text:
    ETHERIDGE VS HALL.
    1. The County court, as an inferior tribunal, is subject in all its acts, to the direct supervision of the Circuit court, which to it is a superior, and appellate tribunal: and therefore may compel _ the County court to perform all the acts, by reason of which, such appellate jurisdiction may be rendered effectual.

      2. This power may be exercised by mandamus,
    3. Thus, where the County court refuses to sign a bill of exceptions, the Circuit court has jurisdiction to award a mandamus,
    4. Because a judge is, by law, constituted an arbiter of the facts stated in a bill of exceptions, — he is not therefore privileged to reject one which properly presents the case.
    5. The general rule, that a mandamus will not be allowed, where the party has another remedy, must be understood to refer to some specific remedy, which will place the party in statu quo.

    6. The specific mode of correcting the refusal of a court to sign a bill of exceptions, pointed out in the statute of eighteen hundred and twenty-six, (Dig. 254, s. 5,) is not conclusive of a party’s rights, in a case where a judge of the County court holds up the bill of exceptions tendered him for approval, until after the adjournment of the court, on the promise to seal it.

      7. The final decision of the Circuit court upon the petition for a mandamus, to compel a judge of the County court to seal a bill of exceptions, may well be reviewed in this court upon a writ of error.
    Error to the Circuit court of Wilcox county.
    This was a petition to the Circuit court, by the plaintiff in error: it showed that at January term of the County court, held in and for said county, in the year One thousand eight hundred and twenty-six, before the honorable Joseph A: Hall, judge of said court, an appeal from a. justice’s court, wherein the sum claimed did not exceed twenty dollars, came to be tried, in which the petitioner was plaintiff, and one Jonathan Kennedy defendant, in which said- judge dismissed the appeal, and gave judgment against the petitioner, after hearing the testimony therein: That on the trial of the tease, petitioner excepted to the decision, which exceptions were disallowed by the judge-. Petitioner, during the said term of said court, drew up and tendered to said judge, a bill containing said exceptions so taken and ’overruled, as aforesaid, (which accompanied the petition,) — which said bill of exceptions contained the facts of the case, truly and correctly set forth, and were before the expiration of the term, presented to said judge, with a request that he would sign and seal the same. To which request, said judge answered, that he was too much fatigued to examine the bill, but that after the expiration of the term, he would examine said bill, and sign and seal the same. The petition further siatedj that after the judge had retained the bill in his possession more than three months, he refused to sign and seal it, — in consequence of which refusal, petitioner was prevented from removing said cause by writ of error, into -any of the Superior courts of the State, and also would not only be subjected to the loss of his demand, but to the payment of a heavy bill of costs. Petition therefore prayed for a mandamus, or a rule to shew cause why a writ should not issue, returnable to the next term of the teeurt, directed to said ,Joseph A. Hall, commanding him either to sign and seal said bill of exceptions, or to signify his reasons for not so doing, &c.
    The petition was verified by the oath of the petitioner.
    Upon hearing the petition, a rule issued directing Joseph A. Hall, judge of the County court of Wilcox county,' to shew cause why a mandamus should not be awarded, to compel him to sign and seal the bill of exceptions as above set forth, &c„' ■
    And at the same term, the defendant in the rule moved the court, that the proceedings upon the ' said rule be quashed upon the following grounds ': , ' /
    1. That it was a case that the defendant could not be called to answer before the Circuit court, and of which said court had no cognizance;

      2. That the plaintiff Trad no authority to compel the defendant to sign a bill of exceptions, as the defendant must be tire jüdge of the correctness of such exceptions >
    3. If defendant was answerable for refusing to sign the exceptions complained of — he was answerable in a different way, and before another tribunal;
    4. That if said plaintiff was aggrieved by the act complained of, the law had provided another way by which the- plaintiff could have brought his case upon his exceptions before the court.
    At the same time,' the plaintiff moved the court for an •attachment against the said Joseph A. Hall, inasmuch as the said Hall had been guilty of á contempt of court, in making no return to the rule to shew cause against him in said cause, and to compel said Hall to make a return-to said rule, which last mentioned motion was overruled, ancl the proceedings upon the rule were quashed, ■whereupon the plaintiff sued out a writ of error to this-court: It was assigned in error—
    1. That the court below erred in overruling the motion of the plaintiff in error for a rule against the defendant, to shew cause why an attachment should not issue for contempt in refusing’ to make a return to the-mandamus.
    2. That the court erred in quashing the proceedings.

      Porter, for the plaintiff in error,

      J B. Clarke, contra.-

      Porter, for the plaintiff,
    urged—
    First — That the remedy given by statute (Aikin’s Digest, page 254, section 5,) is not exclusive; even if referable by construction, to cases of error from the County to Circuit courts. — That statute uses the term, “ the Supreme court” may receive satisfactory evidence of the exception. Now this evidénce must be produced dufing the term when the exception is prayed, or, this statute will furnish ho remedy — Perkins vs Harper, (2 Stew. 477.) Cases may occur, where this could not be effected, and this by the default or conduct of the judge himself, as was the case here: and surely the party would be entitled to some remedy — otherwise the right of a writ of error, from the County to the Circuit court is-unavailing: — This remedy I contend is mandamus — (4 Stew. & Por. 156;) 2 Caine’s cases, 118; 1 Caine’s 511; 6 Johns. R. 279 ; 2 Caine’s, 373 ; 5 Comyn, 31, 32, 37, 38, note 9; 4 Ham. 353.
    Second The Circuit court had no power to hear the motion to quash, without a return — 12 Petersdorff, 511; 3 Barn, and Aid. 220; 5 T. R. 74, 75; Stra. 1139. Nor even then without notice — 1 Wils. 30; 12 Petersdorff, 512.
    Third — The motion to quash, if to be viewed as a re - turn, showed no reasons against the rule. The return should deny the facts, or controvert the particular claim —10 Wendell, 25.
    It is no answer -to an application for a mandamus, that there is a remedy in equity — 3 T. R. 646 ; 5 Comyn, 47; ibid, 54, 55.
   GOLDTHWAITE, J.

— If the motion to quash the proceedings, is to be considered in any other aspect than as an answer to the rule to shew cause, the course pursued would be considered as most irregular; but this we presume was the view taken of it by the court below, and such we think was the-proper consideration to be given it.

The County court, as an inferior tribunal, is unquestionably subject in all its acts to the direct supervision and control of the Circuit court, which to it is a superior and appellate tribunal; and independent of any other legislation, than that which establishes this relation, it might be asserted that the power .existed in the latter, to compel, the former to perform all the acts, by reason of which, such appellate jurisdiction would be rendered effectual; but the direct legislation on this subject divests it of all manner of doubt.

By the tenth section of the act of eighteen hundred and seven, (Digest, 243, s. 19,) the territorial judges, and every one of them, are invested with power and authority, as often as there may be occasion, to issue /forth writs of error, certiorari, and habeas corpus, and all- other remedial and other writs and process, returnable to either of the Circuit courts, and which are grántablc by the said judges, by virtue of their oíiices. The third section of the act of eighteen hundred and nineteen, (Dig. 243, s. 23,) transfers the- jurisdiction of the territorial judges to the Circuit courts, in all casfes excé'pt otherwise directed by that or some other act; or where such jurisdiction may be inconsistent or repugnant with the present form of government. Under these acts, it is clear that the Circuit court has the power to issue the writ of mandamus, unless it can be shewn that it is not a remedial writ, or that it is repugnant to the present form of government. The latter has-riot been attempted, and to show the former,' a slight examination of prniciple and authority will suffice.

The sixth section of the act of eighteen hundred and fourteen, (Dig. 254, s. 5,) gives the right to either party, in a civil case, to have his bill of exceptions signed and sealed. If refused, it is a denial of justice; and although a penalty is inflicted on the judge refusing to certify a bill of exceptions,'which truly states the facts, the party as to the partipular case is without remedy, unless some court can interfere and compel the judge to perform* what the statute has declared to be his duty. Every suitor has the right .to have his suit decided by the appellate courts, on all the questions which can arise in the course of it, and he cannot be denied this, and turned for relief to an action against the judge who' has deprived him of it. If an inferior court will not render judgment on a verdict, it can be compelled to do so by mandamus—Brock vs Evans, et. ux. (Strange, 113;) Rex vs Tod, (Strange, 530;) and tlicrc seems to be no distinction, in principle, between sucli a case, and tho refusal to sign a bill of exceptions. But the cases are numerous to skew tile very matter in question—People vs Judges of West Chester, (2 John. cases, 118;) People vs Judges of Washington, (1 Caine’s, 511;) Sykes vs Ransom, (8 John. 279.) This court also, in the case of the State vs the Commissioners of Roads of Talladega county, (3 Porter, 412,) recognized, as well settled, tine principle, that a mandamus would lie to enforce a legal right. Wre consider it as clear, that the Circuit court has jurisdiction in such a case, as this to award a mandamus.

The objections to the issuing of this writ, assumed by the second and third reasons of the defendant are not well founded, and cannot be sustained. It does not follow, because the law has constituted the defendant the judge of the correctness of the facts, stated in a bill of exceptions, that he will be permitted to reject one, which properly presents the case. If the defendant had by his return or answer to the rule, given the court to understand that the bill of exceptions tendered, did not present the facts truly, or that the exceptions had not been taken at the proper time, or in a regular manner, the case would have assumed a very different aspect; and under such circumstances it would have been right to refuse the mandamus—Mauchum vs Austin, (5 Day, 233;) the People vs Judges of West Chester, (2 John. cases, 118;) Middlebury vs Collins, (9 John. 345.) Neither is it any answer to the rule, that the defendant is answerable in another way, by indictment or impeachment; because a conviction or removal from office of the defendant, will not restore the plaintiff to the right which the law accords to him. The general rule, that this writ will not be allowed when the party has another remedy, must be understood to relate to a specific remedy, which will place the party in the same situation as ho was before the act complained of—Rex vs Archbishop of Canterbury, (15 East. 117;) King vs Justices of Kent, (14 East. 261;) King vs Bishop of Chester, (1 Term. R. 396;) People vs Mayor, &c. of New York, (10 Wendell, 393;) Hull vs Sup. of Oneida, (19 John. 259.)

