text:
    DRAUGHON VS FRENCH’S adm’or.

      As to bills in Chancery, filed to compel distribution of an estate'.

      As ió remitter and retainer; as applicable to the case of administrators.

      Practice in Chancery.

      As to administration, in right of marriage -.

    1. A is in thé possession of slaves, in which he has á lifo-Ostate — ■ the reversion to JB — B dying, C, his widow; and another5 jointly take administration of his estate ; and C, after the death of heir co-administrator, intermarries with D. A and C possess themselves of the estate' of B ; and afterwards, A dies, and D takes administration on his estate, jointly with another, who afterwards dies, leaving D sole administrator. D and C.being husband and wife, take possession of the slaves, in whom A had a life estate, and B the reversion. On a bill filed by B’s distributees, it was holden,
    First — that the possession of the slaves should be considered as held under the administration of B’s estate ; and that admitting D and C to have taken possession of them, as part of the estate of A, yet in equity, they would be held to be remitted to the title of B ; and that they were accountable to the distributees of B, and could not allege a tortious conversion, to evade the distribution.
    Secondly — That as A, in hjs life-time, had possessed himself of a part of the estate of B, and was accountable in his lifetime to the administrators of B, for the same ; and the two administrations, after the death of A, being vested in the same person, the latter would be held, in equity, to have retained out of the estate of A, what was due to the estate ofB, and was accountable, in equity, to the distributees of B, on the ground, that there was no remedy, at law, as long as the administrations of A’s and B’s estates were joined in the same person ; and that as the same person had possession of both eslatés, he would be presumed to have retained, out of A’s estate, what was due to the estate of B, whether it existed as a debt, or unliquidated damages.
    Thirdly — That while the equities of the bill might be enforced against D, administrator, in right of his wife C, of B’s estate — : yet it did not follow, that D, as the administrator of A, was released, or that there was no'equity against him: but as the bill sought to establish the liability of the estate of A, and not alone to call on A’s administrator, a's a trustee, to distribute the effects)- it was necessary to make A’s administrator a party. Fourthly — That the bill being filed to effect distribution of B’s estate, and no liability being sought to be enforced against it, there was no necessity, to make the administrator de bonid non,- of B’s estate, a party.
    2. A bill of revivor, or other bill, ancillary to a main' causé before a Court of Chancery, can not be dismissed by itself, tinder the fourth rule, regulating Chancery practice.
    8. The representative of an administrator, is liable, directly to a-creditor or distributee, for assets of an éstate, wasted or Converted by him.
    4. One who is an administrator of an estate, in right of his wife,-does not have his character so changed b'y her decease, as to' render it necessary to revive proceedings in equity (commen-’ ced in her life-time against both,) by a supplemental billy charging him as executor de son tort,- of such estate.-
    In error to a decree of the Circuit Court of Monroe County, exercising Chancery jurisdiction.
    This was the case of a bill in equity, filed in the’ Circuit Court of Monroe County, in February eighteen hundred and twenty-seven, by James H. Draugh-on and Jane Edwards, against LafdnerC. French amcl Mary, his wife.
    The bill alleged, that Magnus Draughon of Monroe* County, died on the eighth day of September, eighteen hundred and twenty, intestate, leaving his widow, Mary Draughon, James H. Draughon, Robert-H. Draughon. Miller C. Draughon, and Jane Edwards, his brothers and sisters, entitled to distributive shares of his estate — he dying without issue.
    That administration on his estate, on the sixth day of February, eighteen hundred and twenty-one,, was committed, by the competent jurisdiction of Monroe County, to the said Mary Draughon and Robert H. Draughon, who took possession of the estate of intestate, returned inventories, and sold ail the personal property, except the slaves, and certain articles, specified in the inventory, which were taken by the said administrators, at the appraised value, in conformity with an agreement between the parties interested in said estate ; and the slaves were distributed to those entitled to receive them.
    It was charged, that no account of the property gold, had been returned to the County Court. That .after the inventory, appraisement and sale, there yet remained a large amount of money due the estate, from various persons residing in North Carolina — in reference to which, it was agreed between the administrator and administratrix, that the said administrator should take the receipts for the evidences of said debts, and proceed to North Carolina, collect and settle the same. That the evidence of those debts was permitted to remain with the admi-nistratrix, who was charged to have violated her .agreement about the same, and to have permitted her father, Benjamin Locke, to take possession of them, and to have authorised him to proceed to North Carolina, and there take administration on the estate of the intestate, and collect the debts clue there ; and for this purpose, she signed a relinquishment of tier right to the administration there, to the said Locke, who procured administration to be granted to him. An inventory of those debts, amounting to two thousand seven hundred and sixteen dollars and forty-four cents, was appended.
    That application was repeatedly made, by said administrator, to his co-administratrix, to account and settle for these notes, so in the possession of said Locke, with her consent and approbation — which was constantly refused. That Robert H. Draughon died on the ninth of September, 1822, testate; and that complainant, James H. Draughon, duly proved his will, as executor, and received letters testamentary thereon. That shortly afterwards, he applied to the said administratrix, to account for the said debts, and for the property sold, as before stated, and remaining unaccounted for — which she refused; and shortly afterwards intermarried with Lardner C. French, who also refused an application to come to any account.
    And the bill charged, that the said Mary and Benjamin Locke combined together, to defraud the heirs of Magnus Draughon, of the undivided portion of his estate; and, in order to enable Locke to consummate this object, the said Mary signed the relinquishment of her right to administer.
    That Benjamin Locke, in eighteen hundred and twenty-six, departed this life intestate, and letters of administration, on his estate, were granted to defendant, French, and one William J. Moore, who died in the month of February, eighteen hundred and twenty-seven; and that Lardner C. French was, at the filing of the bill, the sole administrator of Lock.

      That Locke had a life-estate, in slaves, named Ben, Sam, Will, and Job; and, on his death, the same her came the bona fide right and property of the said esr tate of Magnus Draughon, as would appear by a bill of sale, a copy of which was exhibited — by which it appeared, that in eighteen hundred and .twelve, for a valuable consideration, Locke sold the said slaves to Magnus Draughon, reserving to himr self the right to retain possession, and use the same during his life.
    That the said Locke, by another bill of sale, a copy of which vyas exhibited, in eighteen hundred and seventeen, sold eight other slaves, named Jenny, Clarr resa, Charles, Cloe, Amy, Prince, little Sam and Jm ba,to Magnus Draughon, for a valuable consideration- and that the said Locke, was, at the time he died, in possession of two of the same, Amy and Juba, to which the estate of Magnus Draughon was entitled, That after the death of Magnus Draughon, all the papers, touching the business or property of the estate, were permitted to remain with the said defenr dant, Mary — among which papers were the bills of .sale of the slaves aforesaid. That after administra^ ition on the estate of Locke was committed to French and Moore, Moore was notified, that the two last named slaves belonged to the estate of Draughon.
    The bill further charged, in confirmation of the title of Draughon to all these slaves, that Locke admitted, in his last sickness, that they belonged to Draughon’s estate.
    All these slaves were charged to be in the posses.sion of defendant, French; and that he refused to de-r liver up or account for the same, as the property of the estate of Draughon. That after the death of Magnus Draughon, Locke sold to one James Kidd, a negro slave, named Anthony, which belonged to the estate of said Draughon.
    The bill prayed an account of the estate of Mag-: •nus Draughon, so far as the defendants, or either of them, then had or may have had, the control of the same. — That the defendants might account for the notes, bonds, &c., which were placed in the hands of Loche, with the assent of defendant, Mary.
    That the estate of Locke, in the hands of French, plight be decreed to pay the amount of such bonds and notes. That the negro slaves, Amy, Juba and Anthony, might be decreed the property of the estate pf Magnus Draughon, and hire for' the same, since his death. That the slayes, Ben, Sam, Will, anc| Job, be decreed to be the joint property of defem .dant, Mary, and the complainants, and that the defendant, French, as the administrator of Locke, plight be decreed to pay a reasonable hire for the .same, until he should deliver them to be divided, as •the law directed; and concluded with a prayer of other and further relief, as the equity of the case required.
    At March term, eighteen hundred and twenty-seven, the defendants having been served with process of subpceng,, appeared, and the bill was answered Oc--tober term, eighteen hundred and twenty-seven. The cause was continued under orders to take testimony, until March term, eighteen hundred and thirty, when a supplemental bill was filed, suggesting that since the last continuance of this cause, Mary French, the sole surviving administratrix of Magnus Draughon, had departed this life, and that there was then no administrator on the said estate : that all the property and effects, together with the evidences of debt due the estate of Magnus Braughon, passed into the hands of Larduer C. French, who then had possession of the same: .that no administration de bonis non, of the said Magnus had been granted; and prayed that the suit might revive; and that the legal representatives of the said Mary, when known, might be made parties.
    This supplemental bill further stated, that all the property of the said Mary, and all the estate and effects of the estate of Magnus Braughon, at her death, passed to the hands of French. — And further prayed, that so far as the estate of the said Magnus Draugh-on was concerned, the suit might revive against the said Lardner, as th ¡¿administrator of his own wrong; and that he might be held accountable, &c. An order was also prayed, commanding French to enter into bond, conditioned that certain property -and effects, specified in an exhibit attached to the bill, should be forthcoming to abide the final decree; and that French might have forthcoming, to answer a decree of the Court, a sufficiency of the estate of Magnus Braughon, and of the estate of Locke, to answer and satisfy complainant’s demands, as the. same might be ascertained on a final hearing.
    This order, so far as related to the estate of Braughon, was granted by an interlocutory decree — ■ process of attachment issued, and on the sixth August, eighteen hundred and thirty, French executed a bond under, though not in conformity with the interlocutory decree.
    At October term, eighteen hundred and thirty, Benjamin Hunt, administrator of Magnus Draughon, was made a party, on motion. At October term, eighteen hundred and thirty-one, French filed a plea in the cause, protesting against the continuance of the suit, and insisting, that the .same had been abated, and that he ought not to be precluded from insisting on the abatement and discontinuance ; and prayed judgment of the said bill of complaint, because one Benjamin Lansdaie, since the last continuance of the cause, had tiled his bill of complaint in the Circuit Court of Dallas County, alleging, among other things, that Benjamin Locke, before his death, made his will and testament, duly published and executed, and praying that the same should be established; and that the said Lansdaie, by his said bill of complaint, had charged the said Lardner, as administrator of Locke, as aforesaid, and made him a party defendant to the said bill of complaint, which said bill remained wholly undetermined ; wherefore the said French prayed the judgment of the Court, if the Court would proceed further.
    What action, if any, was had by the Court, on this plea, so peculiar in its character, did not appear.
    At March term, eighteen hundred and thirty-two, the complainants had leave to amend their bill, by making George L. Mecllock, sheriff of Monroe, a party: and the defendant, French, moved to dismiss the supplemental bill against him, which was taken under advisement, and a decree was rendered in vacation, as of that term, dismissing the bill, for want of prosecution, under the authority of the fourth rule of this Court, regulating the practice in Chancery.
    On the eighteenth July, eighteen hundred and thirty-two the complainants filed a bill of revivor, setting forth that G. L. Medlock, sheriff of Monroe County, had been appointed administrator of Mag-nus Braughon, in the place of Mary French, praying that he .might be made a party defendant, and that the suit might revive. Process of subpoena directed to the cotonor, was issued o'n this bill, of which a copy was handed to Medlock,- by the complainants’ counsel; but no service appeared to have been made by the coronor.-
    At the October term, eighteen hundred arid thirty-two, the presiding judge having been of counsel, no Orders were made.
    At March term, eighteen hundred and thirty-three,the bill of revivor was dismissed for want off prosecution', under the fourth rule off this Court, for the' regulation of Chancery practice, and a formal decree' as to all the parties, was rendered. This decree assumed, that so much of the bill of complaint as sought to charge French as administrator, in right of his wife, of Magnus Braughon,- deceased, and against Mary French, administratrix of Magnus Braughon,-was abated, by the death of the said Mary, before October term, eighteen hundred and thirty, and had never been revived — and proceeded to dismiss the Only remaining part off the bill, for want of equity — ■ that is,- against French,- as the administrator of Locke'.
    Argued by Gibbons, for the plaintiff in error.
    Clarke, contra.
   GOLDTHWAITE, J.

