had not, on the said 30th day of September, 1853, been furnished with the lx>o7cs, maps and plats of the lands of the State, in the district of lands for which the said office at Washington was created, as required by law: and because Lambert J. Reardon was, on the 30th day of September, 1853, the Land Agent of this State, by virtue of law, having been elected such by the Legislature, and, as such, entitled to the salary of said office; and that if respondent were to obey the mandate of said writ, it would be a violation of the duties imposed upon him by law as such Auditor, and subject him to grievous losses and penalties; wherefore, &c.

The petitioner demurred to the response, on the following grounds.

1. That the said response places the right of the petitioner to compensation, on the fact of receiving the maps, plats, &c., whereas, by the law of the land his salary commenced from the 17tli day of March, 1853, (the date of his commission.)

2. That by the law of the land, the said Lambert J. Neardon was not Land Agent of this State, after the said Swamp Land Agents were commissioned as such.

3. The respose is in other respects informal and insufficient, &c.

The Auditor joined in the demurrer: the Court adjudged the response to be sufficient, overruled the demurrer thereto, refused to order a peremptory mandamus, and the petitioner appealed to this Court.

The petitioner claimed his salary, as Swamp Land Agent for the "Washington. District, from the 17th of March (the date of his commission,) to the 30th September, 1853, the close of the current fiscal year of the State, down to which time he had not been furnished by the Auditor, with the maps, plats, &c., of the lands of the State embraced in his district: and the question presented for the decision of this court, is, whether the petitioner was entitled to his salary from the date of his commission, or from the time he was furnished with such maps, plats, &c.

The law under which he was elected, does not, in express terms, fix the time when the salaries of the Swamp Land Agents were to commence, and the question is one of construction, to he determined from the scope of that act, and other acts hearing upon the same subject matter.

By act of 20th December, 1814, a land office was established at Little Nock, to be held by an officer called the Land Agent for the State, to he elected by the General Assembly, commissioned by the Governor, to hold his office for two years, and until his successor was elected and qualified, and receive a salary of $500 out of the Internal Improvement fund. By this, and subsequent acts, it was made tlie duty of such Land Agent to sell, under prescribed regulations, the Internal Improvement and Seminary lands previously donated to the State by Congress. Digest, chap. 97, Art. Pl-III.

This court judicially hnows that Lambert J. Reardon was elected to this office at the successive sessions of 1844, 1846, 1848, 1850, and held the office at the time of the passage of the act of 12th January, 1853, “amendatory of existing laws regulating the landed interest of the State.” 1 Qreenlf. Evidence, sec. 6.

By act of January 6th, 1850, {Pamph. Acts 1850-51, p. 77,) the Governor was required to appoint three persons to act and be known as a board of Swamp Land Commissioners, whose term of office was fixed at two years, and until their successors were elected and qualified. By the same act, and a supplement thereto, approved 11th January, 1851, {Pamph. Acts 1850-51,p. 136,) it was made the duty of these commissioners to ascertain and report to -the Governor, lists of the Swamp and Overflowed Lands, granted to the State, by act of Congress of 28th September, 1850; and he was required to file these lists in the office of the Surveyor General, &c. The board of Commissioners were also empowered to classify, fix the value of, and sell these la/nds ; and to contract for, and superintend the making of the levees and drains necessary to reclaim them, as contemplated by the act of Congress granting them to the State. Commissioners were accordingly appointed by the Governor, and entered upon the discharge of their duties.

Such, substantially, were the existing legal regulations when the Legislature assembled in November, 1852 — the Land Agent of the State being empowered to sell the Internal Improvement and Seminary lands, and the board of Swamp Land Commissioners, to sell the Swamp and Overflowed Lands.,. At that session, the “existing laws regulating the la/nded interest of the State,” were amended, by an act oí forty-four sections, approved 12th January, 1853, {Pamph. Acts 1852-3, p. 161,) the provisions of which, bearing on the question under consideration, are substantially as follows:

SeotioN 1 declares that the entire landed interest of the State shall thereafter be controlled and managed as thereinafter provided.

Seo. 2 requires the Auditor to procure, and keep in his office, a well bound set of books and correct plats, separately, of each class of lands belonging to the State; that is to say, of the “ Internal Improvement Icwids, ” the “ Seminary lands, the Saline lands” and the Swamp and Overflowed lands,” making four distinct classes.

Sec. 3 directs the Auditor to make out for each township in the State, embracing any of the above lands, township maps, upon which he should carefully class and discriminate the several kinds of lands aforesaid; and to furnish such maps or plats to the Land Agents of the several Districts thereinafter provided for.

