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Pickens

V.

Hayden and
Meriam.

title costs, A.

By JUDGE COLLIER. In this case there was a judg- JANUARY 1829. ment by default for costs of suit only. At common law, there were no costs; if the plaintiff was unsuccessful, he was amerced; if he prevailed, the defendant was in mercy. Neither party was burthened with the expensa litis.a The decision of this question depends upon the construction of our statute giving costs eo nomine, which is in these words 2 Bac. Abr. That in all other cases in civil actions, the party in whose favor judgment shall be given, or in case of non suit, dismission or discontinuance, the defendant, shall be entitled to full costs, except when it is or may be otherwise directed by law." Costs are the consequence of a judg- b Laws of Ala ment, and do not constitute a judgment in themselves. 453. The right of the successful party to costs does not depend on the rendition of a judgment for them, but is given by statute. Therefore if they are omitted, the judgment is not defective, nor the successful party deprived of them; he has only to adopt another remedy for their recovery. Hence, as costs are not a primary or essential constituent of a judgment, but merely a consequence of it, therefore a judgment, unless it be by confession, as it effects no other purpose than merely to authorize a collection of costs by execution, is erroneous. The practice of executing writs of inquiry on judgments by default where the amount is unascertained, if there were a doubt, might be considered as an evidence that this is a correct exposition of the statute.

The CHIEF JUSTICE not sitting.

Judgment reversed.

THE STATE V. PLUNKET.

Where in a statute, a general word is used, and afterwards more special terms, defining an offence, an indictment charging the offence must use the most special terms; and if the general word is used, though it would embrace the special term, it is bad.

PETER PLUNKET was indicted in the Circuit Court of Autauga county under the statute for horse stealing. The indictment charged him with stealing a horse. On the trial, the proof was that the animal stolen was a gelding, and the prisoner was convicted and sentenced. But the presi

JANUARY 1829. ding Judge, under the statute authorizing novel and difficult questions to be referred to this court, reserved the question whether the defendant could be lawfully convicted.

The State

v. Pluncket.

GORDON, argued for the prisoner, and cited the following authorities to shew that the judgment was erroneous, and that the proof was insufficient to sustain the verdict. Laws of Alabama, page 208, sec. 19, page 915; Starkie's Criminal Pleader, 214, 249; Foster's Crown Law, 424; Cro. Jac. 607; 4 Bl. Comm. 240, note 14; 2 Hale, 182-3; 2 Hawkins, 479, sec. 34; ib. 486; ib. 615, 616, sec. 183; 3 Chitty's Criminal Law, 737, 983; 2 East, 676; 1 Leach, 105; East's Crown Law, 617.

PERKINS, Attorney General, for the State.

By JUDGE COLLIER. The question reserved for the consideration of this Court is, "can a defendant, on an indictment for stealing a horse, and it is proved to be a gelding, be convicted?”

The statute which directs the punishment for such an offence is in these words, "That if any person do feloniously take or steal any horse, mare or gelding, foal or filly, ass a Laws of Ala. or mule; the person so offending shall, &c."a When a gen

208.

Stark. Crim.

Plead. 214.

249, 2 Hale, 182-3.

2 Hawk. 480,

486, 615, 616,

eric term employed in a statute is succeeded by one more definite in its meaning, it is necessary in an indictment predicated upon such statute, that the latter term should be used. Let this principle be applied: the word gelding being used after a term more general in its import, and the proof shewing a gelding to have been the subject matter of the theft, it results from this discrepancy between the allegation and the proof, that the defendant cannot be punished for the offence charged. Again, when a statute describes more objects of larceny than one, the legislature are to be understood as mentioning them in contradistinction to each other, and an indictment must be framed according to the particular facts, even though one of the descriptive terms may be sufficiently comprehensive to include all. Hence it follows, that before a defendant receives the statutory punishment, he must be found guilty on an indictment charging the particular offence which he has committed.b

If the descriptive term "horse" alone, had been used, 3 Chit. Crim. evidence that a gelding was stolen would have been admissible; but as the legislature have thought proper to par

Law 737.