— This cause has be'en re-' moved to this Court by writ of error, and it is now assigned for cause of reversal—

1st. That the bill in which Lardner C. French was charged as administrator of his own wrong,should not have been dismissed.-

2nd. That the bill of revivor against Medloek, as-the administrator cf Magnus Draughon, should not have been dismissed.-

3rd. That the final decree, dismissing the bill, as-to French, administrator' of Locke, should not have’ been made.-

Since the cause has been removed to this Court,, one of the complainants, Jane Edwards, has died ; and her personal representatives not having been made parties, the suit must abate, in so far as she is-concerned. The death of the defendant, French, has also been suggested, and his personal representatives have been made parties.

It will much facilitate the proper understanding of the cause, if the bill shall be so analyzed, as to present the' distinct equities which arise from the facts stated in the original bill, as between the complainants and the defendants, in their different representative characters.

It seeks to charge Mary French and her husband, as the administratrix and administrator of the estate of Magnus Draughon, for such portion of the estate as has not been distributed. This consists of,

1st. The personal estate, sold and unaccounted for. .

2nd. The debts due Draughon, in North Carolina, which it charges they are accountable for, because Mrs. Draughon permitted Locke to obtain possession of them, by voluntarily relinquishing to him the right to administer on such part of her husband’s estate as was in North Carolina.

It seeks to charge the defendant, French, as the administrator of Locke, with—

1st. The debts due to Draughon, in North Carolina, which were, or which could have been collected under the administration, in North Carolina.

2nd. For the several slaves, which were in the possession of Locke when he died, which belonged to the estate of Magnus Draughon, but whiclí are charged to have been taken by French, under color of his administration on Locke’s estate.

3d. For the hire of the two slaves, Amy and Juba, from the death of Draughon ; and hire for the others from the death of Locke.

4th. For the value of the slave Anthony, which is charged to have belonged to the estate of Draughon, and was sold after his death, by Locke.

It should be constantly remembered, throughout the examination of this case, that the administration on Draughon’s estate, and the administration on Lock’s estate, were in the charge of the same individual, subsequent to the death of Moore. , French, administrator of Draughon, in right of his wife, had as complete control over it, as French, administrator in his own right, could have over the estate of Locke. Was one of the estates indebted to the other, or had one intestate taken and converted to his own use, the property of the other, no suit or action could be maintained, so long as the administrations were united in the same person. French and wife, as administrators of Draughon, could not have sued French, administrator of Locke. And the rule would have obtained, if French, before the death of his intes-tates, had taken and converted their property to his use.

Without adverting to this distinctive feature in the bill, it might be thought there was no equity in it, so far as the relief is sought for the taking or converting the slaves; and perhaps, also, so far as relief is sought against French, as the administrator of Locke, for the money collected on the administration in North Carolina.

The bill seems to have been framed with a view to the particular equities, which have been before slated; but the only appropriate prayer for relief against French, as the administrator of Locke, seems to the Court to be—

1st. For the amount of the debts collected in North Carolina, on the administration there, supposing it not to be ancillary to the administration here, and that a payment by Locke, to Mrs. French, would not discharge him from his liabilities to account directly, to the distributees of Draugbon’s estate.

2nd. For the value of the slave Anthony : and

3rd. For the hire of the two slaves, Amy and Juba, from the death of Draughon, to the time of the death of Locke.

In relation to the slaves themselves, and also the other slaves, in which it is said Locke had a life estate, they never could, on the facts stated in the bill, be made the subject of a charge against Locke’s estate, unless Locke had converted them, in his life-time. French was not, nor could he be in possession of them, as Locke’s administrator. — It is alleged, Locke had no title, and that they belonged to the estate of Draughon — consequently, when French came to the possession of them, it was as a tort-feasor, or by virtue of the title vested with him., as Braughon’s administrator ; and, it seems, he would not be permitted to allege against the distributees ,of Draughon, that Jie took them, as a wrong-doer. If they did not belong to Locke’s estate, he would have had no right ■to take them, except they did belong to the estate of Draughon, which estate he also represented.

An analogy is believed to exist between this case and that of a remitter, which is defined to be, “where he who has the true property in lands, but is out of possession thereof, and hath no right to enter, without recovering possession by action, has after-wards the free-hold cast on him by some subsequent, and of course defective title — in this case he is remits -ted, o.r sent back by operation of law, to his ancient and better title.”

Now here, if the facts stated in the bill be true, French having the possession cast on him, either by his own act, or by operation of law, is remitted to his title, under the estate of Draughon. '

If a tort-feasor died in the possession of slaves, to which he had not acquired a title by possession, and administration on his estate should be committed to the true owner of the slaves, would he not be remit:ted to his better title?

And in relation to all the other matters, charging French, as administrator of Locke, with indebtedness ,and accountability to the estate of Draughon, we think the doctrine of retainer, applies with much force.

It is true, that all the authorities in reference to retainer, speak of <£ debtsbut the reason of the rule, as laid down in Toller on Ex. 295, is this.— This remedy arises from mere operation of law, on the ground, that it were absurd and incongruous, that he should sue himself, or that the same hand should at once pay and receive the same debt; and therefore, he may appropriate a sufficient part of the ■assets, in satisfaction of his own demand—otherwise he would be exposed to the greatest hardship: for, since the creditor who first commences a suit is entk tied to a preference in payment, and the executor can commence no suit, he must, in the case of an insolvent estate, necessarily lose his debt, unless he has the right of retaining.”

This rule applies with equal force, to a demand which is unliquidated in its character. There seems to be no sufficient reason which can be urged, why the executor or administrator should not retain, in all cases, when the action would survive. Certainly the damages on an action of covenant, or assumpsit, for the non-performance of a contract, are not higher in a moral standard, than those in detinue or trover.

If A be indebted in a bond to B, and die, having appointed B his executor, who, after having inter-meddled with the goods, and before probate, also dies, although before his death he did not elect in what particular effects he would have the property altered, yet his executor shall have the same power of retaining. And the right to retain exists in equity, .as well as at law.

This reasoning, if Correct, establishes, that all the equities of this bill might be enforced against French, administrator in right of his wife, of Magnus Braugh-on’s estate ; but we do not think it is a consequence, that French, as the administrator of Locke, would be released, or that there is no equity in the bill against him in that right. Independent of its presenting the case of two funds, against which the dis-tributees of Draughon might elect to proceed, or in case of the deficiency of the one, to resort to the other, it was essential to make the administrator of Locke a party to the bill — inasmuch as the bill seeks to establish the liability of the estate, and not merely to call on the administrator as a trustee to distribute the effects.

In this respect, the bill presents a remarkable difference in the action sought against the individuals in their several representative capacities. It calls on therepresentatives ofBraughon, as trustees, to compel a distribution ; but as against the representatives of Locke, it not only does this, but also to establish a liability.

Having arrived at the conclusion that there is equity in the bill, against French, as the administrator of Locke, we might dismiss the further consideration of the case, if it did not involve some questions, which are material to the cause as it now stands.