Seo. 4. “There shall be established for the sale and entry of the lands of this State, as enumerated in section two, five offices, to wit: one at Dardanelle, one at Jaoksonport, one at Washington, one at Helena, and one at Pine Bluff.”

Sec. o. “The General Assembly shall, at its present session, and every two years thereafter, elect one competent person to iill each of the offices named in section four, who shall act and be known as Land Agent; and who shall keep his office at the point in the District for which he shall have been elected, designated in section four; and who, before entering upon the discharge of his duties, shall take an oath, &,c., and shall enter into bond, &c., with security, to be approved by the Governor, in the sum, &c., conditioned,” &c.

Sec. 6 provides “that after the said Land Agents shall have been furnished with the books, maps or plats, as hereinbefore provided for, they shall possess the like power and authority, be governed by the same rules and restrictions, and be guided by the same requirements of law, which now control the action of the State Land Agent in the sale and disposition” of the Internal Improvement and Seminary lands — and also empowers them to sell the Saline lands, if thereafter ordered to be sold, in the manner subseqeutly to be prescribed by law.

Seo. 7. “And the said Land Agents shall have full power, &c., to sell” the Swamp and Overflowed lands, “but in making such sales shall be governed by the rules, provisions and regulations now in force, and hereinafter provided, or which may exist, by law, at the time of such sale.”

Seo. 8. provides, “that the said Land Agents, upon, receiving the maps and plats herem, provided for, shall immediately, and without delay, proceed to advertise the Swamp and Overflowed land for sale, taking the boohs a/nd maps furnished by the Auditor for their guides with regard to what LANDS are so owned by the State.” This section proceeds, also,-to prescribe the mode and time of publishing the advertisement, fixes the place of sale at the office of the respective Land Agents, and then declares that on the day fixed for such sale, “they shall proceed to offer the said lands for sale to the highest bidder for cash, or Swamp Land Scrip: Provided, That no such lands shall be sold at such public sale for a less price than $1 25 per acre”’ and that “such sales shall continue from day to day until all the Swamp and Overflowed lands shall have been sold, or offered for sale, by the respective Agents.”'

Seo. 9 requires the lands to be offered for sale by quarter and half quarter section.

Secs. 10 and 37, secure pre-emptions [to actual settlers, provided they are proven up before the day of sale, and require the several Land Agents to notify them of their rights, under the act, in their advertisements; and seetion 11 allows pre-emptions to subsequent settlers upon the lands remaining unsold after the public gales.

Sec. 12 provides “that all lands not sold at the time appointed for such pubUe sale shall be liable to be entered at any time thereafter, for swamp land scrip, &c., and the Land Agent shall give the purchaser a certificate of such entry, in which he shall specify the lands entered, and the amount received for such entry, and shall also note such entry on his township maps, and in his book to be kept for that purpose.”

Sec. 20 requires the Auditor to furnish the several Land Agents with forms of entries, locations and certificates of entry, which forms the Agents are required to pursue in the disposal of the lands, and to discriminate the class to which the lands sold by them belonged.

Sec. 15 directs that “in addition to the memorandum of sales or entry, ol lands to be made upon the maps or plats furnished by the Auditor, the several Land Agents shall each procuro a well bound book, in which he shall enter each location or purchase of lands, specifying the tract sold, to whom sold, the date of the sale, the price, and how paid.”

Sec. 16 makes it the duty of each of the Land Agents to make out a detailed report of the transactions of his office at the end of every six months, and transmit the same to the Auditor; and at the like periods to make settlements with the Auditor, and pay over to the Treasurer the amount of money and land scrip which may be found chargeable against him, and file the Treasurer’s receipt for the same in the Auditor’s office.

Sec. 14 provides “that each of the Land Agents herein provided for, shall receive, in full compensation for his salary, the sum of eight hundred dollars, to be paid equally out of the different lands sold, and in porporiion to the amount of each olass of the lands controlled by them.”

Sec. 22 makes it the duty of the Auditor to prepare patents for all lands sold by the several Agents, after the same shall have been paid for, which patents, with other evidences of payment, are to be submitted to the Governor for his signature, and when signed by him, are to be recorded in the Auditor’s office, &c.

Sec. 25 provides for the election, by the General Assembly, at its then present session, and every two years thereafter, of the board of Swamp Land Commissioners, &c.

Sec. 26 makes it the duty of the Swamp Land Commissioners, to divide the State into five convenient Districts, having as near as may be, the same quantity of swamp land in each, which Distracts were to be laid, off with a view to the convenience of business from the offices of the five Land Agents, as located by the act.

Other sections of the act make it the duty of the board of Swamp Land Commissioners to carry forward the work of reclaiming the Swamp Lands, by the construction of levees, drains, &c.

