Columbia, May, 1833.

Posey

V.

Underwood.

think, with great propriety, be said to constitute a good reason why the Courts should allow a similar proceeding, to test the validity of judgments confessed in the mode known to the practice before the passage of that act. The only difference in the practice in the two cases, ought to be, that in the case under the act, the suggestion is filed as a matter of right and of course, in the other that it can only be filed by leave of the Court on cause shewn, creating a reasonable ground to believe that the confession is fraudulent, and upon such conditions as the Court may impose.

In the practice in this State, issues are frequently ade up to try collateral questions. On returns to rules, if the facts are doubtful, the Court may in the exercise of a sound discretion, order an issue to try and determine them. I think that on the circuit, suggestions have been frequently permitted in this State to be filed, to impeach a judgment for fraud.

The motion to reverse the decision of the Judge below is granted; and the creditor, Ralph Smith, upon his entering into a consent rule to pay the costs, (if he should fail) has leave to file a suggestion, setting forth that the confession of judgment in the case of William Posey v. Thomas J. Underwood is fraudulent and not founded on a bona fide consideration, to which the plaintiff in the said confession may be required to plead, by the usual thirty day rule. The creditor Ralph Smith, is to be the plaintiff in the issue so to be made up; all proceedings under the said judgment are stayed until the trial of the said issue, or the further order of the Circuit Court.(4)

HARPER J. absent.

A. W. THOMPSON & SMITH, for the motion.
HENRY, contra.

(a) For the form of the proceedings, in such cases, see 2 Cowen Rep. 466, note (a). It appears, however, that according to the New York practice, their Courts will not exercise this power, except at the instance of a judgment creditor. Wintringham v. Wintringham, 20 John. Rep. 296, and authorities there cited. From this case, it appears that, in Frazier v. Frazier, (above referred to) the motion was made on behalf of a judgment creditor, as was also the case in Rogers v. Tift; and in King v. Shaw, the motion was made by the defendant The creditor in the case in the text, being an attaching creditor, and having a lien on the property of the debtor, may, perhaps, be placed on the footing of a judgment creditor; but the opinion of the Court makes no distinction, in this respect, between creditors seeking this mode of relief.-R.

S. PERMINTER v. S. M'DANIEL, and others.

Columbia,

May, 1833.

Tried before Mr. Justice EVANS, at Edgefield-Spring Perminter Term, 1833.

V.

M'Daniel, et al.

If a blank be

&

filled

up, it is no deed:

suing an attach

Debt on Attachment Bond. The magistrate, who delivers, leafissued the attachment, stated that the defendants terwards were in a hurry to get the attachment, and he had and where, on isnot time to fill up the bond, and it was, therefore ment, the magissigned in blank that he afterwards filled it up, and rate took a bond after it was perfected, lodged it in the clerk's office. which he afterOn the trial of the attachment, there was a verdict and lodged in for the defendant in that case, and he afterwards it was held to be brought this action on the bond.

On the authority of the cases of Duncan v. Hodges, 4 M'C. 239, and Segur v. Powers, decided December, 1829, the presiding Judge charged the jury, that a deed was not necessarily void because it was blank when signed. It was no deed until delivery, which, in this case, must be considered its deposit in the clerk's office. But if it was perfected by the obligors, or their authorized agent, before its delivery to the clerk, it was a good deed; and it was therefore, a question for the jury to decide, whether the magistrate was not authorized to fill it up, before he delivered it to the clerk. The jury found for the plaintiff; and the defendant appealed, on the ground of error in the charge of the presiding Judge.

JOHNSON, J. According to Boyd v. Boyd, 2 N. & M'C. 125, if a blank be signed sealed and delivered, and afterwards written, it is no deed, and so, indeed, are all the cases-This attachment was issued by a Justice of the peace, and the 4th section of the act of 1785, Pub. Laws, 368, provides, that the Justice, "before granting the attachment, shall take bond and security from the party for whom the said attachment shall issue, in double the sum attached, payable to the defendant," to be conditioned to pay and satisfy

signed in blank,

wards filled up

the clerk's office

void.

the costs and damages which the defendant shall sustain, in consequence of suing out the attachment.On this proviso two things are to be remarked-First, that the bond must be given before the attachment can issue; Second, that the Justice must take the bond. It follows, necessarily, that the bond must be perfected before the attachment can issue, and that the magistrate is the agent of the defendant, to accept the delivery of the bond, and according to the rule, it is not the deed of the defendants.