It seems to have been considered necessary, that the administrator de bonis non, of Magnus Braughon, should be made a party to this cause. If such was the fact, it was error to dismiss the bill against Med-lock — because, being a necessary party, if sent out of Court, then lie must have been brought in, before a final decree could be pronounced. Our construction of the fourth rule of this Court, for the regulation of Chancery practice, is, that a bill of revivor, or any other bill which is ancillary to the main cause before the Court, cannot be dismissed by itself, under this rule. When the hill is dismissed for want of prosecution, it should be the main bill, and the whole cause should be at an end..

But this particular bill was rightfully dismissed, though not for a right reason. There was no necessity for an administrator dehonisnon ofBraughon, to be before the Court, under the facts then or since exhibited. The bill was filed against administrators to distribute an estate ; and inasmuch as no liability was to be enforced against the estate, as such, it needed no representatives to defend its rights. The administrator, like any other trustee, was, before the Court, called on to account for a trust fund.

This Court, in the case of Chamberlain, adm'r vs. Bates, adm’r has decided, that “an administrator, de bonis non, cannot maintain an action at law, against the representatives of a former administrator, to recover money received by the latter in the course of a partial administration, and not accounted for or paid over; andas a consequence, it must result that the administrator of an administrator, is liable to account directly to the creditor or distributee.

The case of Coleman v. McMurdo & Prentis, is an authority to the same effect, and settles, conclusively, that the representative ofi an administrator may be sued directly, by the creditor or distributee, where the assets have been wasted or converted by him.

The only remaining point to be examined, is the dismissal of the supplemental bill, seeking to charge French, as administrator de son tort, of Draughon, after the death of Mrs. French.

It is presumed that the expression, administrator, de son tort, was introduced into this bill, by mistake, and that executor, de son tort, was intended. It is difficult to conceive how an administrator in right of his wife, on her decease, could have his character modified or changed. It may be sufficient to say, that this proceeding was \yholly unnecessary, when viewed in any other light, than suggesting to the Court below the death of one of the defendants.— There was, therefore, no error in dismissing this supplemental bill.

It may be necessary to add, that previous to a final decree in the Court below, all the distributees should be made parties, or reason shewn why the same cannot be done.

The decree of the Circuit Court, dismissing the bill as to Medlock, must be affirmed; and the final decree dismissing the bill as to French, as administrator of Locke, must be reversed, and the cause remanded to the Circuit Court, with directions to proceed in the cause, and if necessary, to amend the bill, and make new parties; which we cqnceive to be necessary, so far as the other distributees of the estate of Magnus Draughon are interested ; and as the bill seeks to establish a liability against the estate of Locke, as well as to compel a distribution against the defendantFrench, for a fund already in his hands, it is considered that the administrator de bonis non of Locke, may be a necessary party to such parts of the bill as seek to establish a disputed liability of the estate for the slave Anthony, and the hire of the slaves Amy and Juba, from the death of Braughon to the death ofLoe.be.

The oosts must be decreed against the repre.enta-tives of the defendant French, so far as the judgment is reversed, and in favor of Medlock, so far as affirmed.

HOPKINS, C. J. not sitting.

       SBiacte ^9,

      3P.Wms. 183, '84, St note B.

       Tol.onEx 195. lP.Wms. 296.

       gj?0Porler'

       5Rail(J-5i


source: Caselaw Access Project

author: COLLIER, J.

license: Public Domain

text:
    HARBIN VS STEWART.

      As to the right of a County Treasurer to maintain an action.

      1. Where an act of the Legislature repealed a power previously given to a Judge of the County Court, and Commissioners nof Roads and Revenue, to establish a poor house, — and required a sale bv them of all property purchased with that wiew^-it was held — •
    First — That the judge and commissioners were alone au-thorised io maintain an action against a purchaser of sucfe ■property.
    Second — -That the County treasurer could maintain no action against the purchaser of the property sold, on the order ■of the Court to collect the proceeds of the same.
    On a writ of error (o’ the Circuit Court of Autau-ga County..
    The defendant in error brought Lis action of as-sumpsit, (as the County treasurer of Autauga,) in the Circuit Court of that County, against the plaintiff; and declared—
    First — For money had and received, for the use of •the County.
    Second — Upon an account stated.
    Third — For corn sold and delivered, under an order for a sale, made by the judge of the County Court ■and commissioners of roads and revenue, upon the breaking up of the poor house of that county — which sum, the defendant in error, (it was alleged,) was directed to collect, by an order of the judge and commissioners, aforesaid.

      Bargan, for the plaintiff in error.
    Thorington, contra.
   COLLIER, J.

— Several questions are raised, by the assigament of errors ; but the first, which brings to view the right of the defendant in error, to maintain the action, we consider decisive of the case.

By an act of the legislature, passed January, the seventh, eighteen hundred and twenty-eight, the judge of the County Court, and commissioners of roads and revenue of several Counties, (among which is Au-tauga,) are authorised, whenever they, or a majority of them shall deem it necessary, to purchase and-receive title to any quantity of land, not exceeding one quarter section, the title to which is to be made to the judge of the County Court and his successors, and be the property of the County. It is further directed, that the judge and commissioners shall contract for building necessary houses, and that all subjects of charity shall be sent there, &e.

By an act of the twenty-fourth of November, eighteen hundred and thirty, the act of the seventh January., eighteen hundred and twenty-eight is repealed, as to Autauga, and it is made the duty of the judge of the County Court and the commissioners of roads and revenue of that County, “ to sell and dispose of all property, both real and per-? sonal, that may have been purchased by virtue of that act, ”on such terms as they may think the ppbliq good requires.

We have no law, which provides, fpi? the appoint-; ment of supervisors and trustees pf counties, as there is in sume of the States, neither do our laws direct who shall assert, by suit, the rights of the County— nor is the County itself, ezjjressltj invested with authority to sue or be sued. Every case, then, touching the interests of a County, must depend upon its own peculiar circumstances.

The treasurer of a County is authorised to receive all monies belonging to the County—to keep accounts of receipts and disbursements—to report to the County Court, &c.: but no authority is given him to employ coercive measures to collect public dues.

In the absence of all express legislation, in this particular case, it would seem that the judge of the County Court, and commissioners of' roads and revenue, can alone maintain the action. The act of November, eighteen hundred and thirty, authorises them to sell and dispose of, on such terms as (hey may think the public interest, demands, the property appertaining to the poor-house establishment. This provision gives a discretionary power to the judge and commissioners, to sell either for cash or on time; and mast, from the fitness of tilings, give them the right to coerce payment by suit, if it is withheld— and may, quoad hoc, be- considered as constituting •them a cot partition.

In Tilden vs Metcalf, the Court inclined to the opinion, that a resolve of the legislature, authorising part of a society to meet, make contracts, appoint officers and levy taxes, constitutes such society a .corporation.

The treasurer certainly derives no authority from any act of the Legislature, to maintain this action j nor can it have been imparted to him by the order of the judge and commissioners, which directs him to collect the demand in controversy. It is not such a liability as may be transfered by any form of assignment, even by persons acting in their natural capacity, so as to pass the legal right.

In as much then, as the action was brought by one pot entitled to it, the judgment is reversed. ■

       SD.iy’s C


author: HOPKINS, C. J.

text:
    HAYS et al. VS HALL et al.

      As to the specific execution of contracts for the sale of lands, in equity, in favor of the representative of an estate.

    1. Where, on a contract for the sale and purchase of an estate, either party has performed a valuable part of his agreement, 'and is in no default for performance of the residue, — he is entitled in equity to a specific execution of the other part of the contract.
    2. Equity will decree a specific execution of a contract, in favor of one performing a valuable part of his agreement, and who is in no default, — wherever it is impossible to place him in stain quo.

