JULY 1930. JONES' Executors. v. WILKINSON. 1. Where there are two executors, to make them parties to a cause as defendants, process must be served on both. 2. Where an order is made by the Court for security for costs, not under the statute, although time the limited for it to be given has passed, still the Court may receive such security, if advantage of the omission has not been previously claimed. 3. Where there are special pleas, and no replication or issue joined, and a verdict for the plaintiff is rendered, is it error? Quere. COVENANT. The action was brought to the spring term 1823, of Madison Circuit Court, by L. Wilkinson against J. W. Jones. To the declaration, the defendant pleaded several special pleas, to which there were no replications filed, and no issue was joined. The cause was continued until the spring term of 1826, when, on motion of the defendant, it was ordered by the Court "that this suit be discontinued, unless security for costs be given, on or before the first day of the next term of this Court." At the next term, but after the time limited, A. Hutchison acknowledged himself plaintiff's security for costs, by leave of the Court. Afterwards, at the spring term, 1827, of said Court, "it appearing to the satisfaction of the Court, that Jones the defendant had departed this life, it was ordered on motion of the plaintiff, that the action be revived in the name of his legal representatives when made known." A sire facias was issued accordingly, against Agnes Jones, executrix, and Nathaniel Terry, executor of said decedent, which was executed on Terry, and returned "not found," as to Agnes Jones. Upon the due execution of the writ upon Terry, the Court ordered the suit to be revived against both executors. A verdict was found against them, and judgment thereon rendered for the plaintiff. The defendants below, now here assign for error; 1st, that there were no replications to the defendants pleas, and no issue was joined thereon. 2d, that the scire facias was served on one only of the representatives of Jones, but revived as to both. 3d, that the suit was discontinued, there having been no security given for the costs, within the time required by the order of the Court. MCCLUNG, for the appellants. The defendant below sets up three distinct defences by plea, each of which, if true, will bar the plaintiff's demand. These require repli- JULY 1830. cations. What has the jury to try till issues are joined? any trial must therefore have been irregular, when there Jones' Exrs. was no issue. This point has been so often decided in Wilkinson. this Court, that it is not now debateable. a v. a Minor's Ala. The scire facias was served on one only of the repre- Rep. 45, 78, sentatives of the deceased, and yet the action was revived 137. as to both. They are both the representatives of the deceased, and both must join to bring an action, or to defend one. It requires the union of both to represent the deceased. One cannot be made a party against his consent. As to Agnes Jones, there was neither service nor discontinuance. The statute making service on one partner equal to service on both, does not embrace such a case as this; neither does the statute authorizing discontinuances & Laws of Ala. in certain cases. The uniform practice has been, in accordance with the law, to serve the scire facias on all the representatives. The action was therefore discontinued by this irregularity, and should be reversed in toto.b HUTCHISON, for the appellee. The want of formal replications to the pleas, I cannot conceive to be error; nor do I believe that the decisions of this Court are conclusive on this point. The record shews that the issues were disposed of without objection made below. It cannot be just to allow a party to avail himself of a trap laid by himself. Besides, in this case, the pleas themselves were bad. No objection was made in the Court below to the receiving security for costs. Therefore, this cannot be relied on here as error. 449. c 2 Stewart 329. Bibb 238, The statute of 1818, cited by the appellants, should be liberally construed; it has before now, been extended to eases not within its letter. It has been held to apply to a 1 Chitty's the case of joint indorsers.c A judgment may be ren- Pl. 35-6. 2 dered against one or more executors, it is not necessary 330. that it should be rendered against all. A plaintiff may prevail against one executor and fail as to another. d In this case the writ was served on the testator himself, so that there is no danger of injustice being done. MCCLUNG, in conclusion. The decision in 2d Bibb is founded on one in 1st Salkeld. There it will be found that the authority relied on is a British statute, not in force here. : JULY 1830. By JUDGE CRENSHAW. In this case the judgment is reversed on the ground, that process was served on one Jones' Ex'rs only of the executors, when both were parties. We know Wilkinson. of no rule of practice better settled than that each and all v. of the defendants must be served with process, in order to make them parties in Court. Indeed before the argument of this case, I never heard the rule called in question as it existed, and now exists at common law. In England, the statute of Elizabeth hath made an exception as to executors and administrators, and this statute has been adopted in the State of Kentucky; but decisions made under the statute cannot be recognised as authority here; we must be governed by the common law. The assignment of error, that the action was discontinued by reason of the