Tankersley v. J. & A. Graham. indorsement, for the want of ascertaining the surrounding circumstances. In this connection, the modification of the charge as requested in the third instance, was an invasion of the proper functions of the jury. 3. Upon the supposition that the indorsement was made to Mrs. McNiel for the land, and that she had been paid the purchase money, the Court erred in the charges given, as the payment left no consideration for the indorsement, and re-invested the defendant with the title to the note. 250; 2 Kent's Com. 616; 8 Term, 310.] HAIR, contra, argued [Chitty on Bills, 248, 1. That the attempt of the defendant to defeat this action, by showing that Mrs. McNiel had been paid for the land sold, without connecting the makers of the note, or the defendant, with the payment, was to vary the effect of the written contract. [Paysant v. Ware, 1 Ala. Rep. N. S. 160.] 2. If the defendant remains in possession of the land, it is unimportant whether the plaintiff had title or otherwise. [Clements v. Loggins, 1 Ala. Rep. N. S. 622: Wilson v. Jordon, 3 S. & P. 92; Dunn v. White, ib. 645.] GOLDTHWAITE, J.-1. The defendant in the Court below, seems to have placed his defence, in the first instance, upon the ground, that he was entitled to show that his blank indorsement, upon which the suit against him is founded, was intended, and agreed upon, as a special contract, not to be enforced against him, if he did not get a good title for the land sold him; or if a better title took it from him. In this view of his liability, he of fered to show that one Green had the government title, and that his heirs were seeking to recover the land from him. So far as this evidence had the effect to vary or change the contract, ascertained by the law, from the blank indorsement, we think it was properly excluded from the jury. In several cases we have endeavored to show, that the contracts imported by these irregular blank indorsements, are of a fixed, ascertained character, governed chiefly by the nature of the instruments indorsed. [Jordon v. Garnett, 3 Ala. Rep. 610; Milton v. De Yampert, ib. 648.] After the legal effect of these irregular blank indorsements is ascertained, they fall within precisely the same rules, which ob Tankersley v. J. & A. Graham. tain as to such as are perfect in their nature, and are alike incapable of explanation, or modification by parol evidence. In Somerville v. Stephenson, 3 Stewart, 271, it was held by this Court, that the contract evidenced by the general assignment of a specialty, could not be varied by parol evidence, as it had a specific legal import. The same doctrine was held in Hightower v. Ivy, 2 Porter, 308, in relation to the indorsement of a note. To the same effect is Dupey v. Gray, Minor, 357; Free v. Hawkins, 8 Taunt. 92. These cases, it is true, seem to be indorsements which were filled up; but it is difficult, in principle, to perceive how any distinction can be drawn, when the indorsement is blank, for in either case, the contract has the same definite legal meaning, and the same evils will flow from permitting the legal effect to be varied. The case of House v. Graham, 3 Camp, 57, was the case of a blank indorsement, and the same rule was considered applicable. We are not unaware, that there are many decisions to the contrary of this, in the American Courts. [See Cowen & Hill's Notes, 1473, and Dean v. Hale, 17 Wend. 214.] But the decisions of our own Courts have too firmly established a contrary principle, for us to depart from them, even if we did not entirely concur in their correctness. 2. So far as the evidence went to show the consideration of the indorsement, it was proper enough, and seems to have been considered by the Court below; but the attempt to show a failure of the consideration having failed, in consequence of there being no proof that the defendant had been evicted, the proof with respect to Green's patent, and the suit by his heirs, was properly rejected, as without eviction, these facts constituted no defence. [Cullum v. State Bank, 4 Ala. Rep. 21.] 3. The othe points in the case seem to offer no defence to the action. If, as one of the instructions asked for seems to suppose, Graham acted as the agent of Mrs. McNiel, in making the sale, and the plaintiffs have since paid her the price agreed to be paid for it, they have thereby acquired an interest in this note, which cannot be defeated, except by showing a failure of the consideration, for the indorsement, or a payment of the note by the maker, or indorsers. Such is the effect of all the instructions given, and we are unable to see any error in the refusals of those requested. The result of what we have said is, the affirmance of the judg ment. Dobson, et al. v. Dickson, use. 8 252 93 59 8 252 108 619 DOBSON, ET AL. v. DICKSON, USE, &c. 1. Where the clerk of the Court, in entering judgment, commits an error by confounding two suits, it may be amended nunc pro tunc. 2. Upon certiorari, judgment may be entered against a party to the original judgment, who did not join in the bond to obtain the writ of certiorari. Error to the Circuit Court of Randolph. THIS proceeding was commenced before a justice of the peace, by the defendant in error, and