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JULY 1829.

Cato

V.

Easley.

made by one indebted at the time, is, as against such creditors, fraudulent, and absolutely void. It appears that the debt which was paid by the appellee, and for which he seeks an indemnity, was existing at the time of the conveyance, though not in his hands. The effect of the payment by the appellee as security for the mother, was not an extinguishment of the equitable lien which the administrator had on the property conveyed; at law the debt was extinguished; in equity it is continuing; and the appellee is considered as standing in the same situation in regard to the property conveyed, as the administrator did; and every facility which he had in equity for the collection of the debt, was transferred by the payment, to the appellee. The doctrine in relation to voluntary conveyances is very fully considered in the case of Reade v. Livingston and others;a The learned Chancellor collects and a3 John. Ch. reviews the most prominent of the English adjudications Rep. 481. upon the subject, and maintains, that a conveyance without valuable consideration, by one indebted at the time, is fraudulent in law against existing creditors, and that the intention of the donor determines the validity of such conveyance, as against subsequent creditors, which intention must be ascertained by the circumstances accompanying and following the conveyance. In Wheaton's Reports and Johnson's Chancery Reports, the same doctrine is recognized. b

With regard to the objection that no time is expressed in the decree when the infants shall impeach it on attaining full age, it is enough to say, that the statute prescribes the time; and that therefore it need not be repeated in the decree, c

The decree is for a larger sum than appears to have been due the appellee. For that cause it must be reversed, and rendered here for the sum which seems to have been due, including interest, and the costs of the suit of Wyche Cato's administrator against the appellee; to be collected by a sale of the property described in the decree, if it be not sooner paid; and the appellee must pay the costs of this Court.

*

Decree reversed and cause remanded.

*The decree was rendered for $971 01.

b11 Wheaton 199.8 Wheat.

242. 4 John. Ch. Rep. 450.

c Laws bf Ala. 492.

JULY 1829.

a 3 Chit. Pl.

19, 20. 2 Chit. Pl. 84.

1 Saund. 425. nership 172.

Gow on Part

b 1 Chit. Pl.
6 Marg. P. 8.

c 1 Chit. Pl. 469. Peake on Ev. 214. 3 Bl. Comm. General Is

sue.

SMITH V. HUNT.

1. In an action by a surviving partner, on a note made to the firm, it is not necessary to prove the partnership or survivorship; the note is sufficient evidence.

2. If the plaintiff is not the person properly entitled, and the objection does not appear on the face of the pleadings, it must be shewn by the defendant by plea or proof.

HUNT, as surviving partner, instituted an action of assumpsit in Autauga Circuit Court, against Smith, and in his declaration alleged that George Wilkinson and himself were copartners under the firm of George Wilkinson & Co.; that the defendant had made a note payable to them in the following words:

"$279 9-100. One day after date I promise to pay George Wilkinson & Co. or bearer, two hundred seventynine 9-100 dollars for value recived, 15th January, 1824. DAVIS SMITH,” and further alleged, that said Wilkinson had since died, and that he was surviving partner, &c. The defendant pleaded the general issue.

At the trial at May term 1827, to support the issue on the part of Hunt, the note was read to the jury, and no further evidence was offered. The defendant demurred in law to this evidence as insufficient, and the court gave judgment on the demurrer for the plaintiff; which is here assigned by Smith as error.

a

GOLDTHWAITE for the appellant, contended, that to enable the plaintiff to support his action, it was necessary for him to allege, 1st that the firm consisted of himself and Wilkinson, and 2d, the death of Wilkinson before suit brought, and his survivorship. If the death of Wilkinson was not stated, could Hunt sue alone as payee? The declaration would then shew a joint interest in him and Wilkinson, and the nonjoinder of Wilkinson would be fatal on demurrer. It is then clear that the allegation of Wilkinson's death is material to enable Hunt to maintain the action in his own name, and if it is material for him to allege it, it is equally so for him to prove it. The general issue puts the plaintiff on proof of every material fact stated in his declaration, unless he be suing in auter droit; even a husband suing for a consequential damage for an injury done his wife, must give prima facie evi

a

dence of his marriage. An administrator, if he declare on a cause of action in his own time, must prove his title as such. So in an action by a corporation, under the general issue, they must prove they are such. It is equally necessary to prove the allegation that Hunt was a partner, to entitle him to maintain his action; it is the only way in which he could have an interest in the note as payee. The authorities referred to will prove this. A surviving partner cannot recover in an action of assumpsit without naming his deceased partner in the declaration;d where death is averred, it is necessary to prove it. e

His

JULY 1829.

Smith

v.

Hunt.

a 2 Starkie's
Ev. 689.

b 2 Starkie's
548.549.

8 John. R.
378; 10 John.
245, 2 Cowen

154; 14 John.

378.

d 14 East.210.
3 Starkies

e 2 Starkies
Ev. 457.

note.

