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PLEAS AND PLEADINGS (Continued.)
upon the issue joined, as to the within note of foar hundred and fifty-six dol-
lars, and the within account;" this verdict, although informal, was sufficient
to authorize to enter a general judgment for the defendant. Downey v. Hicks,
2. In Texas, the technical forms of pleading, fixed by the common law, are dis-
pensed with; but the principles which regulate the merits of a trial by eject.
ment, and the substance of a plea of title to such an action are preserved.
Christy v. Scott, 282.
3. Therefore, where the plaintiff filed a petition, alleging that he was seised in his
demesne as of fee of land, from which the defendant had ejected him, ard the
defendant pleaded, that if the plaintiff had any paper title, it was under a cer-
tain grant which was not valid, this plea was bad. Ibid.
4. So, also, was a plea denying the right of the plaintiff to roccive his title, because
he was not then a citizen of Texas. These pleas would have been appropri-
ate objections to the plaintiff's title when produced upon the trial. Ibid.
5. So, also, where, under a plea of the statute of limitations, the defendant claimed
certain land by metes and bounds, and disclaimed all not included within
them. There is nothing to show that the land so included was a part of the
land claimed by the plaintiff. Ibid.
6. So, also, where the plea was in substance, that the plaintiff had no good title
against Texas, no title in the defendant being shown. For the action may
have been maintainable, although the truc title was not in the plaintiff. Ibid.
7. Where a scire facias was issued to enforce a lien upon a house under the lien law
of the District of Columbia, there was no necessity to file a declaration. Win-
der v. Caldwell, 434.
8. It is a bad mode of pleading to unite pleas in abatement, and pleas to the merits.
And if, after pleas in abatcmcnt, a defence be interposed, going to the merits
of the controversy, the grounds alleged in abatement become thereby imma-
terial and are waived. Sheppard v. Graves, 505.
9. When a plea is filed to the jurisdiction of the court, upon the ground that the
plaintitf is a resident of the same State with the defendant, it is incumbent on
the defendant to prove the allegation. Ibid.
10. It is of no consequence whether the date of a promissory note be at the begin.
ning or end of it. Ibid.
11. In this case, as in the preceding, it is decided that, whcre the plaintiff averred
enough to show the jurisdiction of the court, and the defendant pleaded in
abatement that the plaintiff was disabled from bringing the suit on account of
residence, it was incumbent upon the defendant to sustain the allegation by
proof. Same v. Same, 512.
12. Until that was done, it was not necessary for the plaintiff to offer any evidence
upon the subject. lbid.
13. Where the marshal of the District of Wisconsin attached property at the suit
of creditors in New York, and then gave it up upon the execution of a bond
to himself, for the use of those creditors, it was within the jurisdiction of the
District Court of the United States for Wisconsin, to entertain a suit by the
marshal, suing upon the bond for the New York creditors, against the claim-
ants in Wisconsin, although both parties resided in the same State. Huff v.
14. The name of the marshal was merely formal; the real plaintiffs were averred to
be citizens of New York. Ibid.
15. It was not a good exception upon the ground of variation between the evidence
and declaration, that the latter stated the bond to have been given to Hutchin-
son as marshal of the District of Wisconsin, and the former said the State of
Wisconsin. They mean the same thing. Ibid.
16. Judgment having been rendered for the plaintiff's in the attachment, by a court
having jurisdiction over the subject, it was too late to object to those proceed.
ings in a suit upon the bond, in which they were collaterally introduced. lbid.
11. The bond given to the marshal was in conformity with the statute. lvid.
18. The objections, that the declaration on the bond did not show the jurisdictios-
of the court in the attachment suit; that the verdict was entered for the amount
due instead of the penalty of the bond, and that the recovery was for a sum
greater than was claimed by the ad damnum in the declaration, were not suffi-
cient for a pew trial. Ibid.
1. An appeal will not lie to this court from a refusal of the court below to open a
prior decree, and grant a rehearing. The decision of this point rests entirely
in the sound discretion of the court below. Wylie v. Core, 1.
2. The case of Brockett v. Brockett, (2 How. 240,) explained. Ibid.
3. Two appeals having been taken, one from the original decree, and the other from
the refusal to open it, the latter must be dismissed, and the case stand for hear.
ing upon the first appeal. Ibid.
4. A motion for a mandate upon the court below, to carry the decree into execu-
tion, overruled. Ibid.
5. A rule will be refused for the judges of the Circuit Court of the District of Co-
lumbia, to show cause why a mandamus should not issue, unless a case is pre-
sented which primâ fucie requires the interposition of this court. Ex parte
6. Such a case is not presented where the Circuit Court decided that, under an act
of Congress, an affidavit was sufficient to hold a party to special bail. That
court had the power, by the act, to exercise its judicial discretion. Ibid.
