Boggs V. Bandy. on the hypothesis, that the act is operative upon bonds of JANUARY 1830. an anterior date, the legal conclusion must be the same. It is doubted in some of the old books of authority, whether a scire facias lay at common law; but Lord Coke says the doubt arose from a neglect to distinguish between personal and real actions. In the former, it was given by the statute of Westminster 2. 13 Edward 1, statute 1, chapter 45. In the latter, as well as mixed actions, it was a remedy existing at common law, a a Salk. 258, 600. 6 Вас. Abridg't 104. 3 Blac. Cem. 421. 6 Jacob's Law cases there referred to. 46 and 267. On recognizances at common law, no scire facias lay Dic. 22, and until it was given by the 2d Westminster. Since the enactment of that statute, a scire facias may be defined to be a judicial writ or action, founded on some matter of record, as judgments, recognizances, and letters patent. Now it 62 Term. R. is obvious, that the bond in question is not a matter of record; nor can it with propriety be distinguished as a judicial act. It was not taken by direction of any statute, but under the fiat of the Judge awarding the injunction, by the clerk of the Court, in the performance of his ministerial duties. If a scire facias can be sustained on this bond, it would be difficult to conceive of one taken by an officer of a Court of record, on which that remedy would not be proper. In my opinion, the proper remedy on all bonds taken by ministerial officers of Court, independent of general or special legislation controlling, is an action of debt, or other appropriate common law action. The common law has been doubtless repeatedly supposed to be co-extensive with the statute of Wesminster 24; and this mistake has happened from a neglect of many of the adjudged cases, to refer to that Statute. But if the statute itself could be considered as expressive of the common law, for the reasons stated, it is apparent to my mind that the bond is not a fit subject for the remedy by scire facias. I am not inclined to controvert the position impliedly assumed in the opinion of the Court, that the act of the 12th January, 1826, does operate retrospectively, so as to extend its influence to the remedy upon the bond. This construction furnishes a sufficient reason why the judgment should not be sustained. By that act, the bond itself, on a dissolution of the injunction, is declared to have the force and effect of a judgment, and execution may thereupon he issued against all the obligors. Is it proposed to effect more by the scire facias, than to obtain a judgment upon the bond? Certainly not. By the judgment upon the scire facias, the obligee in the bond acquires no power V. Boggs JANUARY 1830. which he did not before possess, to coerce the payment of his judgment at law, and decree upon the bill. Surely it is no answer to this to say, that the proceeding by scire facias cannot prejudice, but will rather benefit the obligor. It is apprehended it would not be insisted, that after a judgment obtained against the maker of a note, another action could be sustained on the same note; though it might with equal force be urged that the defendant would be rather benefitted than prejudiced thereby, as he might obtain a delay, and interpose matters of defence, which the enforcement of the judgment would not allow. To my mind it is a sufficient answer to this argument, that by the entertainment of the scire facias, the defendant is unnecessarily and vexatiously mulct in costs. In every point of view in which I can conceive of the case, I am of opinion that the judgment should be reversed. Judgment affirmed. SEWALL V. BATES' adm'rs. 1. When a party has died after a judgment in the Court below, the clerk 3. Semble, that in such cases, application must be made to this Court for a 4. The citation, when the sheriff is a party interested, must be directed to, and executed by the coroner.. 5. It is not sufficient to affect the sheriff with legal notice, that the citation was placed in his hands as sheriff, and returned by him as to a co-defendant, "not to be found." In a suit commenced by attachmeut, in Mobile Circuit Court, by Rufus Sewall against Daniel Stow, a replevy bond was taken by James P. Bates, then Sheriff of Mobile county; and at the February term, 1828, of the Court, Sewall filed exceptions to the bond, and moved the Court that Bates, the Sheriff, be held, and stand as special bail in the cause; which motion was, by the Court, at the April term, 1828, overruled. On the 15th of December, 1828, on the application of Sewall, the clerk of the Mobile Circuit Court issued a writ of error to this Court, in which it is recited that, "it being made manifest, from the Sewall V. copy of the order and proceedings of the County Court of JANUARY 1830 Mobile county, hereunto attached, that the said James P. Bates, since the rendition of the judgment aforesaid, has departed this life, and that Theophilus L. Toulmin, and Bates' adm'rs Joseph Bates, jr. are his administrators," &c. and upon such recital, he proceeded to issue the writ of error against said Toulmin and Bates, as administrators, and thereby made them parties defendants in error in the cause, in this Court. To the writ of error, there was annexed a certified copy of an order from the minutes of Mobile County Court, shewing that letters of administration had been granted on the estate of James P. Bates, as above stated. A citation was issued to the administrators, Toulmin and Bates, directed to the sheriff of Mobile county, which was returned as follows: "J. Bates, the within named defendant, not found in my county. January 1, 1829, T. L. Toulmin, sheriff of Mobile county." A motion is now made in this Court by the appellees to quash the writ of error: and if that should be overruled, then to dismiss it, because the citation had not been served on the defendants. ELLIOTT, for the appellees. GORDON, for the appellant. By JUDGE TAYLOR. I am ignorant