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95. When suit is brought in the name of payee of a promissory note for the use of another against an indorser, and the declaration does not state who indorsed the note to defendant, nor to whom he indorsed it, nor alleges any transfer to or from him, nor any inducement or consideration for the indorsement; such declaration is bad on demurrer, although it aver that the maker was sued to insolvency, and concludes with a general super se assumpsit.
MInnis v. Rabun, 1 P. 386. 96. In an action by indorsee v. maker, where declaration described the note as payable to A B or order, and the note was payable alone to ABheld to be an immaterial variance.
Harrison v. Weaver, 2 P 542. 97. That the plaintiff“ used the legal means to try to collect out of the. maker,”' is not sufficient averment of the necessary diligence to charge the indorser.
Alday & Evans v. Jamison, 3 P. 112. 98. Where a note payable to bearer, is declared on as having been trans- og ferred by the payee to the plaintiff, and the note shows an indorsement to an intermediate party, it will be presumed that the note has been returned by the indorsee to the payee, and by him delivered to the bearer to sue threon, in his own name. The title through the intermediate assignment need not be set out.
Carroll v. Meeks, 3 P. 226. 99. When the signature is illegible, and where no description of it is attempted in the declaration, (and the defendant does not interpose the statutory plea ) there is no such variance between the note and declaration as will defeat the action. Such a case does not differ from one where the signature is evidenced by a mark.
Dew, et al v. Garner, 7 P. 503.
See Debt, Discontinuance, Extinguishment, Gaming, Judgment, Princi
pal and Security, Set-Off, Vendor and Vendee.
BOND AND SEALED NOTE.
I. OF THE SEALING AND DELIVERY; OF THE TRANSFER AND ASSIGNMENT.
PROPERTY; STATUTORY BONDS, AND BONDS FOR THE PERFORMANCE
I. Of the Sealing and Delivery; Of the Transfer and Assignment.
1. A writing with a scroll annexed, and the word “seal” thereon written, but having no expression in the body of the instrument denoting the intention to make a deed, is not a sealed instrument.
Lea v. Adkins, A. R. 187. I
2. Sealing is an essential requisite to constitute perfect a hond, and an instrument purporting to be a certiorari bond, but containing no seal, is void.
Skinner v. McCarty, 2 P. 19. 3. An agreement signed by two or more parties, concluding, "given under our hands and seals,” &c., and containing a seal after the name of the first signer, (the other signing immediately under it ) is a sealed instrument.
Hatch v. Crawford, 2 P. 54. 4. Bond signed by A, "seal" for B C and D, is sufficiently executed though there be but the one seal, and it is not the bond of A.
Martin, ad'mr. v. Dortch, 1 S. 479. *5. Though the wording of the bond be in the singular number, yet if they all sign it, they are all bound.
Ibid. 6. The delivery of a bond need not be by express words ; acts necessarily implying a delivery are sufficient. Mc W horter v. McGehee, 1 S. 546.
7. Assignee of a bond transferred after due, takes it subject to all the equities.
Teague v. Russel & Moore, 2 S. 420. 8. In an action on an assigned bond, it is not a good plea by the obligor that the assignment was extorted from the obligee by threats of a prosecution for felony, notwithstanding the former was notified by the latter of the fraud, and required not to pay to the assignee:
McCauseland v. Drake, 3 S. 344. 9. In order to charge the assignor of a bond on his endorsement prior to the stat. 1832, subjecting bonds payable in bank to the law merchant, held not necessary that demand should have been made at the particular place where it was made payable.
Woodcock v. Campbell, 2, P. 456. 10. Bond payable by instalments, demand when last instalment due, sufficient to charge the indorser.
Dupey v. Gray, A. R. 357. 11. The statute 1828, defining the liability of indorsers of bonds &c. repealed by implication the statute 1812. It requires that a recovery should be had against the maker by suit prosecuted as soon as may be after the maturity of the bond, and if such suit prove unproductive, then the indorser may be proceeded against. Ivey v. Sanderson, 6 P. 420.
II. How and by whom Action may be Maintained, Judgment fc. 12. The bearer of a sealed note payable to T, or bearer, cannot maintain an action of debt theron in his own name.
