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that it "alleges the jurors to be for said territory;" and this objection is not without its weight, as the jurors must be of the county, and not from any or all parts of the territory.
The first objection, "because the time laid in said indictment, when said offence was committed, is not laid with a sufficient and legal certainty," is well taken. The indictment charges the offence to have been committed "on or about the eighteenth day of October, &c." whilst it is held that the time and place must be added to every material fact in the indictment. Rex vs. Holland, 5 Term Rep. 607; Rex vs. Aylett, 1 Term Rep. 69; Stand. 95 a; Rex vs. Haynes, 4 M, & S, 24; that is, every material fact stated in an indictment must be alleged to have been done on a particular day and at a particular place.
"A day certain must be stated;" 2 Hawk. 25, sec. 77. "Any want of sufficient certainty in the indictment respecting the time, place or offence, which is material to support the charge, as the circumstance of no offence being charged, will cause the judgment to be arrested." 1 Chit. Crim. Law, page 539. "Any objection which would have been fatal on demurrer, will be equally so on arrest of judgment; and it is therefore usually reserved till this time, in order to obtain the chance of an adquittal." 1 Chit. Crim. Law, page 540.
The court is of opinion that the district court erred in overruling these objections, but did not err in overruling the 2d and 5th objections. The decision of the district court is therefore reversed and the judgment arrested, and the cause remanded to the said district court, that it may take such other and further steps therein as the law may require.
J. S. HORNER, for pltff. in error.
M. M. STRONG, U. S. Att'y for deft. in error.
JOHN CATLIN, and
DAVID W. JONES.
Error to the District Court for Iowa county:
A plaintiff may discontinue his suit as to part of several defendants after the jury is impannelled, and proceed to trial against the others.
Where the payee of a negotiable promissory note indorses it in blank before it falls due, the indorsee takes the note subject to all the rules of the law merchant, and he has not the right to fill up the blank with an obligation that would bind the indorser beyond that law, after he has failed to demand payment, and given notice to indorser.
The indorser is only liable to the indorsee upon presentation of the note at maturity, non-payment by the maker and notice to the indorser.
To charge the indorser, the plaintiff must aver in his declaration that the note was presented at maturity, and payment demanded and refused, of which the indorser had notice, and these facts must be proven on the trial.
Jones brought an action of assumpsit in the Iowa district court, against John Catlin, John Milton, J. Chamberlin, Robert Bloomer, Edward Bloomer and Thomas Park, upon a negotiable promissory note, drawn by Catlin, and payable to Milton, indorsed by Milton, before due, to Chamberlin and the Bloomers, as J. Chamberlin and Co. by them to Park, and by Park to the plaintiff. The declaration contained two counts; in one of which, presentation, nonpayment and notice, were averred; and the money counts. The defendants, except Park, who was not served with process, demurred generally, and were overruled by the court. They then pleaded the general issue. After the jury was impannelled, the plaintiff, by leave of the court, discontinued his suit as to all the defendants, except Catlin and Milton, and proceeded in the trial against them, to which they excepted. It appeared upon the trial that the indorsement of Milton was originally made in blank, and had been filled up by the plaintiff's attorney after the commencement of the suit, as follows: "I promise to pay, jointly with the maker, the within note to David W. Jones." There was no evidence upon the trial to prove presentation and non-payment of the note, or notice to Milton, the indorser. The jury, under the instructions of the court, returned a verdict against the defendants for $339 50. The defendants moved for a new trial and in arrest of judgment, both of which motions were overruled, and judg ment rendered upon the verdict. The defendants excepted to the decisions of the court in the progress of the cause, and have pros
ecuted this writ of error to reverse the judgment of the district court. The cause was argued at the August term, 1840, by Martin and Strong, for the plaintiffs in error, and by Dunn, for the defendant in error. The court took the case under advisement, and at the July term, 1841, judge Miller delivered the following opinion of a majority of the court, chief justice Dunn dissenting.
This is a writ of error sued out by John Milton and John Catlin, to reverse a judgment in the district court of Iowa county, on a negotiable promissory note, drawn by said Catlin to said Milton, and by him indorsed in blank before due. These defendants were sued with other persons who had also indorsed said note, and at the trial the plaintiff asked and obtained leave to discontinue as to them; which was allowed by the court. This is the first error assigned. Whether a joint action against all the defendants was legal or not, it is not now to be determined, as that point was not raised. The plaintiff by his suit, considered it a joint contract. Under the 68th section of the act concerning proceedings in courts of record, page 207 of the Statutes, the plaintiff may be allowed to discontinue as to part of the defendants, amend his declaration, and proceed to judgment against the rest on the conditions therein set forth.
