asking the coercion of its payment; and upon their answer, JULY 1830. ☑ they are only entitled to a decree for costs. If one who Harris et al is made a defendant in Chancery would obtain relief against Carter's Ad- the complainant, his remedy is by cross bill; when the ministrators answer has responded to the bill, it prays that the defen et al. v. dant may be dismissed with his costs; and this is the only prayer which it is competent to embrace in the answer. With regard to the propriety of making Tate a party, it may be remarked that all parties interested should he brought before the Court, that all interests involved may be adjudicated, and litigation cease. Tate was a party in interest remotely, if not immediately, and was properly before the Court. Yet the amended bill of the appellants, Harris and Austin, making him a party, and his answers are so succinctly and loosely drawn, as not to enable the Court, in the absence of proof, to render a definitive decree thereupon. The proper disposition of the bill, making Tate a party, is to dissmiss it without prejudice. It is not however proper that the appellees should be delayed in a decision of their respective interests, and especially as the record discovers enough to shew that the equity of the appellants, if preserved, is paramount to that of Tate. They however may have done or omitted to do some act, by which Tate has gained a legal advantage; if they have, their supineness or overweening solicitude to be relieved from a contract, which the depreciation in the value of property has rendered disadvantageous, cannot prejudice the bona fide assignees of their vendor. When one purchases real estate under circumstances which should put him upon inquiry as to the title of him whose interest he purchases, he stands in the same situation, as if he had actual notice of any incumbrance upon it, or of any transfer of right. The possession of the Harris' was a circumstance which should have put Tate upon inquiry, and if he purchased while they or any one under them was in possession, their equity must prevail against al Atk. 490 him.a Again, the purchase of the estate by Tate, pending this suit, in which the title was litigated, is presumptive notice that Newman had previously parted with his interest in it. "For if a person purchases an estate pending a suit, involving the question of title to it, he will be considered to be a purchaser with notice; although he were no party to the suit. This rule is founded upon the idea, that as the pendency of a suit is a transaction in a sovereign Court of justice, all people are supposed to be attentive to what passes there."a JULY 1830. et al. v. As the view we have taken disposes of the case upon its Harris et al merits, we decline an examination of the remaining points Carter's Addiscussed, and direct the following decree to be entered: ministrators "This cause being argued by counsel, and due consideration being thereupon had, it is ordered and decreed that a Newland on the decree of the Circuit Court be reversed, and the ori- Con. 506. ginal, supplemental and amended bills of the appellants, Harris and Austin, be dismissed without prejudice as to the respective rights of said appellants and the said Waddy Tate, and that the appellees, Beirne and Patton, have leave to proceed on the note of which they are holders. It is further ordered and decreed, that the appellee, John. R. Elliott, administrator of Thomas J. Carter, have execution of the judgment at law, recovered by the said Carter in his lifetime, against Patrick Austin, intestate, to be levied de bonis intestatis, and that he also have execution pursuant to law, against the securities in the injunction bond. It is further ordered, that the appellants, Harris and Austin, pay the costs incurred in this Court and the Court below, to be levied of Harris, de bonis propriis, and of Austin, de bonis intestatis.” Reversed and rendered. GREEN V. FOLEY. The writ of error named the defendant individually, the record below describes him as administrator; there being but one case, held, that the variance was not fatal. THIS was a writ of error from Pike Circuit Court. Foley, "as administrator of John Green," sued Warren Green in debt, and recovered. Green sued out his writ of error, and the writ of error did not describe Foley in his representative character, but describes him individually merely. THORINGTON, for the appellee, moved to dismiss the writ of error, because the record filed does not correspond with it; insisting that there is no such case as the writ of JULY 1830. Green ▼. Foley. error describes, the transcript produced, being an action between the parties, not individually, but wherein Foley was plaintiff in his representative character. GOLDTHWAITE, for the appellant, produced an affidavit, shewing that there was but one action between the parties in the Court below, and that the case referred to in the writ of error, was the same one of which the transcript was produced and filed. By LIPSCOMB, CHIEF JUSTICE. We are of opinion under the circumstances of this case, that the failure of the Clerk to describe Foley, the plaintiff below, as administrator, is not such a variance as will be fatal. We therefore overrule the motion to dismiss, and the cause must be heard on the errors assigned. Motion discharged. 