Howell &. Smith v. Hallett, A. R. 102.
Sayre v. Lucas, 2 s. 259. 13. An action at law cannot be sustained where one of the obligees is also an obligor.
Ramsay v. Johnson, A. R. 114.
Tindall v. Bright, A. R. 103. 14. Bill penal, payable on demand, bears interest only from demand. The statute directs that in all actions brought on a penal bond, judgment shall be rendered for no more than the principal and interest.
Vaughan v. Goode, A. R. 418.
III. Bond relating to Judicial Proceedings for the Delivery of Property ;
Statutory Bonds, and Bonds for the Performance of Official Duties;
Consideration, Validity, and how Discharged. 15. On bond for the delivery of property, to authorize a summary judgment against the security, the sheriff must have returned such bond forfeited.
Allen v. Hays, 1 S. 10. 16. Bonds taken by constables for the forthcoming of property levied on by execution, may be good as common law bonds, though not taken in strict compliance with the statute.
Sugg v. Burgess f. Davis, 2 S. 509. 17. A forthcoming bond conditioned in part that the obligor shall stand to and abide by all orders to be made by the justice, &c., is not void for excess, such condition being a mere verbal departure from the statute, and imposing no additional obligation, nor is it essential that the bond should recite that the justices had designated time and place.
Thompson v. Pierce, 3 S. 427. 18. Bond conditioned that a slave levied on should appear on the day of salo—in an action on the bond, plea that the slave died before action brought, is bad, as the right accrued at time of forfeiture.
Burgess & Davis v. Sugg, 2 S. & P. 341. 19. Bond conditioned to be void if A and his securities surrender the
property mentioned in a certain mortgage,(if equity decree the same to belong to B,) and that A further abides the decree of foreclosure is valid, and not void on the ground of usury or want of consideration. And to insure a recovery on such bond, it must appear that a decree of equity has been rendered on the precise grounds contained in the condition.
Barnes v. Peck, 1 P. 187. 20. Bonds voluntarily executed to civil officers in relation to judicial proceedings, though invalid as statutory bonds, may, if they contain valid and sufficient conderation, be available as common law bonds.
Franklin, 2 P. 493. 21. The true rule in regard to bonds void at common law, or by statute, in part, is that they are void as to such conditions, covenants or grants as are illegal; and good as to those which are legal and unexceptionable.
Whitted v. Governor, 6 P. 335. 22. Where a statutory bond contains the considerations prescribed and superadds others, the bond shall be good as far as it is warranted by statute, and the extraneous matters regarded as surplussage.
Sanders f. Fenwick v. Rives, 3 S. 109. 23. Bond of a cashier of bank conditioned “safely and securely to keep all moneys deposited, refunding and paying over the same when required, the obligors are not liable for moneys robbed from the cashier while in discharge of his duty. Huntsville Bank v. Hill, et al. 1 S. & P. 201.
24. An obligation under seal to pay the debt of another may be impeached for want of consideration, and is not recoverable when such defence is made, unless the plaintiff shows a valuable consideration.
Alsobrook v. Sutherland, 2 S. & P. 267. 25. A blank left in bond for name of obligee may be filled by parol authority
from the obligor. Boardman v. Gore &. Williams, 1 Š. 517. 26. When a security to a sealed note has been discharged by payee by instrument not under seal, and so induced to believe for many years, until the principal became insolvent, this is a fraud, and equity will relieve.
27. Lines drawn over the face of a bond or note, presumptive evidence of its cancellation, but this is a question for the jury.
Pitcher f. Remsen v. Patrick, admr. 1 S. & P. 478. See Attachment, Errors and Appeals, Executors and Administrators, Con
stables, Trial of Right of Property.
I. OF THE SIGNING, ISSUANCE, SERVICE AND RETURN.
I. Of the Signing, Issuance, Service, and Return.
1. Capias not signed by the clerk, and judgment by default, assigned as error, and judgment reversed.
Stone v. Harris, A. R. 32. 2. When discontinuance cannot be entered as to one, there must be an alias and pluries.