But it is insisted that the plaintiff, under the third section of the act of eighteen hundred and twenty-six, (Dig. 254, s. 5,) had a specific mode pointed out, by which he was enabled to place himself in the same condition as if the bill of exceptions had been signed and sealed. This, if so, presents a sufficient reason why the mandamus should have been refused ; but an examination of this section will show, that this could not be the case. It provides “ that in all cases in which the judge of an inferior court shall fail or refuse to certify any exception taken on the trial of any cause, it shall be lawful, for the Supreme court to receive such evidence of the exception as may be satisfactory to it, and to try the cause in the same manner as if the exception had been certified by the judge who tried the said cause.” Previous decisions of this court have settled the practice, under this statute, and that it is necessary to prove the exceptions in term time, after notice given to the opposite party — Tom-beckbee Bank vs Malone, (1 Stewart, 269;) Perkins vs Harper, (2 Stewart, 477.) In this case, the plaintiff could not proceed under this statute, because the court had adjourned before he was informed his bill of exceptions would not be signed, and according to the case presented in the petition, the judge had promised to sign it after the adjournment.

We do not wish to be considered as expressing the opinion, that the practice of signing bills of exceptions, after the termination of the court, is proper ; but cases may exist in which it is necessary to pursue this course, as it is not unfrequent, that sufficient time is not allowed to enable a judge to examine them during the term; or counsel may be then too much engaged to prepare them; but it never should be done when resisted by the opposite party at the time the exceptions are taken. In this case, we are informed by the petition that the delay was caused by the request of the judge, and under an assurance that it should be signed after the . adjournment of the court — and to allow him now to refuse without sufficient cause, would deprive the plaintiff of a right, secured to him by law.

It is, however, insisted, that the decision of the Circuit court,’if erroneous, cannot be reversed in this court, as the granting or refusing the writ of mandamus is always within the discretion of the court. Whenever a suiter is entitled to a right which is withheld from him by the decision of a court, it can scarcely be said to be a mere matter of discretion; which is understood to be the action of the court on such matters as are not demanda-ble of right, but arc accorded to parties to advance tho justice of the casé. The right of the plaintiff to the writ of mandamus is of the same nature as that, which he had to his hill of exceptions; and its denial, without, cause, would he equally an infraction of the law. It is said by chancellor Walworth, in the, case of ex parte Negus, (10 Wend. 34,) that a writ of errdr will'not lie on the denial of a mandamus or prohibition, and that it is only hy virtue of a statute, that the judgment rendered on such writs can be removed, for error, in.thc English courts; and that it is yet an open question in these courts, whether the same rule does not prevail as to writs, of habeas corpus. ' In New York, it has been held that a writ of error will lie on the refusal to grant a writ of habeas corpus—Yates vs the People, (6 John. 402.) Whatever may be the rule .adopted by the English courts on this subject, we feel warranted, by the decision last cited,in deciding, that there is ño reasonable distinction' existing between the judgment of the court, refusing to grant a writ, and the one rendered on it; for the rights of the citisen may be as much'prejudiced by a refusal to render him the means of attaining justice, as by an incorrect judgment. In the case of the State vs Commissioners of Talladega, (3 Porter, 416,) there was a denial of a mandamus, and the judgment, was removed to this court by writ of error, but the question was not made, whether .the writ was properly issued. If the -judgment of the Circuit court is to be, considered as final oh the subject matter of the petition, there can be no doubt of the authority ofthjs court to revise its determination, — and we can arrive at no other conclusion. Wc are daily- in the practice of reviving judgments rendered on motions to quash ordinary writs and attachments, which are certainly not more final in their character, than is the one we are now considering. We conclude, then, that the judgment rendered in this case is such a final judgment as gives this court jurisdiction on a writ of error, and from what we have before said, it follows that it must be reversed; and the case is remanded, with directions to the Circuit court to proceed in the cause, and issue the writ prayed for, unless sufficient cause be shewn by the defendant against it.


source: Caselaw Access Project

author: COLLIER, C. J.

license: Public Domain

text:
    CUNDIFF VS ORMS.
    1. The- act of Congress, granting pre-emption rights to settles^ on Ihe public lands, approved twenty-ninth May, eighteen hundred and thirty, declares that all assignments and transfers of the right of pre-emption under it, given, prior to the issuance of patents, shall be null and void: — therefore, an agreement made by a grantee previous to procuring his patent, to convey a part of the lands acquired by such patent to a co settler being void, cannot be received as evidence against the patentee* in an action to try titles brought by the patentee aghinst such co-settler, to recover the part of lands granted,- occupied by him.
    2. But if the. agreement had been posterior in date to the supplementary act of eighteen hundred and thirty-two, which repeal-ed the inhibition of the right to make transfers and assignments, the case might be different.
    3. Parol evidence is admissible to prove the lines as well as the part of the land occupied by -a defendant, and a plat of the land may be used by the witness either to refresh his memory —6r as a memorandum if made by himself — or to make his testimony more intelligible to the 'jury.
    4. A surveyor may not only prove his survey-} but give parol evidence explanatory of it.'
    Error to the Circuit court of Jackson county.
    This yvas an action of trespass to try titles, instituted by Orms against Cundiff, in the Circuit court of Jackson county. The plea was, not guilty; and under it, a verdict was rendered in favor of the defendant. ■ Pending the trial of the cause, the defendant filed his bill of ex^ ceptions, which stated, that plaintiff read to the jury without objection, certain two patents conveying to him and to his heirs, in consideration that full payment had been made by him according to the provisions of the act of the Congress of the United States, the west half of the north west quarter of section eight, township four, range five, east, containing seventy-nine acres and eighty-two hundredths of an acre ; . and the east half of the north east quarter of section seven, township four, range five, east, containing seventy-nine acres and eighty-seven hundredths of an acre — all in the district of lands subject to sale at Huntsville, Alabama, and according to the official plat of the survey of the said lands returned to the general land office of the surveyor general — together with all the rights, privileges, immunities and appurtenances, of whatsoever nature thereunto belonging.
    Plaintiff also proved a demand of the premises before suit brought, and then offered to read to the jury a survey of the lands claimed in the declaration, made by the county surveyor, proven by him; and also offered parol proof by said surveyor of the facts contained in said survey, which was objected to by defendant, and the objection overruled, and the evidence went to the jury.
    The defendant then offered to prove, that in eighteen hundred and twenty-nine, he, as well as plaintiff, lived upon and cultivated the tracts of land claimed in the declaration — that after the passage of the law allowing pre-emption rights, to public lands, and before the entry of the plaintiff, under it, in the land office at Huntsville, plaintiff and defendant made a parol contract, by which it was agreed between them, that defendant should relinquish to plaintiff his said pre-emption right, and. let him enter it in his own name, and after such entry, plaintiff was to let defendant have forty acres off the two tracts, in consideration of such relinquishment by him. Also in connection with this, a deed of compromise between the parties after the entry, but before the issuance of said patents, to the following effect, to wit, —That Orms was to give to Cundiff thirty-five acres of land, on the west half of the north west quarter of section eight, township four, range five, east, and the same on the east half of the north east quarter of section seven ; the lines to be run in such manner as to include Cundiff’s houses on one side, and also his improvements - — Cundiff was to give Orms the same quantity of land on the other side of the boundary line — that three of the neighbors should run the lines between them, by whose determination they were to abide, and Orms was to execute alease to Cundiff, for ninety-nine years, of his part of the land, as soon as the lines were run. This deed was signed' and sealed op the twentieth day of April, eighteen hundred and thirty-one.
    To this evidence, the plaintiff objecting, the objection was sustained and the evidence rejected, — to which decision of the court, the defendant excepted, &c.
    And at the' present term of this court, the plaintiff assigned the following errors:
    1. The court erred in receiving the testimony objected to.
    2. The court erred in rejecting the testimony offered,
    Robinson, for plaintiff in error.

      Hvpkins & Parsons, contra.
   COLLIER, C. J.

— In respect to the rejection of the agreement between the parties, it was determined, when this case was here two years ago, that such an agreement was opposed to the letter as well as the spirit of the act of Congress under which the entry of the lands was made. That act having declared “ that all assignments and transfers of the right of pre-emption 'given prior to the issuance of the patents, shall be null and voidno interest vested or was confirmed in the land by force of the agreement. Had the agreement been posterior in date, to the supplementary act of eighteen hundred and thirty-two, which repealed the inhibition of the right to make transfers and assignments, the case might have been different. To S. P. McElyea vs Hayter, (2 Porter R. 148.)

There certainly was no legal objection to the admission of the evidence of a survey, as proved by the surveyor, or of his parol evidence explanatory, of it. Parol testimony was admissible to'prove the lines, as well as the part of • the land occupied by the plaintiff in error : and if in giving evidence of these facts, it was desirable to make his testimony more intelligible to the jury, it was clearly permissible to use a plat of the land for that purpose, as well as to refresh his memory by reference to it, as a memorandum made by himself.

