William Wallace, Plaintiff In Error v. Corry Connell, Defendant In Error

• Citation: 13 Pet. 136,38 U.S. 136,10 L.Ed. 95
• Parties: WILLIAM WALLACE, PLAINTIFF IN ERROR, v. CORRY M'CONNELL, DEFENDANT IN ERROR
• Decision Date: 01 January 1839
• Court: United States Supreme Court

38 U.S. 136

13 Pet. 136

10 L.Ed. 95

WILLIAM WALLACE, PLAINTIFF IN ERROR, v. CORRY M'CONNELL, DEFENDANT IN ERROR.

January Term, 1839

IN error to the District Court of the United States for the southern district of Alabama.

The plaintiff in error, William Wallace, was sued in the District Court of Alabama, exercising the powers of a Circuit Court of the United States, on the second day of April, 1836, by a capias issued out of that Court, and returnable on the first Monday of May following. The action was brought on a promissory note, under the seal of the defendant, for four thousand eight hundred and eighty dollars, dated May 10, 1832, and payable to the plaintiff or to his order, at the office of discount and deposite of the Bank of the United States, at Nashville, three years and two months after date.

At the May term, 1836, of the District Court, the plaintiff filed a declaration on the note, in debt, alleging the non-payment of the note, although frequent demands had been made of the drawer. No demand was alleged to have been made at the office of discount and deposite of the Bank of the United States, at Nashville.

The defendant pleaded payment, on which issue was joined, and the case was continued.

At the succeeding term of the District Court, the defendant filed the following plea: That as to the sum of forty-two hundred and four dollars, part and parcel of the sum by the said plaintiff in said declaration demanded, he, the said plaintiff, ought not further to have and maintain his aforesaid action therefor, against him; because he saith, that after the said last continuance of this cause, that is to say, after the term of this Court held on the first Monday of May last, and before the December term aforesaid, to wit, on the eighth day of June, in the year 1836, at Mobile, to wit, in the district aforesaid, one William J. Blocker, John R. Blocker, and Benjamin Horner, merchants, trading under the name of Horner, Blocker and Co. by William J. Blocker one of the said firm, in behalf of himself and his copartner, caused to be sued out a certain writ of original attachment against the said Corry M'Connell, for the sum of forty-two hundred and four dollars; and which said writ was issued by Benjamin Wilkins, a justice of the peace of Mobile county, on the said eighth day of June, in the year 1836, and was directed to the sheriff of Mobile county, and was made returnable to the county Court of Mobile county, which was held on the second Monday in June, 1836. And the said defendant further avers, that the said plaintiffs in the said attachment, were at the time of suing out the same, residents of the state of Alabama; that the said Corry M'Connell was a nonresident, and citizen of the state of New York, and that the said plaintiffs did comply with the requisites of the statute, in such cases made and provided, by giving bond and security, and filed affidavit, whereby it is shown that the said justice and the said county Court had jurisdiction of the said attachment, and that the said county Court could lawfully hear and determine the same. And the said defendant further saith, that in said original attachment, such proceedings were had; that he, the said William Wallace was on the said eighth day of June, 1836, summoned as a garnishee by the sheriff of Mobile county, and required to appear before the said county Court, and answer, on oath, what he was indebted to said Corry M'Connell. And the said William Wallace, defendant, further saith, that, in obedience to the said summons of garnishment, he, the said William, did appear before the said county Court of Mobile, at the said term of the said county Court held on the second Monday in June, 1836, before the judge of said Court then sitting, and was in said suit of attachment between the said Horner, Blocker and Co., plaintiffs, and Corry M'Connell, defendant, examined on oath, touching his indebtedness to the said Corry M'Connell; whereupon he did declare on oath, that he did execute to the said M'Connell, the note for the sum of four thousand eight hundred and eighty dollars, on which the said plaintiff in this suit hath declared, that he did pay, on the said note to said M'Connell, on the 24th day of September, 1833, the sum of three hundred and seventy-two dollars thirty-four cents, and that the remainder of said note was due by said Wallace to said M'Connell, &c. And the said defendant further saith, that in the said attachment by said Court, at the said June term thereof, it was ordered that the proceedings against said M'Connell be stayed for six months, and that notice be given to the said M'Connell of the pendency of said attachment, by letter, directed to New York; the said M'Connell being shown to be a resident of the state of New York. And the said defendant, Wallace, further saith, that in the said attachment, and upon the said writ of garnishment, the said Court at the said June term, then sitting, did make the further order following, to wit:

It appearing, to the satisfaction of the Court, that William Wallace has been duly summoned as a garnishee, and he having admitted an indebtedness to said defendant, to an amount greater than the amount sued for in the above entitled cause, it is considered by the Court, that said plaintiffs do recover from said garnishee, the sum of forty-two hundred and four dollars, the amount sued for in said case, together with the cost thereof, and that all proceedings against said garnishee be stayed until the final disposition of said case; wherefore the said cause was, in said county Court, at said June term, continued by said Court, as well against the said M'Connell as against the said Wallace, till the next term thereof, to be held in due course of law, that is to say, on the second Monday of February, in the year 1837. All which said proceedings in the said county Court, in which the said plea still remains pending and undetermined, are still in full force, and not reversed, vacated, or otherwise set aside, as by the record and proceedings in said Court, still remaining of record will more fully and at large appear; and that he, the said defendant, is ready to verify: wherefore, he prays judgment, if the said plaintiffs ought further to have or maintain his said action therefor, against him, this defendant, as to the sum of four thousand two hundred and four dollars, parcel of the sum by the said plaintiffs above demanded, &c.

The plaintiff at the same term entered a demurrer to this plea of puis darien continuance, and prayed the Court to render judgment against the defendant for six hundred and seventy-six dollars thirty cents, parcel of the debt of four thousand eight hundred and eighty dollars, the amount of the note, which by the plea was wholly undefended; and as to the said plea of puis darien continuance, the plaintiff says that the plea of the defendant is not sufficient to bar him from maintaining his action on the said note, &c.

The Court, on the pleadings, gave judgment as follows: 'As to the said sum of four thousand two hundred and five dollars; being argued by counsel, it seems to the Court that said plea, as to the said sum of forty-two hundred and five dollars, and the allegations therein contained, are not sufficient in law to bar the said plaintiff from having and maintaining his aforesaid action therefor against the said defendant; whereupon, it is ordered by the court, that the said demurrer be sustained; but as to the sum of six hundred and seventy-five dollars, thirty-nine cents, the residue of said plaintiff's debt, in his declaration mentioned, this day came the plaintiff, by his attorney, and the said defendant, being solemnly called, came not, but wholly made default, as to the said last mentioned sum, whereby the said plaintiff, therein against him remains altogether undefended. It is therefore considered by the Court, that the said Corry M'Connell, plaintiff, do recover against the said William Wallace, defendant, the said sum of four thousand eight hundred and eighty dollars and thirty-nine cents, his debt aforesaid, and also the further sum of three hundred and ninety-four dollars, the inteest thereon, assessed by the clerk of this Court by way of damages, for the detention of the same, together with his cost in this cause; the plaintiff remits to the defendant the sum of three hundred and fifty-one dollars, twenty-eight cents.'

The record of the District Court stated: 'In this cause the Court decided that the plea of puis da ien continuance was a waver of the previous plea pleaded by the defendant: there was no default of the defendant, further than his abandonment, under the decision of the Court, of his first plea. In this cause the defendant moved the Court to stay proceedings in the said cause until the final decision of the County Court of Mobile county, upon the attachment of Horner, Blocker and Co.; which motion was overruled.'

The defendant prosecuted this appeal.

The case was argued by Mr. Key, for the plaintiff in error; and by Mr. Crittenden, for the defendant.

For the plaintiff, it was contended,

1. That the demurrer should have been overruled, the matters pleaded being sufficient under the attachment laws of Alabama.

2. That the judgment, by nil dicit, as to the residue of the debt, viz. the $675 39, not attached, was erroneous; inasmuch as it was covered and defended by the first plea of payment to the whole debt, which plea was not waived by the subsequent plea, which only went to part of the debt claimed in the action: parties being allowed by the law and practice in Alabama to plead any number of pleas to the same cause of action.

3. That the declaration on the note does not aver that payment of the note was demanded at the office of discount and deposite of the Bank of the United States, at Nashville, where the same was payable.

Upon the first point, Mr. Key contended that the attachment in the State Court of Alabama was a bar to further...