    3. Time may be of the essence of a contract, in equity, when required by the terms of the contract; and, it seems, also, in cases where one party seeking relief, is in default, without excuse, or acquiescence or waiver, by the other party.
    4. Where the specific execution of an agreement respecting lands,' will be decreed in equity between the contracting parties, — it will also be decreed between all claiming under them in priority of estate, or representation, or title — no controlling equities interposing.
    5. In a case where A made an agreement for the sale of lands, with B and C, and took the notes of the latter, with D.and E as sureties; and A gave his bond, conditioned to make titles to the lands, when the notes were paid; and immediately af-terwards B and C assigned the bond to D and E, to indemnify them, for becoming sureties; and subsequently, A dying, and D and E being in possession of the lands, and D, exercising a control over them, paid the last note due, after suit, and took from A’s representative and heirs, a bond, conditioned for the executing of a title to D, within a specified time,, and on the- expiration of this time, brought his action upon th&
      bond; — On a bill filed by A’s representative and heirs, it was held — •
    First — That the administrator, under the facts, was entitled to a specific execution of the contract of his intestate, and that the heirs of A might well become parties to the suit, as complainants.
    Secondly — That the bond executed by the representative and the heirs, was without consideration and void.
    Thirdly — That the complainants, in applying to Chancery for a specific execution of the agreement of their intestate, had a right also to make the matter of their bond, a part of the case: and that in decreeing a specific execution, Chance* ry, could decree also a cancellation of the bond.
    Fourthly — That it was a just excuse for the delay of the' administrator, to file his bill sooner than be did, that the party holding the bond of his intestate, might have applied to the Orphans’ Court, and there have perfected a title.
    Fifthly — That the assignment of the bond of the intestate, by the vendees, to their sureties, created an equitable mortgage of the lands, in favor of the latter, which might be foreclosed.
    Sixthly — That in a case of this character, it was essential to make all the heirs of the vendor, and of the assignee of the vendees, parties to the cause before a decree could be rendered; but that all the amendments for this purpose,'could be made on remanding the case to the Court below, on a mandate from this Court.
    In error, to a decree of the Circuit Court of Lowndes County, exercising Chancery jurisdiction.
    The original bill in this case, was filed by Richard II. Hays, Patrick W. Hays, and Robert S. Hatch-er. It shewed, that in the year one thousand eight hundred and twenty-six, one James Hays agreed to sell and convey to John Edmondson and Samuel Goodall, sundry tracts of land, fprthe price •of two thousand dollars, to hare been paid in January following: that the said Edmondson and Goodall gave a note or notes for the said sum of money, with Boling Hall, and Henry tucas, as sureties, and took from.James Hays a bond, in the penalty of five thousand dollars, conditioned that Edmondson and Goodall should receive titles for the land purchased by-them when the said payment should be made. The bill further shewed, that the said notes were afterwards paid 'by the said Hall, or by Halt and Lucas, and prior to which said James Hays died intestate — administration on his estate being: granted to Richard H. Hays. That daring the life time of James Hays, and before the payment of said notes or either of them, Edmondson and Goodall, to indemnify the said sureties, assigned to them the bond of Hays the intestate, and that afterwards, to wit, in the year one thousand eight hundred and twenty-seven-, the said Hall and Lucas w?ere put in possession of the lands: and that said Hall had, under that possession, collected a large sum of money as rents. That subsequently Hall, or Lucas and Hall, sold the land to one Betts for one thousand six hundred and twenty dollars, on a credit of one, two and three years, taking Betts’s notes,'and agreeing to make him titles when the purchase money should be paid ; and under which sale, Betts obtained possession--— That afterwards, before the purchase money became due from'Betts, Hall rescinded the contract, but that Betts remained in possession. That a large portion, of said lands was cleared, and had .been cultivated, and that commodious buildings had been eiected. The bill then charged, that after the death of James Hays, and before the last payment was made on ac-Coant of said lands, the same being much needed for the purposes of the estate, the said Hall induced the complainants to execute to him a bond in the' penal sum of live thousand dollars, conditioned that a title' should be made to Hall, of the said- lands, within four months after the date thereof; the said term of four months being inserted, as the probable period necessary to perfect a title to Hall through the Orphans’ Court — the said Hall agreeing to that time, and protesting that no advantage should be taken oh account of the time, and still retaining the bond of the intestate, James Mays. That Richard H. Hays, one of the complainants and administrator of the estate, on-making an effort, subsequently, to comply with the' condition of the said bond, in obtaining the title from the Orphans’ Court, was instructed by the Court, that his application could not be considered — ■ the law requiring' the same to be made by Hall,-1 — of all which Hall was informed, and a request urged upon him to apply accordingly; which Hall promised to do, at a convenient time. That, violating his promise, to make the aforesaid application to the Orphans’ Court, Hall delayed and refused to do so, unj til after the four months had expired; and, notwithstanding that complainants were the sole heirs of the said James Hays, and had proposed to Hall, a deed or deeds for the said lands, he had refused to receive any suclq and had actually commenced suit upon the bond executed to him, by complainants; which was then pending.
    The bill, after charging a want of consideration, in the execution of the bond, from complainants to Hall — and many other immaterial matters, prayed relief, in enforcing the execution of the contract, and an injunction of the proceedings at law.
    The answer of Hall admitted the sale of the lands, as charged in the bill; stated that the full amount of the notes had been paid by respondent and Lucas. That on the last note respondent was sued in the name of one Love, as bearerthat being about to apply for an injunction to stay the recovery on this note, until he could obtain titles — Edmondson and Goodall being entirely insolvent — an interview was effected with complainants; and on respondent-paying the amount of said note, then in suit, complainants executed their bond, as set out in the bill. The respondent denied that time was not material, but averred it was so considered;, and that he advised complainants to take ample time to effect the object. He also denied the receipt of any rents, as charged, or that he liad been in the possession of the said lands : admitted that Betts did apply to him for a sale of the lands; but on account of the defect in the title nothing was done.— He further admitted the possession of the bond of James Hays, but denied any knowledge of the proceedings to effect a title, instituted by complainants, before the County Court, &e.
    Lucas also answered the bill, but stated no facts materially varying from those stated in the answer of Hall.
    The proofs taken in the cause, among other immaterial matters, established, that Hall had, upon many occasions, exercised a control over the lands — having rented them to some persons, and contracted for their sale to others. And also, that the lands had deteriorated in value, by cultivation and waste.
    The Chancellor dissolved the injunction, and dismissed the bill.
    The case was argued by
    Thorington, for the plaintiff in error; and by Clarke, contra.
   HOPKINS, C. J.

— The bill, in this case, was filed by Richard H. Hays, Patrick W. Hays, Robert S. Hatcher, and Nancy, his wife. Before the cause was heard in the Circuit Court of Lowndes County, Patrick W. Hays died, and his executrix, Martha B. Hays, was made a party to the bill, as one' of the complainants.

The material allegations of the bill, which we deem it necessary to consider, are, that James Hays, the father of the complainants, Richard H., Patrick W. and Nancy Hatcher, sold, in November, eighteen hundred and twenty-six, the lands that are described in the bill, to Edmondson and Goodall, two of the defendants, at the price of two thousand dollars.— That the purchase money was to be paid in two instalments, and for which the purchasers gave two notes to the vendor, with Hall and Lucas, who were also defendants to the bill, as their sureties.— One note was payable, the first of January, eighteen hundred and twenty-seven, and the other the first of January, eighteen hundred and twenty-eight. That the vendor made his bond to the vendees, in the penal sum of five thousand dollars, conditioned to be void, if he should, upon the payment, of the two notes, or soon after,'convey a good and legal title, in fee simple, to the lands, to the vendees. That the bond was, upon the day of its date, assigned by the vendees, to Hall and Lucas, to indemnify them against the liability they had incurred, as sureties for the purchase money.

That, in eighteen hundred and twenty-seven, ihe •vendees put the assignees, or Hall, one of them, into the possession of the premises, for the benefit of the assignees, and that Hall had received a large sum oí money, as the rents of the land. That the lands, since the sale, have been greatly injured by cultivation, and diminished in value.

That, in September, eighteen hundred and twem ty-eight, and before the payment of the note that was last payable, the vendor died intestate. That administration upon his estate was granted to the complainant, Richard H.; and his heirs at law were his three children, who are complainants, and the children of a daughter, Mary Merriweather, who died in her father's life-time. Her husband, who survived her, and her children, together with Allen Love, the husband of Martha G., who is one of the last mentioned children, are defendants to the bill.

They allege, that before the last instalment of the purchase money was paid to the administrator, Richard H., he and the complainants, Patrick W. Hays and Robert S. Hatcher, made, on the twenty-first ,of April, eighteen hundred and twenty-nine, their bond to the defendant, Hall, in the penal sum of five thousand dollars, conditioned to be void, if they should convey a good title in fee simple to the same lands, within four months from the date of their bond. That soon after the breach of the condition of their bond, Hall put it in suit, claiming to recover upon it the sum, with interest, which had been paid upon the sale of James Hays.

They aliege also, that Hall had, at the time they executed their bond, and still has the bond of James Hays; and that their own bond was made without consideration, as the former one is a valid and subsisting obligation against the representatives of James Hays, upon which the persons who are entitled to the benefit of it, have a summary remedy to obtain a specific performance of the agreement to convey the lands in an Orphans’ Court.

As many of the allegations are not admitted in the answer, and were not proved upon the hearing of the cause, they are omitted in this statement.

Hall and Lucas, both admit the agreement for the sale of the lands — the execution of the notes for the purchase money — of James Hays’s bond, and the assignment of the latter to them, as stated in the bill. Hall admits also, that he still has the bond of James Hays-; but denies that he ever had the possession of the lands, or exercised any control, or act of ownership over them, or had ever put a tenant in possession, or received any sum of money, as rent of the premises. He states, that upon the note which first matured, a judgment was obtained against Lucas, which was satisfied by Lucas and himself jointly.— That suit was instituted on the other against him. That he employed counsel who had prepared a bill upon which he intended to apply for an injunction to stay the proceedings at law, until he could obtain a conveyance of the title to the lands, when it was agreed between himself and Richard H. and Patrick W. Hays and Robert S. Hatcher, that they should make the bond which they executed in consideration of the payment by him, of the sum due on the note, then in suit.

It was proved on the .hearing in the Circuit Court, by the deposition of W. Oliver, that he was autho-rised, in eighteen hundred and twenty-seven, by a letter of Hall, that had been lost or mislaid, to sell or rent the premises, and that he did rent them to John Green and W. Pearce.

By the deposition of John Green, it was proved that he, one Autry and W. Pearce rented the lands one year of W. Oliver, and that he paid the rent due from himself to Samuel W. Oliver.

It appears from the proofs, that Isaac Betts, one of the defendants, took possession of the premises, or a part of them in the autumn of eighteen hundred and twenty-eight, by the authority of Hall; that he had the possession as late as January, eighteen hundred and thirty; and that one Walker also entered upon the possession of a part of the lands, on a contract with Betts.

A letter written by Hall, dated the 2nd of October, eighteen hundred and twenty-eight, and addressed to Samuel W. Oliver, is annexed to the answer of Hall,-as an exhibit. In the letter Hail informed Oliver, that Betts was authorised to take immediate possession of the premises, unless some of Hall’s friends had previously rented them to some other person.

