11 Ala. 1009 | Ala. | 1847
The first count of the declaration is at least substantially sufficient. It professes to set out the contract of the parties according to its tenor. This contract.may be thus briefly stated: the defendant, by his attorney in fact, assigns to the plaintiff a bill single previously made by third persons, of which he (defendant) was the payee, the consideration of which was certain lands and mills purchased by the obligors of the defendant. At the time of the assignment, a bill was pending'in the court of chancery at Talladega for the enforcement of the . equitable lien on the lands and mills, at .the suit of the defendant. It was stipulated by the defendant that if the property should not sell for enough under the decree in chancery to pay the specialty to the plaintiff, then he (defendant) would make good the deficiency. Although the contract states that the defendant transfers or indorses the specialty, yet as it is affirmed to hewe-been filed in the county court of Talladega, we infer that there was no indorsement in the appropriate.meaning of the term. Be this.as it may, the defendant is not sought to be charged as an indorser, but on the special contract we have noticed. An indorsement must be made on the paper .itself, and,not by a writing separate and distinct from it, (Gookin v. Richardson, at this term); or on another paper annexed thereto, which is sometimes necessary when there are many successive indorsements to be made. [Chit, on Bills, 253; Story on Bills, 225.]
To entitle the plaintiff to recover, it is enough to show that a decree has been rendered in the suit in chancery, that the, lands and mills have been sold under its authority, that the amount produced by the sale was not sufficient to satisfy the specialty assigned to him, and what the deficiency is. The first count alledges all this, deduces therefrom the.defendant’s liability, and promise to pay; and the breach, at the conclusion of the declaration, avers the non-payment of
The act of 1837 “ to explain and amend the laws in relation to attachments,” provides, that when a suit shall be commenced in any circuit or county court, and the defendants, or any one of them, shall abscond or secrete, or shall remove out of this State, or be about to remove out of it, or shall be about to remove his or their property out of this State, or be about to dispose of his or their property fraudulently, with intent to avoid the payment of the debt or demand sued for, on oath being thereof by the plaintiff, his agent, &c. and oath being also made of the sum due, and that an attachment is not prayed for the purpose of vexing or harrassing the defendant or defendants, it shall be the duty of the officer before whom the affidavit is made, on the plaintiff, his agent,, &c. entering into bond with security, &c. in double the amount sworn to, conditioned to pay the defendant, &c. all such damages and costs as he, &c. may sustain by the wrongful suing out of the attachment, forthwith to issue the same, &c. returnable to the court in which the suit had been
A summons, or a writ of capias ad respondendum is not necessarily the initiatory process in a cause, but a suit may be commenced by an original attachment issued against the estate of the defendant. An attachment is extraordinary process, and when levied and returned, becomes a suit in court, and if the jurisdiction is maintainable, and the cause of action made out, the plaintiff is as much entitled to judgment as if the suit had been instituted in the ordinary mode. If then the act in question is to be literally interpreted, there is no doubt but an ancillary may succeed an original attachment, and we know of no warrant under the circumstances, for the adoption of a different rule of interpretation. It would perhaps be competent to dismiss the ancillary attachment, or quash the levy thereof, where the estate of the defendant levied on under the original attachment was unquestionably ample to satisfy the demand sought to be recovered. However this may be, if the ancillary attachment was vexatiously sued out, the plaintiff will be liable to respond to the defendant in an action for damages. There is nothing in the record to indicate that the assistant process in the present ' case operated oppressively or unjustly upon the defendant, or that the levy under both attachments was excessive, and if these facts were affirmatively shown, it might then be asked if the overruling a motion to quash in such case, is revisable on error. The conclusion we have expressed upon this branch of the case, is strengthened from the consideration that the attachment law is remedial — “ not to be rigidly and
The counsel for the plaintiff in error has not pointed out a variance between the contract declared on and that offered in evidence, and from the comparison we have given to them as copied in the transcript, we have discovered no discrepancy.