Sec. 43 requires the expenses accruing on account of the several classes of lands, to be paid out of the fund arising from the sale thereof, respectively.

Seo. 38 is in these words: “ That nothing in this act shall be construed so as to alter or change existing laws until the election and qualification of the officers herein provided for; and wntil the, Auditor shall malee out and furnish the several Land Agents herein provided for the sevei’al land Districts, with the maps a/nd plats, as required to be furnished by him as aforesaid, which he shall furnish without delay.”

These are the only provisions of the act bearing materially upon the question before us. Some of the sections have been transposed for the purpose .of bringing them more immediately in connection with others relating to the same subject mattei*.

Prior to the passage of this act, as we have above stated, the Land Agent for the State, holding his office at Little Rock, was empowered to sell the Internal Improvement, and the Seminaiy lands; and the board of Swamp Laiid Commissioners, holding their office at such point in the State as they might designate {Aet of 11 ih Jan., 1851, see. 3,) were authorized to sell the swamp lands {Aet of Jan. Qth, 1851, see. 8).

For greater public convenience, it may be supposed, the Legislature, by the act of 12th January, 1853, made provision for the division of the State into five districts {see. 26,) and established a land office, to be held by an agent, in each of these districts {see. 4). These agents were designed to act in the place of the Land Agent for the State, in the sale of the Internal Improvement and Seminary lands, and instead of the Board of Swamp Land Commissioners in the sale of the swamp lands, lying it) their respective districts (sec. 4, 6, 7, 8, 12). After the act went into full operation (sec. 38) the office of the Land Agent for the State, was to cease to exist, and the Board of Swamp Land Commissioners were to superintend the reclamation, and not the sale, of the Swamp Lands (sec. 25 to -14). It is manifest, from the scope of the act, that the five district land offices -were created for no other purpose, than the sale of the lands of the State, and the five agents were charged with no other duties than such as were incident thereto.

When were these offices to go into active operation ? When were the duties of these agents to commence ?

The Auditor was made, as it were, the head of the Land Department of the State. He was required to procure and keep in his office, separate books and plats of all the several classes of lands belonging to the State (see. 2). He was rerpiired to furnish maps or plats of these lands to the several agents (section 3); they were to note the sales and entries thereon (sec. 15); to make semi-annual reports of the transactions of their offices to him (sec. 16, 17, 18), and he was to prepare patents for the lands sold, submit them for the Governor’s signature, and when obtained, record them in liis office (sec. 22). Thus the books, plats, <fcc., kept in his office, were doubtless designed to constitute checks upon those kept in the offices of the agents to prevent errors and frauds. It is, therefore, manifest, that the agents could not commence the sale of these lands?, or advertise them for sale, until such maps or plats were furnished them by the Auditor (sec. 3, 6, 7, 8, 12,15, 20,38); because they could not legally know what lands they were authorized to sell, or advertise for sale, until they were furnished with such maps or plats.

Before the Auditor could furnish such maps or plats to the agents, he had necessarily to procure correct lists of the lands,' and cause duplicate plats to be made out, one copy for his own office, and one for the agents; and before he could deliver them to the agents, the Board of Swamp Land Commissioners had to divide the State into districts (see. 26), that the Auditor might know what townships were embraced in the district of each agent, and thereby be enabled to furnish him with maps or plats of such townships (see. 3). This, it may be well supposed, was a labor of some magnitude, and, in order that the sales of the public lands might not be suspended, while the Auditor was preparing such plats, the Legislature deemed it expedient to continue in opera-iton the existing regulations for the sale of such lands, until such “maps cmd plats were fvarnished to the several Agents,” (see. 38). Until such maps, &c., were furnished by the Auditor to the Agent for the "Washington district, (the petitioner,) it would seem to have been clearly the intention of the Legislature, that the Land Agent for the State should continue to sell the Internal Improvement and Seminary lands; and the Board of Swamp Land Commissioners to sell the swamp lands, embraced within the limits of the Washington district, and so with the other districts. When such maps, &c., were furnished to the agent of any one of the districts, his power to sell the lands would commence, and the authority of the other officers would cease within his district. No other hypothesis will harmonize with all the provisions of the act.

The fact that the same General Assembly, which passed the act in question, elected Reardon, the Land Agent for the State, one of the Board of Swamp Land Commissioners, does not militate against the hypothesis above assumed, because both offices belonged to the Executive Department of the State, and the acceptance of the latter, did not necessarily vacate the former which it is but fair to presume the Legislature understood; and that they intended him to continue to discharge the duties of State Land Agent, until the district agencies went into operation and his office ceased to exist, maybe inferred from the fact that they elected no other person in his place. The district agents were to succeed him in the powers and duties of his office, when they were legally qualified to do so, according to the provisions of the act in question.

