INDORSEMENT-CONTINUED.

vency, or the production of a statute modifying the common law. Miller v.
Cobb & McIntyre,

INDORSER AND INDORSEE.

638

1. The circumstance that a party to a bill, sued by another party to the same
bill, stands upon it as the last indorser, is not conclusive that he is not lia-
ble to contribute otherwise, when there is evidence before the jury of a
collateral agreement. Rhodes v. Sherrod,

63

2. Where an action is brought upon the indorsement of a promissory note,
the plaintiff's right to recover cannot be made out by proof of a fraudulent
concealment, or misrepresentation by the indorser, in respect to the ability
of the maker to pay. To make such a fraud available as a ground of ac
tion, it must be specifically declared on, in a suit brought by the party de-
frauded. Br. B'k at Montgomery v. Gaffney,
153
3. A promissory note payable in bank, is by statute made subject to "the
rules of the law merchant, as to days of grace, demand and notice, in the
same manner that inland bills of exchange," &c. are; consequently, where
such paper is indorsed, either regularly or irregularly, the indorser must be
charged by a demand and notice. lb.

153
4. Where commercial paper, past due, is indorsed, it cannot be assumed as a
legal conclusion, that a demand of payment should be made by the holder,
and notice of its dishonor given within any precise time; but in such case,
all that can be said is, that the demand must be made, and the notice giv-
en, in a reasonable time. The facts must be ascertained by the jury, and
their verdict should be influenced by such legal analogies as are establish_
ed. Ib.

153
5. An action may be brought without a previous request, where a party pro-
mises to pay on demand, yet in the case of indorsed paper, the writ, or
summons, by which a suit thereon is commenced, does not authorize the
officer to whom it is addressed, to receive the money, or contemplate pay-
ment otherwise than by legal coercion; consequently it is not a sufficient
demand to make a notice, which is merely consequential, avail any thing.
Ib..

153

6. Where a note payable to a named individual, or bearer is indorsed by a
third person to the plaintiffs before its maturity, and its due payment guar
antied, waiving the suit and diligence required by law; such indorsement
binds the indorser, if the note is not paid by the makers at its maturity
without any further action by the holder. Burt v. Parish & Co.
211
7. It is unnecessary, under such a contract, to aver notice to the indorser,
that the makers had not paid the note. Ib.
211
8. The mere circumstance that the maker of a note, not commercial, has a
set off against the payee, does not dispense with the necessity for the in-

INDORSER AND INDORSEE-CONTinued.

dorsee to sue to the first court to charge an indorser who is not the payee.
Hagerthy v. Bradford,

567

9. The indorsement of a bill single, is in itself a distinct and substantive
contract, and if it does not look to any other place, will be governed by the
lex loci contractus; and where it is made in another State, in which the
common law is presumptively in force, to fix a liability upon the indorser,
it is incumbent upon the indorsee to show by a suit prosecuted against the
obligor, that the amount of the specialty could not be collected of him, or
else excuse the prosecution of such a suit by proof of the obligor's insol-
vency, or the production of a statute modifying the common law. Miller v.
Cobb & McIntyre.
638

10. A declaration against the indorser discloses a good cause of action, which
shows that debt is past due, alledges the indorsement in this State of a
bill single, that the obligor was then, and still is a resident of another State,
that he then was and still continues wholly and notoriously insolvent, so
that no part of the debt could be collected of him by suit. lb.

638
11. An assignee of a promissory note, succeeds to all the rights of his assign.
or at the time of the transfer, and will be entitled to prior satisfaction
against a subsequent assignee of other notes, out of a fund provided for
the payment of all the notes. Bank of Mobile v. P. & M. Bank,
See Consideration, 3.

See Judgment and Decree, 5, 6.

See Pleading, 3.

INTENDMENTS AND LEGAL PRESUMPTIONS.

645

1. Semble: it cannot be intended, because one is authorized to indorse notes;
that he is also an agent for the purpose of receiving notices of their dis-
honor. P. & M. Bank of Mobile v. King, Upson & Co.

280
2. When the record recites, that the plaintiff demurred to the plea, that his
demurrer was sustained, and the defendant was required to answer fur-
ther, this court will intend that a demurrer was interposed, though none
appears in the record. Barney v. Bush,
345

3. Where the defendant moved to strike out the plaintiff's declaration and
the entry recites, "which motion being granted by the court, the plaintiff is
nonsuited,” it cannot be intended that the nonsuit was voluntarily submit-
ted to, but the fair inference is, that it was ordered by the court, either as
the judgment upon the motion, or for declining to file a new declaration.
The State Bank v. Johnson and Jeffreys,
368
4. Proof by one, that he had a judgment against an individual for ten years,
and had used all diligence to recover it, without being able to do so, rais-

INTENDMENTS AND LEGAL PRESUMPTIONS-CONTINUED.

es the presumption of his insolvency. Adm'r of Reynolds v. Pharr & Beck,

See Garnishment and Garnishee, 10.

See Principal and Surety, 9.

JUDGMENT AND DECREE.

560

1. A vendee of land, with warranty of title, may purchase in an outstanding paramount title, or incumbrance, and may recover upon his warranty without an actual eviction; but in such a case, he acts at his peril, and assumes the burden of proving, that he submitted to a good title, paramount to that of the warrantor. Davenport v. Bartlett & Waring,

179 2. Where a judgment is rendered against several defendants, one of whom died previous to its rendition, it may be amended on motion, by vacating it as to the deceased defendant, and continuing its vitality against the others; and where a judgment in such case is thus far vacated, and a formal judgment nunc pro tunc rendered against the survivors, the latter will be regarded as a continuation of, and intended to perfect the original judgment, and but one execution can issue. The informality in the judgments would, on error, be regarded as a mere clerical misprision, amendable under the statute at the costs of the plaintiff in error. Hood and Stinnett v.