In Ansley v. Carlos, 9 Ala. 973, it was held that the original papers in a cause are not admissible evidence, if the final record has been made up by the clerk as required by the statute. I did not then express an opinion upon the point, and perhaps that case might have been disposed of without deciding it, but my brethren are satisfied that the law is there correctly laid down, the decision is therefore authoritative, and I of course acquiesce. In the case before us, it is distinctly affirmed, that the final record had been made by the register as directed by law, of. the papers in the suit in chancery to which the contract declared on, referred, so .that the admission of the original papers as evidence was opposed to the case cited, and consequently erroneous.
The plaintiff could not have been required to produce at the trial the bill single made by the Longs, of which he was the assignee. It does not appear that it was in his possession or under his control, nor can it be inferred in the absence of all evidence, that he withdrew it from the custody of the clerk of the county court of Talladega, with whom it was when the- assignment was made. It was not the foundation of his action. He declared on a special contract in which the specialty was set out in extenso, with an undertaking to pay it, if the means of payment should not be procured from another source. Its production then, not being necessary to entitle him to recover, and it not appearing to have been in his possession, the court very properly refused any compulsory order requiring it to be brought into court.
The competency of Knox to prove that he was authorized to make the contract declared on, is not denied, but it is insisted by the defendant that the declarations of this agent made previous to, and simultaneous with it, are admissible to show the extent of the defendant’s liability. We have re
In the case at bar the contract declared on does not profess to set out the consideration, but merely acknowledges that the assignor had received value as an inducement to enter into it. According to the principles laid down, it was clearly competent for the defendant to prove by extrinsic evidence what was the true consideration, that he might show it was insufficient, or had failed either in whole or in part, and thus defeat a recovery entirely, or pro tanto. If the plaintiff was informed of the agreement between the defendant and Riddle, and was merely substituted for the latter, both in respect to the consideration and the terms of the contract, we should think it would be allowable as against him, to show what the consideration was, in the same man-met as if Riddle had been the party contracted with. If the transfer of the note of the Longs was received by thé plaintiffs upon trust, either in whole or part for Riddle’s benefit, to the extent of Riddle’s interest, it would be competent for -defendant to set off a demand against him, if it can be inferred that the plaintiff became the assignee under the agreement that such sets off as the defendant was the proprietor of, beyond the sum stated by Knox, (viz : six or eight hundred dollars) should be allowed. But in the absence of an
Evidence that the plaintiff holds the specialty assigned to him in trust for another, and not in his absolute right, will not contradict the assignment — it admits and affirms it, and establishes a fact beyond and independent of it. Such evidence is admissible both on principle and authority. [3 Phil. Ev. C. & H’s Notes, 1473, and cases there cited.]
It cánnot be intended that the note given by Riddle to the plaintiff, was in the possession of the latter or his attorney in court, when he was called on to produce it; if this fact had been shown, perhaps the notice at the trial would have been sufficient to let in secondary evidence of its contents upon the failure'to comply. But in the absence of proof that the note could have been produced without delaying the trial, prima facie the notice was insufficient. [3 Phil. Ev. C. & H’s Notes, 1184 to 1186.]
There is nothing in the record to indicate that the sale of the lands and mills under the decree in chancery was void, and not such as the contract declared on contemplates. The sale must, as the defendant was the actor in the cause, have had his sanction — he should have executed a regular bond for restitution; and if the proceedings consequent upon the decree are in any manner defective, he cannot set up the defect to defeat the plaintiff’s action. The confirmation of the register’s report of the sale, operated retrospectively, so that the institution of the suit between the sale and confirmation, was not premature.
The evidence recited in the bill of exceptions, does not implicate the plaintiff in a design to defraud the defendant or his attorney, and consequently the prayer for an instruction, predicated of such a hypothesis, was rightly refused.
It Avas not proved that Riddle had paid the plaintiff the
What we have said will be sufficient to guide the ulterior action of the circuit court in the trial of this cause — we have seen that there was at least one error in the points presented for revision — the judgment is consequently reversed and the cause remanded.
