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not be separated without material detriment, nor cease to flourish in vig. orous prosperity without identity of effect. It is the golden chain that binds this great family of republics one to another, and gives force, pros. perity and plenty to the whole. The sailor and the farmer plough different elements, but are recipro. cally necessary to the fruition of their labors. J. S.
Art. VIII,_LAW OF DEBTOR AND CREDITOR IN ALABAMA.
THE LAw RESPECTING THE RIGHTS AND REMEDIEs of DEBTon AND CREDITOR IN THE STATE OF ALABAMA.
With respect to general provisions affecting the rights and remedies of creditors and debtors in the State of Alabama, it is necessary to premise that the common and commercial law of England, and in many instances the civil law, prevails. Where exceptions are sound, they arise under statutory provisions, and occasionally from local customs. These will be considered in their order. 1. Of direct remedies against the person of the debtor. Imprisonment for debt is abolished in this State, except in instances of fraud, whether that imprisonment be sought on original or final process. Thus, if a party desire to hold one to bail, to answer for a civil demand, or to take his body in satisfaction of the debt, a prima facie case of fraud must be made out, by the oath of the creditor or his agent—either that the debtor is about to abscond, or has fraudulently conveyed, or is about fraudulently conveying, his estate or effects, or has money, liable to satisfy his debts, which he fraudulently withholds. On either oath being taken, the body is arrested; but if the debtor swears that the particular ground of the creditor's affidavit is untrue, he is then discharged from arrest. Should the debtor, however, not make this countervailing oath, he may discharge himself from arrest by rendering a schedule of his estate, ex. ceeding twenty dollars, and not embracing the property exempt from execution. The truth of the schedule may be controverted by the creditor, and an issue be made up to try the question immediately. Bail bonds are assigned, and like remedies and rights exist in relation to them, that are found under the English laws. 2. Of the description of actions usually brought. Actions are those usually brought at common law, such as assumpsit, debt, covenant, &c. The pleadings are the same—the English statutes with respect to set-off being adopted—and decisions upon them there being authority with us. 3. Of the remedies of the creditor against the estate of the debtor. These may be by attachment sought under three several provisions of the local law. 1. By original attachment, which authorizes a levy upon the lands, goods, or moneys of the debtor, either actually, or by summons of garnishment in the hands of another, where the creditor, or his attor. ney, or agent, swearing to the debt, also swears either that the creditor absconds or secretes himself, or resides out of the State ; or is about to remove his property out of the State. 2. By judicial attachment, which lays after a writ has issued, and been returned “not found; ” when, on proper affidavit, the Court orders a judicial attachment of the personal es
tate of the debtor. 3. By auxiliary attachment, which issues after the commencement of an ordinary suit at common law, and in aid of it; when the defendant absconds or secretes himself, or removes, or is about to remove, out of the State ; or is about to remove his property out of the State; or is about to dispose of his property fraudulently, with intent to avoid the payment of his debts. The property attached may be replevined by bond and security, the bond being conditioned for its forthcoming specifically. Should the creditor wrongfully or vexatiously sue out the attachment, the debtor may have his remedy against the creditor on his bond, which is taken, subject to this condition, when the attachment issues. The debtor, however, cannot controvert the ground on which the attachment issues, but is left to his counteraction; though he may by plea, or motion to quash, take advantage of omissions of substance; and defend on the merits. Persons owing the debtor money, or having his effects in hand, may be summoned, and are termed garnishers. These must answer within the first four days of the term to which summoned, or they become, after a judgment nisi, responsible for the whole debt. If they answer, and admit an indebtedness or the possession of property, a judgment goes against them, for as much as they answer to, deducting a reasonable allowance for expenses. 4. Of the remedy on an open account. An open account in this State is an account when neither the amount nor time of credit is fixed. Such an account cannot be proved by the production of the merchant’s books, nor by his oath, except to the extent of one hundred dollars. But the delivery of each article and its price must be proved by the clerk selling, or by the admission of the debtor, or by some person seeing the sale and knowing the value of the goods. 5. Of the remedy on bills of exchange and promissory notes. On bills of exchange, foreign and inland, and notes payable in bank, and bonds and other instruments, the law merchant prevails as to days of grace, protest and notice. On notes payable in bank, the commercial law as to set-off and defence exists here, and these are not allowed except as between the original parties, or transferees after notice or maturity; and it is probable that, taking such paper for a precedent debt, might be held as equivalent to a notice of prior equities between the original parties. On notes not payable in bank, the maker has a right to all defences for a total or partial failure of consideration, and for all payments and sets-off, existing prior to a notice of transfer. Such notes are not transferable by delivery, so as to give a right of action to the bearer in his own name; nor will a remedy be given against the endorser, unless the maker is sued to the first court to which he could be sued, after the maturity of the paper. Notice of non-payment is only requisite on bills of exchange and notes payable in bank. 6. Of the statute of limitations on account and commercial instruments. On bills of exchange and on promissory notes, the statute of limitations is six years; and on bonds and sealed notes, sixteen years. On open account, except between merchant and merchant, in the trade of merchandise, their factors and agents, the statute is three years. 7. Of process, progress of a suit, &c. All process must be served five days before court; and judgment is rendered regularly, at the term ensuing the appearance term. The execution is returnable to the term after judgment; so that it is seen that between the issuance of a writ on a money demand and its final satisfaction, two courts intervene. Various delays, however, extend this time, such as a crowded docket, dilatory defences, &c. These are the principal provisions of the laws of Alabama, touching the remedies of a creditor against his debtor. Collateral aid is given against the officers of court, which shall be the subject of another article. B. F. P.
