mortgage his wife's distributive share for value, I pre- JUNE 1831. sume that will not be denied. PER CURIAM.-JUDGMENT AFFIRMED. WAUGH & WAUGH & ISBELL V. NATHAN CHAFFIN. A judgment entered up as follows: "Former judgments and retainer admitted; judgment confessed for, &c. to be satisfied when the money is collected, or in notes before hand," is a judgment quando. DEBT, upon three judgments entered up against the defendant, as the administrator of William W. Chaffin.. The writ demanded "$ 282 10, which the defendant owes and detains, &c." Upon nil debet pleaded, a verdict was taken for the plaintiff, for $125 75 principal, besides damages-subject to the opinion of the presiding judge upon the following facts: The plaintiffs commenced actions upon three several bonds against the defendant, as the adminisrator of William W. Chaffin, returnable to November session, 1822, of Surry County Court, to which the defendant pleaded non est factum, payment and a set-off, retainer, former judgments, debts of higher dignity, and fully administered. At the next August sessions, the following entry was made in the cause standing first on the docket: "Non est factum withdrawn, former judg"ments and retainer admitted. Judgment confessed for "&c. to be satisfied when the money is collected, or in "notes before hand if the plaintiffs choose-plaintiffs to "pay all costs.' The same entry was made in the other causes, by a reference to that above given, as to the pleas which were admitted; but there was no entry or memorandum, as to the time when the judgments were to be satisfied, and no option given the plaintiffs of receiving payment in notes before they were due. Afterwards, viz. at November sessions, 1826, three writs of scire facias issued upon those judgments, in WAUGH & W. CHAFFIN JUNE 1831. which, after reciting the judgment, and the fact that it had become dormant, the writ directed the defendant "to appear. &c. and show cause, if any he hath, why "the said judgment should not be revived, and execution "issue thereon." To these writs, the defendant pleaded nul tiel record, and the same pleas to protect the assets, which he had entered to the original suit. In the County Court, the following entry was made, "judgment revived according to scire facias" and upon an appeal to the Superior Court, this judgment was affirmed. There was no evidence offered of assets in the hands of the defendants, liable to the plaintiffs' action. His Honor Judge MANGUM, at Surry, on the last fall circuit, upon these facts, set aside the verdict, and entered a nonsuit, and the plaintiff appealed. Gaston, for the plaintiff. The Attorney-General and Badger, for the defendant. HENDERSON, Chief-Justice, after stating the case, as above, procceded: On these judgments, declaring on them in the debet and detinet, the present action is brought, to charge the defendant personally, without any evidence of assets. And this depends on the question, whether they are absolute or quando judgments. The whole entry must be taken together, and if so, it is impossible to make them absolute judgments, or to reconcile the admission of former judgments and retainer, with an absolute judgment. I say nothing of the entry to be paid when the money is collected," for that entry is made in the first judgment only, and in the other two, the entries in the first are referred to. But I lay it out of the case. As I said before, the admission of the pleas renders it impossible for them to be understood as absolute judgments. If they were not so at first, the revival by sci. fa. did not make them so. The revival only authoAn action canrized execution on them, as their terms originally imnot be sustained against an ad- ported. It simply gave an execution. It is therefore ministrator, to subject him per- impossible, without evidence of assets afterwards comsonally, unless ing to hand, more than sufficient to satisfy the defendant's retainer, and the other judgments referred to in the he has been fixed with assets. DUMAS POWELL. pleas, to sustain the action. Even with such evidence, JUNE 1831. I think that the action cannot be sustained, until the defendant is fixed with assets in this cause, either by sci. fa. suggesting them, or by some other mode. I speak from recollection only, or rather upon principle, as I have not examined the authorities. But most certainly it cannot be done, as said above, without evidence to charge the defendant with additional assets; in other words, with assets subject to these judgments. As to the objection taken by the defendant, there is nothing in it. The rule is not, that in debt the plaintiff must recover he demands, but the sum demanded, or not at all; but that the proofs must agree with his the proof must agree with his allegations. The plaintiff may