[Knapp's Executor v. Kingsbury.]

CRAWFORD & MOBLEY, for appellant.

MORGAN & JOLLEY, with W. COLEMAN, contra.

B. F. SAFFOLD, J.-The claims which must be audited by the court of county commissioners, and are barred if not presented within twelve months after the time they accrue, or become payable, are claims against the county. R. C. §§ 907, 909. The certificates of state witnesses are not such. When not payable by the defendant in the suit in which the witnesses are called, or some other person, they are made a primary charge on the fine and forfeiture fund of the county. R. C. §§ 4222, 4438. It is, therefore, not necessary that they should be presented to the commissioners' court for allowance.

2. The county treasurer commits a breach of his official bond, when, having proper funds in his hands, he refuses to pay a claim which is entitled to payment. He therefore may, in such case, be sued on his bond. The court erred in sustaining the demurrer to the complaint.

The judgment is reversed, and the cause remanded.

Knapp's Executor v. Kingsbury.

Action on Foreign Judgment.

Distinction between assumpsit and debt; amendment of complaint. - The Code abolishes the distinction, existing at common law, between the actions of debt and assumpsit, and makes the judgment the same for causes of action recoverable in either form; consequently, an amendment of the complaint, which would convert the action from one form into the other, though unnecessary, is allowable.

APPEAL from the Circuit Court of Crenshaw.

Tried before the Hon. P. O. HARPER.

This action was brought by Benjamin D. Wright, as the executor of the last will and testament of C. P. Knapp, deceased, against John Kingsbury; the complaint being in these words: "The plaintiff, as executor aforesaid, claims of the defendant five hundred dollars damages; for that whereas, on the 22d day of October, 1870, the plaintiff recovered of the defendant, by the judgment of the county court of Escambia county, in the State of Florida, the sum of one hundred and sixty-three dollars and sixty-five cents, and also the further sum of twentyfour dollars and sixty-five cents, costs of suit, as appears from the record and proceedings of said court; which said judgment still remains in full force, and unsatisfied, together with the interest thereon; wherefore plaintiff sues for five hundred dollars damages as aforesaid. And plaintiff avers, that said county

[Curry v. Falkner.]

court of Escambia is, and was when said judgment was rendered, a court of record of the State of Florida, and had jurisdiction to render said judgment." The court sustained a demurrer to this complaint, because it was in assumpsit instead of debt. The plaintiff then asked leave to amend his complaint, by striking out the word "damages," and inserting these words, "which he owes to, and unjustly detains from the plaintiff." The court refused to allow the amendment, and the plaintiff excepted to the refusal. In consequence of these rulings of the court, the plaintiff took a nonsuit; and he now assigns as error the judgment on the demurrer, and the refusal to allow the amendment.

HERBERT & BUELL, for appellant.

JUDGE & HOLTZCLAW, contra.

BRICKELL, J.-The demurrer to the complaint was improperly sustained. The common-law distinction between the actions of debt and assumpsit is not preserved, but is obliterated by the Code. In either action, the form of judgment is now the same. It may be for the debt, and damages by way of interest for its detention; or it may be for damages only, including debt and interest. Reed v. Scott, 30 Ala. 640. The complaint was good, and no amendment of it was necessary. If the amendment proposed only to meet the objection urged, and to convert the complaint into a common-law count in debt on a record, it should have been allowed. Reed v. Scott, 30 Ala. 640. The nonsuit is set aside, the demurrer overruled, and the cause remanded.

Curry v. Falkner.

Bill in Equity to enforce Vendor's Lien for Purchase-Money of Land.

1. Publication against non-resident defendant. When there is a non-resident defendant, the 22d rule of chancery practice requires that the affidavit of his nonresidence must state the place of his residence, if known, or the fact that it is unknown; and a copy of the order of publication must be sent to him by mail, if his place of residence is known.

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2. Defective service of process.. A defective service of process on a defendant who, though not a necessary, is a proper party to the bill, is a reversible error.

APPEAL from the Chancery Court of Coffee.

Heard before the Hon. ADAM C. FELDER.

The bill in this case was filed by Elijah Falkner, against Carey Curry and Heron Wise, and sought to enforce a vendor's

[Curry v. Falkner.]

lien for the unpaid purchase-money of a tract of land, which said Curry had bought from one Randolph Kent, and afterwards sold and conveyed to his co-defendant, Wise. The unpaid note for the purchase-money was transferred by said Kent to the complainant. A decree pro confesso was entered against Curry, on publication against him as a non-resident. Wise answered, and claimed to be a bona fide purchaser for valuable consideration without notice. On final hearing, on pleadings and proof, the chancellor rendered a decree for the complainant; and his decree is now assigned as error by both the defendants jointly, together with the decree pro confess0 against Curry, who also assigns the same errors separately.

