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Aldridge v. Grider.

murred, and the demurrer was overruled; no rejoinder was filed to the replication to the other ; the circuit court struck out both pleas, and the proceedings thereon, and ordered the plea of non-assumpsit to be substituted in their stead ; this was done, neither party objected, and the cause 'was tried and a verdict found for plaintiff: Held, that the action of the circuit court was within its powers of amendment as established by the statute (Hutch. Co. 854, § 21); but if it had transcended them, the defendant, not having excepted at the time, could not afterwards object in this court.

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In error from the circuit court of Carroll county; Hon. Hugh R. Miller, judge.

Tobias G. Grider, for the case of Samuel Moore, sued Wilson M. Aldridge, in an action of assumpsit on a promissory note for eighty-five dollars. The defendant pleaded two special pleas of failure of consideration. In substance, 1st. That the horse for whiệh the note was given was unsound at the time of the sale thereof, and that the unsoundness was fraudulently concealed by the plaintiff, who represented the horse as sound; 2d. That the horse was unsound and unfit for service; that afterwards, and when the unsoundness was ascertained, plaintiff and defendant compromised the matter, when it was agreed between them that defendant should keep the horse and sell him for plaintiff, and account to him for proceeds, and that plaintiff would pay defendant for keeping the horse; and defendant avers that the horse died on his hands before sale. To the first plea plaintiff replied by denying failure of consideration, and avers that the original amount agreed to be given for the horse by defendant was ninety dollars; that afterward defendant alleged that the horse was unsound, upon which they compromised by reducing the price to eighty-five dollars, upon which compromise the note sued on was given. To this replication the defendant demurred generally, and the demurrer was overruled. To the second plea the plaintiff replied, denying the allegations of the plea, and stating the compromise as above. This replication was neither demurred to nor rejoined to. The court struck out both of the special pleas and the replications thereto, and gave the defendant leave to plead non-assumpsit; that plea was not filed. A trial was had, and verdict rendered for the plaintiff for

Aldridge o. Grider. the amount of the note, and the defendant sued out this writ

of error.

George, for plaintiff in error,

Cited 1 Chit. Pl. 656, and commented on the act, Hutch. Code, 854, and insisted that the court had transcended its powers in striking out the pleas.

Shelton, for defendant in error,

Contended that the pleas were equivalent to the general issue, and it was therefore, independent of the act of 1840, in the power of the court to strike them out and substitute hegoeral issue; but under that act the power was clear. CAR YANİ Pl. 497, 498; Com. Dig. Tit. Plead. E. 14; Walk. Rep. 2324 233 ; 1 Chit. Pl. 498 ; 2 Day, 431; 2 How. gibaw SCHOOL 209; 7 Ib. 730.

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Mr. Justice Smith delivered the opinion of the fourt.

This was an action of assumpsit brought on a note rade by plaintiff in error. In bar of the action two special pleas were filed, to each of which plaintiff below replied. The replication to the first was demurred to and the demurrer overruled. The replication to the second plea appears from the record to have been unanswered.

The first error assigned is to the decision overruling the demurrer to the replication to the first plea.

The replication was defective, but the demurrer should have been extended to the plea, which was equally obnoxious.

After the judgment on the demurrer, the court ordered both pleas to be stricken out, and the general issue to be substituted. To this proceeding neither party objected, but it is now made a ground of exception. Hence the question arises, whether the court, in thus ordering the pleas previously tendered by the defendant to be discarded, and the cause to be tried on the general issue, exceeded the just limits of its authority.

Both of the defendant's pleas were exceptionable. The judge, therefore, was bound by the express direction of the

Bryan v. Lashley.

statute, (Hutch. Dig. 854, $ 21,) "To amend and perfect them, so that the merits of the controversy might be fairly put to the jury.” So far as the the grounds of defence were disclosed by the defendant's pleas, it is obvious that they could have been made available, if true, under the general issue. Hence the record does not show that the authority of the court was erroneously exercised, by the substitution of a plea which did not put the merits of the controversy fairly to the jury. And the presumption applies on which, as a fixed rule, the proceedings of a court of competent jurisdiction are held to be correct, unless the contrary be shown.

Moreover, there is nothing in the record by which it appears that the defendant did not have the full benefit of every ground of defence which he had to the action of the plaintiff; and as he made no opposition to the order of the court, even if it were erroneous, he should not now be allowed to object.

Let the judgment be affirmed.

JOSEPH BRYAN vs. JAMES LASHLEY.

