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Lawrence o. Yeatman et al.

If the mistake relative to the situation of those lots had been mutual, or if the plaintiffs bad made no false representations, nor used any means to deceive the defendant, he would have had no ground of defence. If the plaintiffs bad made no representations as to the location of the lots, the defendant would reasonably have sought, and might have obtained, correct information from some other source; and it is not for the plaintiffs to say that it was his folly not to have done so, when their representations were the cause of his omission. Credulity on his part, is no excuse for fraud on theirs.

I do not however consider the defendant chargeable with any culpable degree of confidence or want of circumspection. The statements of the plaintiffs, and the pointing out the situation of the lots, were such practices of deception as might well mislead and deceive a more than ordinarily cautious man ; and when accompanied with the intention so to deceive, as is alleged, were certainly such as to vitiate the contract which they beguiled the defendant into making. The demurrers to the second and fourth pleas were therefore improperly sustained. The judgment is reversed with costs, and the cause remanded with directions to the Circuit Court to try the cause agreeably to this decision.

Judgment reversed.

Note. See Tyler o. Young et al., Post; Miller o. Howell, 1 Scam.

DANIEL LAWRENCE, plaintiff in error, v. Preston YEAT

MAN and GERMANICUS Kent, defendants in error.

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Error to St. Clair.

An attachment bond which does not describe the Court from which the process is

to be issued, or to which it is to be returned, or the terın of the Court, is fatally defective, and a judgment rendered by default in such a case, will be reversed

on writ of error. An attachment bond described the writ of attachment as “sued out, returnable on

the third Monday of August next," without any other description of the Court or term : Held that the description was uncertain and insufficient. Where the proceedings are ex parte and in rem, there must be a strict conformity

with the statute.

This was an action of debt commenced by attachment by Yeatman & Kent against Lawrence, to recover a debt of $ 339 75-100, and $ 375 in damages. The affidavit and bond were made by A. Cowles, as the agent of the plaintiffs. The condition of the bond was as follows.

“ The condition of this obligation is such that whereas the

Lawrence o. Yeatman et al.

above bounden Preston Yeatman and Germanicus Kent, partners in company, have, on the day of the date hereof, prayed an attachment, at the suit of Preston Yeatman and Germanicus Kent, partners in company, against the estate of the said Daniel Lawrence, for the sum of five hundred and seventy-three dollars and thirtyfi e cents, and the same being about to be sued out returnable on the third Monday of August next. Now, if the said Preston Yeatman and Germanicus Kent, partners in company, shall prosecute their suit with effect, or in case of failure therein, shall well and truly pay and satisfy the said Daniel Lawrence all such costs in said suit, and such damages as shall be awarded against the said Daniel Lawrence, his heirs, executors, or administrators, in any suit or suits which may hereafter be brought for wrongfully suing out said attachment, then the above obligation to be void, otherwise to remain in full force and virtue.

No service was effected upon Lawrence, but the requisite notice by publication having been given, judgment was rendered against him by default, at the August term of the St. Clair Circuit Court, 1838, for $ 320 debt, and $ 253 damages. The suit was instituted against Lawrence as the assignor of a writing obligatory made by one Hardy Robinson, dated September 3d, 1824, for $ 320, pay able to said Lawrence, by December 25th, 1825. Lawrence, before said instrument becarne due, assigned the same, for value received, to Yeatman & Kent, who brought suit thereon against said Robinson to the October term, 1826, of the Circuit Court of Madison county, Alabama ; and upon an issue joined in said Court upon a plea of fraud and failure of consideration, said issue was found for the defendant, and judgment entered against said Yeatman and Kent for costs of suit, amounting to $ 17.25 ; to recover which, together with the amount due on the said writing obligatory, this action was commenced.

The points taken and authorities referred to on the part of the plaintiff in error are,

1st. Insufficiency of the affidavit upon which the attachment issued, in not stating of whom the person making it was the agent ; also in not disclosing either in the body of the affidavit or the jurat annexed thereto, the official character of the person before wbom it was made. Mears v. Morrison, Breese, 172. Advantage may be taken by writ of error of a defective affidavit. Phelps v. Young, Breese, 255; 6 Gill and Johns. 345.

2d. The attachment bond is defective, the person entering into it on the part of the plaintiffs below, not having legal authority so to do. And if the agent was lawfully authorized, the bond is still defective in not stating to what term of the Court, if any, the attachment was returnable. R. L. S5, $ 7; Gale's Stat. 65.

3d. The action is misconceived, and the declaration defective.

Mitcheltree o. Stewart et al.

Debt does not lie by the assignee against the assignor of a promissory note or other instrument in writing. i Chit. Plead. 97, 106, and authorities there cited.

When the objection to the form of the action is substantial and appears upon the face of the declaration, it may be taken advantage of by writ of error. 1 Chit. Plead. 196.

4th. That the judgment is irresponsive to the writ and declaration. Hughes v. Union Insurance Co., 5 Peters' Cond. R. 443; 8 Wheat. 294.

5th. That the damages are excessive, and exceed the legal interest upon the debt.

L. TRUMBULL, for the plaintiff in error.

A. Cowles, J. M. KRUM, and J. Y. SCAMMON, for the desendants in error.

Smith, Justice, delivered the opinion of the Court :

This was a proceeding under the attachment laws against the plaintiff in error as a non-resident debtor.

