both a person and a "thing," and remedies which are purely and simple in rem, which affect, or may affect, the subject-matter or thing only. These several remedies are not necessarily peculiar to particular courts, as those which pursue the common law, those which are of equity jurisdiction, or admiralty. It is fundamental to all judicial proceedings, no matter what the constitution of the court and its form of admistering justice, that it must have jurisdisdiction. It is essential to the validity of the judgment of every court that it should have jurisdiction over the subject; and in addition, wherever the action or suit is personal, over the defendant to be charged thereby. In personal suits, that which gives the court cognizance over the defendant, is notice of the suit in some prescribed form. In proceedings "in rem," the thing or "matter" affected by the decree, must be subject to the dominion of the court; its situs must be such as that the judgment may be operative upon it. In the strict technical suit, the thing in some appointed mode is placed in the power of the court, generally by a seizure and possession by an officer; as a vessel captured from an enemy on the high seas, or for violating a blockade, or seized for violating the navigation and import laws, or liquor or tobacco taken into possession by the marshal, because held or offered for sale in contravention of the internal revenue laws. In these and in such like cases, the judicial process goes against the thing" which is in the custody of the court through its officer, and which is technically the defendant. Mankin v. Chandler & Co., 2 Brock, Rep. 127-8; Freeman on Judgments, Sec. 611. In these cases, parties interested in the "thing," were named by proclamation and published notice, to prefer their claims. There are other suits of the nature of proceedings in rem, such as the probate of wills, grant of administration, condemnation of private lands for public highways, etc. Freeman on Judgments, Sec. 606 to Sec. 614; 2 Starkie Ev. 22 to 230, and Stewart v. Board of Police of Hinds County, 25 Miss. 480, 481-483. In these instances the judgment operates upon the situs and relations of the subjectmatter, and by force of the judgment imposes a new relation, as in the last case cited. The relation of the law to the private owner is changed, and a new relation, that of dedication to the public use, imposed upon it. 2 Smith Leading Cases, 660. " Persons are not made parties by name to these suits, and when they come into the litigation it is as intervenors. Nor is it essential to the jurisdiction that the owner, or any person having interest in the "thing" to be affected by the judgment, should have notice, other than such as is implied in the seizure itself. Every person is concluded by the judgment, because it is open to the world to intervene and assert its right. The judgment binds everybody. There is no such thing as personal parties, who, with their privies are estopped and concluded, and nobody else, as in personal suits. Stewart v. Board of Police, 25 Miss. 480; N. O. J. & G. N. R. R. Co. v. Hemphill, 35 Miss. 23. Whilst "process is in the power of the legislature, it must respect that ancient and fundamental right which has always belonged to parties sought to be charged in their persons and property, that they should have notice of the suit. Courts of common law and equity cognizance, have always exacted personal notice if practicable, that is, if the defendant was within the territorial jurisdiction and if he could be found. But in order to prevent a failure of justice, ex necessitate, if personal notice could not be given, an inferior mode, such as in the wisdom of the legislature might be thought likely to impart actual notice, has been allowed; such as leaving a copy of the summons with a member of the defendant's family, or affixing it to the door of his domicil, and, in certain cases, by publication in a newspaper. The several common law modes of compelling the appearance of the defendant in court, were : I. The summons; 2. The writ of distringas; 3. The capias ad respondendum; and finally, proclamation and outlawry. The obdurate defendant was subject to a distress of his goods, and the issues of his land, until exhausted, and then to the arrest of his person. 2 Black Comm. 3 Book, pp. 279, 280. The relaxation which has been allowed, and the extent of it, has been to substitute an inferior mode of giving notice, which would be apt to accomplish that result, and that, in cases of necessity, to avoid a failure of justice. It is just, that property in this state should be held liable to a creditor, notwithstanding the absence or non-residence of the debtor. It would not violate the due process of law to seize that property by judicial process, and hold it amenable to the debts of the adsconding or non-resident debtor. To that extent it is a proceeding in rem; but in this case the statute has always required some mode of publication most apt to give notice to the debtor. But if the debtor is not served or does not appear and personally submit to the jurisdiction