The district land offices having been created for no other purpose than the sale of the public lands; and the agents charged with no duties except such as were incident to the making of such sales; inasmuch as they could not commence the discharge of these duties until their districts were laid off by the Board of Commissioners, and the requisite maps ox plats, &e., were furnished to them by the Auditor, it follows that until then they had no official act to perform — their offices did not go into operation— though previously created, they were until that time, in an inchoate state.

The petitioner doubtless had the right to take the necessary oath, enter into bond, and, perhaps, to receive his commission from the Governor, at any time after his election, and thereby to place himself in an attitude of authority to receive from the Auditor the requisite maps or plats, dec., appertaining to his district in order that when they were ready for delivery, he might legally receive them, and enter upon the discharge of the duties of his office. If the Auditor had unnecessarily delayed the preparation or delivery of such maps, &c., the petitioner might, perhaps, have quickened the performance of his duty, by mandamus.

■, But was the petitioner entitled to the salary attached to the office, until the office went into operation — •until he entered upon the discharge of its duties — until he had some labor to perform, and responsibility to incur? If it was any burthen or inconvenience to him to take the oath, enter into bond, and obtain his commission, there was no obligation upon him to take these preliminary steps, until he ascertained that his district was laid off, and the maps, dhc., prepared for him. If he is entitled to his salary from the 11th. of March, the date of his commission, as ho supposes, he could as well have qualified, and obtained his commission, on the day after his election, in the previous January, and thereby, by his own act, entitled himself to his salary from that time, instead of from a later period. Had the office been in full being when he was commissioned, and had there been duties incident to it, which he might have been called upon presently to perforin, the commission would have placed him in an attitude of readiness to perform such duties, and, doubtless, bis salary would have commenced from the date of his commission. But we have seen that until the maps, doc., were furnished him by the Auditor, his office was in an inchoate state; there were no official duties for him to perform, and until then, other officers were authorized to continue in the exercise of the powers which were to attach to his office, when it went into operation.

The 14th section of the act provides that each of the Land Agents, &c., shall receive a salary of $800, “to be paid equally out of the different lands sold, and in proportion to the amount of each class of lands controlled by them.”

The State holding each class of the lands in trust for particular public purposes, the Legislature doubtless designed to charge upon each class, the expenses incident to the sale, &c., thereof. (See, also, section 43).

The demurrer to the response of the Auditor, admits that to the 30th Sept., 1853, the maps, dec., of the lands in the District of the petitioner had not been furnished to him; and the petition does not even show that the Board of Commissioners had laid off tiro "Washington District; and this being an act to be done by them in pads, we cannot judicially know that it had been done.

When the petitioner demanded his salary, or the part claimed to be due, as alleged in his petition, if the Auditor had to look to the amount and class of lands sold by him, to determine upon what basis to audit it, as would seem to have been contemplated by sec. 14, the Auditor could not legally know that he had sold any lands, because the furnishing of the maps or plats, dsc., was to precede such sales. True, the petitioner alleges that after getting his commission, he procured a book, &c., proceeded to sell lands, &c., and report the transactions of his office to the Auditor. But how did he ascertain what lands of the State were embraced in Ms District, what remained unsold, and the class to which they belonged? The law under which he was elected, provided but one mode by which he was to be informed of the necessary facts upon, which, to base the transactions of his office — this mode is plainly manifested upon the face of the statute — he was to look alone for such information to the official maps or plats, dec., which the Auditor was required to furnish him. The law did not authorize him to go out, upon his own responsibility, and seek information from other sources.

If the Auditor, in auditing the salary of the petitioner, was not to be governed by the sales made by him, but might have looked alone to the “amount of each class of land controlled by him,” the objection is still not removed, because there were no lands under the control of the petitioner, in contemplation of law, until such •maps or plats, dhc., were furnished to him.

The salaries of the officers of the State generally, are paid quarterly, {Digest, chap. 142, sec. 11), but it was perhaps the intention of tli£ Legislature that the salaries of the Land Agents should be paid semi-annually, inasmuch as they are required by section 16, to make a report to, and settlement with the Auditor at the end of every six months, and pay over to the Treasurer the amount of money and land scrip “found chargeable against them;” and inasmuch as the Auditor, in auditing their salaries, would have to look to these reports, from time to time, to ascertain the quantity and class of the lands sold by them, and the proportions of the several classes of lands remaining under their control, as seems to have been contemplated by section 14.

However commendable may be the disposition manifested by the petitioner, to enter promptly upon the discharge of his official duties, after his election, we think he has clearly shown that he was in advance of the provisions of the law; and that he is not entitled to his salary, from the date of his commission, but from the time fixed by law for his office to go into operation, and his official duties to commence.