There is no error in the matters assigned, and the judgment is therefore affirmed.


author:
ORMOND, J.
      COLLIER, C. J

text:
    CLICK VS M’AFEE.
    1. Under the statute of eighteen hundred and eleven, (Aik. Dig. 283, s. 137,) every writing which is the foundation of an action, is evidence of the debt or duty for which it was given, and the writing is also prima facie evidence of consideration until that fact is disputed by the pleadings, or contradicted by proof. Therefore,
    2. Mo consideration, in such action, need be averred in the declaration, or proved on the trial of the case.
    3. A promise to be binding under the statute of frauds must not only be in writing, but like every other promise, must be sustained by a consideration. The statute of eighteen hundred and eleven does not interfere with this principle, — the only effect of it is to make the writing evidence of the consideration, until such consideration be put in issue by the pleadings, or contradicted by proof.
    4. Where one executes his note in writing, promising thereby to pay a sum of money, for that amount due the payee by JR T, the language employed clearly indicates that the credit of the drawer was substituted for that of R T, and that a demand against the latter to that amount was extinguished — which consideration relieves the promise from the influence of the statute of frauds.
    Error to the Circuit court of Talladega county.
    Assumpsit on note. The plaintiff below, declared against defendant, for that on the tenth day of February previous, in the county aforesaid, said defendant made his promissory note in writing, bearing date the day and year last aforesaid, and thereby then and there promised to pay, one day after the date of said promissory note, to the order of said plaintiff, a certain sum mentioned, for that amount due him by Richard Tarrant, which amount said defendant then and there, and thereby assumed to pay unto the said plaintiff for the said Tar-rant, and then and there delivered said promissory note, his own proper name and hand writing thereunto signed, to said plaintiff: by means whereof, and by force of the statute in such case made and provided, the said defendant became liable to pay the said plaintiff the said sum of money in the said promissory note mentioned, according to the tenor and effect thereof, and being so liable, said defendant, in consideration thereof, after-wards, on the same day and year, in the county aforesaid, undertook, and faithfully promised said plaintiff to pay him the said, sum of money in the said promissory note specified, according to the tenor and effect thereof. Yet the said defendant, to pay the said plaintiff the said sum of money in the declaration mentioned, or any part thereof, to the plaintiff, although often requested, had refused, and continued to refuse.
    To this declaration there was a demurrer, which being overruled, defendant had leave to plead over, who filed forthwith, the four following pleas :
    1. Non assumpsit.
    2. The statute of frauds.
    3. No consideration.
    4. Failure of consideration.
    To these several pleas, there were replications and issues to the country, and a verdict for the plaintiff.
    The bill of exceptions stated, that after plaintiff had proved his note, defendant asked the court to instruct the jury, that in the absence of any other evidence than the note, they ought to find for the defendant, which the court refused, but charged that on the evidence, the plaintiff was entitled to recover: to which defendant excepted, «fee.
    Plaintiff in error, at the present term, submitted —
    1. That the court below erred in overruling the demurrer to the declaration;
    2. In refusing to charge the jury as requested, and in the charge given to the jury as set forth in the bill.

      Peck, for the plaintiff in error.

      Broion, contra.
   ORMOND, J.

— Two questions arise in this case —

1st. Is this the case of a promise to pay the debt of another, within the statute of frauds?

2d. Was it the duty of the plaintiff below to have averred and proved the consideration of the promise, to entitle him to a recovery ?

That the promise made in this case, _was the promise to pay the debt of another, cannot be questioned. If it were the purchase by the plaintiff in error, of the defendant in error, of a debt of Tarrant, it is not easily conceived why there should have been any necessity for the introduction of Tarrant’s name into the contract;. nor is the other supposition made by the counsel for the defendant in error, that the creation,of the debt from Tarrant to the defendant in error, and the promise by the plaintiff to pay the debt, were simultaneous acts, more plausible. The language evidently imports a past consideration on the part of Tarrant, which would bring the case within the influence of the statute of frauds.

If the language of the promise were at all doubtful, the averment in the declaration sets the matter at rest; as it is there alleged that th'e defendant then and there promised to pay the said sum of money, for the said Tarrant.”

But although the promise is within the statute of frauds, it is well settled, in this State, that under our statute passed in eighteen hundred and eleven, making every writing, which is the foundation of an action, evidence of the debt or duty for which it was given, no consideration need be averred in the declaration. The writing is prima fade evidence of a consideration, until that fact is disputed by the pleadings, or contradicted by proof. In this case, the objection was, on demurrer, that no consideration was averred — and on the trial, that none was proved. Neither objection was valid. This was expressly decided in the case of Philips vs Scoggins, (1 S’t & Por. 28,) and again in the case of Chamberlayne vs Barrington, decided twelve months since — (4 Porter, 515.)

A promise, to be binding, under the statute of frauds, must not only be in writing, but like every other promise, must be sustained by a consideration; nor did the act referred to, design to interfere with this principle. Its only effect is to make the writing evidence of the consideration, until the consideration is put in issue by the pleadings, or contradicted by proof.

There is no error in the record, and the judgment of the court below must be affirmed.

COLLIER, C. J

— The note in this case, not only does not show a want- of consideration, but discloses a sufficient consideration on its face. It contains a promise to pay to the defendant in error, “ six hundred and forty-seven 75-100 dollars, for this amount due him by Richard Tarrant.” True, this is an undertaking to pay the debt of Tarrant, but the language employed clearly indicates that the credit of the plaintiff was substituted for that of Tarrant, and that the demand against the latter, to that amount, was extinguished. This view, apart from what Judge Ormond has stated, (which is entirely satisfactory,) would relieve the case from the influence of the statute of frauds.


author: ORMOND, J. COLLIER, C. J.

text:
    MORRISON et ux VS. WRIGHT.
    1. Process in the hands of the sheriff becomes inoperative by a supersedeas, and all subsequent proceedings under such process are void, yin act, therefore, done by virtue of such superseded process after notice of the supersedeas, will constitute the sheriff a trespasser. Aliter, where he does not receive notice.
    2. And such notice must be actual, not constructive — therefore, placing the supersedeas in the hands of a deputy, will not be such notice to the sheriff, as the law requires.
    3. But although the sheriff may justify for an act done by virtue of process in his hands, notwithstanding the same has been, without the knowledge of the sheriff, superseded, yet no third person, accompanying the sheriff, can be protected, — such third person, being a volunteer, acts at his peril.
    4. It is the duty of the court below, on motion, to reject evidence offered, which is not material to the issue. But if the court be asked to reject evidence for a cause to which the evidence is not obnoxious, the court may conclude that all other objections to it are waived: and—
    5. It is not the duty of the court to shape or re-model the propositions of counsel, but to respond to them as they are made, and either accept or reject them.
    This was an action of trespass, assault and battery, —commenced in the Circuit court- of Benton county, by Morrison and wife, against Wright. The defendant pleaded t! the general issue, with permission to give special matter in evidence and upon the issue thus raised, a verdict was rendered for the defendant.

      The bill of exceptions stated, that on the trial of the cause, the evidence shewed that the trespass complained of, occurred on premises where the plaintiffs had formerly resided: — that defendant had instituted proceedings of unlawful detainer against plaintiffs, and had previously obtained a verdict and judgment in the cause. It appeared in evidence, that after the expiration of twenty days from the rendition of judgment in the unlawful de-tainer, and before the service of any supersedeas on the justice, he issued a writ of possession, which was executed by the sheriff on the same day, by putting out Morrison’s family and goods — Morrison himself being away, and putting Wright into possession. This took place some time between mid-day and sun-dowh. It appeared that after this had taken place, some of the goods had been again brought within the inclosure and put into the crib — That after night, when Wright returned to the place, he commenced removing the goods out of the crib, when the alleged trespass was committed; which the evidence shewed had taken place by the wife of Morrison throwing a board at Wright, which he threw back and struck her. On the day the writ of possession was placed in the hands of the sheriff, and was executed, writs of certiorari and supersedeas issued from the Circuit court, and were placed in the hands of the deputy sheriff, but at what time of the day precisely did not appear, further than that it was in the fore part of the day. it appeared that Wright had come to Jacksonville, the place of holding court, early in the morning, with the writ of possession, and the sheriff making some objection to going immediately, on account of business, Wright offered him five dollars to go and execute the,writ that day, which money was afterwards paid. The sheriff left Jacksonville during the day, with the writ of possession. The deputy sheriff testified, that from a conversation which afterwards took place between him and the sheriff, he was induced to believe that he knew the supersedeas had issued before he left Jacksonville.
    On this proof, plaintiffs asked the court to charge the jury, that if they believed the process of certiorari and supersedeas were in the. hands of the deputy sheriff, it was in contemplation of law, in the hands of the principal sheriff, and that in serving the process superseded,, he was a trespasser, — which instruction the court refused.
    Plaintiffs further asked the court to charge, that if the jury believed from the evidence, that the principal sheriff, and defendant Wright, knew that the certiorari and supersedeas bad issued, that then they were acting under insufficient authority in executing the writ of possession, and were trespassers. This the court declined, but charged the jury, that if the sheriff knew that process was out, superseding the writ he was then executing, he was a trespasser; but that if defendant, Wright, did not know that a supersedeás had issued, he would not be a trespasser.
    The plaintiffs offered evidence as to certain declarations of the defendant, with a view of shewing that he was cognizant of the certiorari and supersedeas having issued. The witness, on his cross-examination, proved that defendant had sent word to plaintiffs that he would give five hundred dollars for possession. Plaintiffs objected to this part of the evidence, as tending to shew an offer towards a compromise — tn.t the court overruled the objection, and the evidence went to the jury.
    The plaintiffs in error assigned as follows:
    1. The court below erred, in refusing to give the instructions asked for in ttc bill of exceptions;
    2. The court below erred, in permitting the evidence to go to the jury, which was objected to, as specified and set forth in the bill of exceptions.

      W. K. Baylor, for plaintiff in error.
   ORMOND, J.

— The first charge moved for by the plaintiffs in error, presents the question, whether the sheriff can be held a trespasser for executing process which has come to his hands from a court having jurisdiction of the subject matter, — the process, without his knowledge, having been superseded by the fiat of a judge.