2. East. 576,

Roberts

ticularize and define other objects, the conclusion is obvi- JANUARY 1829. ous, from the reasoning employed, that in an indictment. upon the statute it is necessary to be equally specific. With this view of the question, the Court are unanimous in the opinion that the judgment below should be

reversed.

Judgment reversed.

V.

Johnson.

ROBERTS V. JOHNSON.

1. On a writ against two defendants, the sheriff returns "Executed; copy offered to defendant R. and not accepted."--Semble, that it is to be considered as executed on R. only.

2. But if executed on both, and the plaintiff discontinues as to one, and takes judgment against the other alone, no advantage can be taken on error by the defendant against whom the judgment is taken, unless he make the objection in the Court below.

GEORGE S. JOHNSON sued out a writ in debt returnable to the Circuit Court of Madison county, against Robert W. Roberts and John C. Gibbons, to recover on a note made by them for $933. On this writ the sheriff made the following return "Executed-copy offered to defendant Roberts, and not accepted, 25th April, 1827."

The plaintiff at the return term, filed his declaration against Roberts only, reciting that the said Gibbons was not found, and discontinuing his suit as to him. At the trial, a judgment by default was taken by the plaintiff against Roberts; and at the same term, on the affidavit of Roberts, the judgment by default was set aside, and the cause was continued. At May term, a judgment by default was again taken against Roberts, who still failed to plead. To reverse this judgment, Roberts sued his writ of error.

HUTCHISON and CRAIGHEAD, for the appellant, argued that the judgment being against Roberts alone, was erroneous, inasmuch as the record shews that the process was executed on both. Both defendants should have been declared against, and treated as being in Court. That the discontinuance was authorized by the statute only in cases where one was returned not found; and that therefore, as there was no such return here as to Gibbon, it was error to discontinue as to him.

ACKLEN, for the defendant.

Roberts

V.

Johnson.

JANUARY 1829. By CHIEF JUSTICE LIPSCOMB. There is some ambiguity in the sheriff's return; a fair construction of it perhaps would be, that it was served on Roberts only, and if so, it was competent for the plaintiff to discontinue as to the other. But if the service had been perfected on both, the declaration being against one only, it should have been taken advantage of in the Court below by plea. The defendant suffered judgment by default, and opened the default on affidavit of merits, and then again permitted the judgment by default to be entered for want of a plea. The judgment must be affirmed.

Judgment affirmed.

REPORTS OF CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF ALABAMA.

CASES DETERMINED AT THE TERM OF THE FIRST MONDAY IN JULY, 1829, AT TUSCALOOSA.

PRESENT AT THIS TERM,

THE HON. ABNER S. LIPSCOMB, CHIEF JUSTICE; AND THE HON. REUBEN SAFFOLD, ANDERSON CRENSHAW, JOHN M.

TAYLOR, JOHN WHITE, SION L. PERRY,

AND HENRY W. COLLIER, JUDGES.

WALLIS V. MURPHY.

An affidavit that a party is about to remove himself out of the county of his residence so that the ordinary process of law cannot be served on him, is not sufficient to authorize an attachment to issue.

THOMAS B MURPHY, by his agent D. Harding, sued out an original attachment in Morgan county against Ezekiel P. Wallis, to recover on a note of hand for $107 75. The process was issued by a Justice of the Peace, and was made returnable to the County Court. The ground stated in the plaintiff's affidavit, for the issuance of the attachment is set forth in these words: "that said Wallis is about to remove himself out of the county of Morgan, his place of residence, so that the ordinary process of law cannot be served upon him, &c." The writ of attachment recited the ground of the issuance of the attachment thus: "oath having been made that said Ezekiel P. Wallis is about to remove himself out of your county privately, so that the ordinary process of law cannot be served upon him, &c."

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