The judgment of the court below is affirmed.


author: Mr. Justice Walker

text:
    Snider vs. Greathouse et al.
    Whore a surety pays a debt, on default of his principal, there is such .an implied assent, on tlio part of tho principal, as will entitle the surety to maintain an action against him for money paid.
    Ono of tho distributees of an estate filed his bill, in a sister . State, for his distributive sharo, against tho administrator and his sureties in the administration bond, setting out tho bond and all the proceedings in the administration. The administrator was a non-resident, and no actual notice was served upon him, nor did ho appear to the suit: a decree was rendered against the heirs of a deceased surety, for their proportional part of tho sum due. Execution was issued against the heirs, and returned satisfied, with a receipt thereon: Held, That though tho record of tho proceeding and clccreo would not be valid as the foundation of an action against tho administrator, for want of notice, it was admissible in an action against him, by tho heirs, for money paid, as prima facie evidence of tho sum duo by tho administrator, of tho obligation of tho heirs to pay, of tho assent of the administrator to the payment, and of tho actual payment of the money.
    Wlxero a joint judgment is rendered against several heirs of a doceasod surety, and the money paid by them, they are entitled to maintain a joint action against the principal debtor for tho sum paid.

      Appeal from the Circuit Court of Crawford Cowity.

    Hon. A. B. Greenwood, Circuit Judge.
    "Walker & Greeh, for tbe appellant.
    To sustain tbe count for money paid, it is necessary, 1st. That money should have been paid or expended by tbe plaintiff: 2d. That tbe defendant requested the plaintiff (expressly or impliedly) to pay tbe money for bis use; and 3d. That tbe money should have been paid for a debt for which tbe defendant was originally or primarily liable to the third party. Chitiy on Con. (7 Amer. Ifd.) 592; Morrison vs. Barltley, 7 Berg. & II. 238; Miller vs. Ilowry, 3 Penn. Pep.
      380 / Gardner vs. Cleveland, 9 Pick. 337. Where several sureties join in a suit for the recovery of money paid for their principal, it is necessary for them to prove that the money paid was a j oint fund, or raised on their j oint credit. Pean son vs. Pcvrker, 3 N Samp. Pep. 366 ; Jewett vs. Gonforth, 3 Greerüeafj 107/ or they should sue severally. Gould vs. Gould, 8 Cowen 168.
    A decree or judgment is always admissible with a view to the proof of the judgment itself, as a fact, and its legal consequences ; but not to prove the facts upon whose supposed existence the judgment or decree was founded, (3 Cow. c& Sill’s notes to Phil, on Ev., p. 820, note 582 / 2 Stark. Ev. 183-4,) unless the party against whom it is offered in evidence, had notice of the suit, or an opportunity of making a defence.
    Judgments or decrees obtained against persons resident abroad, without notice to them, and an opportunity of defending, are not admissible against them as evidence of indebtedness or as operative in any measure i/npersonam, when offered in a neighboring State. Cow. <& Bill’s Notes, 3 vol., p. 908. Notice by publication in a newspaper, is not sufficient. Miller’s Ex. vs. Miller, 1 Bailey’s Pep. 242; Moren vs. Killibrew, 2 Yerger Pep. 376/ Cone vs. Cotton, 2 BlacJford’sR&p. 82/ Pogersvs. Colemcm, Sar-dins Pep. 413. See, also, the cases of Stevens vs. Jack, 3 Yerg. Pep. 403/ Scmders vs. Samilton, 2 Scvyw. Pep. 226/ Jacob vs. Pierce, 2 Pawle’s Pep. 204/ Maupin vs. Compton, 8 Bibb 214.
   Mr. Justice Walker

delivered the opinion of the Court.

The facts necessary to a proper determination of the questions of law in this case, are, that Frederick Snider, of Hancock county, Kentucky, died intestate, and that Nicholas V. Board, and Cornelius Snider, were appointed administrators of his estate, and executed bond for the faithful performance of their duties as such administrators, with Rodolphus B. Greathouse, and Henry W. Williams, as their sureties.

Thereafter, Cornelius Snider resigned his administration, and, by an order of the County Court of said county, Board, the other administrator, executed another bond, for the faithful performance of his duties, with Philomon Dawson, John "Wood, and Bobert C. Beauchamp, as his sureties.

Subsequently Bobert 0. Beauchamp, who was appointed guardian for the heirs of Frederick Snider, filed a bill in chancery, in the Hancock Circuit Court, in Kentucky, against Cornelius Snider, Nicholas Y. Board, and their securities, for an account for money, alleged to be due, upon the settlement of the administration, to the heirs of Frederick Snider, deceased.