W. D. ROBERTS, for appellants.

G. T. YELVERTON, with J. FALKNER, contra.

B. F. SAFFOLD, J. — Error is shown in the decree pro confesso against the non-resident, Curry. The proper execution of an order of publication is specifically set out in the 22d rule of chancery practice. R. C. p. 826. One of the essential requisites is, that a copy of the order shall be sent by mail to the defendant, where his residence is shown by the bill or affidavit, within twenty days from the making of said order. The authority to make the order is dependent upon the affidavit of the complainant, or his agent, which must state, not alone the affiant's belief of the non-residence of the defendant, but of his age, whether over or under twenty-one years, and his residence, or that they are unknown. The affidavit in this case recites, that the affiant "knows from reputation, and believes, that he (Curry) settled in the State of Texas, and has ever since remained there," &c.; but says nothing more definite as to his place of residence, or whether it is known to him or not. Neither the order of publication, nor the decree pro confesso, presents any evidence that notice was attempted to be given to Curry by mail, or that his place of residence was unknown. The defendant, Curry, was entitled to notice by mail, if the complainant knew his place of residence. If it was not known, it ought to have been so stated in the affidavit. The 22d rule requires it.

Whether Curry was an indispensable party or not, he was a proper party; and the complainant having elected to join him, he cannot now avoid the consequences of a defective service. Batre v. Auze, 5 Ala. 173.

The testimony is indefinite, and contradictory. It is not shown whether Kent made a deed to Curry or not. But perhaps the presumption would be, that he did. Wise says, he

[Griel v. Marks.]

was surety on both of the notes given by Curry to Kent for the purchase-money, and that each was for $1,200, one of which Curry exhibited, and surrendered to him as paid, when he purchased from him; and the other he subsequently paid by agreement with Curry. If this be so, his claim to be considered a purchaser without notice is made out, as there is no evidence to the contrary. But Kent, agreeing with him in respect to the second note, says, that the first mentioned was for $1,000, which he gave up to Curry in lieu of two others each for $500 executed under an agreement between them. The inference from his testimony is, that this first note of $1,000 was without surety, though he does not expressly say

So.

What has become of the other $500 note? What did Wise do with the $1,200 note turned over to him by Curry, in proof of its payment? As the decree must be reversed for want of proper notice to the defendant, Curry, perhaps, on another hearing, the testimony may be made more satisfactory. The decree is reversed, and the cause remanded.

Griel & Brother v. Marks, Fitzpatrick & Co. Trover for Conversion of Cotton Bales.

Charge on part of evidence. A party has the right to request instructions to the jury, based on the hypothesis which the evidence in his favor tends to establish; such charges are not objectionable, though based on a partial view of the evidence, since the opposite party may request charges founded on a contrary hypothesis, if there is evidence tending to establish it.

APPEAL from the City Court of Montgomery.

Tried before the Hon. JOHN D. CUNNINGHAM.

This action was brought by the appellants, who were merchants doing business as partners in the city of Montgomery, against Marks, Fitzpatrick & Co., partners and warehousemen in said city, to recover damages for the conversion of six bales of cotton. The cause was tried on issue joined on the plea of not guilty. It was proved on the trial, as appears from the bill of exceptions, that the cotton in controversy was raised by one Guy; was sent to town by him, on wagons driven by his two sons; was stored in the defendants' warehouse, and a receipt given for it by them in the name of said Guy, though it was entered on their books as "received of S. J. Guy for Griel & Brother, and marked with their initials;" was sold by the widow of said Guy, shortly after his death, to Shulman & Frankfurter, and was delivered by the defendants to said Shulman & Frankfurter, on their production of the receipts. N. Griel, one of the plaintiffs, testified, that said Guy, being in

[Griel v. Marks.]

debted to Griel & Brother for provisions and other supplies furnished by them during the year 1872, verbally promised, in September of that year, to send his cotton to them, and let them have it, at eighteen cents per pound, in discharge of his indebtedness to them; and if they were not willing to give that price, they were to store the cotton in a warehouse, and hold it until they could get eighteen cents for it. He further testified, that when the cotton was brought to town, Guy's sons drove their wagons up to plaintiffs' store, saying, "Here is the cotton that father sent you;" that plaintiffs directed them to carry it to the defendants' warehouse, and have it marked with the initials of their names; that the cotton receipts were brought to them by Guy's sons, and were sent by them to said Guy, at his request, in order that he might make a settlement with his laborers; and that they, so soon as they heard of Guy's death, notified the defendants of their claim to the cotton. Guy's sons testified, that their father, when he sent the cotton to town, instructed them to store it in the defendants' warehouse in his own name, have it sampled, carry the samples to the plaintiffs, tell them that, as soon as he could get out of bed, he would come to town and sell it, and would settle with them, and they were to carry the receipts to him; and that they obeyed these instructions, and did not deliver the cotton to the plaintiffs. There was other evidence in the case, but it is not material.

"After charging the jury generally, and giving all the charges asked by the plaintiffs, the court instructed the jury, at the written request of the defendants, as follows:

"1. If the jury are not satisfied, from the evidence, that the cotton sued for is the property of the plaintiffs, they must find for the defendants.

"2. Although, from the evidence, the jury may find that Guy was indebted to the plaintiffs, and told them, in September before his death, that he would send the cotton to them, to sell and apply the proceeds to the payment of his said indebtedness, and gave them the right to take the cotton at eighteen cents: yet, if they further find that, at the time said Guy sent the cotton, he instructed those who brought it to take it to plaintiffs, and have it sampled, and then take it to the defendants' warehouse, and bring the receipts to him; and that the receipts were given by the defendants in the name of Guy, and were carried to him, and kept by him until his death, — then, neither a general nor a special property in the cotton vested in the plaintiffs, and they cannot recover in this action.

"3. If, from the evidence, the jury believe that said Guy, at he time said cotton was sent to Montgomery, instructed the persons who brought it to take it to the plaintiffs, and have it