An attachment will be sustained by summoning a debtor of the defendant,

without an actual levy on property, real or personal. The return on an attachment at the suit of B. against L., “Garnisheed M. in

the presence of J., March 2d, 1849,” is equivalent to a return that M. had been summoned to answer as garnishee of L., the debtor in the attachment,

and is sufficient to uphold the attachment. The sheriff need not return how he has executed an attachment; it is suffi

cient if he return it generally "executed," or "summoned as to the

garnishee. The attachment law is to be construed liberally for the benefit of creditors.

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In error from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge.

The opinion states the facts.

Bryan v. Lashley.
Clayton, Harrison, and Harris, for appellant,

Cited and commented on 1 Bouv. Law Dic. 599; Serg. on Atta. 9 ; Ib. 115; 4 Stew. & Port. 181; Serg. on Atta. 19, 20; Holman's Dig. 320; Peck's Rep. 296; 5 Ala. 515; 11 Ib. 643; 9 Ib. 422; Ib. 215; Hutch. Dig. 801, $ 6; 8 Ala. 514; Burt v. Parish, 9 Ala. 218; 1 Ib. 48; 3 Ib. 44; 5 Ib. 583.

Boykin and Crusoe, for defendant in error,

Cited Anderson v. Scott, 2 Missouri, 15; 3 Ib. 438 – 440; 5 Kinne, 19; Desha v. Baker, 3 Ark. 509; Richmon v. Duncan, 4 Ib. 197; 5 Kinne, 26-27; Nashville Bank y. Ragsdale, Peck's Rep. 296; Ib. 198; 3 Ala. 115; Proscus v. Mason, 12 Lou. Rep. 16; 3 Call, 445; Cook, Rep. 478; Hutch. Code, 802, 9; 9 Ala. 218.

Mr. Chief Justice Sharkey delivered the opinion of the court.

The plaintiff sued out an attachment against the defendant, on which was indorsed directions to the sheriff to summon certain persons as garnishees. No levy was made on property, but the sheriff made the following return, to wit, “Garnisheed D. M. Mathews in presence of A. H. Jordon, March 2, 1849."

On motion, the attachment was dismissed, because there was no such levy as to give the court jurisdiction. The correctness of this decision must depend upon the statutory requisitions.

It is made the duty of the sheriff to "levy an attachment which may come to his hands, on the slaves, goods and chattels, lands and tenements of the absconding party," or in the hands of any person indebted to, or having any effects of, the debtor, and to summon such person, as a garnishee, to appear at the court to which the attachinent is returnable, there to answer, upon oath or affirmation, what he or she is indebted to the defendant in attachment, or what effects of such defendant he or she hath in his or her hands, or had at the time of serving such attachment, &c. If the attachment be returned "executed," the court may compel the garnishee to answer. The section of the statute uses the word “summon,” as applicable to the garnishee, and the word "executed” as to the attachment; and the four

FOL. XIII.

25

Seal v.

The State of Mississippi. teenth section directs, that the officer, in executing attachments, shall go to the house or lands of the defendant, or to the person or house of the person in whose possession the property may be, and then declare, in the presence of one credible witness, that he attaches the rights and credits, money and effects, goods and chattels, lands and tenements of such defendant.

There was no levy on property; the debt seems to have been the only thing on which the attachment could operate. If the sheriff had returned "executed” generally, it would have been sufficient. Redus v. Wofford, 4 S. & M. 579. So if he had returned “summoned” as to the garnishee. Has he not in effect done the same thing? To garnishee is to summon, or serve the attachment on the garnishee. It is in effect, also, to attach the debt. The general rule is, that an officer need not return how he has executed process; a general return will be deemed to imply that the process was executed according to law. If the officer undertake to make a special return, it must appear that the law was complied with, as it will not be intended that he did any thing but what is so stated in the return. The attachment law is to be construed liberally for the benefit of creditors, and we must, therefore, regard the return as sufficient.

Judgment reversed, and cause remanded.

RODERICK SEAL vs. THE STATE OF MississiPPI.

All laws against gaming being declared by statute to be remedial and not

penal, a strict construction will not be applied to them. The caption to the record of a conviction for gaming recited that “the venire

being returned into court executed by the sheriff, the following named jurors appeared and answered to their names, to wit, &c., whereupon the following named persons of the same were duly drawn, elected and empanelled, sworn, and charged, as a grand jury for the term :" it was held, that the proceedings showed with sufficient certainty, in a case of conviction for gaming where only reasonable certainty is required, that the indictment was found by good and lawful jurors of the county, especially as no plea was interposed to the panel.

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