The sheriff is bound, by law, to execute all process directed to him by a competent tribunal, and. by necessary consequence, may justify under it. It would be a strange anomaly, if the law should exact from him implicit obedience to its mandates, and withhold from him the mantle of its protection, when jm the discharge of his duty. It is true, that the ] rocess in his hands became inoperative the moment it was supers dccVby the performance of the conditions imposed by the fiat of the judge, and all proceedings under ft, afterwards, .were void. But it by no means follows, that the sheriff was a trespasser; any act of his, under, or by virtue of the process, after notice of the supersedeas, would constitute him a trespasser; but the notice, to have this effect, must bo actual, not constructive notice, — and the placing in tbs hands of his deputy, the writ, superseding the former process, will not, of itself, be such notice as the law requires.

The authorities referred to by the counsel for the plaintiffs in error, show, very conclusively, that the sheriff is bound civUUer, for the acts of his deputy, acting uuder, or by color of legal process; but this does not tend to establish the proposition, that notice to the deputy would, constructively, convert an act done by his principal, by virtue of the mandate of a writ, into a trespass. ■ ' •

This justification, afforded to the sheriff from necessity, and in consequence of the duty cast on him by law, will not avail the defendant, Wright,---who can be considered in no other light than that of a mere volunteer, and who acted at his peril. The charge of the court, therefore, “that if defendant Wright did not know that the supersedeas had been issued, he would not be a trespasser” — cannot be sustained.

The record states, that the plaintiffs offered in evidence certain declarations of the defendant, with the view of fixing on the defendant a knowledge that the superse-deas had issued; and on the cross-examination, the defendant’s counsel asked the witness to detail a part of the same conversation, to prove an offer by the defendant to the plaintiffs of a sum of money, to yield the possession to him, of the premises in controversy. This was objected to by the counsel for the plaintiffs, on the ground, that it was a proposition tending to a compromise. In any view in which the part of the testimony objected to, can be considered, it was immaterial to the issue, and if it had any influence on the minds of the jury, it was only calculated to lead them astray. If the motion to the court had been to reject it, because it was immaterial, it would have been error in the court to have refused it: but when the court were asked to reject it for a cause to which it was not obnoxious, the court had a right to conclude, that all other objections to it were waived. It is not the duty of the court to shape or remodel the propositions of counsel, but to respond to them as they are made, and either accept, or reject them.

Tlie judgment of the court below must be reversed, and the cause remanded for a trial, in conformity with this opinion.

COLLIER, C. J.

— I express no opinion upon the question, whether, if the sheriff (having no notice of the su-persedeas) was justified in the execution of the process, the defendant was excused in receiving the possession at his hands. I concur in the judgment of the court, upon the ground, that if the sheriff was advised of a compliance by Morrison, with the terms on which the certiorari was awarded, the execution of the writ of restitution was unauthorised, and could vest no interest in the defendant, so as to justify or extenuate the trespass with which he is charged. The charge of the circuit judge to the jury, is evidently given upon the supposition, that the reverse, is the law — -and in my opinion cannot he sustained.


author: ORMOND, J.

text:
    ADAMS VS M’MILLAN, ex’or, &c.
    1. A writing, whatever its particular form, will be a sufficient memorándum or note in writing, as required by the statute of frauds, — prorided it contains the essential terms of the contract. expressed with such certainty, that they may be understood from the instrument itself, or from some other writing to which it. refers, — without recourse to parol proof; and be signed by the party to be charged.
    2. An auctioneer, is the agent of the purchaser, of either lands or goods, at auction, to sign a contract for him, as the highest bidder: and his writing the name of the purchaser on the memorandum of sale, immediately on receiving the bid, and knocking down the hammer, — is a sufficient signing of the contract, within the statute of frauds.
    3. If the memorandum of the sa'es of lands, be in fact, signed by the purchaser, or by his agent, the auctioneer, in any part of it, — it will be a sufficient signing within the statute of frauds: But where the memorandum of such sales, is not signed by the auctioneer, or his clerk, or by the'vendor .or vendee. — it can have no influence to take a case without the statute of frauds.
    4. The amount of the purchase money, is an important, part of every contract, for the sale of lands; and should be disclosed in every writing, which is relied on to take a case without the influence of the statute of frauds—
    5. Therefore, a letter written by the purchaser, subsequent to a sale of lands by auction, and addressed to the vendor, will not take the case out of the statute of frauds; — the, letter only containing a statement of the contract, for the purchase of the lands, but exhibiting no parlicu’ar of the price to have been given; nor referring to any other writing which did so.
    6. Nor would the reference, in the letter, to certain notes, tendered by the vendee to the vendor in payment of the! and, — which notes were not before the court, — alter the principle.

      7. The imperf_ct m.mornndnm of the cale, by an auctioneer, of rea' estate, and a iett.r acLi'-essed by the vendee to the vendor, cannot be so united and considered together, as to take such sale out of the prohibition of the statute of frauds, — there being-no direct reference in the one, to the other, so as, in effect, to render them one, without the aid of parol proof. ■
    8. A vendor of lands, upon a breach of contract on the part of the vendee, is entitled to recover such damages, as he has sustained by the violation of the contract of sale; and the difference between the price at which the land is first bid off, and the price for which it sold, ■ at a subsequent and second sale, ■ affords a good criterion of damages.
    9. Such difference of price would not in such case be binding upon the jury, but would be proper testimony to be received as a medium of coming to a correct conclusion as to the amount of damages sustained.
    10. To authorise such a rule, however, the second sale should appear to have been conducted with fairness, and that no means ware resorted to. to impair the value of the estate, in public estimation. „
    11. But where a declaration does not. aver as part of the contract of sa'e a condition, that the lands shad be re-sold in case of a failure on the part of the vendee, to comply with the terms of sale, but simply a'leges the difference between the two sales, and as a consequence, of a breach of contract, the b'abi'ity of defendant to pav the amount of that difference, and is framed oil (he supposition, that the difference between the two sales is recoverable aso.i a contract, and not as un'iquidated damages, — it was’he'd to be bad on demurrer. But if ob;cct„dto after verdict, might be considered ns amended, by striking out a'l that relates to the re-sa’e, and the alleged liability of defendant, to avoid the objection.-
    12. Where no damages are laid in a particu’ar count of the declaration, — the court will intend the genera1 averment of damages at the close of the com non counts to app'yto it.
    13. Where a plea professes to answer the who’e of a declaration, and applies to one count only, it will be adjudged bad on demurrer.

      14. To subject a vendor to loss, for refusing to approve ard receive indorsed notes, it mint a¡ pc or ru i only that the rides were good, but that there was no reasonable cauto to reject them, and therefore—
    15. Where the dec’araiion states ore of the conditions cf a contract of sale to have been, that the purchaser was to execute his notes for the pirchase money, with aj /Tercohecuiitics, ard the p’ea a! eg is “that the securities offered by defendant were goo'In. id sufficient to s. care the purchase money of raid lands’' —it was he’d bad on demurrer. The plea should a'so hare averred, “ that there was no reasonable cause for rejecting them.”
    16. An averment in a declaration, that, a vendor has power to seh, as executor, is sufficient, without an allegation that, the title of vendor's testator is g~od.-

    17. A bill iu chancery is net evidence, in another suit, to prove any fact contained in it; or evidence for any } v.rpcrc, except to prove that such a bill was filed.
    18. What might be the effect of n bill in chancery, regularly sworn ¡to, if offered to prove the facts therein contained, — in another suit, between the same parties — Quere.
    This was an action of trespass on the case, brought in the Circuit court of Dallas county. The action was instituted by McMillan’s executor, to recover from the plaintiff in error, the deficiency in price at the re-sale of a tract of land, which had been previously sold to the plaintiff in error.
    The declaration, in addition to the common counts,, contained four special counts.
    The first alleged, that in pursuance of a power vested in plaintiff by the last will and testament of James McMillan, deceased, plaintiff had caused to be put up at public auction, a certain plantation, of which the testator died seized: that the conditions of sale were, that the purchaser should execute notes, with two approved sureties, payable in one and two years, possession not to be given .until the terms of sale were complied with; and that in case the purchaser failed to comply with the said conditions, the ven'dor to be at liberty to re-sell the said lands, and any deficiency, with all charges, to be made good by the vendee. It then averred, that a sale had taken place,; that defendant was the highest bidder, and was declared the purchaser of the lands. That in consideration that defendant, as executor, had performed and fulfilled all things in said conditions of sale specified, — he, defendant, had undertaken to perform what devolved upon him as purchaser of the said lands; that though plaintiff was ready and willing to make to defendant, such titles as the testator died seized of, and to deliver possession of said lands, upon defendant’s executing his notes payable in one and two years, 'with two good and sufficient sureties, yet defendant would not make said notes, as aforesaid, with good and sufficient sureties, but refu'sed, unless plaintiff would take as sureties to defendant’s notes, certain persons, who were not then good and sufficient sureties. — Whereupon,, the plaintiff, as executor, afterwards, after having given notice, again exposed the lands to sale, at auction, when t'pey, on such .second sale, sold for less than defendant had agreed on the first sale to pay therefor; the difference bet ween which sales and the costs and charges thereof, the defendant became liable to pay, &c.
    The second count alleged similar facts, with the first, ami contained -a general averment of the refusal of the defendant to comply-the terms of the sale, and his consequent liability to pay, as damages, the difference in price between the two sales: — But did not aver, that one of the conditions of the first sale was the right to sell, at the vendee's risk.
    The third count was of the same character as the second.
    The fourth count, alleged, that plaintiff being empowered, as executor, to sell the lands of his testator, sold to defendant the lands, on a credit of one and two years, for which defendant was to execute notes, for the purchase money, with two approved sureties, before possession was to be delivered: that thereupon defendant promised to fulfil his agreement, in consideration that plaintiff had performed what devolved upon him, under the contract of sale: that plaintiff had always been ready and willing to perform his part of the contract, yet defendant refused to execute the notes, payable in one and two years, with two good and approved sureties for the purchase money, and thereby discharged plaintiff' from all further performance on his part, &c.— No damages were laid in this count.
    To these.counts, were added the common counts, for goods sold and delivered — for money lent- — for money had and received — insimul computassent — and that defendant had faithfully promised to pay the same,-*-with the usual conclusion.
    To the declaration, defendant filed a demurrer to each ■ count separately.
    Defendant also plead the following pleas:
    1. Non assumpsit.

