Smith v. Clapp
40 U.S. 125

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U.S. Supreme Court

Smith v. Clapp, 40 U.S. 15 Pet. 125 125 (1841)

Smith v. Clapp

40 U.S. (15 Pet.) 125

ERROR TO THE CIRCUIT COURT FOR

THE SOUTHERN DISTRICT OF ALABAMA

This suit was instituted in the circuit court by the defendant in error against Archibald K. Smith, the plaintiff, and Neil Munn as the makers of a promissory note payable to John Barge or bearer. The note was signed by A. K. Smith and Neil Munn. The writ of capias by which the action was brought stated Archibald K. Smith and Neil Munn to be citizens of the State of Alabama, and that Alfred Clapp was a citizen of the State of New York.

The marshal returned, "executed the writ on A. K. Clapp -- Neil

Page 40 U. S. 126

Munn not found." The declaration was filed against A. K. Smith, and stated that Neil Munn was not found. A judgment was rendered against A. K. Smith by the circuit court, and this writ of error was prosecuted by him.

Page 40 U. S. 127

McKINLEY, Justice, delivered the opinion of the Court.

The defendant in error, who was plaintiff in the court below, sued out a capias ad respondendum against the plaintiff in error, and one Neil Munn, directed to the marshal of the district, who returned that he had executed it upon Smith, and that Munn was not found. Whereupon the plaintiff discontinued the suit against Munn and filed his declaration, and proceeded to judgment against Smith. When the cause was called for trial, Smith withdrew his plea, previously filed, and suffered judgment to pass against him by nil dicit.

To reverse this judgment, the plaintiff in error relies upon the following grounds: 1st, there is no averment in the declaration that Munn was a citizen of Alabama; 2d, it is not shown, that John Barge, to whom the note was payable, was competent under the 11th section of the Judiciary Act of 1789 to maintain a suit in his own name; 3d, the judgment is for more than the amount of the note and interest.

The first objection proceeds on the ground that the note and action being joint, the court could not entertain jurisdiction of one defendant unless it were shown that the other was also a citizen of Alabama. By a statute of Alabama, it is enacted that every joint promissory note shall be deemed and construed to have the same effect in law as a joint and several promissory note. And whenever a writ shall issue against any two or more joint, or joint and several, drawers of a promissory note, it shall be lawful, at any time after the return of the writ, to discontinue such action against any one or more of the defendants on whom the writ shall not have been executed and to proceed to judgment against the others. Aikin's Digest 267-268. This statute converts a joint into a several promissory note and enables the holder to maintain an action against anyone or more of the makers. No doubt can be entertained, therefore, of the right of the plaintiff to have maintained the suit against

Page 40 U. S. 128

Smith alone. And the joint action having been severed, according to the statute, by the return of the marshal, there can be as little doubt of his right to proceed against Smith as though Munn had not been named in the writ. In the writ it was stated that both Smith and Munn were citizens of Alabama, and had the writ been served on both, the plaintiff might have declared against both without averring their citizenship, and unless the defendants had pleaded the variance between the writ and declaration in abatement, he could not afterwards take advantage of it in arrest of judgment, nor assign it for error. The defendant Smith having appeared and pleaded to the action, and at the trial having withdrawn his plea, this Court can take no notice of any matter of abatement in the writ or declaration. And therefore, if it had been necessary to aver the citizenship of Munn, who could no longer be considered a party to the suit, the fact of his being a citizen of the State of Alabama, appearing in the writ, is sufficient for all purposes of jurisdiction in this Court. Bradstreet v. Thomas, 12 Pet. 60.

The only question arising under the second ground of objection is whether the assignment of the note was by endorsement or by delivery, and this depends entirely upon the statute law of Alabama. By the act of 1812, all bonds, obligations, bills single, and promissory notes, may be assigned by endorsement, and the assignee may maintain a suit thereon in his own name. Aikin's Digest 828, § 6. This section contains other provisions which are not material to this case. By the act of 1833, all the provisions of the above-recited section are extended to promissory notes made payable to a certain person or bearer, to a fictitious person or bearer, or to a bearer only, but it is provided that nothing therein contained shall prevent the assignment of such note by delivery merely, so as to authorize the assignee to sue in his own name. Aikin's Digest 330, § 18.

The averment in the declaration is that the said John Barge, to whom or to the bearer of said promissory note payment of the said sum of money therein specified was to be made after the making of the said promissory note and before the payment of the said sum of money therein specified, to-wit, on 1 December, 1836, at the Southern District of Alabama aforesaid, duly assigned over and delivered the said promissory

Page 40 U. S. 129

note to the said plaintiff, who then and there became bearer, and was and still is the bearer thereof and entitled to demand and receive said sum of money, &c. It is obvious that this assignment was by delivery merely, and not by endorsement, which must be in writing. The intention of the averment is to show that the plaintiff was within the proviso of the act, and had a right to sue in his own name. It is clear that he sues in the character of bearer of the note, and consequently he is not an assignee within the meaning of the 11th section of the Judiciary Act of 1789. Bank of the Commonwealth of Kentucky v. Wister, 2 Pet. 318.

If any mistake occurred in the court below in calculating the interest due on the note, that is a proper subject of correction in that court. By a statute of Alabama, the court of original jurisdiction may correct any clerical error or misprision in the calculation of interest or other mistake of the clerk at any time within three years from the rendition of the judgment. Aikin's Digest, 266. The note in this case is no part of the record; this Court cannot judicially know, therefore, when the interest commenced running; the third ground relied on by the plaintiff here ought therefore to have been brought before the court below, and may yet be brought before it, and if it shall there appear that any mistake has been made, it can be corrected.

The judgment of the circuit court is affirmed with costs.

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