Cox vs. Adams.

payable in Alabama, the case constitutes no exception to the rule that the lex loci contractus obtains.

In a note to his own text, Chancellor Kent remarks as follows: "It may be laid down as a general rule, that negotiable paper of every kind is construed and governed, as to the obligation of the drawer and maker, by the law of the country where it was drawn or made; and as to that of the acceptor by the law of the country where he accepts; and as to that of the indorsers by the law of the country in which the paper was indorsed." 2 Kent, 460, 5 ed. note. This dictum of Chancellor Kent is supported by the following authorities: Potter vs. Brown, 5 East R. 124; 9 Barn. & Cress. 208; 2 Bell's Com. 692, 3; Slocum vs. Pomeroy, 6 Cranch R. 221; Orey vs. Winter, 16 Martin's Louis. R. 277; 13 Mass. 1; Pardessus Cours de Droit, tom. 5, secs. 1497, 1499; 7 Ala. R. 120.

One of the illustrations of the operation of the lex loci contractus, given by Mr. Story, is the case now being considered. "By the general commercial law, (says Mr. Story,) in order to entitle the indorsee to recover against any antecedent indorser upon a negotiable note, it is only necessary that due demand should be made upon the maker of the note at its maturity, and due notice of the dishonour given to the indorser. But, by the laws of some of the American States, it is required in order to charge an antecedent indorser, not only that due demand should be made and due notice given, but that a suit shall be previously commenced against the maker and prosecuted with effect, in the country where he resides; and then, if payment cannot be obtained from him under the judgment, the indorsee may have recourse against the indorser. In such a case it is clear, upon principle, that the indorsement, as to its legal effect and obligation, and the duties of the holder, must be 800erned by the law of the place where the indorsement was made." Story on Bills, sec. 157; see also Story on Conflict of Laws, sec, 316 b; Williams vs. Wade, 1 Metcalf R. 82, 83; Bayley on Bills, 84. Upon principle, therefore, and upon direct authority, we feel constrained to reverse this judgment.

Bethune vs. Bonner.

No. 24.-JOHN M. BETHUNE, plaintiff in error vs. SEYMOUR R. BONNER, defendant in error.

[1.] A rule against a Sheriff to pay over money is not sufficiently certain, unless it state the court in which the judgment and execution, claiming the money, was had.

Rule against Sheriff. From Muscogee Superior Court. Tried before Judge ALEXANDER. November Term, 1846.

For the grounds of error, &c. see the opinion of the Supreme Court.

JOHNSON & WILLIAMS, for the plaintiff in error.

STURGIS, for defendant in error.

By the Court-NISBET, J. delivering the opinion.

In this case, the Sheriff of Muscogee appears to have been called on to answer to the following rule, to wit: " It appearing to the Court that the Sheriff has had the above fi. fa. (having previously stated the parties to the fi. fa.) sufficient time to have raised the money thereon, whereupon it is ordered by the Court that he bring into court the fi. fa. with his actings and doings thereon, and show cause why he should not pay over to Seymour R. Bonner, the plaintiff's assignee, the principal, interest, and costs due thereon.”

Upon service and return of which, a motion being made for judgment absolute, the Sheriff objected to the same upon several grounds, among which was this; that he was not bound to answer to the rule, because of its uncertainty. The objection was overruled and the Sheriff ordered to answer, which he did. We do not find it necessary to give an opinion upon but one of the assignments. of error, for the reason that one error will send the case back, and the decision made at this term in the case of Walter T. Colquitt vs. Seymour R. Bonner, will ultimately control this also.

The error charged upon the Court is, that it did not sus- [1.] tain the defendant's objection to a judgment absolute on the rule, for uncertainty; it is insisted in the argument that the rule contains no sufficient allegations upon which to enable the Court to found a judgment; "that the only fact stated is that the Sheriff has had the fi. fa. sufficient time to have raised the money thereon;'

Bethune vs. Bonner.

that in this proceeding, as in all other pleadings, the party plaintiff or moveant, must allege all the circumstances and facts necessary to the support of his action. Particularly, (it is said by counsel for the plaintiff in error,) must the rule show jurisdiction over the subject-matter in the court before which it is filed; that the Court below has no jurisdiction over executions issuing from and returnable to another court; that at least the rule should have shown from what court the execution issued." In our judgment the reasoning is sound, and supported by authority, and on this ground we are compelled to reverse the judgment of the Circuit Court.

