Dougherty vs. Smith, Wilson & Co.

it must be held as conclusive in all collateral proceedings. Should this fix on the sheriff an unjust responsibility, we, like the Virginia court, think that his remedy would be against the clerk.

As the entry on the execution book must be deemed conclusive evidence that the execution went into Goodrum's hands, it remains for him to show an excuse why it was not returned within thirty days of the return day thereof.

Wherefore, the judgment is reversed, and the cause remanded with directions for further proceedings not inconsistent with this opinion.

CASE 20-PETITION ORDINARY-JUNE 29.

Dougherty vs. Smith, Wilson & Co.

APPEAL FROM THE FLEMING CIRCUIT COURT.

1. Where partners sue to recover a debt, one of them cannot, pending the action, transfer his interest to his co-plaintiffs and become a witness for them, by having his name stricken from the action as plaintiff and theirs substituted. Section 32 of the Civil Code does not authorize it.

2. Where the cause of action is transferred, pending the suit, and the name of the assignee substituted for that of the plaintiff, security should be given for the past as

well as future costs.

3. That a witness is liable to judgment for costs in the action is a disqualifying in

terest.

W. H. CORD, for appellant, cited Parson's Mercantile Law, 111, 112, 115; 2 Greenleaf, sec. 175; 1 Wharton's Dic., 702; 2 Swanston, 400; Civil Code, sec. 35; 3 Met., 245; 2 Ib., 517, 612; 14 B. Mon., 320; Greenleaf Ev., sec. 356 et seq.; lb., 391; 1 B. Mon., 322; 1 Story's Eq., secs. 323-4-5; 4 John. C. R., 130; 3 Maddock's Rep., 191; 1 Met., 204; Bayly on Bills, 26; Greenleaf, secs. 389, 390, 347; 18 B. Mon., 128; 1 B. Mon., 322.

Dougherty vs. Smith, Wilson & Co.

WM S. BOTTS, for appellees, cited Civil Code, sec. 32; 18 B. Mon., 759; 14 Ib., 321; 18 lb., 128; 4 Dana, 106; Chitty on Bills, 295-6-7, 407; 3 Kent's Com., 72; 3 Johnson, 89.

L. M. Cox, on same side, cited Civil Code, sec. 670, sub-div. 6; 14 B. Mon., 321; 18 Ib., 128; Civil Code, sec. 161; Coil vs. Howard, Mss. opin., Dec., 1853.

JUDGE WILLIAMS DELIVERED THE OPINION OF THE COURT:

This was a suit by appellees, as holders, against Sousley, as acceptor, Wilson, Hicks, and Kenney, as drawers, and Dougherty, as endorser, of a bill of exchange for $900.

Dougherty first set up a want of notice of protest for nonpayment as a defense.

Judgment was rendered against the drawers and acceptor; an execution issued, a small sum was made by the sale of the drawers' property, after which Dougherty set up, as an additional defense, that, since the rendition of the judgment, the debt had been fully paid by the assignment of a whisky contract for 2,000 gallons, by the drawers to the plaintiffs; also that he was discharged by an agreement to extend further time, &c. By agreement, the cause was submitted to the decision of the court. "Plaintiffs then introduced Smith, one of the plaintiffs, who was sworn on his voir dire, who stated that he had no interest in the event of this suit; that such arrangements had been made between him and his co-plaintiffs that he had transferred the claim sued on to them. And, thereupon, the plaintiffs moved and offered to strike Thos. B. Smith's name from the action as plaintiff, and that plaintiffs Wilson and Allen be substituted in the action in the place of Smith, Wilson and Allen. The plaintiffs offered to give security for costs, to which defendant objected, and the court overruled the objection and sustained the motion of plaintiffs; and, thereupon, on their motion, the name of Thos. B Smith was stricken from the action as plaintiff and the plaintiffs Nelson and Allen substituted in the action; and Hon. L. W. Andrews entered himself on the record as security for costs for plaintiffs."

Sec. 32, Civil Code provides that "where the right of the plaintiff is transferred or assigned, during the pendency of the

Dougherty vs. Smith, Wilson & Co.

action, it may be continued in his name, or the court may allow the person to whom the transfer or assignment is made, to be substituted in the action, proper orders being made as to security for the costs." This is a discretion given to the court, as matter of convenience to the parties, and to be exercised in the furtherance of justice; but, even in a proper case, it is not imperative on the court. It never was intended to authorize a member of a firm to transfer his interest to his partners, and thereby divest himself of an interest, so as to make him a competent witness for his partners. Such partner is a necessary party to the record, either as plaintiff or defendant. Here he was made a plaintiff, and become responsible to the defendant for his costs.

Public policy does not require such a construction of this section of the Code as to permit a partner thus to divest himself of interest and become a witness; nor is it within the inconveniencies or evils intended to be remedied by the Legislature.

In Warner vs. Turner, (18 B. Mon., 759,) the plaintiffs had transferred their entire right of action, and the notes sued on, to Turner, without recourse. Turner, by the order of the court, was substituted as plaintiff, by becoming bound for past and futnre costs. This case was within the letter and spirit of said section.

