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ing the crop, that the appellant should account to him for the same. By this latter contract, the appellant was expressly authorized by the appellee to take his share of the crop to New Orleans, or to sell it at home, as he might think fit, and after having thus disposed of the same, to retain in his hands, a sum sufficient to satisfy him for his horse, and also his extra expenses in cultivating, gathering and selling said crop. Here was a power to sell, coupled with an interest in the proceeds of the sale, and consequently, such power, as has been repeatedly ruled by this court, was not subject to revocation by the party who made it. To this, it might be objected that, although such is the law, yet it cannot be allowed to prevail in this case, inasmuch as the court below instructed differently, and that no exception has been taken to that instruction. This would be a strong position in case the iustructions were supported by facts going to show a revocation, or from which a jury would be authorized to draw such an inference. Such facts, however, we do not conceive to exist. True it is, that in the early part of 1847, after the appellee had returned from the service of the United States as a volunteer, and whilst the entire crop was lying in a pile on the bank of White river, in readiness and waiting for a boat, he was heard to demand of the appellant a measurement of the corn before it was put upon the boat. He simply demanded a measurement before the crop should be taken into the boat, but never intimated a desire to revoke the authority theretofore given to the appellant to dispose of his share, and to retain a sufficiency of the proceeds to pay him for his horse, and his additional expenses in cultivating, gathering and disposing of the crop. There was certainly nothing in that which could amount to a revocation, or even to authorize a jury to infer it. All that could be legitimately inferred from it, was that he either had a curiosity to know what his share would amount to, or that he might have data from which he might be able after the appellant's return to ascertain whether he had honestly and faithfully discharged the trust which he had reposed in him. There being no facts or circumstances upon which such an instruction could be predica

TERM, 1852.]

Buford & Pugh vs. Kirkpatrick.

ted, it is clear, that whether correct or not, in point of law, it could have no practical operation. From this view of the case, it is manifest that, even admitting that the relation of partners had been broken up by the appointment of the one as the agent of the other in the sale and disposition of the proceeds, yet no action could arise to the party claiming the residue, without a demand made before the institution of suit. In this respect, the testimony is wholly at fault, nor does it even appear that the crop has been disposed of, and much less what would remain to be paid over to the appellee after the price of the horse and additional expenses of cultivating, gathering and disposing of the crop, had been deducted from his share. We have no hesitation, therefore, in saying that the verdict is not only contrary to the law, but that it is also unsupported by the evidence. The judgment of the Circuit Court of Independence county herein rendered, is consequently reversed, and the cause remanded, with instructions to be proceeded in according to law, and not inconsistent with this opinion.

BUFORD & PUGH VS. KIRKPATRICK.

The record of a judgment of a sister State, is entitled to the same credit here, and alike conclusive, as if rendered in the courts of this State.

A judgment was recovered, by default, in the State of Georgia, on a writ returned thus-"Served the defendant by leaving a copy of the original at his most notorious place of abode, July 19th, 1848." Debt was brought upon the judgment in this State, and on the plea of nul tiel record, the court below found for defendant: HELD, That the finding was erroneous-that a judgment taken upon such a service of the writ, in our courts, would not be void, though it might be reversible, and that judgment upon such service in a sister State, must be re

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Buford & Pugh vs. Kirkpatrick.

[JANUARY

garded as equally valid, under the plea of nul tiel record, though the defendant might, by special plea, question the sufficiency of the service, as held in Barkman v. Hopkins, 6 Eng. R. 157.

Writ of Error to Ashley Circuit Court.

THIS was an action of debt, brought by Buford & Pugh, against Kirkpatrick, on a judgment recovered by the plaintiffs against the defendant, in the "Inferior Court for the county of Stewart, in the State of Georgia," at February Term, 1849. There was a second count in the declaration, upon an account stated.

The defendant pleaded nil debit to both counts, and nul tiel record to the count on the judgment. After demurring to the first plea, plaintiffs entered a nol pros. as to the second count in the declaration, and issue being made up to the second plea, it was submitted to the court. The plaintiffs read in evidence, a transcript of the judgment sued on, the court found for defendant, plaintiffs excepted, put the transcript on record, and brought error. The objection taken to the transcript appears in the opinion of the Court.