We conclude from the testimony, the possession of the lands was given to the purchasers, and that they have been occupied since the sale by persons who entered upon them as tenants of Hall, or by the permission of his tenants. It appears also from the proofs that the value of the premises has been reduced greatly since the sale, and no other cause of this effect is shown by the testimony, than the failure of the persons who have occupied the premises, to keep them in repair. Neither instalment of the purchase money was paid punctually; each was paid by the sureties of the vendees after a suit had been instituted, to compel payment. The vendor died eight or nine months after the last note was due. If the failure to pay the first instalment punctually, gave him a right to rescind the agreement, he waived the right by the acceptance of the money, and he acquiesced in the neglect to discharge the other note by asserting no claim to the possession of the lands, lie was not bound to convey the title before the whole purchase money was paid, and he died in no default, because no right existed during' his life to demand a conveyance of liim. As he had acquiesced in the delay of the vendees to pay the purchase money, his personal representatives had a right to do so also. That he did so is proved by the fact that he afterwards reeeieved the balance of the purchase money. At no time before the whole purchase money was paid, bad the purchasers any ground upon which they could have been permitted to avoid the specific execution of the agreement. The effect of their own default was against them, and in favor of the vendor and his representatives; and all benefit from that default has been waived by those who might have claimed it. If the last instalment had not been paid, a bill might have been filed by the personal representative of the vendor to compel a specific performance, and upon such a bill in such :tca<e, the decree sought; ought to be made. The vendor performed, during his life, a valuable part of the contract, by parting with the possession of the lands, and had a right before his death, as the last note became due prior to that event, to a specific execution of the agreement,!

The principle is «veil settled, that where either party has performed a valuable part of his contract for the sale and purchase of an estate; and is in no default for not performing the residue, he shall have a specific execution of the other part of his contract This right the vendor did nothing, after he acquired it, to impair, and after his death it belonged to his personal representative, if he chose to claim it. The possession from which the vendor parted was never regained or claimed, either by himself, whilst he lived, or by his representatives after his death. The value of the lands has been diminished since the sale of them, by the want of proper care in those from whom it was required. The impossibility of placing a party in statu quo, who has performed a valuable part of his agreement, and was in no default for not performing the residue is another ground for the specific execution of the agreement. If the sale could not be executed, the heirs of the vendor would be injured by (he consequences of duties omitted, or of acts which were not the vendor’s or their own. Time may be of the essence of an agreement in a Court of Equity. It is always essential, when it is made so by the terms of a contract ; and it is considered so by some able Chancellors, in every case, in which the party who seeks relief has been in default himself, without any just excuse, or any acquiescence or subsequent waiver, by the other party.

But for' the acquiescence and acts of waiver, on the part of the vendor and his personal representative, the vendee never would have acquired a right to the specific execution of the agreement, in this case.

It is a general rule, that where the specific execution of an agreement, respecting lands, will be decreed between the parties, it will be decreed between all parties claiming under them in privity of estate,- or representation, or title, unless other controlling equities are interposed.- The rule is thus stated in 2d Story’s Eq. 96, 97.

The purchase money is treated, in equity, as the personal property of the vendor, and as such,- goes to his personal representatives. If it be unpaid at the vendor’s death, the personal representative has a right to receive it. If the payment of the money and the conveyance of the estate, are according to the agreement, to be made at the same time, the personal representative would have a right, in a case where the time agreed upon for performance, was not of the essence of the contract, if in no other case, to a specific execution of the agreement, if he applied to a Court of Equity for the purpose, in a reasonable time after the day for performance.

The purchase money having been made the personal- property of the vendor, by his own contract, his personal representative has a right to all the remedies to recover or retain it, to which the vendor would be, if he were living. When the representative goes into equity, he must make the heirs of the vendor, as well as the vendee, and all other persons who have an interest in the matter, parties to his bill. The heirs may, if they choose, unite with him, as complainants — otherwise, they must be made defendants.

By the contract, in this case, no day Was fixed for the conveyance of the title. — The vendor’s bond required him to convey the estate, soon after the payment of all the purchase money. If the purchasers and their sureties had made no default, there is no reason to suppose the title would not have been conveyed by the vendor in his life-time according to his contract. Their defaults were acquiesced in, and waived by the vendor himself, and his personal representative.

It is a just excuse, for the omission of the administrator, in this case, to file his bill for the execution of the contract sooner than he did, that the purchasers could have obtained a specific execution of the agreement in the Orphans’ Court of the proper County, by filing a petition against the administrator upon the bond of his intestate, and satisfying the Court that it was fairly made. This statutory remedy is more summary and less expensive, than the proceed-jng jn Equity, in which the same object is attained

The vendees, and those who claim under them, can not complain of the administrator’s delay in taking steps to enable him to have the title conveyed to them, when the consequence of any course he could have pursued, would have been longer delay than would have been the result of the prosecution by the vendees, of the remedy to which they only were entitled in an Orphans’ Court.

The next question is, whether the bond which three of the plaintiffs in error made to Hall, is valid. We think there is no consideration to support the bond. The payment by him of the last instalment of the purchase money was what he was bound to do. Nothing that appears in the record would have been a good defence to the action at law upon the note, or have given him a right in Equity, to enjoin a judgment upon it. As the vendor parted with the possession of the premises, and the vendees bound themselves to pay part, at least, of the purchase money, before the time fixed for the conveyance of the title, the promise to pay the whole of the purchase money was independent of the obligation of the vendor to convey, and the entire sum could have been recovered at law, without any averment in the declaration, of the vendor’s ability to convey the estate. A plea in such a case, that the vendor had no title on the day fixed for the conveyance, would be no bar to the action, as this Court decided, in the case of Weaver vs Childress.

. , There was no just claim to an injunction, from a Court of Equity; because the case shows the title could have been obtained, on a proper application to an Orphans’ Court. ■ That the complainants, who made the bond to Hall might have defended the action at law, upon it, does not deprive them, in this case, of their claim to relief in Equity against their bond.

The jurisdiction of the Court might perhaps be maintained upon the principle, that it is against con‘.science, for Hall to enforce the bond, and unjust to the obligors, that he should retain it. He might take a non-suit in the action now pending, and renew it again, hereafter, when the obligors could not prove that their bond was without consideration,— and we will not decide, that equity might not exercise jurisdiction upon the principle of quia timet, and decree the cancellation of the bond.

As equity has jurisdiction to decree a specific execution of the contract of James Hays, deceased, in favor of his administrator, it was proper for the complainants in their bill for a specific performance, (for which object the bill, in this case, was filed,) to make the matter of the bond to Hall, a part of the case.

It is a settled rule, that if a Court of Equity have jurisdiction of a cause, for one purpose, it may exercise it generally.

There ought, we think, to be a decree for the cancellation of the bond, and for a perpetual injunction of the suit at law upon it, as well as for a specific execution of the contract for the sale of the lands, into which James Hays entered, in his life-time.

The assignment by the vendees, of the vendor's bond to Hall and Lucas, created in favor of the latter persons, an equitable mortgage. If the purchase money which,the sureties paid, did not belong to the' vendees, and has not been repaid by the vendees, the ■sureties in this case, have a right to the estate, as .mortgagees, upon a decree for the specific execution of the contract, in favor of the complainants

Such a mortgage they might foreclose as other mortgages may be foreclosed.

It does not appear that John G. Merri weather had any interest which a decree in this case could affect, as his wife died before her father, James Hays.— Betts also appears to have no interest.

So much of the decree as dismissed the bill, as to itlie defendants, John G. Merriweather and Betts, is affirmed, at the costs of the plaintiffs in error. But .the decree, in all other respects, is reversed, and the .-cause is remanded, for the purpose of having the principies of the opinion of this Court carried into <e fleet.

T-his Court cannot now make such a decree as ought to be made, because the Circuit Court made ■its decree before all the necessary parties were before .that Court. The heirs at Law of the complainant, Patrick W. Hays, ought to have been made parties, before the decree of the Circuit Court was made.

Hall has died since the cause was brought into -this Court, and his executors have been made parties Iiere; but it will be proper to make his heirs at law parties, before the case shall be heard again in the Circuit Court. All the amendments for these purposes may be made, after the case shall be again in that Court, upon a mandate from this.

There ought also to be either an answer from the «wife of Love, or a decree, pro corfesso, against her.

The plaintiffs in error must be allowed the costs of this Court upon so much of the decree of the Circuit Court, as is reversed against the defendants, Good-•ali, Edmondson, Lucas, and the executors of Hall.

GOLDTHWAITE, J., -not sitting in this case.

       2 Story’s Eq‘ 82‘

       21b. 83.

         2 Story'*’ Eq. 85, 86, noto X—X Young & Collyer, 4J5—1 Johns. Ch.Rep. 370.

       12 Stor.Eq,. 98, 99.

      Aik. Dig.

       cilR svs. |gr,Wms'

       stew’ts Rep. 363.

       SSíor.Eq 30-11. '

       íio Johns. .588.

       2 Stor.Eq. ■97.

       7Pet.Rep


text:
    BASS, by guardian, VS. COOK.

      As to the settlement of guardianship accounts„
    1. .In the final settlement of the accounts of a guardian, before-the Orphans’ Court, an allowance to the ward, for his labor,, while employed for the guardian, cannot be made.
    In error to a decree of the Orphans Court of Dallas county.
    By the record in this case, it appeared that the defendant in error, on the eighth day of March, eighteen hundred and thirty, was appointed a guardian of Lawrence Bass, by the Judge of the Orphans-Court of Dallas. In February, eighteen hundred and thirty-six, the defendant made, before the Judge of that Court, a final settlement of his guardianship accounts, — in the course of which it appeared that the ward had lived with the defendant from March, eighteen hundred and twenty-eight, to the summer of eighteen hundred and thirty-four; that he had labored for him all the intervening time, except a small part of it, while attending school; and that his labor was worth considerably more than his maintenance during that period. The Judge of the Orphans Court, on the aforesaid .settlement, refused to allow the excess, above mentioned, to be charged against the guardian: and to this decision the plaintiff excepted, and here assigned it for error.

      Ciarlee, for plaintiff in error — Edwards, contra.
   COLLIER, J.

