Shanklin v. Johnson. slave, he saved two hundred dollars, which the defendant invested in a lot purchased of Joshua Kennedy, and received a legal conveyance of the same to himself. All this took place some years before Mrs. Owen's ownership of Moses ceased. Whether the lot was sold by the defendant before the plaintiff became the master of Moses, does not conclusively appear the testimony being contradictory. But it is believed to be undisputed, that when the purchase money was produced, counted, and in Moses' presence admitted to be his, by the defendant, and further, that the latter held part of it as a loan, for a specific purpose, and would repay it, then the ownership of the plaintiff had already commenced. It is certainly competent for the master to give money to his slave, with permission to dispose of it at pleasure, and if disposed of, it cannot be reclaimed by the master. There could then be no resulting trust, consequent upon the purchase by the defendant, in favor of Mrs. O. In fact, she explicitly disavows all right to the savings of her slave. As it respects the intermediate masters, they certainly acquired no legal or equitable right in virtue of the purchase from Mrs. O.; for if it had been competent for her to do so, she did not intend, or attempt, to impart such right. Moses was incompetent to make any contract with the defendant, by which the right to the lot inured to himself, either in equity or at law. There was then nothing more than a moral duty incumbent on the defendant, to give to him the proceeds of the lot, whether derivable for leasing or selling. This moral duty imposed a legal obligation when the defendant produced the money, counted it for Moses, acknowledging it to be his, and borrowed a part of it from him, just as much as if it had then, for the first time, been deposited in his hands. When this took place, the plaintiff was the master, and the right to the money of course inured to him. Does not the right of the master to recover and appropriate the savings of the slave, or what may be given him by others, result from the relation between them, and does not the right cease whenever the connection is dissevered? We incline to think, that such is the law. If then the plaintiff is not entitled to the money, admitted by the defendant to be in his hands, the latter may retain it against all the rest of Murphy & Pierson v. Gee. the world. This would be exceedingly unjust to the slave, as we must suppose, that whatever is recovered will be appropriated to his benefit, although the law might not coerce the performance of such a duty. The court, in the charges given and refused, did not rule the law materially different, so far as it respects the rights of the parties, from what we have laid it down. We think there is no available error, and the judgment is consequently affirmed. MURPHY & PIERSON v. GEE. 1. When the suit is against the indorser of a note not negotiable, after a failure to recover in a suit against the maker, commenced with the statutory diligence, the declaration must show the suit against the maker was decided by a judgment upon the merits of the note; and a declaration is defective if it alledges only the determination of the suit in favor of the maker. Writ of Error to the Circuit Court of Wilcox. ASSUMPSIT by Murphy & Pierson, as the indorsees of a note, made by C. Pritchett, against Gee' as the indorser. The note is dated 21st April, 1842, for the sum of $750, payable on the 1st March, 1843, to Sterling H. Gee, or order, and by him indorsed to the defendant, and by him to the plaintiffs. The declaration sets out the note and indorsements in the usual mode; avers that the note was not paid at maturity, and that the plaintiffs commenced suit against the maker, on the 3d of March, 1843, in the Circuit Court of Clarke county; that county being the residence of the maker, and that court the first to which he could be sued. It then proceeds to aver, that the said suit was prosecuted in due form of law, Murphy & Pierson v. Gee. against the maker, and that afterwards, on the 31st March, 1845, judgment was rendered in that suit in favor of the maker, against the plaintiff's. From these facts the liability of the defendant is deduced, and the declaration concludes with a super se assumpsit and breach. The defendant demurred, and the court sustained the demurrer and final judgment was given for him. This is now assigned as error. C. C. SELLERS, for the plaintiff in error. GOLDTHWAITE, J.