Art. IX.-MERCANTILE BIOGRAPHY,
This singular man, and distinguished merchant, was born in the village of Portsmouth, in Rhode Island, on the third day of July, in the year 1766, and died in New York city on the twenty-third day of July, 1846, in the eightieth year of his age. His father, whose name was also Preserved Fish, was a descendant of the Huguenots, and followed the humble employment of a blacksmith. Of his mother, we have not been enabled to learn anything, only that she died when her son was quite young.
The early history of our friend’s life was not particularly distinguished. He was a noisy, unruly youth, and though the son of an honest but poor man, he was unsteady in his habits, and it was with the utmost difficulty that he could be made to work at one employment for any length of time. He labored with his father a sufficient length of time to familiarize him. self with all the secrets of the anvil, and then desired to be apprenticed to a substantial farmer. Such an one was soon found, and Master Fish, at the age of fourteen, was in a fair way of becoming a good husband. man. But it so happened that he sickened of his agricultural labors, and throwing away his hoe, he resolved to see what he could do upon the ocean. We then find him strolling along the wharves of New Bedford, in search of a sailor's berth. He was without money, and borrowed a few dollars of a stranger, (who took pity upon him,) with which he purchased a few necessary clothes, and in a few days he was on board of a whale-ship bound to the Pacific. He worked his way up so very rapidly that he became a captain at the age of twenty-one. He followed the sea for many years, and by industry and economy accumulated a handsome fortune. It was at this time of his life that the following event, illustrative of his character, took place :—
The ship that he commanded had been ordered to the eastern coast of Africa, after a cargo of oil. It so happened that soon as he had weighed anchor, it was discovered that the ship had sprung a leak. A good deal of alarm, as a matter of course, was caused by this event, and the crew and subordinate officers insisted upon going back. Captain Fish, however, would not listen to this advice, and swore, by all that was holy, he would continue to prosecute his voyage at every hazard. The indomitable will of the man was triumphant, and the very idea of mutiny was entirely banished—the whole crew performing their duties without a murmur. The voyage was successfully performed, and the cargo of oil turned out to be uncommonly valuable. And thus was it that fortune smiled upon the sailor merchant.