— It is not necessary to a decision of this case, that we should determine whether the defendant can be charged in any form of proceeding for the work and labor of the plaintiff’s ward, while subject to the guardianship of the defendant. If the profits resulting from this source did not constitute a part of the trust estate, in the adjustment of the defendant’s accounts, they should not have been considered, unless to ascertain the expense to which he liad been subjected, in taking care of the person of his then late ward. That they were part of the estate of the ward entrusted to the management of the defendant, or the increase of that estate,---no one can believe, On the contrary, if they constitute a demand legally enforceable, it is one growing out of the industry and labor of the ward.

Guardians are required to report to the Judge of the County Court, an inventory of the estate, both real and personal, which they shall have received or taken possession of; and shall exhibit, once in every year, and oftener if required, an account of the product of the estate, and of the sale and disposition of such product and disbursements. But nothing is said in our laws, in regard to the personal earnings~ of the ward. The condition of the bond of the guardian, is, to perform all the duties which are or may be required of him by law: beyond the scope of this undertaking, his sureties cannot be charged ; nor can the Judge of the County Court, affix a liability upon him, by any order or decree, which the law has not first authorised.

Again: if a guardian be chargeable to the ward for his personal labor, it must be after the relationship of confidence and trust shall have ceased to exist, and then only-, not because he had been guardian, but because he had derived a benefit from services he could not legitimately command.

“A guardian,” says Mr. Reeves, is one that legally has the care and management of the person or the estate, or both, of a child, during his minority, , J whose father has deceased.” And is said by Mr. 'Blackstone, to stand in loco pareniis:

In the direction of the person of his ward, he must, of necessity, possess large discretionary powers, subject to be controlled in their exercise, if he abuses them. It is certainly the duty of the guardian to train his ward to habits of industry and economy — ■ and if, in the practical inculcation of lessons which lead to the pursuit of these, he derives to himself a benefit, it would seem, upon principle, that he should incur no charge.

Chancellor Kent lays it down, “that the guardian’s trust is one of obligation and duty, and not of speculation and profit.” Consequently, he can not speculate upon his ward’s money,- — if he does, the ward is entitled to the profits arising from its employment: so, if he purchases a debt, at a discount, the benefit is to accrue to the infant. So, by a parity of reasoning, the person of the ward calmot be used solely to 'advantage the guardian : if, therefore, he is hired out or apprenticed, and a premium paid by the master, the warfl would be entitled to recover the hire or premium. But he would not be entitled to it on a settlement of the guardianship account.

The settlement of the account by the Judge of the County Court, applying alone to the trust property, the decree of the Judge, in the particular excepted to, is proper, and must consequently he affirmed-

       x»Aik Dji/ 2o.

       ib. 177.

       Reeves’ Dom. Rel. 3ii.

       453,462.

       CüiiÍTsV^ 3sted'


author: HOPKÍNS, C. J.

text:
    HADEN AND EVERETT VS THE UNITED STATES

      As to practice in the Supreme Court.

    1. This Court will not set aside a judgment obtained on certffi-* cate, on motion to file a complete transcript of the record and proceedings in the case — ho return being made to a certiorari previously issued to complete the record, and the transcript sought to be filed, appearing to have been Certified from the' Court below, upon a writ of error sued out to a previous term of this Court, and not prosecuted.-
    This was a motion to set aside a judgment obtained upon certificate.
    Thornton, for the motion — Sallee, contra.

      The judgment in this case, was subsequently to this decision, set aside, and a re*hearing granted, on the ground of an existing defect in the certificate.

   HOPKÍNS, C. J.

— At the last term of this Court Haden and Everett filed an incomplete transcript of a record of a cause between the United States and themselves, together with a writ of error which they had sued out, in the case, returnable to that term.

Upon their motion a writ of certiorari was issued to the clerk of the Court below, requiring him to send and certify to the present term of the Court, a complete transcript of the record.

The law requires the clerk to make up a full and perfect record of all the proceedings in the cause and to give an attested copy of such record to the party by which the writ of error was sued out, upon his application.

Where a writ of error has been sued out in a cause,, the party who obtained the judgment in it, of the Court below, is entitled, if the writ of error, and a transcript of the record of the cause be not delivered to the Clerk of this Court, on or before the third day of the terra to which tlie writ was returnable, to an affirmance of the judgment, on producing a proper certificate from the clerk of the Court by which the judgment was rendered.

The writ of error and the imperfect transcript, filed by Haden and Everett at the last term, were not delivered to the clerk of this Court, within the three first days of that term, and no motion was made to affirm the judgment ón a certificate within that time. On a subsequent day of that term, the transcript, together with the writ of error, was delivered by Haden and Everett, to the clerk of this Court, and upon their motion, a writ of certiorari was issued, to complete the transcript. If, at that time, a motion to affirm the judgment had been made on a proper certificate, and Haden and Everett had not shewn their intention of completing the transcript by moving for a certiorari, the motion to affirm would have been allowed, because there was no such transcript as the law requires to prevent the al-i0\tance of .such a motion,

When the cause was regularly called, on a prior day of the present term, no return to the certiorari had been made, and the transcript was as imperfect as when it was filed. No motion was made, then, for another certiorari, and. the cause was passed.

On the next regular day afterward, for motions, the judgment was affirmed on certificate, upon,the motion of the United States. The judgment was affirmed, on the ground that the transcript was too imperfect to prevent the success of the motion for an affirmance, and the plaintiff in error did not then move for another certiorari, to complete the record.

A motion is now made, by Haden and Everett, to set aside the judgment, and for leave to file a complete transcript of the record. No return to the cer-tiorari has been made by the clerk of the Court below ; and the transcript of the record which they offer to file is connected with a writ of error which they sued out, in the same cause, on the eléventh day of December, eighteen hundred and thirty-five,• and which was returnable to the January term, eighteen hundred and thirty-six, of this Court.

This writ has become a nullity It was not returned to the proper term of the Court, and after that term Haden and Everett abandoned the writ, by suing out another, returnable to a subsequent term. • ■

Upon a certificate of the clerk of the Court below, of the amount of the judgment in that Court, in favor of the United States, and that the second writ had issued, they have obtained an affirmance of the judgment. The first writ of error could not bring a transcript of the record of the cause before this Court, for any purpose, even with a proper return of the clerk to that writ; hut the certificate of the clerk, which must be relied upon, to show that the transcript is a true copy of the record, was not made until the eighteenth day of last month — more than twelve months after the issuance of the first writ of error, — long after the operation of that writ, and his authority under it, to certify a transcript, united to the writ, had been terminated.

Where a certiorari has issued from this Court, for the purpose of completing a transcript here, the Court can not take notice of any other transcript, except one shall be certified in the return of the clerk of the Court below, to the certiorari.

As no return has been made to the certiorari, there is no other record here, than the imperfect one which was in Court, when the judgment was affirmed.

The motion'to set the judgment aside is denied.

GOLDTHWAITE, J., not sitting,

         uA\k 2o3‘ Du

       iib. 856.

       l D¡i!. R, 2i.


author: GOLDTHWAITE, I.

text:
    THE STATE OF ALABAMA VS. ABSENCE.

      As to indictments for mayhem.

    1. Where a statute adopts a common law offence, all the com_ mon law requirements in defining the offence, should be followed in the indictment.
    2. But, when a statute describes an act as a crime or misdemeanor of particular grade, the indictment need not state the legal conclusion, that such act amounts to such crime or misdemeanor.
    4. Thus, in an indictment for mayhem, it is not essential to charge the offence to have been committed feloniously.

      5. One indicted as principal in the second degree, for the of-fence of mayhem, may be guilty of the offence of beating, perpetrated by the principal in the first degree, without being guilty of the mayhem.
    '6. So, the charge of a Court,'that if the principal in the first degree is guilty of mayhem, and the principal in the second degree has aided and abetted the fight — the latter would also be guilty of mayhem — would be too broad.
    On points reserved from the Circuit Court of Dallas county.
    In this case an indictment was preferred against Wiley Mosely and Elijah Absence, in the following terms:

      “ The State of Alabama, Dallas county — Circuit Court, Spring Term, 1836.
    “ The grand jurors for the county aforesaid, upon their oaths present, that Wiley Mosely, late of the county aforesaid, on the twenty-first day of March, A. D. eighteen hundred and thirty-six, with force and arms at-, to-wit, in the county aforesaid, in and upon one William E. Weaver, in the peace of the State then and there being, the right ear of him the said William E. Weaver, then and there on purpose, and of his malice aforethought, unlawfully did bite off. And the jurors aforesaid, upon their oaths aforesaid, do further present, that Elijah Absence, late of the county aforesaid, in the county aforesaid, with force and arms on the day and year aforesaid, unlawfully, and on purpose, and of his malice aforethought, was present, aiding and abetting and assisting the said Wiley Mosely, the said mayhem to do and commit ; contrary to the form of the statute in such case made and provided, and against the peace and dignb ty of the State of Alabama.”
    Upon this indictment, a capias issued, which was .executed upon Absence; and at Fall terra, eighteen hundred and thirty-six, he was tried, and found guilty.
    In the progress of the trial, the counsel for Absence requested the Court to charge the jury — that in order to convict the defendant of aiding and abetting in the commission of the mayhem, as charged in the bill of indictment, they should believe from the evidence, that the said Mosely intended to commit a mayhem: and that Absence was consonant of that intention. The Court refused to give this charge ; but instructed the jury, that if they believed from the evidence that Mosely was guilty, as charged, — and that Absence did any act — such as pushing the said Weaver, the person maimed, toward Mosely, for the purpose of causing a fight between Weaver and Mosely, and a fight immediately ensued, in the course of which Mosely bit off the ear of Weaver, and thereby committed a mayhem,—then Absence would be guilty as charged in the indictment, although wholly ignorant of any intention of Mosely to do more than commit an assault and battery.
    The Court also overruled a motion in arrest oí judgment. And the questions arising in the case were reserved for the opinion of this Court as novel and difficult.
    This case was argued here by

      Edwards for Absence, and by the Attorney-General for the State.
   GOLDTHWAITE, I.