of the court, a personal judgment would be void. Holman v. Fisher, Executor, 49 Miss. Rep. To illustrate the principle upon which constructive notice rests, and the extent of it, reference is made to Matter of City Bank, 18 N. Y. 215; Happy v. Mosher et al., 48 N. Y. 317; Harris v. Hardeman, 14 How. U. S. 339; Nations v. Johnson, 24 How. U. S. 202; Voorhees v. Bank of U. S., 10 Peters, 449; Mason v. Messinger & May, 17 Iowa, 266; Beard v. Beard, 21 Ind. 322. In the history of the "due course of law," can any precedent be found of a suit intended in so peremptory and speedy a manner to conclude so many parties and so many and such various rights? One has been cited for the plaintiff in error quite analogous to this: Webster v. Reid, 11 How. U. S. 459, which was characterized by the court as extraordinary. An act was passed by the territorial legislature of Iowa, with a view to settle claims to the lands owned by the Half-breed Indians in Lee county-partition them or make sale for the benefit of the claimants. Brigham, Wilson and Young, were appointed commissioners to carry out the object-who were to receive six dollars per day for their services. Judgments were obtained by two of the commissioners for their services, and had under those judgments, the entire tract of the Half-breeds was sold. Suit was brought under a special statute, requiring notice of publication in a newspaper with no other “designation" of the defendants than "owners of the Half-breed lands in Lee county." Held, that the judgments under which the lands were sold, were void. The reason assigned is that the defendants did not have notice. In the case at bar, the notice was addressed to "all persons claiming interest in the lands." The parties interested may be as numerous as in the case cited, but with this distinguishing difference, that their interests were in severalty under separate titles, without a single element of even tenancy in common; whereas, it appears that the Half-breed Indians were co-tenants. But there is no instance in our legal history where a judicial process has been allowed in personal suits, dispensing with notice actual or constructive, addressed to the parties named to be charged thereby, where it could be readily ascertained who they were. As we have seen, the practice has been so uniform and ancient, that the defendants must be named if known; and that they must have personal notice by due service, or a constructive notice by some means which the legislature has prescribed as calculated to come home to the parties. That a departure from it in a special case would be obnoxious to the objection that it was not according "to due process of law." It is manifest that many, if not most of the persons claiming these lands, were residents of the state and of the respective countics where the suits were brought. It is also evident that the names of many, if not most of those were known, or could have been known to the levee commissioners. Yet the law directed that they should not be made defendants by name or other description. The statute was framed on the idea, that because the act of 1865 imposed upon the land a lien for the taxes, that it was competent to give a remedy in the nature of a suit in rem. The lien was given to make the demands of the levee board paramount to all encumbrances which the tax-payers could impose, or suffer on their property. dependent litigations that might arise. That being impracticable if not impossible in the due course of the law, it is not competent to accomplish it in the extraordinary mode authorized by this statute. 5. Because the statute, and the proceedings had under it, are unusual, extraordinary, and not calculated to afford a full investigation and proper determination of every separate controversy that might arise; but likely to result in wrong and injustice to many individuals. 6. Because the suit authorized is extraordinary and unusual, without precedent in the legislative and judicial history of this state. But if the suits were mainly dependent for support on the liens, it did not thereby become a proceeding in rem, any more than would detinue, replevin or foreclosure suits of mortgages, or other liens. 2 Brock. (supra). It is ultra vires of the legislature to break down the essential and fundamental distinctions and differences which have always existed in the nature of judicial process. In those trials affecting life, liberty or property, where, according to the system of the law transmitted to us, the jury have been the triers of the fact, the constitution assures that mode of trial by declaring: "The right of trial by jury shall remain involate." If, in the judicial history, which has borne upon its current a body of jurisprudence to us, it has ever been the "right" of the people in per- 7. Because the statute has the seeming of giving judicial sancsonal suits to be notified in some appointed formula of the proceed- tion, and thereby conclusiveness, to a decree for the sale and transings against them, so that they may have opportunity to appear fer of property, when the legislature itself [is not competent] to diand make defence, then that right is guaranteed by putting a re- rect the sale to be made, and when, according to the "law of the straint upon organized power not "to deprive of life, liberty or land," the chancery court would not take cognizance and adjudge property," except by "due course of law" or due process of law." | in the circumstances named in the act. Our jurisprudence has always regarded suits to recover chattels We are of opinion, therefore, that the decree of the chancery or to foreclose a mortgage, as personal suits, entitling the defen-court is coram non judice, and is of no validity, and the same is DECREE REVERSED. dants to personal notice. If the legislature should enact that here- reversed. after they shall be proceeeings in rem, and that the seizure of the horse or other effects, or of the mortgaged premises, should confer Bankruptcy-Rents Accruing after Adjudicationjurisdiction and operate as constructive notice, it would be too plain for argument that the legislature was without power to thus interrupt and turn aside the "due course of law." Propety is older than governments and constitutions. The right of life, liberty and property, was not conferred by society. The highest duty of goverment is to protect persons in their enjoyment. From the earliest ages of the common law these natural rights have been hedged with certain immunities and privileges, which experience has shown to be necessary for their security and defence. For centuries the inviolability of persons and property against unusual and extraordinary invasions of power, has been the birthright of British subjects. From Magna Charta, that fundamental principle has been transcribed into the American constitutions. It is the chief distinguishing characteristic of the jurisprudence to which it belongs. That great doctrine, with the trial by jury, have largely aided to develop a strong and vigorous civilization, and free governments. Chiefly because these absolute rights are placed beyond the reach of executive and legislative power, exerted in an extraordinary and unusual manner, has the AngloSaxon race exhibited such devotion to the common law; and have conserved in this country its beneficent principles in constitutional guarantees. Landlord's Lien for Rent. IN RE SHULMAN, FRANKFURTER & CO., BAILEY, AS- United States Circuit Court, Middle District of Alabama. Before Hon. WILLIAM B. Woods, Circuit Judge. 1. Bankruptcy-Rents Accruing after Adjudication.-The bankrupts leased premises for one year, and were adjudicated bankrupt within two months after the beginning of the term: Held, that rent which accrued after the adjudication, could not be proved or allowed as a debt against the bankrupt estate. 2. —. Landlord's Lien.-Where the law of the state gave the landlord a lien upon the goods and chattels on the demised premises, to secure the rent for one year, and the lessees were adjudged bankrupt before the end of the year: Held, that the landlord had no lien on the goods and chattels for rent which accrued after the bankruptcy. 3. Priorities-Execution Creditor.-The law of Alabama (Rev. Code, Sec. 2878), does not give the landlord a lien for his rent upon goods and chattels of a tenant found upon the premises, held by lease for one or more years, but as between an execution creditor and the landlord, simply declares that the latter shall be entitled to priority of payment out of the proceeds of the goods, to the extent of one year's rent. This cause was a petition to review the action of the district court sitting as a court of bankruptcy, and was heard at the No We think the special statute under which the suit was brought, vember term, 1874, of the circuit court. is in contravention of the constitution, because, 1. It proposes to bind and conclude the interests of persons in private property, without designating them by name as defendants; without a good, or sufficient reason for such departure from the general law. 2. Because it expressly denics personal service of process on the defendants, when it is evident that many, perhaps most of them, are residents of the county and state, and amenable to such process. 3. Because in a personal suit it directs notice by publication, without designating the names of the defendants, when many, if not most of them, by the general law, were entitled to personal service of notice, and when the form of publication directed, is allowable only in instances where the complainant does not know, and has not the means of finding out, the names of parties. 4. Because it allows a judgment against a very large, but indefinite number of persons, who have, or may have conflicting interests as against each other, as well as the complainant; when rights may be different in origin and extent, so that it would be impossible, according to the modes of procedure under the general law, to bring such a multitude of persons before the court, as to investigate, determine and adjust in one decree the number of in Messrs. M. D. Graham and H. A. Herbert, for the petitioners; Mr. David Clopton, contra. WOODS, J.