was carried by certiorari to the Circuit Court of Randolph, on the petition of the plaintiffs in error. From the record of the judgment, certified by the justice, it appears that a judgment was rendered by him, for the defendant, against the plaintiff in error, for $49 62 1-2, besides costs. A statement of the cause of action being filed, at the spring term, 1842, the following entry was made: Charles A. Dickson, for the use of Ransom Kitchens, VS. John Dobson, Matthew Dunklin, Spring Term, 1842. This day came the plaintiff, by his attorney, and the death of Ransom Kitchens, the usee, being suggested, and Louisa Kitchens and Benjamin Kitchens, adm'r of Ransom Kitchens, being made parties, by motion to the Court, and the defendants being solemnly called, came not, but made default. It is therefore considered by the Court, that the plaintiff recover of the defendant, the sum of one hundred and eighteen dollars damages, &c. &c. At the fall term, 1843, the following entry appears: Charles A. Dickson, for the use of Joseph Edge, VS. This day came the par ties by their John Dobson, Matthew Dunkin, Croft Clark. attorneys, and it appearing to the satisfaction of the Court, by legal and proper evidence, that the judgment entry in this case, made at the spring term, 1842, of this Court, is incorrect, being Doe ex dem. Caldwell and Wife, et al. v. Thorp, et al. in favor of the wrong usee, and for an incorrect amount, on plaintiff's application, leave is given to make a correct entry of the judgment, nunc pro tunc. Here follows the entry of judgment for $54 91. The assignments of error are, the amendment of the judgment and the rendition of judgment against Dobson, who did not join in the certiorari. S. F. RICE and T. D. CLARKE, for plaintiff. ORMOND, J.-We cannot perceive, from any thing in the record, that the amendment was not fully authorized. It is evident from the record, that the clerk, in entering up the judgment, had connected this with another case, and thus produced the confusion that ensued. The parties appeared when the amendment was made, and if there was no sufficient evidence by which to amend the record, it should haye been shown by bill of exceptions. The judgment was properly entered against all the parties to the original judgment, before the justice of the peace, although one of them did not unite in the bond for the certiorari. Let the judgment be affirmed. DOE EX DEM. CALDWELL AND WIFE, ET AL. v. THORP, ET AL. 1. The proviso to the 7th section of the act of 1802, limiting the "right or title of entry upon any lands," &c. which declares, "that the time during which the person who hath, or shall have such right or title of entry, shall have been under the age of twenty-one years, feme covert, or insane, shall not be taken or computed as part of the same limited period of twenty years," does not except from the operation of the statute, a disability occurring after the statute has begun to run. It applies to a disability existing at the time the right accrued, and if that disability be once remov Doe ex dem. Caldwell and Wife, et al. v. Thorp, et al. ed, the time must continue to run, notwithstanding any subsequent disability, either voluntary or involuntary. Writ of Error to the Circuit Court of Mobile. THIS was an action of ejectment, at the suit of the plaintiffs, for the "recovery of one lot, or parcel of land, being number nine, of square number one, of lots and lands sold by James Innerarity, to William H. Robertson, lying, &c. The defendants were let in to defend, upon entering into the usual consent rule; a verdict was returned for the defendant, and judgment was rendered accordingly. On the trial, the plaintiff excepted to the ruling of the Court. The bill of exceptions recites, that the plaintiff proved title in Sebastian Shade, their ancestor, in the year 1818; that Shade died in 1820, leaving as his only heirs, Caroline and Matilda, who were then minors, and slnce intermarried, with two of their co-plaintiffs. The defendant proved an adverse possession, under color of title, commencing in 1818, and continuing to the beginning of the year 1843. The Court charged the jury, that if the statute of limitations commenced running in the life-time of the ancestor, the period of the minority of his daughters, Caroline and Matilda, "was not to be taken and computed as part of the time limited by the statute for commencing the action." The plaintiff prayed the Court to charge the jury, that the statute allowed thirty years after the accrual of the right, or title, or cause of action, to bring the action of ejectment; which charge the Court refused to give, and charged the jury, that the time limited by the statute for bringing the action of ejectment is twenty years, when defendant holds under color of title. The statute of lim J. A. CAMPBELL, for the plaintiff in error. itations was suspended during the minority of the daughters of Sebastian Shade. The proviso of the statute applicable to the case, is unlike any thing found in the 4th Henry the 7th upon fines, which was discussed in Stowell v. Zouch, Plow. Rep. 353, and bears no resemblance to any clause in the statute of James, which has been introduced into the legislatisn of most of the States. |