7. This act of Congress regulated the subject, and not the statute of Maryland,
passed in 1715. Ibid.
8. Where a motion was made, under the 12th section of the Judiciary Act, to re-
move a cause from a State Court to the Circuit Court of the United States,
notwithstanding which the State Court retained cognizance of the case, and it
was ultimately brought to this court under the 25th section of the Judiciary
Act, a motion to dismiss it for want of jurisdiction cannot be sustained. The
question will remain to be decided upon the full hearing of the case. Kanouse
v. Martin, 23.
9. Where there was a blank in the record of the Circuit Court, in the taxation of.
the costs recovered by the plaintiff, and the judgment being affirmed by this
court, a mandate with the same blank went down to the Circuit Court; and a
motion was there made to open the original judgment for the pnrpose of tax-
ing the costs, which motion was refused by the court, such refusal cannot be
reached by a mandamus from this court. Er parte Many, 24.
10. The refusal of the court was not a ministerial act, but an exercise of judicial
discretion. This court could issue a mandamus for the Circuit Court to pro-
ceed to judgment, but such a writ would not be appropriate to the present
11. A reargument of a case decided by this court will not be granted, unless a mem-
ber of the court, who concurred in the judgment, desires it; and when that is
the case, it will be ordered without waiting for the application of counsel.
Brown v. Aspden, 25.
12. And this is so, whether the decree of the court below was affirmed by an equally
divided court or a majority; or whether che case is one at common law or
.13. The rules o the English Court of Chancery have not been adopted by this
court. Those which are applicable to a court of original jurisdiction, are not
appropriate to an appellate court. Ibid.
14. Upon a trial in New York, a juror became ill, and was discharged before any
evidence was given, and before the plaintiffs counsel had concluded his open-
ing address. The court ordered another jutor to be sworn, and proceeded
with the trial. The defendant cannot object to this. It is the practice in New
York, and the Circuit Court had a right to follow it. Silsby v. Foote, 218.
15. The court having erroneously refused to allow the plaintiff o offer a paper in
evidence, as a disclaimer of part of a patent, afterwards refused to allow the
defendants to offer the same paper in evidence for the purpose of prejudicing
the plaintiffs' rights. This last refusal was correct. The reason given was
erroneous; but this is not a sufficient cause for reversing the judgment. Ibid.
16. The courts of the United States have not the power to order a nousuit against
the wishes of the plaintiff. Ibid.
17. Where the declaration, in an action of assumpsit, contained the following
counts :- 1. On a promissory note; 2. Indebitatus assumpsit for the bire of
slaves; 3. An account stated; 4. Quantum valebat for the services of slaves ;
5. Work and labor, goods sold and delivered, and money lent and advanced;
6. Money had and received ; 7. An account stated; 8. A special agreement for
the hire of slaves: And the defendant pleaded, - 1. The general issue; 2.
Statute of limitations; 3. Payment;— and the jury found a verdict for the de-
fendant apon the issue gained as to the within note of four hundred and fifty-
six dollars, and the within account” - this verdict, although informal, was
sufficient to authorize to enter a general judgment for the defendant. Downey
v. Hicks, 240
18. An objection cannot be made in this court to a release under which a witness
was sworn, unless the objection was made in the court below, and an exception
19. The sixty-second rule of this court, (13 Howard,) is as follows: "In cases where
a writ of error is prosecuted to the Supreme Court, and the judgment of the
inferior court is affirmed, the interest shall be calculated and levied from the
date of the judgment below, until the same is paid, at the same rate that simi-
lar judgments bear interest, in the courts of the State where such judgment is
rendered. The same rule shall be applied to decrees for the payment of money,
in cases in Chancery, unless otherwiso ordered by this court. This rule to
take effect on the first day of December term, 1852. Perkins v. Fourniquet, 328.
20. Before this rule, interest was to be calculated at six per cent., from the date of
the judgment in the Circuit Court to the day of affirmance here, and the con-
firmation of the report of the clerk, in the case of Mitchell z. Harmony, (13
Howard, 149,) was under the rules then existing. Ibid.
21. So, also, where a case from Mississippi was affirmed, at December term, 1851,
the mandate from this court should have been construed to allow interest at
six per cent. from the date of the decrec in the court below, to the date of the
affirmance in this court. Therefore, it was erroneous cither to allow six per
cent. until paid, or to allow the current rate of interest in Mississippi, in addi-
tion to the six per cent. allowed by this court. Ibid.