-The conceded facts are as follows: The defendants, Loeb & Brother, are the owners of a store-room in the city of Montgomery. They leased the same to the bankrupts, Shulman, Frankfurter & Co., for the term of one year, commencing on the first day of October, 1873, for a yearly rent of $1800, payable in monthly installments of $150. A petition in involuntary bankruptcy was filed against the lessees on the 25th of November, At the date 1873, and they were soon after adjudged bankrupts. of the adjudication, they were the owners of a stock of goods which were upon the demised premises. The goods were seized by order of the bankrupt court, and remained on the premises until they were sold out by the assignee, who received the proceeds of the sale, which were more than enough to pay the rent for the entire year. The bankrupts did not occupy the store after they were adjudicated bankrupt, but it was occupied by the assignee from that date up to the 28th of January, 1874. After the last-mentioned date, the assignee did not occupy the premises, nor did he let them to any other person. The rent of the store-room was paid in full, up to the time of the bankruptcy, and the assignee paid, as a part of the expenses of administration, the rent from the date of the able; for what the assignee pays for the time during which he occupies the premises is part of the expenses of administration, and is not paid as a debt of the bankrupt estate. In the case of bankruptcy, up to the 28th of January, 1874. On that day he gave up the possession of the premises to the landlords, it being stipulated that they would not hold the assignee individually liable upon any claim for rent, and the assignee agreeing that the accept-Lonstreth v. Fenner, no rent was claimed or allowed beyond the ance of the premises by the landlords, should not affect any rights or liens against the bankrupt's estate, which the landlord might have for the payment of rent to accrue after January 28th. Loeb & Brother claimed to have a lien upon the goods which were upon the premises at the time of the bankruptcy, for the eight months' and three days' rent, from January 28th to October 1st, 1874. They applied to the district court to order the assignee to pay out of the proceeds of the goods the said rent, amounting to I$200. That court directed the assignee to pay them $600, and required them to give up any further claim. The assignee, claiming to be aggrieved by the action of the district court, has filed this petition and asks that the order of the district court may be reviewed and reversed. The defendants, Loeb & Brother, claim that the rent which fell due after the 28th of January, 1874, is a debt provable against the bankrupt estate, and that under the laws of Alabama, they had a lien for its payment upon the stock of goods which were stored upon the leased premises at the date of the bankruptcy, and that they were entitled to priority of payment out of the proceeds of the goods for the rent, up to Oct. 15, 1874. The first question presented for decision is, therefore, can rent, to accrue in future, after an adjudication in bankruptcy, be proven and allowed as a debt against the bankrupts' estate? time when the assignee deliverd up the premises. The 19th section of the bankrupt act, is so clear upon the point under discussion, that it would require very great weight of authority to show that the rent, falling due at fixed and stated periods after the date of the bankruptcy, could be proven as a debt against the bankrupt estate. The law says plainly that such a claim shall not be proven or allowed. I am, therefore, of opinion that the claim of Loeb & Brother, for rent falling due after the 28th of January, 1874, which was after the bankruptcy, and after the surrender of the premises by the assignee, cannot be proven or allowed as a debt against the bankrupt estate. rent arises until the lessee has enjoyed the premises for the whole time for which the payment of rent is stipulated to be made." But even conceding that at the date of the bankruptcy there was a debt owing from the bankrupts to Loeb & Brother, on account of rent yet to accrue, which might be proved and allowed against the bankrupts' estate, is it a fact that under the laws of Alabama, such debt was secured by a lien upon the goods of the bankrupts found upon the leased premises? The statute, under which Loeb & Brother claim their lien, declares that no execution must be levied on goods or chattels in possession of and upon the premises of a tenant, held by lease for one or more years until the rent due, or to fall due during the current year, is paid or tendered to the landlord; and the sheriff executing the It seems to be a necessary consequence of this, that Loeb & Brother can have no lien upon the assets of the bankrupts for any such claim. The bankrupt estate owes them nothing; they have no The existence of debt which the bankrupt estate is liable to pay. a lien upon the bankrupts' goods presupposes a debt which their goods are liable to pay. As there is no claim or debt, there can be no lien. The language of the 20th section of the bankrupt act seems to sustain this view. It is when a creditor has a lien on the real or personal estate of the bankrupt for securing the payment of a debt owing to him from the bankrupt," that provision is made for preserving the lien. Rent, to accrue in the future, cannot be called a "debt owing." In fact it is well settled that it is not a debt at The 19th section of the bankrupt act describes what debts may all, contingent or otherwise. Aurial v. Mills, 4 T. R. 94; Lanbe proven, and it declares that no other debts than those specified sing v. Pendergrast, 9 Johns. 