—An indictment was found by the grand jury of Dallas County, at the Spring term of the Circuit Court, held in the present year, chargingone Wiley Mosely, as principal in the first degree, and the defendant, as principal in the second degree, in the terms of the statute of eighteen hundred and seven,'with biting ofí the ear of one Weaver, The plaintiff in error was tried and convicted at the fall term of that Court, held in the year eighteen hundred and thirty-six.

At the trial, the presiding judge was requested to instruct the jury, that in order to convict the defendant, then on trial, of aiding and abetting the commission of the mayhem, as charged in the bill of indictment, they should believe, from the evidence, that the said Wiley Mosely, charged in the first part of the indictment, intended to commit a mayhem, and that the said defendant, Absence, was consonant of that intention. This the Court refused, but charged the jury, if they believed from the evidence, that Mosely was guilty, as charged in the indictment, and that Absence did any act, such as pushing Weaver, the person maimed, toward the said Mosely, for the purpose of causing a fight between the said Weaver and the said Mosely, in the course of which the said Mosely bit off the ear of Weaver, and thereby committed a mayhem, the said Absence would be guilty as charged, though wholly ignorant of any intention of said Mosley to do more than commit an assault and battery.

After verdict, the defendant below moved to arrest the judgment—

1st. Because the first count of the indictment contains no reference to the statute.

2d. Because the act is not charged to have been done feloniously.

3d. Because the count does not contain the word mayhem,” “ or maim.”

4th. Because it does not conclude, " against the peace and dignity of the State of Alabama.”

5th. Because the word “feloniously,” is not contained in any part of the indictment.

6th. The term mayhem,” in the second count, or latter part of the indictment, is improperly inserted, as the word is not used elsewhere in the indictment.

7th. Because, in stating the charge against the defendant, Absence, there is no sufficient averment of time and place.

This motion was overruled; but inasmuch as some of the questions presented were considered novel and difficult, the presiding Judge consented that all the • points arising in the case might be reserved as novel and difficult, for the decision of this Court.

The indictment seems to be in the form pointed out by the most usual and correct precedents, and contains only one count, which charges Mosely with committing the act, and Absence with being present, and aiding and assisting.

It is objected, however, that the statute having declared the biting off of an ear, to be mayhem, it was necessary to charge the individuals, indicted, with this legal conclusion. Hawkins, vol. 1, p. 107, and 2 Hawkins, 310, are relied on to establish this position.

It is admitted, if a statute adopts a common law offence, without otherwise defining the crime, all the' common law requirements should be followed, in the' indictment: thus our statutes affix the punishment of death to murder and rape, without attempting to‘ define the crimes, — here, no doubt, the terms, “ mur-dravit and “rapuitwould be essential; but when a statute describes a particular act or acts, as a misdemeanor or crime of a particular grade, it is not necessary, in an indictment, after charging the acts, to state the legal conclusion, that they amount to the misdemeanor or crime of the grade declared by statute — because such is the conclusion of the law, on the facts alledged. The same reason is conceived applicable to the omission of the word “ feloniously,” If the statute had declared, that all persons who should be guilty of the crime'of mayhem, should be punished in a particular manner, without attempting to further define the offence, the question would properly arise on au indictment framed under such a statute, whether it was necessary to allege the mayhem to have been done feloniously.

It is sufficient to decide, that the word entering into no part of the definition of this offence, as created by the statute, it was properly omitted in the indictment.

It is further urged, that there is no sufficient allegation of time and place, so far as Absence is noticed in the indictment.

The Court recognizes the authority of the rule requiring an averment of time and place, to each sub * stantive fact charged in the indictment. But the indictment, it is, believed, conforms to this.rule with the utmost precision.

It follows, as the consequence of these views, that there was no error, in refusing to arrest the judgment in the Court below.

It is contended, that the charge asked for and refused, in the Court below, was correct, and that the charge given to the jury, can not be supported, on principle, in as much as the statute declares, that the maiming must be done on purpose, and of malice aforethought — it would involve an apparent absurdity, to convict one who never had assented to the act, and in the commission of which his will did not concur. In answer to this, it has been urged, that a man must be presumed to intend all the consequences which necessarily flow from his acts.

That this principle is well settled, and of univer-application, is unquestionably the law.

What may be the necessary consequence of a particular act or command, may frequently be a question very difficult of decision. — -Thus, it is said, (in 4th Blackstone’s Commentaries, p. 37,) that if A command B to beat C, and B beats him, so that he dies, B is guilty of murder, as principal, and A as ac-cessary; but the editor adds, in a note, that this must be understood with the qualification, that it refers to a case where the command was to beat violently.

With this qualification, which seems to be recognized by Lord Hale and Mr. East it would seem to follow, that the degree of the guilt of A nmst be regulated, in some degree, by the act of B — ' for, if the beating, though wholly unlawful, was to be slight and of such a character as could, in no wise, produce death, A ought not to be held guilty of murder, nor yet would he be innocent, if death did ensue, by the act of B, although B greatly exceeded his intentions.

The case put, in East, is this — if a man wilfully, with intent to hurt, though not to kill, throw a large stone, at another, and by accident it kill him, this is murder. It would seem to be manslaughter, only, if the stone was small, and not likely to produce death.

The Court below charged the jury, “ that if Mosely was guilty, as charged, and Absence had done any act, such as pushing Weaver towards Mosely, for the purpose of causing a fight, and a fight immediatelg ensued between Weaver and Mosely, in which the former bit his ear, then was the defendant Absence, guilty as charged.”

The Court below seems to have predicated its charge on the principle before stated, and under the impression, that a person present aiding and abetting, must, of necessity, be guilty of the same offence as the principal actor, and culpable, in the same degree. But this is not universally true. Thus, if a master assaults another with malice prepense, and the servant, ignorant of his master’s predetermined de-r sign, takes part with him, the servant is not an abetter of murder, but of manslaughter only.

So, in this case, Mosely may have formed the deliberate purpose to bite off the ear of his opponent, as well as to beat him, and Absence may have been present, aiding and abetting the beating, yet ignorant of, and not assenting to the mayhem.

This distinction is farther adverted to in a note to 4th Blaclcstone’s Commentaries, p. 23, where it is observed, “ that besides presence and aiding and abetting, there must be a participation in the felonious de-signor, at least,, the offence must be within the compass of the original intention, to constitute a principal in the second degree.

The Court has entertained great doubt, which is, by no means removed, whether an individual may not be guilty, under this act, without being the immediate actor, or conusant of his design to commit the particular mayhem, — -as, where two should concert together to do some great bodily harm to another, and one only should be the actor, the other being present when the mayhem was committed. But, on this point the Court give no opinion, as they have arrived at the conclusion that the charge as given was too broad.

The judgment must be reversed and the cause remanded. '

       Alik. Dig; 102.

       PL3s!b',C'

       4B.^.cSal p.c.431; i 256.’

       male, ^iájt’p.c 257

       H.ale>. YCr.Pi.e.,;


text:
    ALEXANDER VS. FITZPATRICK.

      As to demurrers to evidence.

    1. Where the truth of evidence, adduced to support an issue,, is admitted by a defendant, but its legal effect denied, such defendant has a right to demur to the evidence: and the plaintiff in such case, would be compelled either to join in the demurrer, or to waive the testimony,
    2. For the refusal of an inferior Court, in a proper case, to compel a party to join in a demurrer to evidence, or waive the evidence, error will lie.
    ,3. Though, it seems, that a party would not be permitted to .complain, in error, of the rejection of a demurrer to evidence, where the record showed it to be frivolous.
    In error to the Circuit Court of Montgomery .county.
    This was an action of trespass on the case, which the pla,in tiff in error commenced against the defendant, in the County Court of Montgomery county, on the ninth of February, eighteen hundred and thirty-five. In addition to the common counts, the declaration contains a count upon the following instrument :
    “Montgomery, 16th March, 1825. — Received five hundred dollars of Edmund Alexander, which money is to be disposed of for negroes, together with five hundred dollars of my own money, by Col. Harrison Young. If not disposed of by the first day of June next, the money is to be returned to him by me.”
    This instrument was executed by the defendant. In the count upon it there were averments, that the money was not invested on or before the first of June, eighteen hundred and twenty-five, in the purchase of negroes, and that before the commencement of this suit the plaintiff had requested of the defendant a return of the money.
    A trial was had before a jury, in the County Court, on issues taken upon the defendant’s pleas of non-assumpsit, and the statute of limitations. Upon the trial the plaintiff produced to the jury the instrument which has been mentioned, and proved that his attorney at law, had, in 1829, ’30, demanded of the defendant an account of the negroes or of the money, referred to in the instrument, and that the. defendant declined then making any account. The plaintiff offered no other evidence, and the defendant offered none. The defendant then offered a demurrer to the evidence, in which, he admitted the truth of the testimony. The Court refused to compel the plaintiff to join in the demurrer; for which the defendant excepted. The issues were tried by the jury, and they assessed the plaintiff’s damages at six hundred and eighty-six dollars and sixty-six cents; for which sum he recovered a judgment.
    The case was removed, by the defendant, into the Circuit Court of Montgomery county, where he assigned as error the refusal of the County Court to compel the plaintiff to join in the demurrer, and upon the assignment, the Circuit Court reversed the judgment, and remanded the cause to the County Court.
    Upon the judgment of the Circuit Court, the plaintiff sued out a writ of error, and has brought the case into this Court.