      2. The statute of frauds.
    3. That legal notice was not given by tine said cxcu> tor, of the first sale of said lands.
    4 That legal notice was not given of the second sale of said lands, and
    5. That the securities offered by defendant were good and sufficient to secure the purchase money of said lands.
    To the first and second pleas, there were replications and issues taken, and to the third, fourth and fifth pleas, demurrers were filed, and joinders in demurrer.
    The demurrers to the several counts of the declaration were overruled by the court, and the demurrers to the third, fourth and fifth pleas of defendant were sustained ; and a jury being impanneled, to try the issues joined on the first and second pleas of defendant, found for the plaintiff, and assessed his damages at four thousand nine hundred and twelve dollars, and sixty cents.
    The bill of exceptions stated, that on the trial of the ;ase, the plaintiff offered as evidence, the bill of sales of ;he auction of the lands mentioned in the declaration, which bill of sales was not signed by the auctioneer or ais clerk, nor by either the plaintiff or defendant, — to prove the terms of the sale, the conditions of the same, and the price at which it was sold. He further offered in evidence, a bill in chancery, filed by defendant, Adams, for a specific performance of the contract of sale against plaintiff, which bill in chancery, with the exhibits, were made part of the bill of exceptions, and in which bill in chancery, the defendant Adams admitted a purchase of the lands by himself, but represented the terms and conditions of the sale of said lands, as “publicly proclaimed and made known by said plaintiff on the day of sale.” Tlie plaintiff, further to prove the terms and conditions of sale, and a sufficient signing by defendant to charge him thereby, introduced a letter written by defendant to plaintiff, subsequent to the sale, which let. ter was in the words and figures following, viz :
    “ Athens, March 12th, 1836.

      “ Mr. Drury McMillan, executor of the estate of James
    McMillan, deceased:
    “Dear Sir — My illness prevents ray coming to make a tender of my notes and securities, in compliance with the sale of lands which I purchased of the estate of James McMillan, deceased, on the eleventh day of January last — being the highest bidder for the same. Such being my situation, I make my son, John D. Adams, my lawful agent, to make a tender of my notes and securities, and authorise him to take possession of said land. The land that I, through my agent, John D. Adams, demand possession of, is the land bid off on the above mentioned day, being the land lying on the Alabama river, occupied by the above named James McMillan, at the time of his death, containing six hundred and forty acres, more or less. You will much oblige me by taking my notes and securities,' which my agent, John D. Adams, will present you, and give him complete possession of the land and premises, together with the appurtenances thereunto belonging.
    “ Yours, respectfully,
    B. Adams.’*

      All the evidence in relation to the terms and conditions of sale, and the signing of the defendant or his agent being parol, the defendant moved the court to charge the jury, that the evidence in the cause was insufficient to take the same out of the statute of frauds, and that there was in fact no legal signing by the defendant, or any other person, for him, upon which to charge him. This charge the court refused to give ; to which defendant excepted, &c.
    It was in this court assigned in error-—
    1. The court below erred in overruling the demurrer to each count of the declaration;
    2. The said court erred in sustaining the demurrer to the fifth plea of the defendant in said court;
    3. The said court erred in refusing to give the instructions to the jury, for which the defendant in said court asked, as the bill of exceptions shews.

      Hopkins & Parsons, for plaintiff in error.

      J. B. Clarke, contra.
   ORMOND, J.

— The principal question arising in this case, on the statute of frauds, is one which demands, and has received from us, the most attentive consideration. Eminent judges, both in England and in this country, have lamented that the plain letter of the statute has ever been departed from. It is now, however, settled, that a writing, no matter what may be its particular form, will'be a sufficient memorandum or note in writing, as required by the statute; provided it contain the essential terms of the contract, expressed with such certainty, that they may be understood from the instrument itself, or fro n some other wr.tiug to which it refers, without- recourse to parol proof, and be signed by the party to be charged thereby.

In examining this question, we will proceed in the order in which the case was considered by counsel; and

1st. A; to the bill of sales of the auctioneer of the lands, which was offered in evidence in the court below, as such a memorandum or note in writing, as the statute requires.

There was formerly considerable difference of opinion, whether auction sales of land were within the statute of frauds, and tv nether the signing of the name of the purchaser, by the auctioneer, was a sufficient signing within the statute. ■ It is now, however, well settled, both in E-ingland and the United States, that the auctioneer is the agent of the purchaser, either of lands or goods at auction, to sign a contract for him as the highest bidder; and his writing the name of the purchaser on the memorandum of sale, immediately on receiving the bid, and knocking down the hammer, is a sufficient signing of the contract within the statute of frauis (See 4 Johns. Ch. Rep. 659;) Cleaus vs Foss, 4 Greenleaf, 1.

The bill of exception states, “that the plaintiff offered in evidence, the bill of sales of the auction of the lands, in the deduration mentioned, which bill of sales was nos sin-usd by the auctionssr or his clerk, nor by either the ■plaintiff or ■ dsfend.v.it, to prove the terms of the sale, as well as to prove the conditions of the same, and. •the price at which .it sold..

It is contender! by the counsel for the defendant in error, that this coart must understand the cxpicssions used in the bill of exception, to mean that the paper was not subscribed at the usual place of signing instruments, but that the name of the plaintiff in error may have been inserted by the auctioneer, opposite the entry of the land, and the price at which it was bid off. If the paper were in fact signed by the purchaser of the lands, (the plaintiff in error,) o'r by his agent,', in any part of it, it has' been repeatedly held that it would be a sufficient signing within the statute; but the bill of exception expressly states that it was not signed by cither the .plaintiff or defendant, the auctioneer or his clerk. The instrument is not sot out ia the bill of exceptions, and wc cannot therefore say, whether if it had been signed so as to charge the party under the statute of frauds, it contained the other qualities which would be necessary to make it such a memorandum or note in writing, as the statute requires. Net Icirg signed, it cannot, of itself, have any influence in the decision of the cause.

Wccomc next to the examination of the letter of the plaintiff in error, relied on as a memorandum-or note in writing, of the contract. This letter is signed by the party intended to be charged, and contains a full arad complete statement of the whole contract, for the purchase of the lands at auction, with the exception, that instead of describing the land by metes ancl bounds, or by its designation in the land office according to the survey of the United States, — it is described as “the land lying on the Alabama river, occupied by the above named James McMillan, at the time of his death; -con-taming sis hundred and forty acres, more or leso and is entirely silent as to the price to be given for the land, or the amount for which it was bid off. This letter, admitting that it contains a sufficient description of the land intended to be purchased, is totally deficient, i'n net stating the price which was to be given for it. The purchase money is at least as important a part of the contract as any other. Perhaps there would te moro danger of perjury, from allowing parol proof to be given-of this, than any other constituent of the contract; yet the letter contains no statement of the price of the land, nor does it refer to any ether writing which' decs. I're-haps it might be said, that' the notes referred to in the letter, which had been executed by the plaintiff in error, and his sureties, would show the amount to.be given for the land. Admitting that to be so, it docs not appear from the hill of. exceptions, that they were offered in evidence, or relied on in the court below; and as they were not accepted by the defendant in error, the probability is, they were destroyed — at all events, they are not now before ns.

In Blagden vs Bradbear, (12 Vesey, 469,) Sir Wm. Grant says: “In opposition to the specific performance prayed by this bill, the statute of frauds is insisted on. The plaintiff endeavors to. repel that defence by contending in the alternative, either that the auctioneer’s receipt is a sufficient agreement in writing, or that an agreement in writing is not necessary, as the provisions of the statute do not affect sales by auction. The proposition, that the auctioneer’s receipt may be a note or memorandum of an agreement within the statute, is not denied; but for that purpose, the receipt must contain in itself, or by reference to something else, must show whut ti.e agreement is. In this instance, one very material pa titular, the price, docs net appear on the receipt; for the amount of the deposit, unless we know the proportion it Lears to the price, does net show wl.at the price is; ana the receipt contains no reference to the conditions of the sale, to entitle us to look at them for terms.”

So in this case, the letter docs net contain the price to be given for the land, — nor dees it refer to any ether writing which does, unices it he the uctes, which arc r.ct before us. It is, therefore, net a euiScicnt memorandum or note in writing, to satisfy the statute—See also on this head, (11 East, 142;) Lrydell vs Drummond; Clerk vs Wright, (1 Atkin’s, 12;) Lose vs Cunningham, (11 Vesey, jr. 550;) Parkkurst vs Van Courtlandt, (1 John. Ch. Rep. 273;) Coles vs Trecothick, (9 Vesey, 235;) Vain vs Walters, (5 East R. 10;) Morley vs Drethley, (3 Dingham R. 107.)

We proceed to the examination of the bill in chancery, filed by the plaintiff in error, for a spccife performance of the alleged contract, for the calc and purchase of the lands. The bill recites, with great particularity, all the particulars of the sale, the time at which it took place, the description of the land, the price to be given for it, and the credit on which it was uold ; and demands a speciñe performance. It docs not appear from the till of exceptions, whether the defendant answered the bill, or what disposition was made of it: this, however, is unimportant, in the view we fake of this part of the case.. If the bill in chancery can be received in evi-deuce, there can be no doubt that it will satisfy the demands of the statute. Lut we are of opinion, that a bill in chancery is not evidence in another suit, to prove any fact contained in it, or evidence for any purpose, except to prove the fact, that such a bill was filed. Anciently, it seems that bills in chancery were evidence of the facts' and allegations they contained — as appears from the cases reported in Buher’s Nisi Prlus, 235; but in more modern times, they seem to have teen considered as the mere suggestions of counsel, and therefore not evidence of any fact alleged in them, between the same parties in any other suit.