127; Savory v. Stocking, 4 Cush. in this section, shall be proven or allowed against the estate. The 607; Bosler v. Kuhn, 8 Watts & S. 183; English v. Key, 39 case of rent falling due in the future at fixed and stated periods, is Ala. 115. In the case last cited it was held by R. W. Walker, specially provided for as follows: "When the bankrupt is liableJ., that "except where it is payable in advance, no claim for to pay rent, or other debt, falling due at fixed and stated periods, the creditor may prove, for a proportionate part thereof up to the time of the bankruptcy, as if the same grew due from day to day, and not at such fixed and stated periods." The meaning of this clause admits of no doubt. In the case of rent falling due at fixed and stated periods, the creditor may prove his claim for so much rent as had accrued at the date of bankruptcy. For instance, if the rent is $1200 per annum, payable in quarterly installments of $300, and at the close of the second month of a quarter the lessee is adjudged bankrupt, although there may be no rent yet due, nevertheless, the landlord may prove his claim for $200, the rent accrued at the time of the bankruptcy. But the last clause of the 19th section says he shall prove for nothing more. So a proportionate part of debts, other than rent falling due at fixed and stated periods, may be proven in the same way. For instance, a business writ must levy and sell as well for the repayment of the rent so man has a manager or book-keeper hired by the year, at a sal- tendered as for the satisfaction of the execution." Rev. Code of ary payable quarterly. At the end of two months he is adjudged Alabama, sec. 2878. Clay's digest of Laws of Alabama, 506, sec. bankrupt. His manager or book-keeper may prove for a propor- 3, contains a similar provision applicable to crops. It declares tionate part of his salary up to the time of the bankruptcy, but that," the crop grown on any rented land in this state shall not be he cannot prove for any part that may accrue and fall due after taken by virtue of any execution, or removed off the premises of the bankruptcy. The clear purpose of the bankrupt act, is to cut any such rented land, unless the party so taking the same, shall, off all claims for rent to accrue, or for services to be rendered before removal of the crop from such premises, pay or tender to after the date of the bankruptcy. These views, so far as the ques- the landlord or lessee thereof, all money due for the rent of said tion of rent is concerned, are supported by the following cases: premises at the time of taking such crop in execution; provided Ex parte Hougton et al., I Lowell's Decisions, 554; In re Webb such rent or arrears do not amount to more than one year's rent; & Co., 6 N. B. R. 302; In re May & Merwin, 9 N. B. R. 419. and the sheriff, or officer levying the same, is hereby The only case I have found where a contrary view is taken is In empowered and required to levy and pay to the plaintiff, as well re Wynn, 4 N.B. R. 5. In the case of Trim, 5 N. B. R. 23, cited the money so paid for rent, as the execution money." This last by counsel for defendants, it does not appear whether the landlord cited law has been construed by the Supreme Court of Alabama. was allowed to prove for rent which accrued after the bank-In Fraser v. Thomas, 6 Ala. 169, it was held that this law did not ruptcy or not. The case of Longstreth v. Fenner, 7 N. B. R. 449, also relied on by defendants, only decides that the assignee should pay the rent up to the date of bankruptcy, and for such time as he actually occupied the premises after bankruptcy. It does not decide that a claim for rent after the bankruptcy is prov * * * * * give the landlord a lien upon the crop raised on rented land; it merely declared that as between the landlord and an execution creditor, the former should be entitled to preference to the extent of one year's unpaid rent. I am unable to distinguish any material difference between the two statutes cited. If the latter does not give a lien, neither does the former. The ruling of the Supreme Gourt of Alabama, just cited, is followed in North v. Eslava, 12 Ala. 240, and Ducher v. Harris, 13 Ala. 465. However much these rulings may be opposed by high authority, they are a construction of a law of this state which this court feels bound to follow. As there was no execution levied in this case, I am of opinion that Loeb & Brother did not acquire any lien for rent on the goods of the bankrupt found on the demised premises. On all grounds, therefore, their claim to priority of payment out of the proceeds of said goods, should be disallowed. The result is, that the district court fell into error in recognizing the claim and lien of Loeb & Brother for $600. The order of the district court complained of is therefore annulled and the claim and lien of Loeb & Brother disallowed. ORDER ANNulled. 