At the time this suit was commenced, both the administrators had removed from the State of Kentucky, and no personal service of notice of the suit was had upon them, nor did they appear to the action. After personal service upon the securities, and constructive notice by publication upon the administrators, such proceedings were had, that a decree was rendered against John L. Greathouse, William L. Greathouse, Joseph 1. Greathouse, and Isaac N. Greathouse, heirs of Bodolphus B. Greathouse, one of the sureties on the administration bond, for the sum of one hundred and fifty-seven dollars and fifty-two cents, their proportional part of the whole sum due by the sureties and decreed to be paid, with a like proportion of the costs.

Upon this decree, an execution issued against the defendants, heirs of Bodolphus B. Greathouse; and, under the statute of Kentucky, the debt was replevied with William S. Bates as security, in the replevin bond; said bond having the force and effect of a judgment: execution issued thereon, on the 4th day of October, 1850, against said defendants and Bates, their security. Which, as appears from the sheriff’s return, was levied upon a negro, the property of John II. Greathouse. The return shows no disposition of the slave, and from the fact that within five days after the levy, the execution was returned, endorsed “satisfied in full,” it is fair to presume that it was not satisfied by the sale of the negro, but by 'whom it does not appear; nor is it shown, in the receipt of the complainant, Beauchamp, who acknowledges the receipt of the full amount of the debt, by whom the money was paid.

To recover this money paid as security for the administrators under this decree, the heirs of Greathouse, the security upon the bond, brought this action in assumpsit in the Crawford Circuit Court, against Cornelius Snider and Nicholas Y. Board. The declaration contains the usual money counts. The action was discontinued as to Board, who was not served with process. Cor-= nelius Snider pleaded the general issue and the statute of limitation, upon which issue was taken, and the case submitted to the court sitting as a jury — the transcript of the record from Kentucky being the only evidence adduced. Judgment was rendered for the plaintiffs. The defendant moved for a new trial, upon the ground that the evidence was not sufficient to sustain the finding of the court in favor of the plaintiffs. The motion was overruled, and the defendant excepted and appealed.

The main question presented is, is the transcript of the record from Kentucky sufficient evidence to fix upon the defendant a legal liability to the plaintiffs for the sum of money, claimed tc have been paid by them, on account of the security-ship of their father, for the defendant.

The objection to the admissibility of the record, or rather ol the extent to which it may be used, and to fix the liability of the defendant to pay, is, that the decree was rendered upon the bond without actual notice to the defendant; ho being at the time the suit was commenced, a non-resident of the State of Kentucky: and it is also contended that giving the record the full force and effect, contended for by the plaintiffs, that still it does not show ajoint payment of the money by them; and, consequently, no joint right of action against the defendant.

To entitle the plaintiffs to recover, they were required to prove the payment of the money by them, and an express or implied assent, on the part of the defendant, to such payment. In'' this case there was an implied assent growing out of the legal liability of the security to pay.

StabKie says, “The defendant’s assent is implied in all cases,, where the plaintiff is under a legal obligation to puxy tbe money, through the default of another, as when a security is compelled to pay money on the default of his principal.” 2 Stark. Ev. 101.

To establish the implied assent to the payment, and also to show what amount the security was required to pay, the transcript of the record was introduced as well as to show by the return of process that the money was paid. The bonds, the amount of the estate which came to the defendant’s hands, and the balance due them; as well as the decree, the execution and the return showing that it had been paid, all appear in the transcript. But the defendant objects that it is not evidence against him, because he was not, by actual service, made a party to the suit.

If the action had been debt upon the record, the objection would have been good, as held by this court at the present term in Iglehart vs. Moore. But as the suit was assumpsit, and the sole purpose of the record was to show an implied assent growing out of the legal obligation to pay the money which had been paid as security, through the default of the principal to pay, the question is, does the same rule apply as if the suit had been upon the judgment? ¥e think not. It is very evident that the security might have been sued alone upon this bond. Such was held to be the case in The People vs. Metter and Sims, 1 Scam. 83.

In such suit, the court determines the liability of the security to pay: the breach is for the non-performance of the duty of the administrator: the damages, the sum ascertained to be paid. No doubt but that this sum may be coerced by law from the security; and shall we say that if it imposes a legal obligation upon him to pay the debt of his principal, that it is not sufficient evidence to raise an implied assent to such payment, and an assumpsit to refund the money so paid to the security. We should say not: nor do the decisions cited, and relied upon by the counsel for the defendant, when properly restricted to the state of facts, under which the decisions were made, deny the validity of the record for such purpose.