In 1810, Captain Fish settled himself in New Bedford, as a shipping merchant, having given up the sea. His partner in business was Cornelius Grinnell, and the firm was Fish & Grinnell. It was at this period of his life that he became engaged in politics. He was a bitter Democratic partisan, and his many quarrels and disappointments as such, were the cause of his leaving New Bedford. His manner of proceeding on this occasion was also somewhat peculiar. He happened to be passing the stand of an auctioneer one day, while there was a crowd assembled, and stepping suddenly up to the gentleman with the hammer, he exclaimed in a loud voice: “I want you to sell my house !” Without any other notice the house was put up, and knocked down to a gentleman, for about one-half its value. In a fortnight from that time Preserved Fish was settled upon a farm at Flushing, in this State, which he had purchased, with a view of devoting himself to agriculture. While living in Flushing, he became very intimate with a Mr. Franklin, of that place, but a misunder. standing having taken place between the parties, their friendship was broken off, and Captain Fish declined to be even on speaking terms with his old friend. During the existence of this state of things, it so happened that the captain was capsized in a boat while crossing the troubled waters of Hurl Gate. Mr. Franklin also happened to be near where the accident took place, and it was his fortune to rescue Mr. Fish from a watery grave. After the excitement of this scene was over, and the captain had so far recovered as to scan the features of his preserver, he was perfectly astonished to find him none other than his bitterest enemy. This singular fact threw him into a perfect rage, and uttering an oath, he said that he would have much preferred to die, rather than be saved by the hands of Mr. Franklin. Soon after this event, Captain Fish sold his farm and came to New York city to reside. He was appointed Harbor Master for the port, and again took an interest in the politics of the day. A great number of lucrative offices were offered to him about this time, but he would not accept any of them. This fact would incline us to believe that he studied politics as a science, (as the true politician always does,) and not as an office-seeker or demagogue. He was a true patriot, and desired to see his country prosper in every branch of business. He was ever true to the principles of his party, but was strongly disposed to go for his friends, whatever their politics might be. One of these friends, whose cause he warmly advocated, was De Witt Clinton, to whom he proved faithful until the great man's death. But Captain Fish's paragon of a statesman and a man was Andrew Jackson, after whom his own strongly marked character seemed to have been moulded. At this time his property amounted to about fifty thousand dollars. In the year 1815, he formed a business connection with Joseph Grinnell, who is now an honorable member of Congress. The firm was Fish & Grinnell, and the house did a large shipping business. The reason why Captain Fish was always connected with the Grinnell family was because he had descended from the same stock with the Grinnells. Fish & Grinnell were the founders of that celebrated and wealthy house now known to the whole world as Grinnell, Minturn & Co. Fish & Grinnell were also the first to establish a regular line of Liverpool Packets. Their ships varied from 340 to 380 tons burthen; the ships of Grinnell, Minturn & Co. now measure from 1,000 to 1,300 tons, and are universally acknowledged to be among the finest vessels on the ocean. In 1826, Captain Fish, having acquired a fortune of one hundred thousand dollars, dissolved his connection with Joseph Grinnell, when the firm of Grinnell, Minturn & Co. was ordained, and Captain Fish went to Liverpool. He there formed a connection with a couple of English merchants, Edward Carnes and Walter Willis, followed the shipping business for two years, lost about thirty thousand dollars, and returned to this city, completely disgusted, as he said, with the English methods of transacting business. His last partner in business was Samuel Alley, Esq., with whom he remained, however, only about six months. The immediate cause of the dissolution was as follows: Mr. Alley entered the office one morning, and seeing Captain Fish busily employed, he expressed a little surprise at his smartness, and added:—“Hope you are well this morning, Captain Fish ;” whereupon the captain, who seemed to be in an unhappy mood, returned answer—“This is the place for business, sir, not for compliments.” Mr. Alley answered the supposed insult in a manner peculiarly his own, and, in a few days, the firm of Fish & Alley was dissolved by mutual consent. In this city he remained out of business for about seven years, when he was elected President of the Tradesman's Bank, to whose interest he devoted his undivided attention until the day of his death. The causes of Captain Fish's success were his sound judgment and his unwearied attention to business, together with his daring in conceiving, and his perseverance in carrying out his various commercial plans. Whenever he said that a ship must sail, she was always sure to sail, at any rate. On one occasion, when the pilot did not make his appearance at the very moment a certain ship was to sail, he went on board, and piloted her to sea himself. The integrity of Preserved Fish was never impeached, and he ever considered the fulfilment of his engagements as the most sacred of his duties to his fellow-men. He was not what we call an educated man, and not at all conversant with accounts. He was, however, a sound thinker and able reasoner. He kept his business plans to himself, and always acted upon the principle that it was better to be sure of a small profit, than risk all by an unnecessary delay. He was always devoted to business, but more on account of his passion for excitement, than on account of his love for gold. Preserved Fish was married three times. His first wife died at New Bedford, in giving birth to a child. His second died in this city, when he married his third wife only four months after the death of his second. A short time previous to this singular proceeding, he was dining with Henry Grinnell, Esq., when he astonished his friend by stating his matrimonial intentions. Among the characteristic speeches that he made on the occasion was the following:—“On the first of next month, I shall be in my seventy-third year, and the husband of a new wife. The fact is, I am getting to be an old man, and I want to be happy while I continue in this world. I don't care a farthing for the opinions of the world—I live for the living, not for the dead!” He left behind him no children. He had, however, an adopted son, named William Fish, whom he ruined by treating too kindly. William Fish died a disgraced man, but left one child, who will probably inherit the property of his adopted grandfather. The will, however, is condi