3s 240 101 188 TOMBECKBEE BANK V. GODBOLD. 1. To sustain an action against a Sheriff for a false return of a fi. fa. it is necessary to shew that there was a judgment to authorize the issuance of the fi. fa. 2. A memorandum, shewing the amount, parties and date of the award of judgment, signed by the Clerk, is not a sufficient judgment for that purpose. THE President, Directors & Co. of the Tombeckbee Bank, brought an action on the case returnable to the spring term, 1827, of Monroe Circuit Court, against James D. Godbold, as late Sheriff of that county, to recover damages for a false return, said to have been made by him, on a writ of fieri facias, issued from the office of the Clerk of the Circuit Court of Washington county, on the 14th of November, 1823, in favor of the plaintiffs, against the goods and chattels of James Caller, deceased, in the hands of Winney Caller, Lis executrix, and against the goods and chattels of Robert Caller, Sen., Robert Caller, Jr. Benjamin S. Smoot and Green D. Caller, for $5,199 14. The execution was returned by the Sheriff "no property found;" whereas, the plaintiffs insisted that the JULY 1830. Bank defendants had property liable to satisfy the demand. The cause was tried on the general issue plea, at October term, 1828, before the Chief Justice, and the plaintiffs produced Tombeckbes as evidence, a record of their recovery of the judgment on which their execution was founded, in which record Godbold. the entry of judgment is in the following words and figures, viz: Tombeckbee Bank Interest from April term, 1821, till paid. J. G. LYON, Clerk." From the bill of exceptions, it appears that the Judge charged the jury, that in this kind of action, if there was no judgment to support the execution delivered to the Sheriff, the plaintiffs could not recover, whether the defendants had property or not; and further, that the above entry in the record was not a sufficient judgment for that purpose. The counsel for the Bank prayed in this Court a reversal of the judgment which was rendered in the Court below against them, insisting that the instructions given to the jury were erroneous. HITCHCOCK, for the appellants. BAGBY, for the defendant. By JUDGE COLLIER. The points of law arising in this cause, are 1st. Was the production of a judgment essential to the plaintiffs recovery. 2nd. Does the statement copied from the record constitute a judgment. 1st. The action for the false return of an execution, is given as an indemnity to the plaintiff for any injury he may sustain by it. It would therefore seem that where no injury results from a return not true in point of fact, that the plaintiff is not entitled to recover. If a writ of execution issues without a judgment for its warrant, it may be quashed, because the party suing it v. JULY 1880. out has not entitled himself to it. Yet so long as it con tinues in force, it is a sufficient authority to the officer te Tombeckbee whom it is directed, for obeying its mandate. But if he should disregard its direction, it would be incumbent on the party seeking to recover for a failure to execute it, to a 3 Starkie's shew that the execution was issued under the authority of Bank v. Godbold. Εν. 1344. T. a judgment.a Though the action on the case is given by statute against a Sheriff for a false return of an execution, yet this statute can only be regarded as declaratory of the procedure. It does not profess to interfere with the nature of the action, and the principles which control it as a common law remedy. It is an action sounding in damages, the measure and extent of which, must depend upon the circumstances 82 Mason's of each particular case. Hence the plaintiff, to entitle Rep. 513. 2 himself to a recovery, must prove he has sustained damages, and to what extent, and in this regard, it would seem to differ very materially from the action of debt, which is more appropriately applicable as a remedy to cases in which the duty is certain. So a motion under the statute against the Sheriff, for a failure to collect an execution, which from negligence or some other cause he omitted, cannot be assimilated in all respects to the action on the case. But whether in such a proceeding, the production of the judgment can be required of the party making the motion, is a question upon which, as it is not involved in this controversy, we forbear to declare our opinion. With regard to the second point, we are of opinion that the statement offered in the Court below for a judgment, cannot be considered as such, but must be viewed as a mere memorandum of the Clerk, from which a final judgment could thereafter be drawn up, which in the ab sence of a disclosure by the record, we cannot presume 2 Bibb 60. 1 has been done. Nor is proof of the writ of execution Tenn. Rep. evidence of a judgment, as against the defendant who was Ragan a stranger to it. d A judgment is the act of the Court, and should so profess to be, but this memorandum bears no evidence which indicates a judicial act. The plaintiff having failed to produce a judgment authorizing the issuance of the execution, on which the defendant is charged to have made a false return, the judgment must be affirmed. Judgment affirmed. The CHIEF JUSTICE and JUDGE SAFFOLD, not sitting |