The act directs, that the bond shall be returned to the Court to which the attachment is returnable; but that is a mere place of deposit-the clerk has no authority to do any one act connected with its execution. He can neither judge of the form of the bond, or of the sufficiency of the security, and must file it in his office, however informal and insufficient. It is not enough, therefore, that the bond was perfect, when it was returned to the clerk's office.

The subsequent prosecution of the attachment, could not operate as a confirmation, or recognition of the bond, within the rule stated in Duncan v. Hodges-that might have been done without any bond.Without the bond the attachment issued wrongfully, and its subsequent prosecution was but the continuation of the wrong, and could not make a bond, where none before existed. For want of the bond, the defendant in attachment might have set aside the proceedings, and upon an application to the Court for that purpose, it would not have availed the defendant, if he had answered-"it is true the attachment issued without bond, but I have persisted in the error, and therefore that defect is cured.”

There is another reason why the subsequent prosecution of the attachment, can not operate as a confirmation of the bond. By the act, the plaintiff in attachment must give security. His subsequent confirmation of the bond, however palpable, could not operate upon the securities-though he had recognized

its binding obligation in every possible form, even by confessing this action, that would not bind the other: defendants his securities.

Columbia,

May, 1833.

Perminter.
N.

Motion granted.

M'Daniel, et al.

O'NEALL J. concurred.

HARPER J. absent.

BAUSKETT, for the motion.

BUTLER, contra.

ALEXANDER VERNON v. JAMES HAMMET.

Tried before Mr. Justice GANTT, at SpartanburghSpring Term, 1833.

note, on being

not prove it, it

Sum. pro. on note. The subscribing witness to the If the subscri note on being sworn by the plaintiff, said that he did bing witness to a not see the defendant sign it, nor was he acquainted sworn, should with his hand writing. The plaintiff then offered to may be proved prove the defendant's signature by another witness, but dence. the Court refused to receive the evidence, and ordered a nonsuit, which the plaintiff now moves to set aside.

CURIA per JOHNSON J. Evidence of the hand writing of the defendant, was clearly admissible, notwithstanding the subscribing witness proved that he did not see the defendant sign. In Pearson v. Weightman, 1 Constitutional Reports 336, the defendant in trespass, to try titles to land, claimed title to the land in dispute, under the will of Benj. Paul Williams, and the will was established on proof of the hand writing

by other evi

May, 1833.

Vernon. "v.

Hammett.

of the subscribing witnesses and the testator, notwithstanding all three of the witnesses swore they had not subscribed it. They were all too, men of good character-on that ground, therefore, the motion must be granted.

HENRY, for the motion.

S. BOво, contra.

constitute his

and there is no

circumstances

a slave and a

freeman, an agent. To esta

RICHARD CHASTAIN, v. ZACH. & W. W. BOWMAN. Tried before Mr. Justice EVANS, at Abbeville-Spring Term, 1833.

This was an action on the case, against the defenA master may dants as common carriers on the Savannah river, for slave his agent, a loss sustained by the burning of the plaintiff's cotton, distinction in the on board their boat. The boat was passing down the which constitute river when the plaintiff came to a laħding, and asked if it could carry his cotton. The patroon (a slave beblish a custom, longing to one of the defendants) answered that it it must be proved could. to be general The cotton was received, and was burnt on board the boat, before it reached Augusta. It was proved that the defendants had given general instructions to their patroons, to take in freight whenever it could be had, and that in one instance, one of the defendants had received pay for freight engaged by his patroon. There was also some evidence to shew the general custom of the river. Some witnesses proved, that it is the custom to allow patroons to take in freight generally, and others, that they are only allowed to receive freight, when a boat is not fully laden.

The presiding Judge charged the jury, that the defendants were not liable, unless the patroon was his. master's agent, and authorized to take in freight.