14th of March, 1872, the company executed a bond, with W. J. a replevy bond under section 3509 of the code. We find a bond Informalities in Bonds taken in Judicial Proceed-force and virtue." Taking this bond with the return of the sheriff, Opinion of the court by FREEMan, J. This is an attachment bill, filed to collect an indebtedness due complainant by defendant-a non-resident corporation. An attachment issued and was levied by the sheriff of Green county, on a lot of pig iron as property of defendant. both of which are made part of the record by section 3513 of the code, it must be taken to be a bond for the replevy of the property under sec. 3509, which authorizes a bond to be given at defendant's option "in double the amount of plaintiff's demand, conditioned to pay the debt, interest and costs." The question, then, is as to the liability of the parties, principal and sureties, to a decree on this bond for the debt, interest and costs. By section 3512, replevy bonds are subject to the rules presented in sec. 773 and 774 of the code. This last section is as foliows: "So, also, if any. officer or any other person as hereinafter provided, who is required by law or in the course of judicial proceedings to give bond for the performance of an act, or the discharge of a duty, receives money or property upon thé faith of such bond, he and his sureties are estopped to deny the validity of the bond or the legality of the proceedings under which the money or property was obtained." Now if this bond is valid, and the proceedings under which the property was obtained, legal-and this the party is estopped to deny by the words of the section-we cannot see how the parties can escape from liability to decree on the bond. If the bond is valid, it must be a legal obligation to pay the debt, interest and costs for these are the terms of the contract-provided the atdetermind in favor of complainant. The fact that the defendant in this case has asserted in his answer, which is not disproved, that the iron levied on by the attachment was not his property, can make no difference, as he has given a bond by which it has been returned to his possession, and bound himself to pay the debt of complainant on condition the decree, on final hearing, should be in favor of complainant, and the validity of this bond the defendant is estopped by the statute to deny. The result is that the chancellor's dccree will be reversed, and a decree entered here for complainant's debt against defendant, and against the sureties on the replevy-bond. The costs of this and court below will be paid by defendant. The defendant appears and files an answer, making several de-tachment suit in which it was taken should, at final hearing, be fences to the bill, and the case was heard on bill and answer and exhibits, without any proof being taken. The chancellor dismissed the bill, and complainant appeals to this court. We do not deem it necessary to notice but one of the defences as set up in the answer. It is insisted in the answer that complainant is precluded from bringing this suit by the fact alleged, that defend ant had some time before conveyed a considerable amount of property by deed of trust to secure this debt-said property, however, remaining in the possession of the defendant. This can be no defence to any suit prosecuted either at law or equity for the recovery of the debt. If the debt is recovered in this proceeding, or is paid by the defendant, the property is discharged from the trust, and defendants have their property free from the incumbrance. It is well settled that a mortgage, or deed of trust, is but a security the plain terms of a statute designed to avoid the effect of informalities in for the debt, and a creditor by note or other legal evidence of such a bond. But, without such a statute, it is probable the court might have debt, may at his election bring his action on the note or legal lia- reached the same conclusion. While a bond signed in blank is generally bility, or proceed upon his mortgage or trust security; and a judg-void at law (Wynne v. Governor, 1 Yerg. 149; Gilbert v. Anthony, 1 Yerg. ment on the note, without satisfaction, is no bar to a proceeding in equity to foreclose a mortgage. I Hilliard on Mort. 97; 2 Ibid., 83; Vansant v. Almon, 23 Ill. R. 33; Addison on Contracts, 307. There is, therefore, nothing in this defence, and the chancellor's decree dismissing the bill on this ground, was clearly erroneous. The only question presenting any difficulty in this case, arises out of the following state of facts: The sheriff returns that he levied the attachment on 104 tons of pig-iron, as the property of Green County Iron Co., on the first of December, 1871; and that on the