of any case in which a clerk is permitted to determine upon the sufficiency of evidence offered for the purpose of making new parties to a cause. Even where the death of a party is suggested in Court, the clerk has no power to revive the action, either in favor of, or against representatives. But in this case, he first judicially decides that the defendant is dead, and then that Toulmin and Bates, junior, are his representatives, and makes them defendants, without giving them an opportunity of contesting either of those facts. The uniform course in a court of justice, is, upon the suggestion of the death of the defendant, to issue a scire facias against such persons as from the production of satisfactory testimony, it appears, on this ex parte examination, are the representatives of the deceased, requiring them to shew cause at the next term of the Court, why the suit should not be revived against them. In what way the representatives in a case situated like the present one, are to be made parties, I have not had an Sewall V. JANUARY 1880. opportunity of examining into authorities to enable me to determine, nor have authorities been cited by counsel; but I am inclined to the opinion, that application should, Bates' adm'rs in the first instance, be made to this Court; either upon the suggestion of the death of the defendant below, and exhibition of a copy of the letters testamentary or of administration, and a copy of the record in the cause, to move for a scire facias against the representatives, to shew cause why they should not be made defendants, and a writ 'of error awarded from this Court to the Court below; or by a motion founded on the production of such evidence, for a certiorari to bring the proceedings of the Court below into this. Court. I am also of the opinion, that the service of the citation is insufficient. It cannot be considered as the acknowledgment of service by Toulmin, for it does not even appear that he is the man against whom the citation issued; and if that is admitted, he has only acted officially in all that he has done. A citation may justly be considered as process, and when process issues against a sheriff, it should be directed to the coroner; when this is not the case, but it is directed to the sheriff, against whom it is issued, something must be done equivalent to a waiver of all benefit from the irregularity, before the Court will consider the party as consenting to be affected by such process. No such inference can be made from the circumstances of this case. The Court unanimously agree that the writ of error should be quashed. MUSGROVE V. HUDSON. On a question, whether or not a letter contains an acceptance of an order, the Court will look to the whole letter, and although it contains the words, "I shall accept," if from the whole, it appear no acceptance was intended, it will be construed as a refusal. THIS action was originally brought before a justice of the peace of Walker county, by E. Hudson, against E. G. Musgrove, to recover fifteen dollars, the amount of an or Musgrove 5. Hudson. der drawn be one Glasscock, in favor of Hudson, on Mus JANUARY 1830. grove. The cause was brought by appeal into the County Court. At the trial, Hudson, the plaintiff, to prove an acceptance of the order offered in evidence, a letter, written by Musgrove to him, as follows: "Mr Elijah Hudson, by these presents you will be informed, I do not know what is the amount of the order that you have from Glascock, whether it is for so much money, or for so many head of cattle; but be it for what it may, I shall accept in your hands, as I have an authorized agent in Blount county, near to Glasscock, and I have had ever since last spring, to settle with Glasscock on fair terms. The cattle are here in possession, will stay here until Glasscock complies with his contract, unless they are stolen," &c. The defendant offered to prove by his own evidence on oath, that there was a mistake in the letter, the letter not being under seal, and the amount in controversy under twenty dollars. The Court rejected this explanatory evidence, as inadmissible, and gave judgment for the plaintiff, to which the defendant excepted, and sued his writ of error to this Court. P. N. WILSON, for the plaintiff in error. Although the words, "I shall accept," are found in the letter, yet its whole tenor shews he did not thereby intend to accept it; the intent must govern in the construction, and here the intention to accept is repelled. It does not appear that the defendant was indebted to the drawer, therefore if a promise at all, it is without consideration and void. a If this position is not tenable, then we say that the letter was ambiguous, and that parol evidence should have been received to explain it. And on the ground of mistake, parol evidence was proper, even to contradict it. This being an appeal, and for a sum under twenty dollars, the Court has all the powers of equity, and consequently, that to relieve against a mistake. By our statute, the party himself was a competent witness, and in several points of view, the evidence which was offered by the defendant below, was admissible. ELLIS, contra. The question of the competency of the party as a witness, does not arise here; the objection was not as to his competency, but as to the admissibility of what he offered to testify; he was rejected because he offered to contradict by parol, written evidence; and that too, made by himself, and in his own cause. It would be dangerous in the extreme, however, under any circumstan a 10 John. R. 412. 11 John 221. 4 Johu. 296. 2 Starkie 2.3 Starkie Evid. 33, note 966,1029.1028 and Note. Phillips' Ev. 77- Note B. 415.A.2 Esp. N. P, 528, 5. 959 Note. 2 Dallas 70, 80,170,173,180 196. 4 Dallas 132.1 Term 371. 2 Vern. 98. 4 Cranch 87.7 Mass. R. 182. 2 Term 172. 5 Vesey 297. 1 Call. 419. 216.239. 4 Esp. Cas, 189.1 John. Cas. 145. 2John.R.378. John. 68. 3 Ib. 319. 5 8 lb. 339.9 lb. 310. 12 lb. 513.16 Ib. 14. |