In Coe, on the demise of Eowerman against Sybornc, (7 Term. R. 1,) a bill in chancery was offered in evidence, to prove a fact therein alleged; but Lord Kenyon “ rejected the evidence, on the grociad thu t a bill ia chain cry was not evidence of any fact therein contained, but was to be taken as tlic suggestions of counsel.”

On a motion for a new trial, in the Court cf King’s Bench, a distinction was attempted to be taken between facts stated by way of inducement in a bill'in equity, and such matter whereon the plaintiff founds his prayer for relief, as was that case. But the court determined, that “ a bill in chancery is never admitted in evidence, further than to shew that such a bill did exist, and that certain facts were in issue, in order to let in the answer or the depositions.” In the case of Taylor vs Cole, his Lordship held the same doctrine; and finally, in the Banbury Peerage case, it was determined by all the judges, “that generally speaking, a b.il in chance?y cannot be read in. evidence to prove any facts, either alleged or denied, in such bill; but whether any possible case might be put, which would form an exception to such general rule, the judges would not undertake to say”—(2 Selwyn’s N. P. 684.)

What would be the effect of a bill in chancery, regularly sworn to, if offered to prove the facts therein contained, in another suit between the same parties; — as this bill is not sworn to, it is not necessary now to decide.

From this examination, it appears that neither of the instruments offered in evidence, show a sufficient compliance with the statute of frauds, to constitute a binding contract for the sale of lands, when, as in this case, the statute is pleaded. It was, however, contended, that although the auction sale bill, nor the letter, taken singly, might be evidence of a contract for the sale of lands under the statute; yet, taken together, they would be sufficient. Conceding that to be the fact, it is very clear, that unless there is a direct reference in one to the other, so as, in effect, to embody in itself the paper referred to; without the aid of parol proof to' effect such union, they cannot be considered together. This, the authorities already cited, will abundantly show.

We will now examine the pleadings in the case. The four first counts in the' declaration arc special, and to each of them, a demurrer was filed and overruled by the court. The first count, in substance, recites, that the executor had power, under the will, to sell the lands of his testator, — that he advertised and sold certain lands of his testator, on the following conditions:

1st. On a credit of one and two years;

2:1. Payment to be scoured by notes, with two approved sureties;

3:1. Possession not to.be delivered, until the terms of the sale were complied with ;

4th. A power of re-sale, if the terms of the sale were not complied with.

The count then proceeds to state, that the plaintiff in error became the purchaser^ at a price named; — that the defendant offered to convey the land, on the execution of the notes with surety ¡- — that the plaintiff Ailed to comply, by not tendering good and sufficient security ; whereupon, the defendant in error re-sold the land, at a less price than the first sale, and claims as damages, for the breach of contract, the difference between the two sales

The objection urged against this count is, that there is no allegation that the title of the vendor’s testator was good. Wc do not consider that 'this allegation was necessary. It is averred, that the defendant hacl power to sell as executor: This averment is sufficient.

It is true, that if the title to the lands be defective, it would be a sufficient excuse for the purchaser in refusing to complete the purchase ; but it is not necessary for the executor to go further than to show that he was lawfully authorised to sell under the will of his testator- — (See 4 Greenleaf’s R.)

The second and third counts are, in substance, the same as the first, omitting the condition of the power to resell, and breach assigned as in the first count. As this count doss not allege the power of re-sale, as one of •the conditions of the contract of sale, it becomes necessary to enquire whether the vendor, when the vendee refuses to accept a conveyance and pay the pu chace u.o-ney, has, as an incident of the breach of contract, the power to re-seli the lands, and charge the vendee the difference between the two sales.

When the right to re-sell lands, for a failure to comply With the contract, is one of the conditions of the sale, the difference between the two sales, is the measure of damages agreed on by the part.es for a failure to perform the contract, and is in the nature of stipulated damages. Lut if no such condition he entered into, as one of the termas of the sale, the vendor, upon a breach of the contract, would certainly be entitled to recover such damages as he had sustained by the violation of the contract of sale; and we think the diiferc-nce between the price at which the land was first, bid off, and the price at the second sale, would afford a good critcri-, on of the damages sustained by the vendor; not, however, as binding on the jury, but as fit arid proper testimony to be received by the n as a medium of coming to a correct conclusion. It would be necessary, however, that 'the second sale, as well as the first, should be conducted with fairness, and no means be resorted to which would impair the value of the land in the estimation of the public. This has been held to be .the law in relation to personal property, and we can see no reason why it should not be applied tosales of lands. In the case of Girard vs Taggert, (5 Sergeant & Rawle.) a quantity of teas .were solij at public auction, on a credit; the purchaser afterwards refusing to comply with his contract, the teas were re-sold at a Joss, and this action, was brought to recover damages for the breach of the contract. In the course of his opinion, Chief Justice Tilgh-man says, “when Taggart refused to accept the goods, the plaintiff might have kept' them without a re-sale, and brought suit for the damage; but without are-sale, it would have been difficult to ascertain the amount of damage. For this purpose, a re-sale has been the usual practice, and it was sanctioned by this court, in the case of Adams vs Minnich. The jury, however, were told that they were not bound by this mode of estimation, if they could find another more agreeable to truth” — (See also 5 Johnson’s R. 395.)

It seems to us, that the principle decided in these cases, apply with equal force to a sale of lands. In the case of the school commissioners vs James G. Aikin, (5 Porter R. 169,) this couit expressed a strong opinion to the same effect. In Seton vs Slade, (7 Vesey, jr. 275,) Lord Eldon, commenting on the effect of a clause of resale, in the conditions of a sale of real estate, uses this language: “That clause expresses little more than would be the legal effect, if that was not inserted.”— (See also 4 Greenleaf, 2.)

With this exposition of the law. let us return to the second and third counts. They do not aver, as part of the contract of sale, a condition that the lands should be re-sold, if the purchaser did not comply with his contract; and yet the counts are both framed on the supposition, that the difference between the two sales of the land, is the sum to be recovered. Thus, they both allege the difference between the two sales, and as a consequence, of the breach of contract, the liability of the defendant to pay the sum of mousy which constituted the difference between the two sales. The damages arc laid'in the amount of this difference.

These counts are bad on demurrer. They are framed on the supposition, that the difference between the two sales of the land, is recoverable as on a contract, instead of unliquidated damages. If the objection were made after verdict, the counts might be considered as amende ’> by stiking Out all that relates to the re-sale of the land, and the alleged liability to pay that sum of money: but this cannot be done on demurrer.

The fourth count is good. It is true, that no damages are laid in the count itself, but the court will intend the general averment of damage at the close of the common counts, to apply to this count.

It only remains to consider the fifth plea; which was demurred to by the plaintiff below. The plea is in these words: “ That the securities offered by defendant were good and sufficient to secure the purchase money of said lands.” The record states that the plea was taken, in short, by consent. Construing this consent to mean, that these are the averments of the plea, and that all matters of form are waived,, we still think the plea not good. In- the first place, the plea professes to answer the whole declaration, and is but an answer to one count, but if this difficulty were surmounted, we think the plea defective in substance. The contract alleged is, that the purchaser (the defendant below) was to execute his notes for the purchase money, with two approved sureties. Now it might be, that the sureties were, in the language of the plea, .good and sufficient to secure the purchase money of the lands, and yet the executor be justified in rejecting them. They might come from a distance, and be unknown to him; or there might be a difference of opinion as to their present, or continuing ability, to meet a demand of that amount. In a word, though solvent, and considered good for the amount to be secured, still, they might be sulIi persons, as under all the circumstances of the case, a prudent, discreet man, ought not to have accepted.

We are satisfied with the rule, as laid down by Chief Justice Savage, in the case of Hicks vs Whitmore, (12 Wendell, 551.) in a case similar to this. “The notes must be such, as the party who is to receive them, approves, or cannot reasonably reject; but to subject a vendor to a loss for refusing to approve and receive endorsed not s, it should appear that the notes were good, and that there'was no just cause to doubt their sufficiency.” Instead of tendering an issue on the mere fact of the sufficiency of the sureties to secure the purchase money, it should also have been averred, “ that there was no reasonable cause for rejecting them.” The other pleas are abandoned by the plaintiff in error.

The judgment must be reversed, and the cause remanded for further proceedings, in conformity with this opinion.


text:
    EVANS VS MOTT, et al.
    1. An error- committed by a court, cannot place a party prejudiced by it, in a situation less favorable to the attainment of speedy justice, than if there had ¡icen no interruption in the regular progress of the cause, and
    2. A party will not be allowed to profit by an error, occasioned by his own motion; therefore,
    3. Where a case in the County court, was on the appearance docket, and the writ was, on motion, erroneously .quashed, and the error was corrected by the Circuit court, — the case, when returned to the County court, was properly placed cn the trial docket.
    The defendants in error caused to be issued a writ of capias ad respondendum against the plaintiff, (lor the recovery of the amount' due on a promissory note.) returnable to the County court of Wilcox. At the return term, the writ was quashed, and a judgment rendered against defendants; to reverse which, they prosecuted a writ of error to the Circuit court of that county — and the case there being considered, the judgment of the County court was reversed, and sent bach for further proceedings, and placed by the clerk on the trial docket of that court. The plaintiff in error, at the first term after the case was remanded, moved the court to have it stricken from the trial, and placed on the appearance docket. Which motion being overruled, the plaintiff excepted, &e. and judgment was rendered against him by nil dkit; thereupon, he brought his case into this court for revision.

