Mayfield v. Barnard

Peyton, C. J. : In this case, it appears that William T. Barnard, as administrator de bonis non, with the will annexed, of the estate of R. P. Shelby, deceased, instituted suit in the circuit court of Issaquena county, against James L. Mayfield, administrator of the estate of A. H. Sanders, deceased, William Myers, and J. M. Clark, on a writing obligatory for the sum of $2,584 50, executed by said Sanders, Myers, and Clark, on the 20th day of February, 1860, and payable to 13. F. Blackburn, as executor of the last will and testament of the said R. P. Shelby. Upon the process, the sheriff made the following return: “ Executed personally on the within named defendants, James L. Mayfield, William Myers, and John M. Clark, by reading to each of them the within writ, and by delivering to each of them a true and perfect copy thereof. This 21st day of March, A. 13.1867.” At the return term of the writ, the said defendant, James L. Mayfield, appeared and pleaded non est factum, without verifying said plea by his oath. And at the November term, 1867, of said court, the said defendant, John M. Clark, moved the court to set aside the sheriff’s return on the writ of summons, on the ground that the return was untrue. The motion [276] was overruled by the court, and the said defendant excepted to this ruling of the court, and filed his bill of exceptions, by which it appears that upon -the hearing of the motion, the said defendant, Clark, was introduced in. support of the motion, to prove that the said return of the writ, as made by the sheriff, was untrue in point of fact, and that the writ had not been served upon him personally, nor a copy thereof delivered to him. To the introduction of this testimony, the plaintiff, by his counsel, objected, and the objection was sustained by the court, and the witness was not permitted, in that way, to-impeach said return. To which action of the court, in refusing to allow the said defendant to testify, he excepted, and filed his bill of exceptions. The said defendants, Mayfield, Myers, and Clark, then filed a plea, alleging a failure of consideration, resulting from the ' emancipation of the slave for which said writing obligatory sued on was given, and also another plea setting up a want of consideration of the said writing obligatory, arising from the illegality of the order of the probate court under which' the said slave was sold, and for the payment of whose purchase money, the obligation in suit was given at said sale, except the sum of nine dollars and fifty cents, which they plead and tender, with their plea. The record - shows that three pleas above mentioned, were severally demurred to by the plaintiff, and that the demurrers to the first and third pleas remain undisposed of, and that the demurrer to the second plea was sustained by the court, and the defendants declining to plead over, judgment was rendered in favor of the plaintiff against the defendants, for the amount of the debt and damages, from which the said defendants prosecute here this writ of error. There are two questions presented for our consideration : 1. Did the court err in refusing to allow the defendant, John ■M. Clark, to testify -upon the hearing upon his motion to set aside the sheriff’s return on the summons? 2. Did the court err in giving final judgment in favor of the plaintiff, upon [277] sustaining the demurrer to the second plea, without having first disposed of the demurrers to the other pleas ? With respect to the first question, the statute provides that the return of the officer serving any process may, in the same action, be shown to be untrue by either of the parties. Rev. Code, 489, art. 65. This provision clearly contemplates that the facts upon which the party relies to establish the falsity of the return must be set forth by plea upon which an issue may be taken and jury trial had. The principles of correct pleading require that those facts should be presented by plea, in the nature of a plea in abatement, and verified by the oath of the party himself, or some other credible person. And if, on issue of fact joined on such plea, the jury find for the plaintiff, the judgment will be final, quod recuperei, because the defendant choosing to put the whole weight of his cause on the issue, when he might have a plea in chief, it is an admission that he had no other defense. 1 Bacon’s Ab., Bouvier’s Ed., 37; Wallace, 58; 1 Blackford, 54; 3 Wendell, 258; 1 Bibb, 234; 6 Wendell, 649; 2 Penn., 361, and 6 New Hampshire, 518. And as the defendant adopted a mode not authorized by law, to test the truth of the return, we think the court did not err in refusing to allow the testimony offered, and in overruling the motion. In determining the second question, it may be remarked that the error of the court below was not in sustaining the demurrer to the second plea, but in rendering final judgment thereupon, without having disposed of the demurrers to the first and third pleas. The ruling of the court below with reference to the second plea is in perfect accordance with the previous adjudications of the high court of errors and appeals of this state upon the question presented by that plea. And we regard it as abundantly settled by them that the warranty in such cases only undertakes to guarantee the status of the slave as slave for life at the time of the sale, and the covenant is fulfilled if at the time of the sale the slave was, by the then existing laws of the state, in a condition which rendered him liable to [278] servitude for the period of his life. It might, with as much reason, be argued that the ordinary warranty of soundness will be broken if the property should subsequently become unsound, as to hold the warranty of title to be broken by the subsequent emancipation of the slave. The rule of law in all such cases is that the loss must fall upon the party who was the owner of the property at the time of the emancipation. Bradford v. Jenkins, 41 Miss., 328. And this is in accordance with the adjudications of Westminster Hall upon this subject. It was there decided that where an obligation was given to pay £7,800 sterling for a transfer of the vendor’s claim to the services of 153 apprentices (who had been slaves), but before the installments fell due the slaves were declared free, and obtained their freedom under an ordinance of Berbice,in British Guiana, in pursuance of the act of the 3 and 4 William the Fourth, whereby the defendant lost the services, so that the covenant of warranty of title failed, the plaintiff was entitled to the last two installments, though the legislature had determined the apprenticeship before they became due. Mittelhozozer v. Fullarton, 6 Adolphus & Ellis, 989-990. The plaintiff’s right vested when the bargain was made. The subsequent interference of the colonial legislature did not prevent his recovering what was then stipulated. The whole question in such cases is, who shall bear the losses occasioned by a vis major ? And that depends upon the question, who was the proprietor when that loss was occasioned? The court below was, therefore, right in sustaining the plaintiff’s demurrer to the defendants’ second plea, but evidently erred in rendering judgment final for the plaintiff whilst the demurrers to the first and third pleas remained undisposed of. It is insisted by counsel for the defendant in error that those pleas were bad, and might have been treated as nullities. It is sufficient to say that they were not so treated, but were demurred to by the plaintiff as defective pleas. It has been held that where the plaintiff dignifies a plea by a demurrer he cannot afterward treat it as a nullity. [279] Rogers v. Hunter, 8 S. & M., 640. By demurring, the party waives the privilege of treating the plea as a nullity, and treats it as a defective plea only. Walker v. Walker, 6 How., 500, and Marlow v. Hamer, ib., 189. And it has also been held to be error where four pleas were filed in a cause, and issues joined to the country on two of them, and demurrers filed to the other two, to proceed to trial and judgment on the issues to the country without making any disposition of the demurrers. Harper v. Bondurant, 7 S. & M., 397. Bor the reasons herein stated, the judgment must be reversed and the cause remanded.