Mobile Branch Bank,

335 3. A judgment by confession, under a warrant of attorney, although it is unnecessary to set out the warrant, or its proof, on the record, must show the authority was verified, and sufficient to authorize the particular judgment. Under a power to L. and his executor to take a judgment, the executor is not entitled to enter it up, without proving the power and producing and proving the note to which the power applies, as well as his letters testamentary. Brown v. Little, 416 4. A judgment is not so assignable as to enable the assignee to sue on it in his own name, and therefore he cannot make use of one, so assigned to him as a set off. Bunnell v. Magee, 433 5. When an indorsee sues the maker of an indorsed note, and notifies the indorser of the pendency of the suit, or advises him of any defence interposed, this will make the verdict conclusive against the indorser, if the maker is discharged, and it cannot be controverted when the indorser is sued. Hagerthy v. Bradford, 567

6. When no notice is given and the maker succeeds in defeating a recovery on the merits, the judgment is in all cases, prima facie evidence in a suit of the indorsee against his indorser, and it rests with the latter to show the defence interposed by the maker is invalid. Ib. 567 7. Where a recognizance states the offence for which the principal recognizor has undertaken to appear and answer, a judgment nisi rendered there

JUDGMENT AND DECREE-CONTINUED.

on should substantially describe the offence, or refer to it so that the recognizance may be identified; unless it is thus special, it would not support the final judgment, and the latter, if it conformed to the recognizance, would vary from the judgment nisi. Faulk and Faulk v. The State, 919 8. A judgment is evidence even for or against strangers to it, of the fact that such a judgment was rendered. Ansley v. Carlos, 973

9. Evidence of unsatisfied judgments, is competent testimony to raise a presumption of insolvency. Ib.

See Exceptions, Bill of, 3.

See Guardian and Ward, 2.

See Mortgagor and Mortgagee, 1.
See Sunday, 2.

JURISDICTION.

973

1. Quere? Whether a State Court can restrain a party to a suit in the Courts of the United States, or the officers of those courts, from making a levy; but however this may be, the Marshal may be sued in detinue, either at common law or under the statute, for the recovery of slaves owned by a stranger, but seized under execution; and the Marshal's refusal to accept a claim bond under our local statute does not invest a court of equity with jurisdiction. Bissell & Carville v. Lindsay, et al. 162 2. But if he omits to require the court thus to limit its judgment when the ju ry certifies a sum greater than fifty dollars, he will upon error, be presumed to have assented to the utmost exercise of the court's jurisdiction. Smith v. Fleming,

See Bankrupt, 3.

See Orphans' Court, 23.

See Set Off, 6.

JURY AND JUROR.

768

1. Under the code, a challenge to the array, or a plea in abatement to the panel, invokes the inquiry only, whether the jury has been selected in the mode directed, and on such issue, the certificate of the board is conclusive. The State v. Brooks,

9

2. This certificate may be made by the attending officers, or the clerk of the county court, when one of them. Ib.

9

3. When the matter of a plea in abatement is the disqualification of a juror, laying out of view the direction to summon free-holders and house-holders, as to which no opinion is given-it must present the constitutional disqualification of conviction for bribery, &c. &c. Matters which exempt individuals from jury service, are not disqualifications which will abate an indictment. Ib.

9

JURY AND JUROR-CONTINUED.

4. The code provides, that a grand jury may be summoned by the Court
when none is in attendance under the venire, and when a jury is thus con-
stituted, the accused is not invested with the right to enquire if the form
prescribed by the statute has been pursued or otherwise lb..
10

5. In pleas of abatement to the constitution of the grand jury, the greatest
accuracy and precision are necessary, as two modes are provided by which
a jury may be constituted, and therefore, the plea must negative that either
mode was pursued. Ib.
10
6. The essential matters to constitute a grand jury, when constituted by the
board of county officers, seems to be, that they shall select the jury from
the citizens at large, out of a list biennially obtained by the sheriff. Eve-
ry matter beyond this seems nothing more than direction as to the manner
in which the officers shall perform their duties. Ib.
See Criminal Cases, Proceedings in, 1, 2.
See Sunday, 2.

JUSTICE OF THE PEACE.

10

1. The local law of 5th February, 1840, giving monthly courts to certain
counties, repealed so much of the act of 1814, as required ten days to in-
tervene between the test and return of a warrant Quere-is not that por-
tion of the act of 1814 directory merely? Cole v. Flournoy,

401
2. A justice of the peace cannot retain money collected by him in his offi-
cial character, to satisfy a debt due him by the creditor whose money has
been thus received. Spence v. Mitchell,

LANDLORD AND TENANT.

744

1. Although a tenant in possession has been induced by fraud, or imposi-
tion, to admit the title of, and to take a lease from a stranger, he may show
the fraud or imposition, to avoid an entry, yet where no such circumstan-
ces are shown, and he has accepted a lease, he cannot defend by showing
his possession in the first instance, was derived from another, whose title
he has always admitted. Miller v. Bonsadon,
317

2. A landlord who becomes entitled to the possession of premises by the de-
termination of a lease under an arrangement with his tenant, cannot main-
tain a proceeding for a forcible entry and detainer for an entry made while
the tenant was in possession. McKeen and wife v. Nelms,

507

3. Where the mortgage provided, that after default of payment the mortga-
gee might enter, the mortgagor is entitled to possession until such default;
and if the land is rented, the tenant is liable to his landlord for the rent,
after default, if he has not been notified by the mortgagee not to pay it
over. Smith v. Taylor,

LIEN.

633

1. A surety in a claim bond, is not precluded by a judgment improperly ob-