      The only error relied on, was the refusal of the County court to transfer the case from its trial to its appearance docket.

      Procior, for plaintiff in error.

      J. B. Clarks, contra.
   COLLIER, C. J.

— Had the County court have overruled the motion of the plaintiff in error to quash the writ, the case would have stood for trn 1, at the term at which the judgment by nil dicil was rendered. 'And shall an error committed by the court, after it has been corrected, place the party who was prejudiced by it, in a situation less favorable to the attainment of speedy justice, than if there had been no interruption to the regular progress of the cause? We think not. It is true, when the writ of error was taken to the Circuit court, the case had been pending on the appearance docket only; yet inasmuch as it would have been triable when sent back, we think the plaintiff had no right to'object to a trial. The defendants were in no default, and' the error of the court, from which the plaintiff claims an advantage, being occasioned by his motion, we think he should not be allowed to profit by it.

The judgment is affirmed.


author: OSMOND, J

text:
    HUTCHINS VS M’CANN.
    1. The proper measure of damages in an action by the indorses of a promissory neto against the iuo'c-rser. the maker having fai edto pay, is. the sum of money, with interest, which constituted the consideration cf the assignment. And so, also,
    2. Where A, wishing to borrow two hundred dollars from B, executed seveial small notes, amounting, in the aggiegate, to three hundred and nineteen dollars, j ayable to C, who indorsed them to B, aud received the two hundred dollars which he handed over to A, and A subsequently took up a -fait of the notes, and paid to B various sums, amounting-, in all, to two ' hundred dollars, — it was he.d, that B, in an action on the balance oí the notes, was net entit.cd to u coi er against C. The contract being entire, ard B Lacing received the sum advanced by him, there was a iid.ure of consideration lcr the ha anee cf the rioter.
    8. Where the court, in charging a jury, expresses an erroneous opinion on an abstract question of law, not n< ctisary to be decided in the easy and not prejudicial to a faity — such exj ression of erroneous opinion, is no ground for a ivversa! of the judgment. — thejudgment renden d being in strict confcrmityto the law arising from the facts cf the case.

      4. Kemble, that there is no difference between an accommodation indorser, and one for va’ue received, so far as the i ights cf tl: e in-dorsee or ho’der of the note are concerned, in an action by an indorsee against the endorser of a promissory note.
    Error to the Circuit court of Greene county.
    This was an action of assumpsit by Hutchins, as the endorsee of a promissory note, against the endorser. The plea was the general issue, and under it, a verdict was rendered for the defendant. ■
    The bill of exceptions stated, that on the trial of the case, and after plaintiff had offered the note sued on in evidence, the defendant introduced John I-Iillhousc, the maker-of the note, who was released by defendant, and who stated that the note was one of a number of small notes, executed by lilm to the defendant, amounting, in the whole, to the sum of three hundred and nineteen dollars: that saidnot.es were all made and dated at the same time, _ and payable at the same time, and were made and executed in that way. to enable’the witness to procure money from the plaintiff; and at the suggestion of plaintiff, the notes were mil endorsed, by the defen-• dant, and were disposed of to the plaintiff, for the sum of two hundred dollars: that at the time the notes were disposed of, and the money received, witness and defendant were both present, but defendant received the money from plaintiff, and delivered to him the whole of said notes. The witness further stated, that about three months and a half before the notes became clue, he paid the plaintiff the sum of one hundred and sixty-two dollars and fifty cents, which was, by his consent, applied to the extinguishment of a certain number of the notes, which were taken up by him at. the time of said payment: that the note sued on in this case, had never been paid by himself or by defendant, or any one else that he knew of. Another of said notes given for forty dollars, with the interest that had accrued thereon, had been paid by defendant. •
    The court charged, that where the payee of a note in the ordinary course of business, sold and endorsed it to a third person, thé maker was liable to pay to the purchaser and- endorsee of the note, the full amount for which it was made, but that the endorser would only be liable for the amount actually received by him, from the endorsee or purchaser, with the interest that might have accrued upon it. The correctness of the principle was conceded by both parties, but plaintiff contended as to the note sued on, the circumstances did not bring it within its influence. It was clear that this was not the ordinary case of the sale and purchase of a note: that all the parties to the notes, plaintiff, defendant and the maker, were aware, and had agreed that the notes, as soon as made by Hillhouse, and endorsed by defendant, were to be passed to the plaintiff, who was to advance and pay therefor, the sum of two hundred dollars. The object of defendant was to enable the maker of the note to obtain money from plaintiff. — Defendant then was an endorser for the accommodation of the maker, and so understood by plaintiff. The transaction was single and entire, though there were several evidences of an indebtedness; and defendant, though an endorser in fact, should, for the purposes of this case, be considered rather as a surety or guaranty, and entitled to every defence which his principal could make. It was competent for Hillhouse to shew, that he had paid to plaintiff the amount of money and interest, which he had received from him in discharge of his further liability, and if Hillhouse could make this defence, there was nothing to prevent defendant from interposing it. The principle upon which an endorsee, who sold a note in the ordinary course of dealing, could only be compelled to pay the amount he had received, and interest, was, that there was a failure of consideration for all that might be expressed upon t'ae note beyond this sum ; and so, in this case, no recovery could be had beyond the sum paid for the notes and interest on that sum, for want of a consideration. The fact that Tlillhouse had made payments to the plaintiff, and taken possession of some of the notes, permitting others to remain in his possession, could not prejudice defendant; — it could only be construed into an implied assent, that the notes should be in force —such an assent, even though it were express, would be unavailing; because, as to all but the two hundred dollars, and interest, there was an utter want of consideration, and if plaintiff had received from defendant or Hillhouse, the sum he paid for the notes, and interest on that sum, he was not entitled to a verdict. To all of which, plaintiff excepted, &c.
    It was assigned as error, in this court:
    1. That the court below erred in giving the several opinions contained and set forth in the bill of exceptions, as appeared by the record;
    2. That the court below erred in giving judgment for the defendant.

      Erwin, for plaintiff in .error.

      Murpkey, contra.
   OSMOND, J

— It is a principle of law too well settled to be questioned, and indeed is admitted by the counsel for the plaintiff, that in an action by the assignee against the assignor, the-maker having failed to pay, the proper measure of damages is the sum of money which constituted the consideration of the assignment, with interest anti With this principle in view, let us examine the transaction. One llilihouse wished to borrow two hundred dollars of t,.e plaintiff, and for that purpose, executed several notes, amounting) in all, to three hundred and nineteen dollars. These notes were made payable to the defendant, who assigned them to the plaintiff, and received the said sum of two hundred dollars, which he handed over to Hillhouse.

Had each of these notes been sold at a fixed price, there could have been no doubt that the right of the plaintiff to recover of the defendant, was perfect on each of the notes, and on the failure of’ the maker to pay any one or more of them, he could have maintained an action for the consideration of the assignment.

The difficulty that arises in this case, proceeds from the fact, that the consideration paid by the plaintiff to the defendant, on the assignment and transfer of the notes, has been paid to him on a portion of the notes, leaving the note, in this case, unpaid. But this cannot affect the question, if the contract .was entire. We think the evidence clearly established the unity of the transaction; a decisive test of this, is the fact, that a round sum was given for all the notes — the sum of two hundred dollars. Suppose that no part of the money had been paid by the maker, could any more than the sum of two hundred dollars and interest have been recovered of the endorser 7 It is clear that there could. n.ot. How then, is the ease varied, by the maker paying a part of the notes. He could not, by any act of his, affect the contract between the endorser and endorsee, or diminish or enlarge the amount, legally recoverable of the former.

If, as the contract shows, there was a sale of all the notes for an entire sum, and not a sale of each note for a specific sum, the effect of the endorsement, as to the amount to be recovered from the endorser, is the same that it would he, if there had been but one note for the whole amount, and that had been sold for two hundred dollars. In that event, if the maker had paid the sum which constituted the consideration of the endorsement, no one will contend there could have been any further recovery of the endorsee.

We have been referred by the counsel for the plaintiff in error, to the case of Brown vs Mott, (7 Johns. R. 361.) The suit there was, by the second against the first endorser. The court determined, that in the absence of proof, the plaintiff must be presumed to have paid the full value of the note to the holder, and therefore had a right to recover that, amount of his endorser. The court say: “ Or if he had purchased it, or taken it up at a reduced price, it would seem he could only recover the amount paid; but as the drawer originally raised the money upon the note, with the endorsement of the present parties, the note must have been returned to the plaintiff by the subsequent holder, and he must have taken it up for its value.” It is not perceived that this decision militates against the decision now made; but so far as the cases are analagous, sustains it.

It is, however, insisted, that as the court below in charging the jury, laid some stress on the fact of the defendant being an accommodation endorser merely, that the jury were misled, and the judgment must be reversed for that cause.

Admitting that the charge of the court, in so far as it supposed any difference to exist between the case of an accommodation endorser and one for value, — so far as the rights of the endorsee or holder were concerned, was erroneous, — it is not perceived how that could prejudice the plaintiff. It was at most, mere;y an opinion on an abstract question of law, not necessary to be decided in the case, and which could not do injury.

In conclusion, the court say, if the plaintiff has received from the defendant, or from Hillhouse, the sum he • paid for the notes, and interest on that sum, he is not entitled to a verdict.

