Babcock & Griffin v. Williams. BABCOCK & GRIFFIN v. WILLIAMS. 1. A surety in a claim bond, is not precluded by a judgment improperly obtained against his principal, from resorting to a Court of Chancery, to establish, that the property levied on and condemned; had been previously levied on by a senior judgment creditor, and condemned, pending the trial of which, the last levy was made; and that the property had been delivered, in satisfaction of the judgment of the senior creditor. 2. A senior creditor does not lose his lien, because a claim is interposed, and returned to the County Court for trial, but will continue until the suit is determined, when it may be reissued. Error to the Chancery Court of Barbour. THE bill was filed by the defendant in error, and states that the Bank of Columbus recovered a judgment against Thomas Gray, and others, in the County Court of Barbour; that on the 28th August, 1843, an execution issued on the judgment, and was levied on a negro woman, as the property of Gray; that Gray, as the next friend of his wife, interposed a claim, and gave bond to try the right of property, with complainant as his surety in the claim bond; that a trial of the right was had in the County Court, and the negro woman found subject to the execution; that on the 14th February, 1844, another execution issued from said court, on the same judgment, and against the same defendant; that by virtue of the execution, the sheriff demanded the slave previously levied on; took her into possession, and sold her, under the last mentioned execution. That on the 31st October, 1843, two executions issued from the clerk's office of the Circuit Court of Barbour, one in favor of the plaintiffs in error, for $493 24, and one in favor of B. S. Hawley, for $104 59, besides costs, against the said Gray, and were on the same day levied on the same slave, when Gray again interposed a claim on behalf of his wife, and the complainant as his surety for trial of the right; that Babcock & Griffin v. Williams. at the fall term, 1844, these trials of right of property came on to be tried, and the slave was found subject to the executions; that executions issued on the 6th December, 1844, upon which the sheriff indorsed, that he demanded the slave of the complainant, and that he failed to deliver up the same, and that thereupon executions issued against Gray and complainant, for the debt of plaintiffs in error, and costs, the negro woman having been previously delivered up to the sheriff to satisfy the execution in favor of the Bank, and sold by him. The bill alledges that both the plaintiffs in error and Hawley are non-residents. Babcock & Griffin answer, and admit the allegations of the bill, and a judgment pro confesso was taken against Hawley. The Chancellor made his decree, enjoining the collection of the judgments. From which this writ is prosecuted. PRYOR, for the plaintiff in error. SAYRE, contra. ORMOND, J.-It has been established by the previous decisions of this Court, that where an execution has been levied on property, and bond given to try the right, a junior execution cannot be levied on the same property, pending the trial, though the property is left with the defendant in execution. [Kemp & Buckeye v. Porter, 7 Ala. Rep. 138.] This being the fact, in regard to the two last levies made in this case, would have been decisive against their validity, if the objection had been taken in the Circuit Court, previous to the judgment on the trial of the right of property, and the only question is, whether the surety in the claim bond, can be prejudiced by the omission of his principal to interpose the objection. In our judgment he is not. He was not a party to that proceeding, and is not concluded by it. The facts then, are, that a statute judgment has been obtained against him, for not doing that which it was impossible for him to do, the slave having been previously delivered to the sheriff, and sold under the prior execution of the Bank. Babcock & Griffin v. Williams. The interposition of the claim, did not in the slightest degree affect the junior judgment creditors, or abridge any of their rights, but was superinduced by their own act, in levying on property which was then in the custody of the law, and not subject to be levied on. Nor does it vary the case in the slightest degree, that the County Court had not jurisdiction of the trial of the right of property. The institution of that proceeding was the act of the claimant, in which the plaintiff in execution did not participate; it did not therefore affect the lien of the senior creditor, which continued until that suit was determined, when the execution was again reissued, and levied on the same property. This is a full and complete answer to the levy of the plain tiffs in error, but it is one which the complainant has had no opportunity to make at law, as the statute judgment consequent upon the return of the sheriff, is rendered ex parte. In such cases, it has been repeatedly held by this court, that the party aggrieved may seek redress in equity, and it may be added, can obtain it no where else. The case, when stripped of all adventitious circumstances, is that of a surety for the delivery of property, levied on by three judgment creditors, which he has delivered up, and which has been absorbed by the senior execution. Upon no principle of justice or equity, can he be made responsible for the deficiency. We think however, he should be taxed with the costs of the Court of Chancery, the resort to which he might have prevented, by an application to the court of law, upon the trials. of the right of property. The costs of this court, must be paid by the plaintiffs in error. With this modification, the decree of the Chancellor must be affirmed. Branch Bank at Montgomery, use, &c. v. Gaffney. THE BRANCH OF THE BANK OF THE STATE, AT MONTGOMERY, USE, &c. v. GAFFNEY. 