22. The several rules upon this subject examined and explained. Ibid.
23. A statute of Mississippi directs that where the defendant cannot be found a writ
of capias ad respondendum shall be served, by leaving a copy thereof with the
wife of the detendant, or some free white persou above the age of sixteen
years, then and there being one of the family of the defendant, and found at
his usual place of abode, or leaving a copy thercof at some public place, at the
dwelling-house or other known place of residence of such defendant,' he being
from home, and no such free white person being found there willing to receive
the same. Harris v. Hardeman, 334.
24. The Circnit Court of the United States adopted a rule that the capias should be
served personally, or, if the defendant be not found, by leaving a copy thereof
at his or her residence, or usual place of abode, at least twenty days before the
return day thereof. Ibid.
25. The marshal made the following return to a writ of capias: “Executed on the
defendant Hardeman, by leaving a true copy at his residence.” Ibid.
26. This service was neither in conformity with the statute ror the rule. Ibid.
27. Therefore, when the court gave judgment, by default, against Hardeman, and
an execution was issued, upon which a forthcoming bond was given, and
another cxecution issued, and at a subsequent day the court quashed the pro-
ceedings, and set aside the judgment by default
, this order was correct. Ibid.
28. When the judgment by default was given, the court was not in a condition to
exercise jurisdiction over the defendant, because there was no regular service
of process, actual or constructive. Ibid.
29. The cases upon this point, examined. Ibid.
30. Moreover, when the proceedings were quashed, they were still in fieri, and not
terminated ; and any irregularity could be corrected, on motion. lbid.
31. A sale of land by a marshal, on a venditioni exponas, after he is removed from
office, and a new marshal appointed and qualified, is not void. Doolittle v.
32. Snch a sale being returned to the court, and confirmed by it on motion, and a
deed ordered to be made to the purchaser at the sale, by the new marshal, such
sale, being made, is valid. Ibid.
1. Where a suit was brought against a railroad company, by a person who was in.
jured by a collision, it was correct in the court co instruct the jury, that if the
plaintiff was lawfully on the road, at the time of the collision, and the collision
and consequent injury to him were caused by the gross negligence of one of
the servants of the defendants, then and there employed on the roa , he was
entitled to recover, notwithstanding the circumstances that the plain iff was a
stockholder in the company, riding by invitation of the President, paying no
fare, and not in the usual passenger cars. P. $ R. R. R. Co. v. Derby 468.
2. And also, that the fact that the engineer having the control of the colliding
locomotive, was forbidden to run on that track at the time, and had acted in
disobedience of such orders, was no defence to the action. Ibid. .
3. A master is liable for the tortious acts of his servant, when done in the course
of his employment, although they may be done in disobedicnce of the master's
Releases given by the complainants, in the present case, decided to cover the mat-
ters in controversy, and, therefore, to put an end to all claim by them; inasmuch
as there is no proof that they were obtained by fraud or circumvention. Pero
lçins v. Fourniquet, 313.
See COMMERCIAL LAW.
See CONSTITUTIONAL LAW.
STATUTE OF FRAUDS.
SURETIES UPON EXECUTORS’ BONDS.
1. The case of League v. De Young and Brown, (11 How. 185,) considered and
again established, 79.
2. The State of Texas was admitted into the Union on the 29th of December,
1845, (9 Stat. at Large, 108,) and from that day the laws of the United States
were extended over it. Calkin & Co. v. Cocke, 227.
3. Consequently, on the 30th of January, 1846, the revenuc laws of Texas were not
in force there, and goods seized for a non-compliance with those laws, were ille-
gally seized. Ibid.
4. In Texas, the technical forms of pleading, fixed by the common law, are dis.
pensed with, but the principles which regulate the merits of a trial by cject-
ment, and the substance of a plea of title to such an action, are preserved.
Christy v. Scott, 282...
5. Therefore, where the plaintiff filed a petition alleging that he was seised in his
demesne as of fce of land from which the defendant had ejected him, and
the defendant pleaded, that if the plaintiff had any paper title, it was under a
certain grant which was not valid, this plea was bad. *Ibid.
6. So also was a plea denying the right of the plaintiff to receive his title, because
he was not then a citizen of Texas. These pleas would have been appropriate
objections to the plaintiff's title when produced upon the trial. lbid.
So also where. under a plea of the statute of limitations, the defendant claimed
certain land by metes and bounds, and disclaimed all not included within them.
There is nothing to show that the land so included, was part of the land
claimed by the plaintiff. Ibid.
8. So also where the plea was in substance that the plaintiff had no good title
against Texas, no title in the defendent being shown. For the action may
have been maintainable, although the true title was not in the plaintiff. Ibid.
