Smith v. Clapp

ERROR to the Circuit Court for the Southern District of Alabama. This suit was instituted in the circuit court, by the defendant in error, against Archibald K. Smith, the plaintiff, and Neil Munn, as the makers of a promissory note, payable to John Barge, or bearer. The note was signed by A. K. Smith and Neil Munn. The writ of capias, by which the action was brought, stated Archibald K. Smith and Neil Munn to be citizens of the state of Alabama; and that Alfred Clapp was a citizen of the state of New York.

The marshal returned, 'executed the writ on A. K. Clapp-Neil Munn not found.' The declaration was filed against A. K. Smith, and stated that Neil Munn was not found. A judgment was rendered against A. K. Smith, by the circuit court, and this writ of error was prosecuted by him.

The case was argued by Key, for the plaintiff; and by Test, for the defendant.

For the plaintiff, it was contended-1. That Barge, the payee (through whom, as assignee, the plaintiff below claimed), not being shown competent to sue in the circuit court, the 11th section of the judiciary act prohibited the plaintiff from suing in that court. 2. The judgment is for more than the amount of the note and interest.

Key contended, that it was necessary to aver that John Barge, to whom the note was given, was not a citizen of Alabama. If this is not done, the circuit court had no jurisdiction of the cause. Cited, 3 Dall. 382; 4 Ibid. 8; 4 Cranch 46; 9 Wheat. 537. The plaintiff must show that he claims through John Barge, a citizen of another state, or he cannot sue. The note is drawn to John Barge, or bearer. The suit is brought as the assignee of Barge.

There is another objection. It should have been averred, that Neil Munn, who was not taken by the marshal, was not a citizen of Alabama. It is not sufficient, that the citizenship is stated in the writ; it should be averred in the declaration, so that it could have been denied in the pleadings. 8 Pet. 148.

It is insisted, that the judgment is for more than the amount of the note and interest; and this is error.

Test, for the defendant in error, said, as to the first error assigned, that the note was payable to Barge, or bearer, and was assigned to Clapp, who appears to be competent to sue in the circuit court; and it was not necessary to show that Barge was competent. See Bullard v. Bell, 1 Mason 251; Bank of Kentucky v. Wister, 2 Pet. 318.

As to the second error. It is a matter of fact, and a mere clerical error, which the defendant ought to have moved the court below to correct. It is not admitted, that the error exists. The interest in Alabama, as allowed by statute, is eight per cent.

This case was brought merely for the purpose of delay; and defendant prays to be allowed the ten per cent. damages.

McKINLEY, Justice, delivered the opinion of the court.