      Dargan, for plaintiff m error.
   HOPKINS, C. J.

— The first question in the case, is, had the defendant a right to demur to the evidence. This question does not arise in a case, in which the evidence is wholly parol, and loose and 'indefinite, or circumstantial. Whether the right exist in such a case, we shall not enquire. Here, a part of the evidence is written, and the remainder, although parol, is certain, and no more admitting of any variance, than the matter in writing.

In addition to the legal admission of the matters proved, which the demurrer would have been, in this case, had it been allowed, the defendant expressly admitted the truth of the evidence in the demurrer, that he offered.

The only question then, between the parties, was the legal effect of the facts, which had been . both proved and admitted.. The legal effect of facts, is in every case; a question for the Court to decide. If the facts proved in this cause had not been admitted by the defendant, and the jury had ascertained them, they ought to have applied the law to them according to any instructions which the Court gave, and returned a verdict that would have had the effect to which the Court decided the facts, if found would be entitled. If a plaintiff show no cause of action in his declaration, no principle is clearer or more just, than that which gives a defendant a right to admit all the facts which are well pleaded in the declaration, by a demurrer to it, and thus make the questions in the case purely legal, to be decided by the Court. No one has ever supposed that this principle encroached upon the proper sphere for the action of juries.— Why refer a question of law merely, to a jury, to be decided according to the opinion of the Court'? The law intends juries to enquire of and ascertain disputed matters of fact, and to apply the law according to the opinion of the Court, to the facts they find. But where the matters of fact set out in a declaration, as the plaintiff's cause of action are admitted by the defendant, there is nothing for a jury to do. The principle which would give the right to admit, in some mode, such matters of fact as are in this casé, and apply to the Court to decide the legal questions that arose, would be as reasonable as the principle which allows a demurrer to any part of the pleadings. After the admission of the facts, there are no other than legal questions to be determined. If a jury should be required to decide these, their decision ought to conform to the opinion of the Court. Such conformity might always be expected, unless the instructions of the Court were misapprehended, or influences operated, which caused a disregard of legal justice. If a jury make an erroneous application of the law to the facts, it is the duty of a Court to set the verdict aside upon a proper application. The doctrine is, we think, properly settled, that to such evidence as the testimony in this case, a party has a right to demur, and that the other party is obliged either to join in the demurrer or waive his evidence

As the County Court neither compelled the plaintiff to join in the demurrer, nor to waive his evidence, the right of the defendant to demur was denied to him.

Whether the error of the Court, in denying the right, be one for which a writ of error lies, is the next and last question.

Some Judges have expressed the opinion, that such an error is committed by a Court in the exercise of its discretion, and that for it no writ of error will lie. But the second branch of this proposition has not, within our knowledge, the judgment of any Court to support it.

That the writ lies for such error, has been adjudged, and principle in our opinion, requires the question to be so decided.

If a demurrer were offered by one party to evidence, the legal effect of which clearly maintained the part of the issue of the other party, and the Court were to reject it, the act of the Court might not be an error of which the party ought to be permitted to complain, because his demurrer was frivolous, and the record would show that he was not injured by the rejection.

But the demurrer, which was offered in this case, was not of a frivolous character. The evidence of the plaintiff is relavant to one only of the two issues in the case.

There is no error in the judgment of the Circuit Court. Let the judgment be affirmed.

GOLDTHWAITE, J., not sitting in this case.

      2 H. Blac. 206 — Gibson & Johnson v Hunter — Cro. Eliz. 753 — 2 Uaná. R 68, 353 — 1 Stewart’s Rep. 321, 337, 557 — Gould’s Pi. 183, 480.

       2 Porter's E.9,14 — 7 Cmnoh565

       SRandE. h! Eiacíe 2091

       20sf¿09,ac


author: Goldthwaite, J.

text:
    THE STATE OF ALABAMA VS. BROWN.

      As to the conclusion of indictments.

      As to allegations, in indictments for slave stealing.

      1. The statute of 1807, requiring that persons accused of criminal offences, shall not be set at liberty for irregularity in the warrant, or on account of imperfection in the indictment, &c. applies to all criminal prosecutions whatever — whether for of-fences, capital or not.
    2. Indictments framed on statutes, must conform strictly to the words of the enactment.
    3. Thus, an indictment under the statute of this State, for stealing slaves, omitting an allegation, that ikey wére stolen out of or from the possession of the master or overseer — held bad.
    On points reserved. From the Circuit Court of Russell County.
    The prisoner was tried, and convicted of slave-stealing, at the last Fall term of the Circuit Court of Russell County, and received sentence of death.
    It was moved, in arrest of judgment — ■
    1st. That the indictment did not conclude against the form of the statute, in such case made and provided.

    2ndly. That there was no allegation in the indictment, of the slaves having been stolen out of or from the possession of the owner or overseer of such slaves.

    The motion was overruled, but the questions arising on the same, were reserved, by the presiding judge, as novel and difficult — and were submitted, to be determined by this Court,
    Campbell, for the prisoner.
    Attorney-General, contra.
   Goldthwaite, J.

— For the prisoner, it has been argued, that the statute of eighteen hundred and seven, does not include capital felonies, in as much as trespasses alone, are designated; and that the words, “or other of enees, whatsoever,” which, in the statute, follow immediately after trespasses, ought not to extend the construction beyond the generic class of of-fences therein named.

The statute is thus: “ Ho person, accused of any criminal offence, shall be set at liberty and absolutely discharged, before his trial, on account of any irregularity or informality, in the warrant of commitment; nor after conviction, on account of any legal error or imperfection in his indictment; but the same proceedings shall be had again, as if he had never been arraigned, nor shall the words,“force and arms” or the words, “against the peace” or the words, “contrary to the form of the statute,” be regarded as necessary in any indictment, or information for any trespass, or any other offence whatsoever, nor shall the parties indicted have any advantage, by writ of error, or plea, or otherwise — for the want of these, or the like words.”

It will be perceived, that this statute makes use of terms which are inapplicable to cases of mere trespass-. — it speaks of “ criminal offence” — has the word, “ arraigned,” which would most properly apply to offences of the highest, magnitude; arid we cannot entertain a doubt that it governs all criminal prosecutions, without regard to the nature of the of-fence charged.

There was, therefore, no error in refusing to arrest the judgment, on the first point presented.

The statute under which the indictment, in this case, was framed, is this : “ If any person or persons shall steal any negro or mulatto slave, whatsoever, out of, or from the possession of the owner or overseer of such slave, the person or persons so offending, shall be, and are hereby declared to be felons and shall suffer death.”

In neither count of the indictment, is it alleged, that the slaves were stolen out of, or from the possession of the master or overseer, and it is contended, on behalf of the prisoner, that without these words, the indictment is fatally defective. On the part of the State, it is said that these words are wholly immaterial, as they do not, in any manner, change the general rules of law, on the subject of possession, and that the law would always determine a thing stolen, to have been stolen from its owner, as the right of property always draws to it the possession.

It is not now necessary to determine whether the statute was intended to introduce any new rule of evidence, or that a larceny of slaves, under other circumstances, than those pointed out in the statute, would not be punishable with death, — the question is one not necessarily involved in this cause, and is too important to be decided in one, where it is not directly presented on the evidence.

The general rule, that indictments framed on statutes, must conform strictly to the words of the enactment,, is laid down and enforced by all writers on criminal law; and it is perhaps one of those rales which has no exception.

Hawkins, in book 2, ch. 25, sec. 110, page, 342, «ays, “Unless the statute be recited, neither the words, contra formdm statuti, nor any paraphrasis, intendment or conclusion, will make good an indictment, which does not bring the fact prohibited or committed, in the doing or not doing, whereof the of-fence consists, within all the material words of the statute.”

Nor is it always sufficient, to pursue the very words of the statute, unless by doing so, you fully, directly and expressly allege the fact, in the doing or not doing whereof the offence consists.

The exception which is attempted to be introduced, to the general rule, was attempted to be introduced, (or rather was noticed and rejected,) on the statute of 5th Elia. ch. 11, which made it high treason to clip round, or file any of the coin of the realm, for wicked lucre or gam's salce. An indictment omit-ing the latter words, was held to be bad—though it was admitted the proof would be the same if they had not been found in the statute.

These authorities show very conclusively, that no matter what may be the evidence necessary to support the charge, the charge itself must be made in the very terms of the statute creating or defining the offence.

The indictment in this case not conforming to the terms of the statute defining the offence, the Court below should have arrested the judgment.

For this cause the judgment is reversed, and this opinion is ordered to be certified to the Court below; and the prisoner is to be detained in custody until discharged by due course of law.

      Ajk. Dig;

       Aik. Dig. 103.

      Hawk. b. % oh. 25, $ ,J11—see also Archb C.P. 51— 8 Term R. 153(i; Leach 431.

       lHale220


text:
    LYON VS. MALONE.

      Practice in the Supreme Court.

    1. A writ of error, not shewing the term to which returnable, may be amended by its teste, or the bond or citation.
    Motion to amend a writ of error.
   COLLIER, J.

— The plaintiff moved the Court for leave to amend his writ of error.

From an inspection of the writ, we discover that it was sued out on the thirtieth July, eighteen hundred and thirty-six, after the adjournment of the last term of this Court, hut that there is no particular term appointed for its return.

We have a statute which directs that writs of error shall be returnable to the first day of the next term of the Supreme Court, succeeding their issuance. By a reference to the teste of the writ, we learn when it should be returned; and we are of opinion, that it may be amended by its teste, or by the bond or citation; either of which furnishes sufficient matter to amend by.

The motion is therefore granted..