In the leading case, (Maupin vs. Compton, 3 Bibb 214,) Compton, tbe assignee, brought suit in Virginia, against Ellis, the maker of the note; and, upon the trial of the case, the jury found that the debt had been paid to Maupin, the assignor, before he assigned the note to Compton, and judgment was rendered in favor of Ellis. Compton then sued Maupin the assignor. On the trial of this suit, the only evidence introduced was the transcript of the record of the suit between Compton and Ellis in Virginia; of which suit, however, Maupin, the assignor, had no notice; the question arose upon the admissibility of the record as evidence. The court said: “ In the present case, no suit was necessary against the obligor (if the demand was paid before the assignment) to authorize a recovery against Maupin, the assignor. The cause of action accrued virtually upon the assignment being made, nor was the fact of payment matter of record, but extraneous from it. The same necessity does not, therefore, exist in this, that did in the former case, to make the record evidence.”

It will readily be perceived that the record was excluded as evidence in this case, because the payment having been made to Maupin before the assignment, a right of action accrued at the time the assignment was made, wholly independent of the determination of the suit in Virginia. But, in the case before us, the obligation^ pay, on the part of the principal, arose upon the assessment of the damages by reason of the breach of the condition of his bond, and the payment of the money for him by his securities.

There is another class of cases in which notice has been held necessary, in order to make the record evidence sufficient to entitle the plaintiff to recover, relied upon as authority. They are where suit is brought upon the warranty of title upon eviction by a paramount title. The decisions go to the extent that the record of the eviction is sufficient evidence of an eviction, whether the grantor had notice of the suit, under which the eviction was had or not, but not of paramount title. In both these classes of cases, the legal liability upon the assignor and the grantor, are contingent, and arise solely upon the contingency that the money cannot be made out of the payor, or that the grantee has been evicted by a paramount title.

But the liability of the security upon the bond is joint and several, and although he cannot have his recourse over against his principal, until he has paid the debt,-still he is liable over to the creditor in the first instance ; and, upon the payment of the debt, after it becomes due, if it is liquidated, or after its liquidation, if not so, according to the terms of the contract, whether by jirocess of law or not, an obligation is raised to pay the same. Suppose the bond had been for the payment of a specific sum of money : after the bond fell due, an obligation would rest both on the principal and the security to pay, and the security might do so without suit. In that event, he would have to prove the execution of the bond, by which he became security for the defendant, and the payment of the money to the obligee. But where the obligation was to perform a duty, upon a failure to do which a legal liability accrued in damages for a breach of duty, if the security should undertake to pay what might be claimed as damages, without a suit, we presume he would do so at his peril; and would be required, in a suit against the principal, not only to show that he was security upon the bond, but also that the damages were really due. When sued, however, and his liability and character as security brought into question, as well as the amount which he shall be required to pay, it wouldseembut just that the record evidence, which was held sufficient to impose a legal liability on him to pay, and his actual payment under the process of the court, would, if not conclusive, at least be prima facie evidence of his liability to pay, and that he was such security. Suppose the principal be dead with no legal representative, or that he has absconded to parts unknown, and his security has been sued and made to pay his debt, if we were to hold that the security could not hold his estate liable, upon the recovei’y, had against him as security, he would not only be required to prove that he had paid the money, but also that the damages assessed were properly due and chargeable. The result would be, that these facts must again be submitted, for re-investagation, to some other court or jury, who, under a new or different state of facts, arising upon the evidences then adduced, might determine that the principal was chargeable with a less sum, than that recovered against him, and if he is to be bound by this, the security would, in good faith, under the judgment of the court, be compelled to pay money which he could never recover from his delinquent principal. In view of the equitable nature of the demand of a security against his principal for money paid, we cannot hold such to be the law, and in support of the conclusions at which we have arrived upon principle, there are several adjudged cases to which we will briefly refer.

In Scott vs. Cleveland, 3 Mon. R., p. 62, it was held, in an action of assumpsit by the assignee of a note against the assignor, that the transcript of a judgment, rendered in the State of Indiana, in favor of the maker, was admissible evidence in a suit against the assignor.

In Barr vs. Gratz, 4 Wheaton, 213, Judge Story takes the distinction between the admissibility of the record, when the right claimed is founded upon the record recovery, and when introduced as part of a chain of evidence in the case, he says : “ It is true that, in general, judgments and de-cioo--. are evidence only in suits between parties and privies. P>n; ;‘,e doctrine is wholly inapplicable to a case where the decree is )=<>í inlroduced as,<p6rse, binding upon any rights of the other p: ry. but as an introduc tory fact to a link in the chain of the id. -miff s title.”