9. Where & title to land in the State of Coahuila and Texas, was obtained in 1833,
by a mother for, and in the name of her daughter, and, in 1836, the father of
the daughter conveyed it away by a deed executed in Louisiana, this deed was
properly set aside by the District Court of Texas. Hoyt v. Hammekin, 346.
10. It was not executed either according to the laws of Louisiana, or those of
Coahuila and Texas. Ibid.
1. A verdict on an issue to try whether a sale was fraudulent, finding the same to
be fraudulent, will not be set aside on & certificate or affidavit of some of the
jarors, afterwards made, as to what they meant. Doss v. Tyack, 298.
2. A Chanr or does not need a verdict to inform his conscience when the answer
denies fraud in the abstract, whilst it admits all the facts and circunstances
necessary to constitute it, in the concrete. Ibid.
1. James Bosley, in his will, after sundry specific devises and bequests, devised and
bequeathed all his lands and other real estate in Baltimore, Cecil, and Alle-
ghany counties, in Maryland, and also in Florida, and his house and lot in
Santa Croix, and all the real estate he might have elsewhere, to his wife Eliza-
beth, her heirs and assigns, in trust, to sell the same and divide the net proceeds
thereof, with all the residue of his estate, equally between herself and the
children of his brother. Bosley v. Bosley, 390.
2. After making his will, be sold all of the lands particularly mentioned in the
residuary clause of the will above stated, except some lands lying in Baltimore
county. At the time of making the codicil hereafter mentioned, he held some
of the proceeds of these sales in boods and other securities, and with the
residue had purchased other property. lbid.
3. He afterwards made a codicil
, by which he devised his summer residence, in
Baltimore county, to his wife, and also the securities he held for the lands sold
in Cecil county, and directed all the property he had acquired after the date of
his will to be sold, and the proceeds to be equally divided between his wife and
her sister Margaret. Then followed a residuary clause, in the following words:
“Lastly, my pew in St. Paul's Church, and all my other property, real or per.
sonal, and all money in bank belonging to me at the time of my decease, I
give, devise, and bequeathe unto my said wife Elizabeth and her heirs, forever;
and I ratify and confirm my said last will in every thing, except where the
same is hereby revoked and altered, as aforesaid.” Ibid.
4. The residnary clause in this codicil is inconsistent with that in the will, and con-
scqucntly revokes it. But the devise of the property specifically mentioned in
the will, is not revoked by the clause in the codicil. lbid.
5. After the execution of the codicil, the testator agreed to lease some land for the
term of ninety-nine years, renewable forever, a ground rent being reserved upon
the same. The lessce was to pay cash for a part, and the residue of the pur-
chase-money was to remain on interest, as ground rent, which the lessee could
extinguish at any time by the payınent of the principal sum. Ibid.
6. This property was a part of that which was specifically mentioned in the will.
and not revoked by the clause in the codicil. Ibid.
7. But the conduct of the testator, in making this agreement, so altered the condition
of the property, that it amounted to a revocation of the devise, and manifests
an intention, on his pårt, when taken in connection with other circumtances of
the case, to give it to his wife under the residuary clause in the codicil. ibid.
8. General Kosciusko made four wills. One in the United States, in 1798 ; another
in Paris, in 1806; the third and fourth were made at Solcure, in Switzerland,
whilst he was sojourning there in 1816 and 1817. Ennis v. Smith, 400.
9. The first and second wills were revoked by the third, and he died intestato as to
his estate in the United States. Ibid.
10. But the first will, before it was known that he had made the others, was probated
by Mr. Jefferson, in Virginia, and when Mr. Jefferson learned that the General
had made other wills, he transferred the fund to the Orphans' Court of the
District of Columbia. The Orphans' Court managed the fund for some time,
and then Benjamin L. Lear was appointed the administrator of Kosciusko,
with the will annexed. He died leaving a will, and George Bomford, one of
his executors. Bomford qualified as such, and afterwards became the admi.
nistrator of Kosciusko de bonis non. He took into his possession, as executor,
the estate of Lcar, and also the funds of Kosciusko, which had been adminis-
tered by Lear, and first made his return to the Orphans' Court of the adminis-
tered funds of Kosciusko, as exccutor of Lear. Afterwards they were returned
by him to the Orphans' Court, as administrator de bonis non of Kosciusko. . The
Orphans' Court, deeming that his sureties, as administrator de bonis non of
Kosciusko, were insufficient, or that they were not liable for any waste of them,
on account of the funds having been received by him as executor of Lear, and
not as adipisistrator de bonis non, called upon him for other sureties, under the
act of Congress of the 20th February, 1846. He complied with the call, and
gave 26 sureties, Stott, Carrico, and George C. Bomford, and Gideon, Ward
and Smith. Ibid.
11. The original bonds of Bomford were given to the Orphans' Court, under the