BARTON, et al. . F. & E. PECK.

action, a special request must be stated, and it must be shown by and to whom the same was made, and the time and place of making it, in order that the Court may judge whether the request were sufficient." There can be no doubt about the correctness of this position. In a case like the present, it is as important a fact as any which is to be proved, and that a demurrer to a notice omitting it, would be sustained, there is no doubt But it is insisted that this defect is cured by the verdict, or by the statute of jeofails of 1824. Chitty in the page last cited, proceeds to say: "it should seem that a verdict would, at common law, aid the defect:" and the act of 1824 declares, that no case shall be reversed or arrested for any defect in the proceedings, unless the objection was made in the Court below, provided the record show a good cause of action. Is this then one of those defects, which would be aided by verdict at common law, or by the statute

Although the demand in this case entitles the plaintiff to a much greater recovery than he could have without it, yet the damages can only be viewed as incidental to the debt. It is not because the money is demanded, but because the sheriff has failed to discharge his duty in paying it over, that he becomes liable to the damages. There should be much strictness required in proceedings of this kind, especially where the penalties are so great, and I at first inclined to the opinion, that, as without the demand there could be no recovery of the five per cent. it might be considered as the cause of action for this part of the judgment, and that the failure to aver, it was fatal on error. But upon reflection, I do not perceive that the averment is more requisite here than in other

BARTON, et al. vs. P. & E. FECK.

cases in which it is essential to the proof. In none, can a recovery be had without it: it secures the right of action in the plaintiff, and fixes the liability of the defendant. In cases conducted in the usual manner, it will after verdict, be presumed to have been proved; and in a summary case, like the present, if the record shows that the proof was made, it will supply the omission in the notice. This record shows that fact.

The next objection to the judgment is, that such a proceedings can only be had against sheriffs, and were never intended to be extended to those who had ceasel to be such, by the term for which they held their offices having expired, or in any other way.

No authority has been produced on this point, nor an attempt made to sustain it by analogous principles of law Nor can I perceive any reason for confining. the operation of the statute to sheriffs in office. Frequently, after the term expires, a person who has filled this office, collects large sums of money; in fact, he continues a sheriff, vested with all the power and authority of one so far as relates to the unfinished business of his cffice. If he can not be reached for monies which he collected during the continuance of his term of office, he can not be for that which he collects afterwards. There could be certainly no reason for making a distinction of this kind; but the greatest evils would result from a rule of decision like the one contended for, and it would render the law almost inoperative. It is after a sheriff has gone out of office, particularly in this State, that his delinquencies are generally discovered. He only holds his of fice for a short term, is not eligible, at the next election, and can manage to conceal the majority of his defalcations, for the short time he is in office, and the

BARTON, et al. vs. F. & E. ELLIS.

most of them often take place towards the close of his time. The policy of the statute would be entiredefeated by the decision for which the counsel of the plaintiff in error contends.

The third objection, that damages at the rate of five per cent. per month, could only be recovered up to the time of bringing the suit, is believed to be equally untenable. The statute awards five per cent. per month damages to the plaintiff "from the time of the demand." If it had been intended that these damages should cease when the suit was brought, it would have been almost useless to give them. The suit is generally instituted very soon after the demand is made, and the inducement to pay the money really due, to prevent his incurring the damages, would be slight indeed, if he foresaw that he would probably pay them for a few days, and might possibly protract the suit for years before a recovery could be had against him. It is said, if they are incurred, another suit must be brought to recover them; but no case is recollected in which a right is withheld from a plaintiff, and his recovery of damages is limited to those which had occurred at the commencement of the suit. There certainly can be no good reason given for their ceasing when the action is instituted, nor, if they continue to accrue, can any be perceived for their not being investigated and decided on without a second suit. The law abhors multiplicity of actions, and to decide for the plaintiff in error on this point, would be a wide departure from that policy.

We do not perceive any thing in the assignment of errors to authorise a reversal; and therefore, the judgment is affirmed.

SAFFOLD, J. not sitting.

ACTION.

1. A mere verbal promise to pay a squatter for his improvements on public land,
not made at the request of the promisor, will not sustain an action.-Shaw
vs. Boyd.

2. Where an action is brought against several defendants in a Justices' Court,
one of them without the concurrence of the balance, may prosecute an ap
peal.-Craig, et. al. vs. Atwood.

3. An action of assumpsit for rent, will not lie at Common Law, except on an
express promise made at the time of the demise.-Bell vs. Ellis' Heirs.
4. The act of 1812. in relation to the action of assumpsit for rent, applies only
to the case of a demise, and where there exists an agreement creating the
relation of landlord and tenant.-Ib.

Page.

5. So, where A has the possession of land under an agreement of sale from B,
who had no legal title to dispose of it; this action can not be maintained
by the owners of the land to recover of A, rent for its use and occupation.-Ib. 294

ADMINISTRATION, GRANT OF

1. Under the act of 1806, regulating the grant of administration, to the next of
kin if there be no widow; the father is entitled to the administration, in
preference to the sisters, or brothers of the intestate.-Brown vs. Hay and
Germany.

AGENT.