And Mr. Greebtleap, in his work <». ■ v doñeo, Yol. 1,page 527, says: “A judgment when used by v ,u <<> inducement, orto establish a collateral fact, may be admiUeif, though the parties are not the same. Thus, the record of a conviction may be shown, in order to prove the legal infamy of witness; so it may be shown, in order to let in the proof of whar was sworn at the trial, or to justify the proceedings in execution of the judgment. So it may be used to show that the suit was determined, or, in proper cases, to prove the amount which a principal has been compelled to pay for the default of bis agent, or the amount which a surety has been compelled to pay for the principal debtor: and, in general, to show the fact that the judgment was actually rendered at such a time, and for such amount.”

These authorities clearly show that the record is admissible for such purpose, without reference to the fact, as to whether it should be considered as conclusive or onlj prima facie; probably the latter, as would appear from several decisions directly in point. Haggerty vs. Bradford, 9 Ala. R. 571, was a suit in as-sumpsit by the endorsee against the endorser, after a failure to recover of the maker of the note, the assignor having had no notice of the suit against the maker. Goldthwait, Judge, after considering the question in cases where notice has been given to the assignor, proceeds: “ But what is the rule when no notice has been given. In Scales vs. Wilson, 9 Leigh. 473, the assignee of a bond in Yirginia, submitted his action against the obligor to arbitration, and it was awarded in favor of the obligor, on account of set-offs against the assignor. On a suit against the assignor, he insisted that he was not bound by the judgment on the arbitration, but tíre court held it wasjorimafacie, obligatory upon him. In Trust vs. Gould, 5 Pick. 380, one not connected with a suit had undertaken to indemnify an officer for a levy, and he was held, prima facie, bound by a judgment against the officer, although obtained without notice to the indemnitor. These cases (says the Judge) will authorize us in the conclusion that the judgment in favor of the maker, upon the merits of the note, is in all cases prvmatfacie evidence against the endorser, and that it rests with him to show the defence then interposed was invalid.

In the case of The State of Ohio vs. Colerick, 3 Ham. R. 488, the court said: “We take the distinction to be, that where the securities have notice off the suit, and may or do make defence, the judgment against the principal is conclusive against them. When such notice is not given, the judgment against the principal is pri/tna facie only. It may be impeached for collusion or mistake; but, until so impeached, it is sufficient to entitle the plaintiff to recover the amount for which it is rendered.”

In Cobb vs. Haynes, 8 B. Monroe 137, the precise question came up that is presented in this case. It was a suit in Kentucky to recover part of the sum paid by another security, who had been sued and compelled to pay the whole amount decreed to be due from the administrator to the heirs of the intestate. The first question was whether the record was evidence; that the defendant was a co-security upon the administration bond with the complainant, and it was held that the copy of a record from a court in Virginia, properly certified and containing a copy of the bond, 'purporting to be signed by the defendant, and not denied otherwise than by stating his want of recollection that he had ever signed it, should be taken as conclusive evidence of the fact of his signature, and touching the effect of the judgment upon the rights of the parties. It was further held, that the record was evidence of the pendency of the suit in Virginia, and the decree thereon rendered, is prima faoie evidence of the extent of the liability of the co-security, and of the liability of the party sued in Kentucky, as co-security in the administration.

The record in the case before us, contains a copy of the bond and all the proceedings in the administration; and, was in our opinion, prima faoie at least, sufficient evidence of the sum found due by the defendant as such administrator, and which the plaintiffs, as securities, were required to pay. And also of every other fact necessary to raise an implied assent, on the part of the defendant, to the payment made by the plaintiffs: and we are further of opinion that the process of execution, and the return and receipts upon it, sufficiently show the actual payment of the money.

The remaining question to be considered, is, whether such payment was a joint payment, or such as will entitle the plaintiffs to maintain a joint action for the sum paid.

These plaintiffs were the heirs of Kodolphus B. Greathouse. Their liability to pay arose upon the fact, we must presume, that his estate came into their hands: otherwise, they would not have been responsible. It was their joint debt, then, as his heirs. The judgment was against them, and although the execution also issued against their security in the replevin bond, it is but just to presume that the money was paid by the principals, and as they were jointly liable, that it was a joint payment. Chief Justice Savage, in Gould vs. Gould, 8 Cowen 170, remarks: “It is nothing to the defendants whether the funds, out of which the debt was paid, be joint as between securities, or several as to each. That is the concern of those only who own the fund.”

And the doctrine laid down in Siter vs. Howry, 2 Ham. 211, and in 3 Metc. R. 169, sustains this view of the question, and shows that the objection is not well taken.

This question comes up upon execeptions to the opinion of the court, upon motion for a new trial, and upon a fair consideration of the whole case, we think substantial justice has been done. Affirmed.

Absent, Mr. Justice Scott.