Kennedy v. Russell & Patton, A. R. 77. 3. Writ returnable to a wrong term of the court, or at a time when no court was held, is absolutely void. Brown v. Simpson, sur., 3 S. 331.
4. Writ which appears from the teste thereof to have issued on Sunday, held void.
Huynes v. Sledge f. Mazy, 2 P. 530. 5. But it is competent for plaintiff, by replication, to a plea that a writ issued on Sunday, to show facts authorizing its issuance,
6. Circumstances which would justify the service of process under the statute of 1803, would likewise authorize its issuance.
Ibid. y Though not requiring bail, service on one returning from muster, is void.
Greening v. Sheffield, A. R. 376. 8. Service, accepted by one partner, is binding on all the firm, though after the death of one of them or after dissolution of the firm.
Click & Morgan v. Click, A. R. 79. 9. Writ must be executed in the name of the sheriff, and a return "executed by Brandon D. S.” held to be an imperfect service.
Land v. Patterson, A. R. 15. 10. Service accepted by the partner in the name of the firm, after dissolution, will not authorize a judgment against the late partners generally:Lipscomb J.
Demott, Sur. v. Swaines, Adm. 5 S. & P. 293. 11. Plea alledging that defendants were served with process out of the county of B, in the Cherokee nation, without avering that defendents were not residants of the county of B, held bad; as by the statute 1818, process was authorized to be served in the Indian lands, upon any one resident of the county from which it issued.
Collins v. Simmons, 2 P. 145.. 12. The mere acknowledgment of service without proof of the genuineness of the signature will not authorize a judgment. Though when the process has gone into the Sheriff's hands and returned with an acknowledgment of service on the back, it might be regarded as the Sheriff's return—semble.
Welch, Administrator, v. Walker, et ux, 4 P. 120. 13. The want of authority in one to serve process, must be taken advantage of by plea, in abatement, and is no ground of motion to quash.
Roberts v. Beeson, 4 P. 164. 14. Return of sheriff, that service was acknowledged by defendant, and indorsed on the back of the writ is sufficient.
Rowan v. Wallace, 7, P. 171, 452. See Garner v. Gant.
II. Of the indorsement of cause of action.
15. Omission to indorse the cause of action on writ, is error, if not cured by defendants act.
Howell & Smith v. Hallett, A. R. 102. 16. Indorsement may be looked to, to sustain plea in abatement.
Collier v. Crawford, A. R. 100. 17. or to sustain a judgment.
Davis v. Chester, A. R. 385. 18.
but not to reverse a judgment.
Flant f. Sossaman v. Malone, A. R. 92. See, also, Lee v. Adkins, A. R. 187; Mayfield v. Allen, A. R. 274;
Robinson v. Cox f. Wall, A. R. 119. 19. But no exception for want of indorsement, can be taken after Return Term.
Tankersley v. Richardson, 2 S. 130. 20. The want of indorsement may be properly plead, in abatement.
Johnson v. Perry, 4 S. & P. 45.
FOR WRONGFULLY SUING OUT ATTACH
I. FOR DECEIT: FOR SEDUCTION :
I. For Deceit: for Seduction: Wrongfully Suing out Attachment.
1. In case for deceit, it is a sufficient averment, “that defendant, by falsely warranting or representing the property to be sound, falsely and fraudulently induced plaintiff to purchase.
Prior v. McNairy, 1 S. 150. 2. And in such case, plaintiff will not be confined to the statement in the bill of sale, but may show the false representation made by the vendor, at the time of sale: and, in this action, an offer to return the property is not necessary.
Cozzens v. Whitaker, 3 S. & P. 322. 3. In case for the seduction of plaintiff's daughter, evidence of a promise of marriage, is not admissible. The character of the daughter for chastity may be impeached by general reputation, but not by such as is confined to particular classes of persons.
Drish v. Davenport, 2 S. 266. 4. Action lies for wrongfully suing out attachment, though no malice be averred—See statute 1807, 1814. But the termination of the attachment must be averred, and its omission is fatal on demurrer.
Wilson v. Outlaw, A. R. 367.