Lewis vs. Wayne, adm'r.

We might as well make up our minds, to accept the amendment Act of 1854.

I think the letters were admissible.

The drafts, together with the endorsements, the acceptances, and the protests for non-payment by the acceptors, and the mortgages, were read as evidence by the counsel for Wayne, the petitioner. They introduced no further evidence.

The counsel for Lewis objected to this evidence as insufficient, insisting, that it was not sufficient to show, that the mortgagees, the acceptors of the drafts, had ever paid the drafts at all; or that if it was sufficient to show this, it was not sufficient to show, that they had paid the drafts out of their own money. The Court overruled the objection.

This is a point entitled to notice.

I think that the Court was right. The drafts were protested for non-payment by the acceptors. This shows, that the drafts had got into circulation after acceptance. At the time of the trial, the drafts had got back into the hands of the acceptors. How did they get back there? The acceptors must have paid them. This is the presumption.

So, I think that the evidence was sufficient to show, that the acceptors had paid the drafts.

Was it sufficient to show, that they had paid the drafts out of their own funds, and not out of the effects of the drawer in their hands? I think so, not however with entire confidence in the opinion.

The mortgage, it is clear from its face, contemplates advances—accommodation acceptances, to be made by the drawer, does it contemplate any other sort? I hardly think so. Indeed, what use would there be for a mortgage, if the case was one, in which the acceptances were to be acceptances founded on effects of the drawer in the hands of the drawee, at the time of acceptance.

And then, if the fact was, that the acceptors had effects of Lewis, out of which they might have paid the drafts, why did he not show the fact? It would have been easy for him

Lewis vs. Wayne, adm'r.

to do so. And it was a matter in relation to which it was he that held the affirmative.

There is enough here, I think, to raise a prima facie case, that the acceptors paid the drafts out of their own funds. Upon the whole, then, I go for affirming the judgment of the Court below.

MCDONALD, J. dissenting.

The plaintiff in error executed to Hamilton & Hardeman a mortgage to secure them against certain liabilities which they had incurred on his account prior to the date of the mortgage, and to indemnify them against loss for such acceptances as they might make for him thereafter. The mortgage bore date on the first day of June, 1849. The mortgage had been assigned to the intestate of the defendant in error.

This is a petition and rule nisi calling on the mortgagor to show cause why the mortgage should not be foreclosed; and the debts claimed to be entitled to satisfaction from the mortgaged property, are certain drafts drawn by the mortgagor on the mortgagees and accepted by them, bearing date respectively, 31st Dec. 1851; June 3d, 1852; Jan. 10th, 1852; Jan. 13th, 1852; Jan. 27th, 1852; Feb. 12th, 1852; Feb. 21st, 1852; Feb. 28th, 1852.

The mortgagor showed for cause ten objections to the foreclosure. The ninth objection is that the drafts were not given on account of any of the anticipated or future liabilities or indebtedness mentioned in the petition or rule nisi, and avers that there was no lien created by the mortgage by reason of said liability.

The tenth alleges that no part of the money claimed to be due was intended to be secured by the mortgage. The Court below overruled all the objections. The plaintiff in error excepted to its judgment and this Court affirms it.

I have the misfortune to dissent from the judgment of the majority. The plaintiff in error does not deny the execution

Lewis vs. Wayne, adm'r.

of the drafts, and therefore he is not required to file the objection he makes under oath. He does not insist that the drafts, or any of them, as mortgage debts, have been paid in whole, or in part, so that an affidavit of that fact is not necessary. The judgment of the Court below, as understood here, was that, notwithstanding the objections filed and the issue made thereby, the defendant in error was entitled to his rule absolute without proof that the drafts or acceptances, were the debts secured by the mortgage.

The plea, or whatever it may be called, of the mortgagor certainly puts that matter in issue, and the mortgagees, or their assignee, like every other plaintiff, ought to be required to make out his or their case by proof. The mortgage was given for the purpose of securing the mortgagees for sums of money which they had theretofore paid, and which they might thereafter pay for and on account of the mortgagor in discharge or payment of debts and judgments against him, or which he had been or might be enabled to discharge by their acceptances, or other of their means, and to fully indemnify and save harmless the mortgagees from all losses from liabilities by them incurred by acceptances of drafts, checks, endorsements of notes, or by any other notes or means on his account, and from all losses which may happen or accrue from, or in the purchase and sale of cotton, or by any other means where liabilities have been or may yet be incurred by the said mortgagees on account of the said mortgagor in extending aid and credit, or assistance to him in cotton or other trade and operations.

No debt due by mortgagor to mortgagees is described in the mortgage. It is vague and uncertain as to any specific debt or liability of mortgagor to mortgagees. The drafts all bear date more than two years after the execution of the mortgage, and it is not even averred in the rule nisi that they are the liabilities against the payment of which, it was intended to indemnify the mortgagees.

My opinion is that it cannot be presumed from the facts

Laughter vs. Butt, adm'r.

stated and admitted in the pleadings, and from them we must judge as the case is presented here. I think therefore, that the judgment of the Court below ought to be reversed.

R. LAUGHTER, plaintiff in error, vs. JOHN BUTT, adm'r, &c., defendant in error.

When the plaintiff in trover begins his petition thus: A. B., administrator &c. of &c., and tenders his letters as his authority to bring the action, if it be not a suit by him, as administrator, (as for myself, I hold it is,) it is clearly amendable, so as to make it such, by prefixing as often as may be necessary, the potent little monosyllable as.

Trover, and amendment of declaration, from Union county. Decided by Judge RICE, November Term, 1857.

This was an action of trover, brought by Butt, administrator, &c., against Robert Laughter. The declaration ran in this form: "The petition of John Butt, administrator on all and singular the goods and chattels, lands and tenements, rights and credits that were of Robert C. Laughter, late of said county, deceased, who brings here into Court his letters of administration, and sheweth his authority to sue," &c. It then went on to set out the property sued for, and its value, &c., and the latter part of the declaration proceeded: "to which your petitioner claims title."

The plaintiff moved to amend his declaration by inserting in the early part of it after the words "to sue," "which said letters of administration were granted by the Court of Ordinary of said county." He also moved to amend it by inserting in the latter part, after the word "title," "as such administrator as aforesaid."

VOL. XXV.-12.

Simmons et al. vs. Lane.

Leave was granted to the plaintiff, by the Court, to amend his declaration in these two particulars.

The defendant then filed his bill of exceptions saying, that he Court erred in allowing the plaintiff so to amend his declaration.

MARTIN, for plaintiff in error.

PHILLIPS; MILNER; CHISHOLM & WOFFORD, for defendants in error.

By the Court.-LUMPKIN J. delivering the opinion.

We affirm the judgment of the Court below, allowing the declaration in this case to be amended.

The plaintiff, by tendering his letters of administration as his authority to sue for this property, shows clearly that he claimed it as the property of his intestate, and not in his individual right. The most that can be said then is, that the writ shows a good cause of action, defectively set out. Perhaps, under the strict rules of English pleading, the declaration was amendable; clearly so under the Judiciary Act of 1799, and the statute of 1818; and certainly and most unquestionably so under the broad provision of the great Act of 1853-1854.

Judgment affirmed.

J. DoE, ex dem., LAREY J. SIMMONS, et. al., plaintiffs in error, vs. R. ROE, cas ej. and JAMES LANE, tenant in possession, defendant in error.

[1.] In ejectment the plaintiff read in evidence a grant to Larey J. Simmons; he then offered a deed from Lacey J. Simmons.