Andrews only become bound for the future costs of Wilson and Allen; and even they did not undertake to indemnify Smith against the liability for past costs. If the defendant should recover judgment for his costs, he would be entitled to the same against Smith as well as against Wilson and Allen. Smith, therefore, has a direct legal interest in the result of the suit, which, however small, was sufficient to exclude him. (Finnell vs. Cox, 3 Met., 246.)

The court erred in striking Smith's name from the record as a plaintiff, and substituting Wilson and Allen alone as plaintiffs; also, in permitting Smith to testify in behalf of Wilson and Allen.

Wherefore, the judginent is reversed, and the cause remanded for further proceedings not inconsistent herewith.

Skillman, &c. vs. Muir's Adm'r.

CASE 21-PETITION ORDINARY-JUNE 30.

Skillman, &c. vs. Muir's Adm'r.

APPEAL FROM THE BOURBON CIRCUIT COURT.

1. In an action upon a covenant to furnish a slave with winter and summer clothing, an averment that the defendant had “failed to clothe said slave properly," is not a sufficient assignment of the breach. In such case, judgment by default for the plaintiff will be reversed; but the error, if there had been an issue, would be cured by a verdict and judgment for the plaintiff.

2. In an action for damages for breach of covenant, the plaintiff must prove their value. Thus, in an action for failing to furnish a slave the clothing stipulated, an averment that it was reasonably worth a certain sum, must be supported by proof. It is error to render judgment by default without such proof.

3. Where, upon the facts stated in the petition, there is an implied assumpsit to pay the amount claimed by the plaintiff, the allegation of value need not be proved upon failure of the defendant to counteract it. (15 B. Mon., 628; 18 Ib., 60.) Otherwise, where there is no assumpsit, express or implied, to pay the sum claimed. (14 B. Mon., 393; 18 Ib., 216; 1 Met., 558; Met., 196.)

4. See the opinion for a review of the authorities and discussion of the principles upon which the foregoing rulings depend.

5. The Civil Code requires only a statement of the facts constituting the cause of aotion. What the law implies need not be averred. (Sections 118, 144.)

G. & R. T. DAVIS, for appellants, cited 18 B. Mon., 230; 14 lb., 395; Civil Code, sec. 159; 3 Met., 197.

JUDGE BULLITT DElivered thE OPINION OF THE COURT:

This was an action upon a covenant by which the appellants agreed to pay $105 for the hire of a slave, and to furnish him winter and summer clothing, and a blanket.

The petition alleges that no part of the hire had been paid, and that the defendant had "failed to clothe said slave properly, or to furnish him a blanket," and that "the clothes said slave was entitled to, and not furnished with, and the blanket, were reasonably worth $15."

The defendants failing to answer, a judgment by default was rendered against them for $120, from which they appealed. The judgment must be reversed for two reasons:

1. The breach of the covenant, concerning the clothing, is not properly assigned. Whether the ground of the complaint

Skillman, &c. vs. Muir's Adm'r.

is, that the defendants failed to furnish winter clothing, or that they failed to furnish summer clothing, or that the clothing furnished was not of proper quality, the petition fails to show. The petition does not show the ground of the action, nor state any fact constituting a cause of action, with reference to the clothing; the averment, that the defendants "failed to clothe said slave properly," being nothing more than an allegation of a legal conclusion. This error, if there had been an issue, might perhaps have been cured by a verdict and judgment for the plaintiff; (16 B. Mon., 691;) but it is suficient for the reversal of this judgment by default.

2. It was erroneous to render judgment for the $15, which the blanket and clothing were alleged to be worth, without proof of their value.

The Code declares, that allegations of value, or of amount of damage, shall not be taken as true, by the failure to controvert them." (Sec. 153.)

This court has sustained a judgment by default, without proof of value, for the amount of a physician's account for medical services and medicine; (Harris vs. Ray, 15 B. Mon., 628;) and a similar judgment for the amount of a merchant's account for goods sold and delivered to the defendant; (Francis vs. Francis, 18 B. Mon., 60;) whilst it has reversed similar judgments for the value of coal taken by the defendant from the plaintiff, (Daniel vs. Judy, 14 B. Mon., 393,) for damages committed by a trespasser upon the plaintiff's land, (Clarke vs. Seaton, 18 B. Mon., 226,) for the value of goods, which a common carrier failed to deliver according to his agreement, (Huston vs. Peters & Co., 1 Met., 558,) and for the value of cash notes, which the defendant failed to assign as he had covenanted to do, (Marr's adm'r vs. Prather, 3 Met., 196,) though in each of these cases, the amount of value or damage, for which the judgment was rendered, was alleged in the petition.

In Harris vs. Ray, and Francis vs. Francis, this validity of the judgments was apparently placed upon the ground, that the sums claimed by the plaintiffs were alleged in their petitions to be due and owing. We do not suppose, however, that