"The declaration must allege all the circumstances necessary for the support of the action, and contain a full, regular, and methodical statement of the injury which the plaintiff has sustained, with the time and place, and other circumstances, with such precision, certainty, and clearness, that the defendant, knowing what he is called upon to answer, may be enabled to plead a direct and unequivocal plea; and that the jury may be enabled to give a complete verdict upon the issue; and that the court, consistently with the rules of law, may give a certain and distinct judgment upon the premises." 1 Chitty Plead. 256; Coup. 682; 6 East, 422; 5 T. R. 623. In a rule against the Sheriff we do not hold the technical nicety necessary which Mr. Chitty, in the above extract, requires. It is well understood that in England the old rules of pleading have been greatly relaxed; our own statute intended to simplify and relax them, whilst at the same time it intended to require a plain, full, and distinct statement of all the facts and circumstances, necessary to bring the parties' rights before the adverse party and the court. Yet this extract contains the best general rule as to what is necessary in setting forth the plaintiff's cause of action. In all cases, we believe the pleadings should be so distinct as to make every material allegation issuable; and so specific as to enable the Court, " consistently with the rules of law," to give a certain judgment. Is this the case in the cause before us? The Court below could not distribute money at the instance of a plaintiff whose execution issued from some other court: the rule should have stated the court wherein the judgment was had, and from which the plaintiff's execution issued. A judgment absolute on a rule against the Sheriff, if rendered at the instance of a plaintiff holding a judgment from another court, would not be certain, could not be rendered according to law, and could be set aside upon motion. Our judgment is, therefore, that the demurrer to the rule nisi was well taken, and ought to have been sustained.

Ex'rs of Cunningham rs. Maund and Wade.

[THIS CASE WAS OMITTED IN ITS Proper place.]

No. 8.-The executors of ROBERT CUNNINGHAM 78. WILLIAM MAUND and WILLIAM H. WADE, defendants in error.

[1.] The county in which the family of the defendant permanently reside at the time of the service of the writ, is by the Act of 1338, the place of his residence, and he may be sued there; although he may be boarding and doing business in another county.

Plea to the jurisdiction. From Lee Superior Court. Tried before Judge WARREN. November Term, 1846.

For the history of the case, see the opinion of the Supreme Court.

STURGIS for the plaintiffs in error, relied upon the Statute passed in 1838. Hotchkiss, 547.

DUDLEY & CRAWFORD, for the defendant in error.

By the Court-WARNER, J. delivering the opinion.

In this case it appears from the record, that the plaintiffs in error instituted their action of assumpsit against the defendants in the Court below, in the County of Lee.

Maund, one of the defendants, filed his plea in abatement to the jurisdiction of the Court, alleging that at the time of the service of the writ, he was a citizen of the County of Baker, and not a citizen of the County of Lee. The plea of the defendant was traversed by the plaintiffs and on the trial thereof, the following facts were proved. The writ was served on the defendant by the Deputy Sheriff of Lee County, by leaving a copy at his usual place of residence 30th December, 1844. Maund resided a part of the year, and his family resided the whole of the year 1844, in the County of Lee. In the latter part of October, or first of November of that year, Maund went to the town of Albany in Baker County, with intention if he could get into business, to remove there; that he got employment, and boarded himself at Albany; his wife and family remained in the County of Lee until after the first of January, 1845, which was the place of their residence until that time. Maund boarded at a boarding

Ex'rs of Cunningham es. Maund and Wade.

house in Albany from the time he went there until he removed his family; that he rented a house in Albany before the 25th December, 1844 for his family, and they removed to the same in January, 1845. The Court below instructed the jury among other things, "that the residence of the defendant's family was to be considered the place of his residence, and if there was a doubt as to where his residence was, they should be satisfied that the defendant went to Albany, and remained there with the intention of making the same his place of residence, and made provision for the removal of his family; if the jury should believe that the defendant went to Albany in Baker County, and remained there, intending the same to be his place of residence before and up to the time, and at the time of the service of the declaration, notwithstanding the family of the defendant remained in the County of Lee until after the time of said service, they must find the plea to be true, and against the issue tendered by the plaintiff." To which instruction the counsel for the plaintiffs excepted, and assigns the same for error in this Court.

[1.] The Act of 29th December, 1838, defines with precision, the residence of the defendant. By that act it is declared, "the place where the family of any person shall permanently reside in this State, and the place where any person having no family shall generally lodge, shall be held and considered as the most notorious place of abode of such person, or persons respectively." According to the provisions of this statute, the only question of fact for the Court to have submitted to the jury was as to the place where the family of the defendant resided, at the time of the service of the writ. If they resided in the County of Lee at that time (as the testimony shows they did,) that was the place of the defendant's residence, as defined by the law of this State. We are therefore of the opinion that the Court below erred in its charge to the jury, "that if they should believe that the defendant went to Albany in Baker County and remained there, intending the same to be his place of residence, before and up to the time and at the time, of the service of the declaration, notwithstanding the family of defendant remained in the County of Lee until after the time of said service, they must find the plea to be true, and against the issue as tendered by the plaintiff."

Let the judgment of the Court below be reversed and trial granted.

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