recover allegations. less. PER CURIAM.JUDGMENT AFFIRMED. In debt, the cover less than plaintiff may re ISHAM A. DUMAS v. ROBERT POWELL et al. adm3rs. To let in secondary evidence, the best evidence of the loss of the ori ginal document, that the nature of the case admits of, must be produced. DEBT, tried before his Honor Judge DANIEL, at Richmond, on the last circuit. The plaintiff declared upon a lost bond, alleged to have been executed by the defendant's intestate. A witness, one Mask, testified that he once had a bond in his possession, as assignee, corresponding in date and aniount, with that declared on; that he received it from the plaintiff as genuine, and believed it to have been executed by the defendant's in-, testate, with whose handwriting he was acquainted; that while the bond was in his possession, he presented it to one of the defendants, as a claim which he held against the estate of his intestate; that the defendant was also well acquainted with the handwriting of his intestate, and made no objection, but took a memorandum of the amount; that the witness afterwards, at the request of the plaintiff, returned the bond to him, and DUMAS บ. JUNE 1831. also a note executed by the plaintiff, and received instead the plaintiff's own note for the amount of both. Another witness, who was present, testified that the POWELL. plaintiff, on receiving the bond, put it in his pocket, and on their leaving Mask's house in company, took out a paper and tore it up. On the part of the plaintiff it was contended, that from this testimony the jury might infer, that the bond was torn up by mistake. But his Honor being of opinion, that there was not such proof of the loss of the bond, as entitled the plaintiff to put his case to the jury, directed a nonsuit to be entered, and the plaintiff appealed. No counsel appeared for either party. HALL, Judge.-It is a rule of evidence, that the best which the nature of the case will admit of, must be produced. When that cannot be produced, and the nonproduction of it is accounted for, the next best evidence in the party's power is required. It is that rule of evidence, which required the production of the bond upon the trial. In order to dispense with the production of it, it was incumbent on the plaintiff to give all the evidence reasonably in his power, to prove the loss of it. It appears to me, that he is chargeable with two omissions; in the first place, in not having gone to the house of Mask, where he tore up the paper the day before, as soon as he discovered the loss of the bond. He might perhaps have discovered some remnants of the paper torn up. In the second place, he might have produced his own note, taken up from Mask. It would then appear, that he had not torn up that paper, and tend to a belief, that he had destroyed the lost bond, through mistake, instead of his own. It does not now appear, but that he destroyed his own note, when he took it from Mask. PER CURIAM.-JUDGMENT AFFIRMED: DEN ex dem. of RICHARD WALL บ. ISAAC WHITE and ZACHARIAH WHITE. A bona fide vendee, who pays his purchase money to satisfy an outstanding fraudulent mortgage, and takes a deed from both the mortgagor and mortgagee, is not affected by the fraud. EJECTMENT, tried on the last circuit,, at Rockingham, before SWAIN, Judge. The lessor of the plaintiff claimed title under a judgment against the defendant, Zachariah, obtained in 1825, and produced a sheriff's deed for the premises in dispute. The defendant, Isaac, claimed under the defendant, Zachariah, as fellows: 1st. Under a mortgage made by the defendant, Zachariah to one Bostick, dated September 15th, 1823, to secure $ 500, with a covenant for a reconveyance upon payment of the mortgage debt within five years. 2d. By a deed of bargain and sale, dated the 9th of October, 1824, by Zachariah White and Bostick to himself, reciting the mortgage of the latter. Both these deeds were impeached as fraudulent; but it is unnecessary to state the testimony. The defendant, Isaac, was in possession. The presiding judge charged the jury, that if they believed the deeds under which the defendant, Isaac, claimed, or either of them, were fraudulent, the plaintiff was entitled to a verdict. A verdict was returned for the plaintiff, and the defendant appealed. No counsel appeared for the defendant. Gaston, for the plaintiff. HENDERSON, Chief-Justice.-Both the mortgage to Bestick and the deed to the defendant Isaac, were so evidently fraudulent upon the evidence, and therefore void as to creditors, that we hear the proposition of the judge without any startling effect. But if true, it appears to me it may produce the most ruinous consequences. The proposition of the judge in effect is this: A fraudulently mortgages to B. C. without any notice or suspicion. JUNE 1831. |