NOTE. The decision as to the validity of the replevy bond, is based upon 69), and so is a bond blank as to the penalty (Governor v. Porter, 4 Yerg. 192; Bumpass v. Dotson, 7 Hum. 310), yet relief will be granted in equity upon a statutory bond made payable to the wrong person (Wiser v. Blatchly, Johns. Ch. 607; Armistead v. Bozman, 1 Ired. Eq. 117), or one blank as to the penalty. Bumpass v. Dotson, 7 Hum. 310. Bonds are held void at law when some defect creates a fatal uncertainty as to the precise character, extent or direction of the obligation; and equity relieves against the defect, when additional facts make that certain which at law was uncertain. The principal case, though, in a court of chancery, would perhaps be controlled, upon the point in judgment, by legal principles, inasmuch as the jurisdiction case. LEWIS, J.-The petitioner avers that he was subpoenaed to appear before C. P. Ellerbe, a notary public, and give his deposition in a cause alleged to be pending in the St. Louis Circuit Court, wherein Alexander Turnbull and others were plaintiffs, and James E. Munford and others defendants. That upon his failure to obey the subpœna he was compelled by attachment to appear; but then declined to testify or to answer any of the questions pro of the Tennessee Chancery Courts is by statute concurrent with that of law courts over attachment suits against non-residents. But several decisions at law, point to the same conclusion as proper under the circumstances of the The bond here was taken in the suit at bar; under the statute referred to in the opinion, which says the defendant in such a suit "may always replevy the property attached, by giving bond with good security, payable to the plaintiff, in double the amount of the plaintiff's demand, or at defendant's option in double the value of the property attached, conditioned to pay the debt, interest and costs, or the value of the property attached, with inter-pounded, because there was in fact no such suit pending as alest, as the case may be, in the event he shall be cast in the suit" Code Tenn., 3509. The bond did not recite the levy of an attachment, nor make any reference to the property itself; but it ascertained the suit, the amounts to be paid, and the event in which payment was to be made. These facts would seem to afford an opportunity for application of the maxim "id certum est, quod reddi certum potest." Broom's Legal Max., p. 633. Analogous cases are found in courts of law, as follows: A bottomry-bond, payable to Widow Moller and son," was sued on by two sons Mollers, and upon their identification as sons of Widow Moller, they recovered. Moller v. Lambert, 2 Campb. 548. In a suit on a bail-bond, wherein the payee was misnamed, the bond was nevertheless held good. Colburn v. Downes, 10 Mass. 20. leged, within the meaning of the statute which authorizes the taking of depositions. That thereupon he was committed to jail by the notary, from which incarceration he here demands to be released, upon the same ground which was the basis of his refusal to testify. The statute provides that " any party to a suit pending in any court in this state may obtain the deposition of any witness, to be used in such suit, conditionally." I W. Stat. 522, 1. It appears from the testimony that a suit was instituted in usual form in the court and between the parties above mentioned, but a And a bail-bond, made payable to the sheriff of -county, was held good, demurrer to the petition, for failure to state a cause of action, and the attendant facts of the case sufficiently designating the proper county. Payne v. Britton, 6 Randolph, 101. And where the law directs who is the payee of a bond, it is sufficient without naming him. Kincannon v. Carroll, 9 Yerg. II. In the same case it was held, that where a word is omitted from a bond, so that the condition is insensible, if the meaning of the parties be evident, the court will supply the word. Again, a bond not naming the payee, valid, where the law states to whom the payment should be made Miller v. Moore, 2 Hum. 423. And where a bond is given to a corporation by a name varying from its true name, it may sue in its true name and aver the execution of the bond to it. Trustees v. Reneau, 2 Swan, 94. In a case of suit on a bond given to dissolve an attachment, where by mistake the name of the defendant had been inserted as payee, instead of that of the plantiff, it was held a valid bond. Leonard v. Speidel, 104 Mass. 356. In Kentucky, where a bond like that in the principal case, was given for the return of attached property, but the paper in fact contained no bond proper at all, but only the condition to a bond, yet in view of the facts appearing, similar to those in the principal case, it was held to be a valid bond, although, said the court," it is unskillfully drawn, and has omitted an essential part of all penal obligations." Yocum v. Barnes, 8 B. Mon. 496. It is even allowed to the recipient of the bond to fill a blank by inserting a name, when it is done without intent to defraud, and under such circumstances, that the court itself would fill the blank as stated above. So in an action of debt on an officer's bond, where a surety showed that his name was inserted in the bond after he had signed it, and in his absence, he was held bound. Smith v. Crooker, 5 Mass. 538. And where a bail-bond was, after execution, altered by substituting the constable's name in place of the sheriff 's, the liability of the surety was not thereby affected. Hale v. Russ, I Greenl. 