PIKE & CUMMINS, for the plaintiffs, contended, that under the plea of nul tiel record, the Circuit Court ought to have found for the plaintiffs; the record offered in evidence showing a regularly certified judgment of a sister State, which is entitled to the same effect, under the Constitution and acts of Congress of the United States, as in the State where rendered; that the judgment, if irregular, in consequence of constructive notice, was not void, (Borden et al. v. State use Robinson, 6 Eng..) and no special plea raised the question of notice; (Barkman v. Hopkins & McMechen, 6 Eng. May v. Jamison, 6 Eng.,) and the judgment cannot be questioned in this court under the pleadings. Holt v. Alloway, 2 Blackf. R. 108. 2 Cow. & Hill's notes, 304-5. McRac v. Matton, 13 Pick. 53. Poorman v. Crane's ad., Wright Ohio R. 347.

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Mr. Justice WALKER delivered the opinion of the Court.

We do not very readily perceive the grounds upon which the Circuit Court held the record in this case to be insufficient to sustain the issue on the part of the plaintiffs. From the argument of the counsel, however, we may infer that the objection was, that the judgment was void for the want of service or appearance of the defendant to that action.

The return on the writ is in the following words: "Served the defendant by leaving a copy of the original at his most notorious place of abode, July 19, 1848." It is true, this would not be a sufficient service under our statute, but it may, notwithstanding, have been valid under the statute of Georgia. The question is not, however, whether the service was so defective as to furnish grounds for reversing the judgment upon error or appeal, but whether the judgment is a mere nullity; for, unless void, it is conclusive of the rights of the parties in that suit until reversed or set aside. As a judgment of this court, it would, clearly, only be erroneous and reversible on error, but, until reversed, valid and obligatory. Borden v. State, 6 Eng. 525. And we have held in Barkman v. Hopkins et al., and May v. Jamison, 6 Eng. 372, that the record of a sister State is entitled to the same credit here, and alike conclusive, as if rendered in the courts of this State. It is true that judgment was taken upon constructive notice, and that the defendant failed to appear to the action. In case the defendant had been a non-resident of the State of Georgia, he might, by special plea, (as was done in the case of Barkman v. Hopkins,) have questioned the sufficiency of the service and the validity of the judgment. But this he has not done, and under the plea of nul tiel record, the court could not look beyond the record, but as we have remarked, it is to be received as a record, entitled to the same credit that the records of our own courts are. It was, in other respects, informal, but is, nevertheless, the judgment of the court of a sister State, regularly certified, and corresponding with the declaration. The Circuit Court should therefore have received it as evidence under the issue of

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nul tiel record, and for as much as the court decided against the sufficiency of the record, its judgment must be reversed, and the cause remanded, to be proceeded in according to law; and with instructions to dispose of the issue at law, upon the plea of nil debet, which, as appears of record, remains in that court undetermined.

BANK OF THE STATE VS. STeen et al.

Though a writ be voidable for variance from the declaration, yet it may be used as evidence of the commencement of a suit within the period of limitation, in a subsequent suit on the same cause of action, as held in State Bank v. Sherrill, 6 Eng. Rep. 334, &c.

On a proper showing, under Digest, p. 810, sec. 93, the plaintiff is entitled to a discovery from defendant.

Writ of Error to Jackson Circuit Court.

On the 14th of March, 1839, the Bank of the State commenced an action of debt, in the Jackson circuit court, against William Steen, John H. T. Webb, and Jeremiah Webb, on a note executed to the Bank by them for $888, due 1st July, 1844.

The defendant, Jeremiah Webb, filed two pleas: 1st, the statute of limitation of three years; and 2d, nil debet, sworn to. Defendant, John H. T. Webb, pleaded nil debet, limitation, and payment.

Defendant, Steen pleaded limitation.

To each of the defendants' pleas of limitation, the plaintiff filed a special replication, of a former suit within the bar, nonsuit, and commencement of the present suit within a year thereafter; to which the defendants filed rejoinders putting in issue

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