1. Where an action is brought upon the indorsement of a promissory note, the plaintiff's right to recover cannot be made out by proof of a fraudu lent concealment, or misrepresentation by the indorser, in respect to the ability of the maker to pay. To make such a fraud available as a ground of action, it must be specifically declared on, in a suit brought by the party defrauded. 2. A promissory note payable in bank, is by statute made subject to "the rules of the law merchant, as to days of grace, demand and notice, in the same manner that inland bills of exchange," &e. are; consequently, where such paper is indorsed, either regularly or irregularly, the indorser must be charged by a demand and notice. 3. Where commercial paper, past due, is indorsed, it cannot be assumed as a legal conclusion, that a demand of payment should be made by the holder, and notice of its dishonor given within any precise time; but in such case, all that can be said is, that the demand must be made. and the notice given, in a reasonable time. The facts must be ascertained by the jury, and their verdict should be influenced by such legal analogies as are established. 4. An action may be brought without a previous request, where a party promises to pay on demand, yet in the case of indorsed paper, the writ, or summons, by which a suit thereon is commenced, does not authorize the officer to whom it is addressed, to receive the money, or contemplate pay⚫ment otherwise than by legal coercion; consequently it is not a sufficient demand to make a notice, which is merely consequential, avail any thing. Writ of Error to the Circuit Court of Lowndes. THIS was an action of assumpsit, at the suit of the plaintiff in error, against the defendant, as the guarantor of a promissory note. The declaration contains six or seven counts, but as the fourth is the only one in question, we will not notice the others. That count alledges, that the defendant, on the 20th of February, 1838, being indebted to Thomas Bryant in his life-time, in the sum of "two thousand dollars, transferred, delivered, and indorsed," a promissory note, "da Branch Bank at Montgomery, use, &c. v. Gaffney. ted the 17th January, 1837, due twelve months after date, to the Cashier of the Branch of the Bank of the State of Alabama, at Montgomery, or bearer, for fifteen hundred dollars, for value received, negotiable and payable at said Bank, signed by one Joseph J. Burt, Edward W. Gilbert, and Jas. W. Taylor.". And the defendant, at the time of the transfer mentioned above, represented to the plaintiff, that the makers of the note were solvent, and the same could be collected of them; when, in fact and in truth, they were wholly insolvent, "and of this fact the said defendant was fully advised and cognizant," at, &c. And the "plaintiff avers that he sued the said makers, to the first court after he received the said note," at, to wit, &c., and at, &c. "judgment was obtained against them for the principal of said note, interest and costs;" and upon that judgment an execution was issued, on, &c., and placed in the hands of the sheriff of, &c., who returned the same "no property" found, The plaintiff further avers, that the makers of the note were, at the time of the transfer and indorsement, wholly insolvent; of all which the defendant had notice, at, &c., and therefore became liable to pay, &c. The defendant demurred to this count, and his demurrer was sustained; and the cause was tried on issues joined on some of the other counts. At the trial, a bill of exceptions was sealed at the instance of the plaintiff, from which it appears that the note of which the defendant is sought to be charged as an indorser was made at this time, by the parties, and for the amount alledged, that the Cashier of the plaintiff is its payee, and that it is negotiable and payable as stated in the fourth count. It was also proved, by Daniel Royall, that, as the agent of Thos. Bryant, (for the use of whose administrator the present suit is brought,) he held a note of $1500, payable to the intestate, and due on the 15th January, 1838, made by Edmund J. Felder and the defendant; that witness and defendant went to Wetumpka about the 1st January, 1838, to make an arrangement about its payment. In an interview with Felder, the latter represented that he was broke, and proposed to the defendant, to give the note, upon the indorsement of which this action is brought, in exchange for that which the witness then held. Witness refused to receive it, when the de |