BUGBEE, contra. Hunt has possession of the note, and whether he be bearer or surviving partner, he is entitled to Ev. 1070. his action. It is not to be presumed that he would sue in a false character, which would curtail his rights. proof shews an entire cause of action in himself; his consent that another should participate, does not injure the defendant; this is a negotiable instrument; where a bill or note is payable to bearer, or is indorsed in blank, possession is prima facie evidence of delivery and of ownership. He who has possession, may receive payment, f2 Starkies and a recovery by him is a good bar.

Formerly a plea in abatement was the only mode in which advantage could be taken of a misjoinder or nonjoinder of either plaintiff's or defendants; and the reason advanced for a different practice in some cases is, that the defendants are not supposed to know all the parties plaintiffs; this reason here cannot apply. Chitty says, "If one of several obligees be dead, the fact should be stated, or the defendant may crave oyer and demur. But if the plaintiff be prepared to prove the death of the party, the omission of the statement of the death would be no ground of nonsuit."

An administrator suing for a debt due his intestate, need not prove his authority, unless oyer is craved; and husband and wife may sue without any proof of marriage. h

ner.

By JUDGE PERRY. It is contended that the plaintiff was bound to prove that he was one of the firm of George Wilkinson & Co. and also the death of his coportThe position assumed by the counsel for the plaintiff in error cannot be applied to the plaintiff below, inasmuch as it would have formed a good defence for the defendant; and if he wished to avail himself of it, it was incumbent on him to shew that there were other parties

Ev. 250..

1 Chit. Pl..

Ev. 486. See
also, 2 Saund.

h2 Starkies

122. 1 John.
Caines Rep.
Rep. 34.
170.1 Starkie

on Ev. 21, 22.

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JULY 1829.

Smith

V.

Hunt.

a 1 Chitty Pl. 6.

72 Starkies Ev. 127.

to the contract who were not joined as plaintiffs in the action. This he could have done if the objection appeared upon the face of the pleadings, by demurrer, by motion in arrest of judgment, or on error; and though the objec-tion may not appear on the face of the pleadings, the defendant in the court below could have availed himself of it either by plea in abatement, or as a ground of nonsuit on the trial, upon the plea of the general issue. The principle here laid down clearly shews, that the want of proper plaintiffs in actions on contract, is an exception to the merits, which may be taken advantage of by the defendant to defeat the plaintiff's recovery. He may shew that the agreement was under hand and seal, for then the form of the action was mistaken; that the action has not been brought by the proper parties, the promise having been made to the plaintiff jointly with others, &c. The case is too clear for argument. It is therefore the opinion of the Court, that the judgment be affirmed.

SMITH V. DAVIS et al.

In an action brought by copartners as payees, on paper made to them by their firm name, no proof of the copartnership is necessary. If the proper parties have not brought the action, it is matter of defence.

THIS case was tried at the same time as the last, and in the same manner. The declaration, which was in assump sit, averred that P. Davis, E. Faxer and John Kirby, were copartners; and the only proof produced was a note made by Smith to P. Davis & Co. On the demurrer of the defendant below to the plaintiff's evidence, judgment was given for the plaintiffs, who are appellees in this Court.

GOLDTHWAITE, argued for the appellant, that when a firm sue as payees or as indorsees, by virtue of any other than a blank indorsement, under the general issue, they Gow on Part. are bound to prove their identity and copartnership. e BUGBEE for the appellees.

170, 186. 2

Starkies Ev. 250. 1 Chittys Pl. 294, 469.

Peakes Ev. 214.

By JUDGE PERRY. This case depends upon the same principles as the last. The judgment must therefore be affirmed.

JULY 1829.

M WHORTER V. SAYRE & SAYRE.

It is error to render judgment for more damages than laid in the declara

tion.

THIS action involved the same points as the two preceding. In addition thereto, it was assigned for error, that the damages in the writ and declaration were laid at $130, and a verdict was found for $268 93, and judgment was rendered for that amount. The action was in assumpsit.

a Minor's Ala.

IStewart 18.

GOLDTHWAITE, for the appellant. This is certainly Rep. 89, 93. erroneous. Since the suing of this writ of error, a remittitur has been entered; but a remittitur cannot be Rep. 1110. entered at a subsequent term.

BUGBEE, contra.

By JUDGE PERRY. It appears that the jury assessed damages largely beyond what were claimed in the declaration, and judgment was entered thereon. This was error, and has been so several times decided in this Court. For this the judgment must be reversed and the cause remanded,

b 2 Strange

JOHNSTON et al v. Arwood.

1. The act giving summary judgment in this Court, on motion, against secus rities in writ of error bonds, is not repugnant to the constitution.

2. Nor is the exercise of that power to be considered as the assumption of original jurisdiction by this Court.

3. A party may in certain cases, by acts of record, waive his right of trial by jury.

THIS was a writ of error sued to this Court by Johnston and M'Grew, to reverse a judgment of the County Court of Marengo county, rendered against them in favor of Atwood, on the trial of an appeal from a magistrate's Court. At a previous day of the term, the judgment of the Court below was, on the errors assigned by Johnston and M'Grew, affirmed in this Court; and under the statute, in the usual form, judgment was rendered against

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