Several objections have been urged against the regularity of the proceedings in the Circuit Court. Without noticing any other than that relating to the insufficiency of the attachment bond, it will be apparent that the objection urged against the bond must pre

The recital in the condition of the bond is essentially defective in that portion of it which attempts to describe the attachment, and the return of it. It describes no Court from which it has been issued, nor to which it is to be returned, nor the term to which it is made returnable. It is consequently so wholly uncertain that it may be well doubted whether an action could ever be maintained on it, in case of a breach of its condition. The proceedings, however, being ex parte and in rem, and the judgment being by default because of no appearance by the defendants, the rule which requires a strict conformity to the statute modes of proceeding, must prevail

. The judgment is reversed with costs. Judgment reversed.

John MitchELTREE, appellant, v. Isaac STEWART

and James E. PEARSON, appellees.

Appeal from Schuyler.

The return of a sheriff upon a scire facias to foreclose a mortgage, was as follows:

“Executed the within as the law directs, by reading and delivering to defendant a true. copy, November 1st, 1837.” The process was returnable on the first Monday of November, 1837 : Held that the return was formally correct. VOL. II.

3

Mitcheltree v. Stewart et al.

It is sufficient in a scire fucias to foreclose a mortgage, to set out a copy of the

mortgage with the certificates of acknowledgment and of record annexed, without averring that the mortgage was acknowledged or recorded, or averring that default had been made in the payment of the money mentioned therein, where it appears from the mortgage that the money was to have been paid before the issuing of the writ.

The record in this case shows that the following writ was issued, and proceedings had in the Court below:

“ State of Illinois, Schuyler County, ss.

“ The People of the State of Illinois to the Sheriff of Schuyler County, Greeting. Whereas Isaac Stewart and James E. Pearson, merchants, trading under the firm of Isaac Stewart and Pearson, of the city of Louisville, and State of Kentucky, by Browning and Worthington, their attorneys, have filed in the clerk's office of our Circuit Court in and for said county of Schuyler, and State of Illinois, a certain deed of mortgage, which said deed of mortgage is duly executed and recorded in the Recorder's office in and for said county and State, according to the statute in such case made and provided. And whereas the said Isaac Stewart and James E. Pearson, by their attorneys aforesaid, have filed in the said clerk's office a precipe directing a writ of scire facias to be issued upon said deed of mortgage, which said deed of mortgage is in the words and figures following, to wit :"> [Here the mortgage is set out in hæc verba, by which it appears that the mortgage was made to the plaintiffs to secure the payment of a promissory note for $ 654,59, due to the plaintiffs ; a book account amounting to $ 393,76, due to Neff, Wanton, & Co.; and three notes, in the aggregate, for the sum of $ 662,89, due to Muir & Wiley, — the amounts paid upon the mortgage to be applied pro rata in extinguishment of the several debts. A certifi. cate of acknowledgment before the clerk of the Schuyler Circuit Court, and a certificate of the Recorder of Schuyler county, certifying that the mortgage was duly recorded, were annexed to the copy of the mortgage in the writ, but there was no averment that the same was acknowledged or recorded.

The mortgage was executed by Mitcheltree and wife.]

“ By virtue of which said deed of mortgage, above recited, and the conditions therein contained, and according to the tenor and effect of the notes and accounts therein specified and described; it appears that the said John Mitcheltree is indebted to the said Isaac Stewart and James E. Pearson in the sum of one thousand seven hundred and eleven dollars and twenty-four cents, together with interest thereon according to the tenor and effect of said notes and accounts, and according to the provisions of the statute in such case made and provided.

“We therefore command you that you summon the said John Mitcheltree, if he shall be found in your county, to be and appear before the Circuit Court of said county of Schuyler and State of

Mitcheltree o. Stewart et al.

L, s.

Illinois, on the first day of the next term thereof, to be holden at the court house in Rushville, on the first Monday in the month of November next, (A. D. 1837,) to show cause, if any he have, why judgment should not be rendered against him, for the said sum of one thousand seven hundred and eleven dollars and twentyfour cents, together with interest as aforesaid, which appears to be due and owing from the said John Mitcheltree to the said Isaac Stewart and James E. Pearson, by virtue of said mortgage and the conditions therein contained, and according to the tenor and effect of the notes and accounts therein mentioned and expressed. And have you then there this writ.

“ Witness Robert A. Glenn, Clerk of our said

Circuit Court, at Rushville, this twenty-first day of October, in the year of our Lord one thousand eight hundred and thirty-seven.

“ROBERT A. GLENN, Clerk." And afterwards, to wit, on the first day of November, A. D. 1837, the said writ of scire facias was returned by the sheriff of said county of Schuyler with the following indorsement thereon, to wit :

“ Executed the within as the law directs, by reading and delivering to defendant a true copy. 6 November 1st, 1837.

“Thos. HAYDEN, S. S. C. III.,

“By RICHARD DOUGHERTY, Dept. “On the calling of the cause for trial, the defendant, by his attorney, entered a motion to quash the return of the sheriff on said writ, which being considered by the Court, was overruled ; and thereupon the defendant moved to quash the writ in said cause, for a variance between the writ and mortgage, which motion was overruled by the Court. Defendant then offered to plead to the merits, and asked time to write and file his plea herein, which was not allowed. And thereupon judgment was entered by default against the defendant,” who excepted to the several decisions of the Court.

Judgment was entered for $ 2,218,96. Thereupon an attorney for the defendant made affidavit that the motions were made by mistake; that no appearance was intended to be entered by the defendant, and no appearance was in fact entered ; and that the defendant was entitled to a credit of $ 1400. The plaintiffs then remitted $ 1,452,50, and took judgment for the balance, $ 766,46 and costs. The cause was beard at the June term, 1838, of the Schuyler Circuit Court, before the Hon. James H. Ralston.

The defendant appealed to this Court, and assigned for error the decisions of the Court below.

A. Williams, for the appellant, objected to the scire facias because it did not appear that Stewart and Pearson were authorized

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