1. The gratuitous declarations of an agent, as to the ownership of property en-
trusted to his charge, are not evidence; if competent, he must be produced
in person.---Standefer v. Chisholm.

APPEAL.

1. Where an action is brought against several defendants in a Justices' Court,
one of them, without the concurrence of the balance, may prosecute an
appeal.-Craig, et. al. vs. Atwood.

ASSIGNMENT.

102

449

86

1. Though a debtor in failing circumstances may, by an assignment of his
estate, in trust, and in good faith, prefer one creditor to another; yet if such
assignment be made without the consent of his creditors, and reserves to
the debtor a portion of his property for the support of himself; and be
otherwise arbitrary and unjust to the creditors, generally; it will be de-
clared fraudulent in the whole, and the favored creditor will not be allowed
to avail himself of any benefit under the assignment -Richards vs. Hazzard. 139
2. An assignment made by an insolvent debtor of his estate, appropriating to
himself, without the approbation of his creditors, a certain amount for his
own support, is fraudulent and void.-Id.

139

ASSISTANT COUNSEL.

1. It is not error, that in the prosecution of offences, assistant counsel is assign
ed the state.-Shelton vs. The State.

208

ASSUMPSIT.

1. An action of Assumpsit for rent, will not lie at Common Law, except on an
express promise, made at the time of the demise.-Bell vs. Ellis' Heirs.

2. The act of 1812, in relation to the action of Assumpsit for rent, applies only
to the case of a demise, and where there exisis an agreement creating the
relation of landlord and tenant.-7b.

294

294

3. So, where A has the possession of land, under an agreement of sale from B,
who had no legal title to dispose of it; this action cannot be maintained by
the owners of the land to recover of A, rent for its use and occupation.-Ib. 294

BILLS OF EXCHANGE AND PROMISSORY NOTES.

1. The written acknowledgment of a husband, of a note, executed by his wife;
though the note may originally have been void in itself; becomes, by such
acknowledgment, under the statute of this state, the note of the husband;
and it is not necessary to set out in the declaration any consideration on
the part of the husband, for such acknowledginent-Phillips vs. Saggins.
2. Where an endorsed note is relied on as a set off, such endorsement must be
proved. Cass vs. Northrop.

3. The statute of 1819, exempting plaintiffs, in suits on assigned paper, from
proof of the assignment, unless defeudant makes afidavit that it is forged;
is not applicable to cases, where an endorsed paper is produced as a set
off.-Jd.

4. Where a defendant produces an assigned note of the plaintiff, as a set off
against the plaintiff's action, the latter may show a total or partial failure
of the consideration for which the note was given, either by replication
to the plea of set-off, or in answer to the general issue, and notice of set-off. —
Hudson vs. Tindall, ex'r.

5. A paper, promising to pay a certain sum of money for staves, (subject to a
deduction for any number not procured.) at two dollars a thousar d―
heid not subject to the same rules of decision which regulate promissory
notes; so as to authorise the Court to give judgment on it without the in-
tervention of a jury.-Martin & Hill vs. Woodall.

6. An effort on the part of the endorsee of a note, to find the maker in order to
make a demand of payment, need not be by a personal application at his
last place of residence; if it is notorious that such last place of residence
has been abandoned.--Goading vs. Britain.

7. Under our statute, notes made payable in "notes," are negotiable as though
made payable in money.-Ibid.

8. In an action on a note, payable to a party eo nomine, the capacity of the lat
ter to contract and sue is prima facie admitted under the plea of the gene-
ral issue.-Herbert & Kyle vs. Nashville Bank.

28

83

89

237

244

252

262

9. Where a note, executed by a party, and payable in cash notes, is taken up
by the substitution of notes on other persons, which are endorsed; the first
contract remains uncancelled, unless an express agreement exists to sub-
stitute the liability of the endorsement.-Crockett vs. Trotter, et. al.
10. The fact of lines being drawn through the face of a bond, or note, is to be
regarded as presumptive evidence of its being satisfied or cancelled-
Pitcher & Remsen vs. Patrick's adm'rs.

11. But such fact is proper for the determination of a jury, before whom, either
party can legally explain the circumstances under which the marks
were made.-Ib.

CANCELLING.

1. Vide "Bills of Exchange and Promissory Notes-10, 11.

CERTIORARI.

1. Where the Judge, to whom a petition for a certiorari is presented, deems
the facts sufficient to authorise the issuance thereof; the Courts will not af
terwards entertain motions to dismiss on the ground that the facts set forth
in the petition are insufficient.-Cascoy vs. Briant.

CHANCERY.

1. Where a party neglects in a suit at law, to take advantage of an entire failure
of consideration, then within his knowledge, he will not afterwards be per
mitted to appeal to equity for relief.-Jabell v. Morris, et. al.

2. It is competent for Courts of Chancery to relieve a purchaser of real estate
from payment of the purchase money, where the vender cannot effect a
title.--Smith vs. Pottus, et. al.

3. The inability of a vendor, through insolvency, to make titles to real estate
sold by him, is a sufficient ground for the interposition of equity to prevent
such vendor from enforcing the payment of the purchase money, until
such disability is removed.-id.

256

446

478

478

51

41

107

107