-In the recent decision of Hagerthy v. Bradford, at this term, we held, that whenever an indorsee, in his suit against the maker, fails upon the merits of the cause, in obtaining a judgment for the amount of the note, such judgment is prima facie evidence in all cases to charge the indorser, when the suit is commenced with the statutory diligence. From this decision, we may deduce the rule of pleading proper to suits against the indorser, upon the failure to recov er from the maker. The averments of the declaration, in our judgment, should show the suit was determined in favor of the maker, upon the merits of the note. The averment here is, that the judgment was rendered in favor of the maker; and this might be as well on some defence against the indorsee, as upon the merits of the note. We think the averments do do not sufficiently show the suit against the maker was determined on the merits of the note, and therefore the decla ration is defective. Judgment affirmed, Hall v. Hrabrowski. 9 278 128 612 9 278 137 315 HALL v. HRABROWSKI. 1. Where a plaintiff who had obtained judgment below, sued out a writ of error to this court to reverse it, and whilst the cause was pending here, sued out execution upon his judgment, and collected the money, and the fact not being brought to the notice of this court, until after its judgment had been pronounced, reversing and remanding the cause, an order was made, directing that the certificate of this court should not issue, until the debt, interest, and costs below were refunded to the defendant. MOTION by the defendant, for a stay of proceedings upon the writ of error, upon the grounds, that the plaintiff had coerced payment of the judgment below, by execution, after he had sued out his writ of error-which being supported by the affidavit of the sheriff, a rule nisi was ordered to issue. The plaintiff failed to appear and answer, and a motion was then made, by T. WILLIAMS, for the defendant in error, that the rule be made absolute. ORMOND, J.-In this case, the plaintiff below obtained a judgment, with which he was not satisfied, and sued a writ of error therefrom to this court, and upon a hearing in this court, the judgment was reversed. After the judgment was pronounced, the defendant in error moved to stay all proceedings upon the judgment, upon the ground that whilst the cause was pending here, the plaintiff sued out an execution upon his judgment, and caused the amount to be made by execution. These facts are shown by affidavit, and no answer being made to the rule nisi, the presumption arises that the facts are true. Upon this state of facts, if the motion had been made before judgment was rendered in this court, we would have directed a stay of all proceedings, until the money was returned to the defendant, it being obviously unjust that the plaintiff should collect the amount of his judgment, which he is complaining of as erroneous, and in which he may, upon another trial, entirely fail to recover any thing. The judgment having been reversed before this motion was made, the only remedy we can now afford the defendant, is, P. & M. Bank of Mobile v. King, Upson & Co. to direct that the certificate of this court shall not issue, until, the debt, interest, and costs of the judgment below, are refunded to the defendant. All courts are in the habit of restraining the action of suitors before them, when their acts are oppressive, or vexatious. Thus where a writ of error is sued out, and bail in error given, so as to supersede execution, if the plaintiff in error sues out, as he may, scire facias on the judgment, or brings a new action on the judgment, the appellate court will direct a stay upon all proceedings upon terms, until the suit upon the writ of error is determined, unless the writ of error is obviously prosecuted for delay merely. [Tidd's Practice, 470.] This case is entirely analagous to the present. It is certainly both vexatious and oppressive in the plaintiff, to prosecute a suit here, to reverse a judgment, the correctness of which he impliedly affirms, by coercing payment from the defendant under it. We will therefore refuse our aid, until he places the opposite party in statu quo, by refunding all the money he has exacted from him by his execution. Rule made absolute. THE PLANTERS' AND MERCHANTS' BANK OF MOBILE v. KING, UPSON & Cc. 1. In an action against the indorsers of a note, which purported to have been indorsed under a power of attorney, the defendants denied the indorse ment, and demurred to the evidence, which recited that the execution of the power, as well as the note on which the plaintiff sought to recover judgment, were proved; it will be intended, as the making of the note was not a point in issue, that the indorsement, and not the execution of the note, was in fact proved. 2. Where an attorney is invested with an authority, in writing, to indorse notes for, and on account of his principal, it confers power to indorse notes of which the principal is ostensibly the legal proprietor, and it devolves |