334. And in Yocum v. Barnes, supra, the bond had been signed in blank, by all the parties to it, and delivered by them to the officers to be filled up; but the sureties were bound thereby. From these cases may fairly be deduced the rule, that any defect, informality or uncertainty in a bond, which may be relieved from or made certain by reference to the attendant and necessary circumstances of the case, will be disregarded as immaterial; the law will, in such case, treat that as certain which can by such attendant circumstances be made certain. J. O. P Code Practice-When Depositions may be Taken to be used Conditionally in "Suits Pending." EX PARTE JAMES E. MUNFORD. HABEAS CORPUS. Before Hon. EDWARD A, LEWIS, one of the Judges of the Supreme Court of Missouri, in Chambers, December 21, 1874. * Where a demurrer to a petition has been sustained, and leave has been given to amend the petition within a certain number of days, and the amended petition has not been filed, and the time for filing it has not elapsed, the suit is "pending" withing the meaning of the Missouri Statute which provides that "any party to a suit pending * may obtain the deposition of any witness, to be used in such suit conditionally," A witness refusing in such a case to testify before a notary public before whom his deposition is sought to be taken, is in contumaciam, and may be committed to jail by the notary, and will not be discharged on habeas corpus until he consents to testify. [Following, as to what is a suit pending, Brown v. Foss, 16 Me. 257, and as to the power of notaries to commit contumacious witnesses, Ex parte McKee, 18 Mo. 599.] for other objections, was sustained by the circuit court. That leave was given the plaintiffs to file an amended petition within thirty days, which period has not yet expired. That no amended petition has yet been filed. It is claimed, therefore, that there is no "suit pending" within the meaning of the statute. The argument is pressed with much ability, that there cannot be a suit without a cause of action; that a cause of action can only appear in a sufficient petition; and that, the court, having pronounced the petition insufficient, and the plaintiffs having abandoned it in obtaining leave to amend, there is, therefore, no petition in the case, and, necessarily, no suit about which testimony can be taken. I am unable to yield to the force of these positions in the face of the law as I find it. It may have been very unwise in the legislature to open a door for the taking of testimony when neither the notary nor the witness can know what facts are to be tried. And yet almost every application of the statute abounds with such results. Our supreme court has decided that a deposition may be taken when the defendant's property has been attached and before summons served or publication made. At such a stage of proceedings it is impossible to know what facts will be denied, or whether a single word of the testimony taken will be applicable to | the issues as ultimately framed. In ex parte McKee, 18 Mo. 599, the court comments on the impracticability of similar suggestions, where the officer "cannot know the aspect which the case will probably assume at the trial." Even if the issues are framed when the deposition is taken, they may be wholly changed before it can be used on the trial. I think the entire argument is based on an erroneous view of the policy of the statute concerning depositions. It has no reference, as I understand it, to the state of the pleadings, or any other existing condition of the cause in court. Its object is to secure testimony for the case in its future condition, whatever that may or may not be, at the time of trial. It is intended to guard against the contingencies of death, disease, or removal of witnesses before the trial is reached. Hence, the law only requires that the suit shall be pending. The institution of the suit is the only guaranty demanded of the plaintiff's earnestness. He may then take the deposition. But every question of its necessity or admissibility, for whatever reason, is specially_reserved for the trial court to pass upon at the proper time. Formerly, the statute authorizing depositions stipulated, as a prerequisite, that But in 1835 the testimony should be "necessary" in the cause. this condition was stricken out, and from thence hitherto nothing has been required but that a suit should be pending. These considerations leave us no excuse for attempting to strain the words of the statute aside from their plain, literal meaning. What is a "suit?" Whatever it may have been formerly, it is the now, according to Chief Justice Marshall, understood to be " |