The note was indorsed in blank by John Milton before due, and so averred in the declaration. After suit brought, the attorney of the plaintiff filled up the blank indorsement of said Milton with these words: "I promise to pay jointly with the maker, the within note to David W. Jones." This is assigned for error.
The liability created by the indorsement is founded in the law merchant, and must be governed by its principles. The undertaking of the indorser is only to pay in case the maker does not pay. The indorsee is therefore bound to apply to the maker of the note, and he takes it upon this condition. Hence it is, that in an action by an indorsee against an indorser of a note, the declaration must aver, that the note, on becoming due, was duly presented to the maker, and that he refused to pay, of which the defendant had notice. This is an essential part of the plaintiff's case, and he is bound to aver and prove it-13 Mass. Rep. 131;
9 Johnson's Rep. 121, 8 Serg. and Rawle 351; 4 Cranch 141; 9 Wheaton 584; Chitty on Bills 809; 3 Wash. C. C. Rep. 206; 5 Binney 502; 1 Serg. & Rawle 334; 9 Serg. & Rawle 201; 16 Serg. & Rawle 157; 4 Washington C. C. Rep. 1. And the plaintiff, or his attorney, could not bind Milton beyond this, by making this addition over his indorsement; particularly after the suit brought and the usual declaration filed, setting out a blank indorsement, demand and notice, and at the trial no notice proved: Chitty on Bills 798; 17 Johnson's Rep. 325; 2 Saunders 739.
It is therefore ordered and adjudged that the judgment be reversed with costs.
M. L. Martin, and M. M. Strong, for pltffs. in error
Error to the District Court for Dane county."
The statute authorizing the issuing of a writ of attachment, must be strictly pursued in using that process; no presumption will supply the defect when it is departed from.
The officer before whom an affidavit is taken, for the purpose of suing out a writ of attachment, must certify his satisfaction of the truth of the facts stated, in all cases, except for the first cause specified in the statute, for issuing such writ.
Morrison commenced an action, by attachment, against Fake, in the Dane district court. Upon the return of the writ, Fake, by his attorney, moved the court to quash the writ and dismiss the proceedings, upon the ground of the insufficiency of the affidavit upon which the writ was issued. The district court sustained the motion, and gave judgment for the defendant; to reverse which the plaintiff has prosecuted this writ of error.
Judge Miller delivered the opinion of the court.
The plaintiff in error, James Morrison, sued out of the district court of Dane county, a writ of attachment, which was founded on the following affidavit and proceedings:
"James Morrison being duly sworn, doth depose and say, that
Henry Fake is justly indebted to him in the sum of one hundred and twelve dollars, lawful money, over and above all legal offsets or discounts, and that he has good reason to believe, and does believe, that the said Fake is about fraudulently to remove, convey or dispose of, his property so as to hinder or delay his creditor." Sworn and subscribed to before Wm. N, Seymour, a supreme court commissioner, on the eighth day of February, 1840.
On said affidavit is this indorsement:
"The clerk of Dane county will please issue a writ of attachment in the above entitled cause, and indorse thereon David Brigham, plaintiff's attorney: Dated February 8th, 1840," and signed by William N. Seymour.
The defendant appeared in court and moved to have the writ quashed and proceedings dismissed, for these reasons:
1. The affidavit does not prove, nor is there any evidence, that the officer before whom it was sworn to, was satisfied of the truth of the allegations contained therein.
2. There is no certificate of the officer, before whom the affidavit was taken, that he was satisfied that the allegations in the affidavit were true.
3. The affidavit is informal and insufficient.
The district court quashed the writ and proceedings, and to reverse said judgment this writ of error was sued out.
The cases of attachment authorized by the act concerning the writ of attachment, page 165 of the Statutes, are,
First. That the debtor has absconded, to which the party applying for the writ shall make oath in writing, before any proper officer, as he verily believes. This oath alone entitles the party
to the writ.
Second. That said debtor is about to abscond, to the injury of his creditors.
That such debtor is not a resident of this territory.
That such debtor so conceals himself as to avoid the service of process.
Fifth. That such debtor is about to remove his property or effects out of the territory.