plaintiff's having failed to give security for costs in pursuance of an order of the preceding term, we think ought not to prevail. We are inclined to the opinion that where the order for security is made by the Court, not under the statute, the Court in its discretion may receive the security at any time before advantage is taken of the omission. As to the assignment that there was no replication to the pleas, nor issue for the jury to try, from the current of our own decisions, this objection ought to prevail; but we decline an expression of opinion, because it was suggested that former decisions on this point of practice have been overruled by an adjudication of more recent date, but which I have not had leisure to find and examine. Judgment reversed. i 35 46 100 544 BULLARD V. YOUNG. A. undertook to carry certain flour for B. to a certain place, and having deposited it by the way, by mistake, part of the flour was taken from there by C. B. refusing to receive part only, C. received the remainder and paid A. for the whole. This amounts to a conversion by A., for which B. can maintain trover against him. In the Circuit Court of Shelby county, Allen Bullard brought an action of trover, against Smith L. Young, for the conversion of a certain quantity of flour, received by him of the plaintiff. The case was tried at the spring term, 1827, when it was shewn in evidence, as appears from the bill of exceptions, that the plaintiff delivered to the defendant, 357 lbs. of wheat flour, which he was to carry and re-deliver at the plaintiff's residence, in Montevallo; that the defendant left it at one Shelly's, from which place, one Taylor took one half of it, by mistake, believing it his own; that the remaining half was sent by the defendant to the plaintiff, who refused to receive it without the other, upon which refusal Taylor took it also, and paid the defendant four dollars per hundred for both parcels, which payment the defendant admitted. Upon these facts, the plaintiff requested the instruction, that it was a conversion in law, and that the defendant was responsible to the plaintiff for the value of the whole, but the Court refused, and charged the jury that it was not a conversion, and that the defendant was not liable to the plaintiff in this action. To this opinion Bullard excepted, and assigns it for error in this Court. JULY 1830. Bullard. v. Young 264. 15 John b Starkie on there Lex PECK, for the plaintiff in error. Young undertook to deliver the flour at Montevallo, but instead of this, he left a 4 T. R. 260, it at Shelly's; this was most clearly a conversion. a If son's R. 39. a carrier deliver goods by mistake, to a third person, it is 10 John. 180. a conversion. b But here the flour was left voluntarily and without mistake, in violation of the undertaking. The Court below decided no doubt under the impression that the action should have been case and not trover, but trover is a proper remedy. The true doctrine on this subject is given in Sargeant v. Blount, cand in Cairnes and Lord v. Bleecher.d No demand was necessary in this case, e It is no objection that it is not shewn that the e 8 Johns. R. defendant was to be paid a stipulated price for the conveyance,f because he may always recover a compensation on a quantum meruit. MARDIS, contra. BY JUDGE WHITE. Young was a bailee or carrier, who undertook to deposite the flour at a particular place for the plaintiff. This he did not do, but wilfully and of his own accord left it at another place whence it was innocently taken by a third person, who paid him, the defendant, for it. In first Chitty on pleading, page 159, Ev. 3rd vol. 1493, and the cited. Mer. Ameri74. 19 Johnson cana 174. e 16 Johnson 300. 445. 1 Johnson's cases 406. f Lex Mercatoria Americana 177. JULY 1830 Bullard. v. Young it is said "that when a carrier by mistake delivers goods to a wrong person, trover will lie, though it would be otherwise if they had been lost by accident." See also 3d Starkie 1193 to the same point. In the present case, even the apology of a mistake is net pretended. Then the conversion was more clearly made out than the authorities require. Had it been a mere act of nonfeasance, or negligence, the redress should have been sought by an action a1 Chitty 159. on the case, or assumpsit a But it was a positive act, inconsistent with the undertaking of the defendant, and which tended directly to the injury of the plaintiff. This, by the authorities cited, and others which might be referred to, was undoubtedly a conversion, and the charge of the Court below was therefore erroneous. The judgment must be reversed and the cause remanded. Reversed and remanded. FINDLAY & BUCHANNON V. STEVENSON. 1. In assumpsit against partners, under the common counts, proof of a At IN Lauderdale Circuit Court, Stevenson declared in assumpsit against Findlay & Buchannon, for goods sold, work and labor, money advanced, and an account stated, charging them as copartners under their firm name. the trial, at the fall term, 1828, under the general issue, a verdict was found for the plaintiff. The defendants sued their writ of error to this Court, to review the correctness of the instructions given by the presiding Judge to the jury, which were as follow: The defendants counsel, after the evidence was closed, requested the Court to instruct the jury, that before the plaintiff could recover, he should prove that the defendants did jointly assume, or that they were partners. But the Court charged that under the general issue, proof of the partnership was unne |