This being the law of the case, there was no error in the charge of the court; and the judgment must be affirmed.


author: ORMOND, J,

text:
    THE STATE VS RAIFORD.
    1. Words written at length, are not only more certain, but less li-ab e to a t.,ration, than figures; ami therefore, when the year and day of the mouth are inserted in any part of an indictment, they are more property inserted in words written at lengt.i, tnau in Arabic characters, — but a contrary practice will not vitiate an indictment.
    2. It. is a well estab'ished ru'e in criminal pleading, that where a genera' term is used in a statute creating an off nee, in connection with words more precise and definite, the indict ment must charge the offence in the \ articular words used in the statute; and therefore,
    3. Where the language of the statute wa°, — “ Any person who shall presume to keep a tipp ing bouse, or sel! rum, .Tandy, whiskey, taifia, or other spirituous liquors, &c. shall be liable.” &c.; — and the indictment charged the defendant with retailing- spirituous liquors without a license,— it was held, that the indictment was deficient in not defining the offence with sufficient precision.
    Error to the Circuit court of Benton county.
    Indictment for retailing spirituous liquors without license. The indictment ran thus: “That James Raiford, late of said county, on the sixth clay of May, in the year of our Lord eighteen hundred and thirty-seven, in the county aforesaid, did then and there sell spirituous liquors in less quantities than one quart, without license, to one William D. Kelly, and to divers other persons, whose names were to the jurors aforesaid unknown, contrary to the acts of the general assembly in such cases made and provided, and against the peace and dignity of the State,” &c.

      Tiie defendant plead not guilty, and under bis plea, was convicted.
    The bill of exceptions set forth the following: That a motion was made by defendant to quash the indictment, for defects apparent on its face, which motion was overruled by the court;. but as the question had never been settled by the .Supreme court, and as some doubt was entertained, it was therefore, at the instance of defendant certified, &c. and the judgment respited until the next term, &c.
    And at this present term defendant assigned:'
    1. That the court below erred in overruling the motion to quash the indictment, because it was defective in describing the offence charged in this — that it did not specify what kind of spirituous liquor the defendant had sold without license.
    2. Because the caption of the indictment was defective, in stating the time of its finding by the grand jury, in figures.

      Brown, for the appellant.

      Attorney General, contra.

      Brown, for the defendant,
    urged, that the court below should have sustained the motion to quash the indictment, because it was uncertain as to the misdemeanor charged. Arch. Grim. Pl. 52, 53; Bacon’s Abr. 555; G. vol. 3; also 573, K.
    The time at which the grand jury made the presentment, ought to have been stated in Homan numerals, or. in words at full length, and not in .figures. Arch. Cr. Pl.
      54; 2 Hale, 170; Bacon's Abr. 3, 573, l; Aik. Dig. 415.
    The Attorney General said—
    1. As to the objection that the charge was not sufficient, — it was not necessary to follow the exact wo;ds in the statute, — it was sufficient if the offence was set forth with substantial accuracy and certainty, to a reasonable intendment — 2 Gallisoa, Í8 ; 6 Wheeler’s Abr. 35.
    The statute makes it an offence to sell without license, any “ rum, brandy, whiskey, tailia, or other spirituous liquors,” fee. The indictment charges defendant with selling “spirituous liquors.” Tl.e celling of all spirituo'is liquors without Ucease, is clearly forbidden by this statute. Must the prosecuting attorney, to meet his proof against every unlicehsel retailer, prepare separate counts against each one of his whole assortment of decanters — rum, brandy, (the various kinds.) whiskey, gin, «fcc. fee. 1 Was not the defendant sufficiently informed of what he had to defend, when be was charged with selling “spirituous liquors”? Nothing more was necessary.
    2. As to the objection to that part of the statement which preceded the indictment’s being in figures — See 5 Yerger’s Term. R. 188; 6 Wheeler, 35.
    This preceding statement was not the caption to the indictment. The caption to the indictment was contained in an independent entry upon the minutes of the court, setting forth the time and place of holding the court, the judge presiding, the selection of the grand jurors, fee. This record did not contain this entry, from neglect, no doubt, of the clerk.

      3. This was amotion to quash- — ahvi.ysdieercticaury with the court — 1 Will. 327; Ye..íes’ rear). 11. 69. Defendant might have demur* ei, or moved in arrest of judgment.
   ORMOND, J,

— There is no doubt that there is more propriety in writing the year or the day of the month, whenever it is necessary to state either, in the caption or the body of the indictment, than to insert the Arabic characters now in use; as writing is less liable to alteration, and more certain. But the contrary practice has prevailed so long, that it would be unwise now to disturb it. The ancient rule, doubtless, liad its origin in those days, when all plea lings were required to be in 1.. tin, — as we learn from 3 Bacon, 573, that Roman numerals will .answer. At all events, it would savor of unnecessary refinement, to sustain such an objection now.

But for the first'objection taken to the indictment., it should have been quashed. The language of the statute is, “Any person who shall presume to keep a tippling house, or sell rum, brandy, whiskey, taffia, or other spirituous liquors, &c. shall be liable,” &c. The indictment, in this case, charges the defendant with retailing spirituous liquors without a license.

This charge is deficient, in not defining the offence with that precision which the humane policy of our law requires. It is a well established principle of criminal pleading, that where a generic term is used in a statute creating an offence, in connection with words more precise and definite in their meaning, t-lie indictment must charge the offense in the particular words .used in the statute. This was decided by this court, in the case of the State vs. Plunkett. The words of the statute constituting the offence were, That if any person do fe-loniously steal any horse, mare or gelding, foal or filly, ass or mule, the person so offending, shall,” &c. The indictment charged the stealing of a horse: the proof was, it was a gelding, and on the principle above stated, the court determine the prosecution could not be maintained —See also Archbold’s Cr. Pl. 52, 3.

The judgment must be reversed, and the defendant held on his recognizance, to permit the solicitor for the State to prefer another indictment, if he thinks proper to do so.


author: GOLDTHWAITE, J.

text:
    RUSSELL VS BARROW.
    1. A man may, under many circumstances, destroy the property of another, and yet be wholly justified; as
    2. Where one kids an enraged bull, in the necessary defence of himself, or the me ubers of his honseho'd, he is justit.ed: and where trespass is brought by the owner of the anima', in such a case, if the defence were presented by plea, the defendant would be entitled to a veidici. Yet
    3. Symble uf, facts amounting to a justification are more proper’y given in evidence under a special plea, than under the general issue, — et semble ut etiam—
    4. Where not guilty is the plea pYaded, and the evidence of these facts thus a nounting to a justification, if presented under the proper plea, is suffered to go to the jury without objection, it may well be considered by them, in mitigation of damages.
    Error to the Circuit court of Fayette county.
    Trespass for killing a hull. In this case, the plaintiff, at the Fall term of the court, eighteen hundred and thirty-four, declared against the defendant; for that whereas, therefore, to wit, on a day stated in the declaration, in said county, the defendant shot and killed a certain bull, the property of plaintiff, then and there found, and being of great value, to wit, of the value of one hundred dollars, and other wrongs then and there, did contrary to the peace and dignity, &c.
    The defendant pleaded not guilty, and a verdict was rendered for the plaintiff.
    A bill of exceptions, taken in the progress of the trial, sat forth, that on the trial of the cause, it was in proof before the jury, that the bull of plaintiff, for killing of which, the suit was brought, came in an apparent ill mood and angry manner, on the premises of defendant, and that when there, he manifested a disposition to fight, and made an effort to gore the horse of defendant, and that defendant attempted to run the bull off the premises with dogs. That after the bull had been run some distance, he returned and broke into the enclosure at defendant’s house, where be was again assailed by the dogs. That defendant’s family, through fear of their persons, were induced to run up stairs. The bull, seeing the defendant in the piazza of his dwelling house, which was a double house, having rooms at each end, and a piazza or open hall In the middle, rushed into the piazza, and turning his head into the door of the room where defendant’s family had taken refuge, — was, in that situation, shot several times, and killed. The court charged the jury, that the law would in no event- permit one man to kill or destroy the properly of another, without being responsible to the owner for the value thereof, and that if they believed from the evidence that defendant bad killed plaintiff’s bull in his own self defence, or the de-fence of his family, it would not vary the law of the case, which authorised them to find for the plaintiff. Defendant asked the court to charge the jury, that if they should believe from the evidence, that defendant had killed the bull in self defence, or in defence of his family, and that he had used ordinary and prudent means to drive the bull from his premises, in the first instance, and that in defence of himself or his family, it became necessary to kill the bullin such case, they should find for the defendant. This charge' the court re* fused to give, but repeated that in all cases where the property of an individual was destroyed, the destroyer was answerable over to the owner for the value thereof. To all of which, defendant excepted, &c.

      Peck & Clark, for plaintiff in error.
   GOLDTHWAITE, J.

— No objection appears to have been made in the Circuit court, to the introduction of the evidence, as applicable to the issue formed between the parties; nor was any attempt made to exclude it from the jury for this reason, but it seems to have been considered as properly before the court and jury.

Under these circumstances, the charge is certainly erroneous, and we do not feel at liberty to construe it as having been made on mere abstract questions, not arising in the particular case; which rule, perhaps, may be applied, without doing injustice to the refusal to give the charge ashed for.

We understand the court to have said to the jury, with reference to this case, that under no circumstances, wilpone citizen be permitted to destroy the property of another, without being responsible, in damages, for its value.

In this opinion, the court erred —A man may, under many circumstances, destroy the property of another, and yet be wholly justified, as in the case before us, he certainly was; and if he had presented the defence by plea, he would have been entitled to a verdict, — and as the parties seem to have waived a plea, by permitting the justification to go to the jury without objection, it was a matter which the jury could have considered in mitigation of damages at least, if they had not been instructed by the court as before stated.

We do not deem it necessary to go into an examination of authorities, to establish a position which seems to be self-evident — that a man, who is forced by circumstances, to protect his own life, or the lives of members of his household or family, by the destruction of a beast, cannot be made responsible to its owner for its value. If, in such cases, a loss happens, it is more just that it should fall as a misfortune on the owner, than on him who is acting in strict conformity with the first law of nature. •

The judgment must be reversed and the cause remanded.