text:
    HERNDON VS BARTLETT.

      As to pleadings in trespass.\ quare clausum fregit, ét de bonis asportavit.
    1. Wh.ile one tenant in common may not maintain an action at law against a co-tenant, for the taking of a chattel, unless' destroyed or so changed that possession cannot be regained — ■' yet one tenant is not at liberty to invade the close of another,» and take into his possession a chattel owned by them jointly^ though the one might have its exclusive enjoyment, and re-’ fuse a participation to the other.
    2. So, in tresspass for breaking the close of plaintiff, and taking a chattel therefrom, it is no justification, or plea, that the' defendant was tenant, in common with plaintiff, of the chattel;that the plaintiff had appropriated it to his exclusive use,- and' excluded the defendant from the use thereof; and that being such tenant in common, defendant broke the close, and took the chattel, as he lawfully might — doing as little injury as possible.
    3. In trespass quare clausum fregit, et de bonis asporlavit, the plea of liberum tenementum, only, not justifying the asportation of the chattel, is sufficient.
    4. Whether the word “unlawfully,” would be essential in a de-' claration in trespass quare clausum fregit, et de bonis asporta-uit, or not, the words “with force and arms,” it seems, would be sufficient.-
    This wrs an action of trespass, for breaking and entering the close of the plaintiff, and talcing there-Hum a horse, alleged to have been in the possession of, and owned by the plaintiff; and was prosecuted in Greene Circuit Court, by Bartlett against Herndon.-

      ' The declaration complained, that the defendant, on the --- day of -- eighteen hundred and thirty-one, with force and arms, &c, broke and entered a certain stable of the said plaintiff, in the county aforesaid, and then and there broke to pieces, damaged and spoiled divers locks, staples and hinges of, and belonging to the door of the said stable; and the® and there took and carried away, a certain chesnut sorrel stud horse of the said plaintiff, then and there-being in the said stable, of great value, to wit, of the-value of five hundred dollars, and converted and disposed of the same to his own use: And also, that the said defendant on, &c. at, &c. broke and entered a certain other close of the said plaintiff, and then and there seized and took a certain other chesnut sorrel stud horse of the said plaintiff, there found and being in the said close, and of great value, &c. By means whereof, &c.
    The defendant, to this declaration, plead the following pleas.
    “And the said Edward Herndon comes and defends the wrong and injury, when, &c. and says that he is not guilty of the said supposed trespasses above, in the said first and second counts of the plaintiff’s declaration, laid to his charge, or any part thereof, in manner and form, as the said plaintiff hath above thereof, in the said two counts, complained against him, and of this, he, the said Edward Herndon puts himself up on the country, &c.
    “ And for a further plea in this behalf, to the first count of the plaintiff’s declaration as to the breaking and entering the said stable, (in and upon which the said supposed trespasses in the first count mentioned and therein alleged to have been committed,) in the said first count mentioned, and breaking to pieces, damaging and spoiling divers, to wit, locks, staples and hinges of, and belonging to the door of the said stable, and wherewith the same was fastened ; and also then and there taking and carrying away a certain chesnut sorrel stud horse of him, the said plaintiff, in the said first count mentioned, and of converting and disposing of the same to his, the said defendant's own use; he, the said defendant, by leave of the Court now here first had and obtained, says, that the «aid plaintiff ought not to have or maintain his action thereof against him, because he says, that the said stable and the close in the said first count mentioned, and in and upon Avhich the said supposed trespasses in the said first count mentioned, are therein alleged to have been committed, now is, and at the said time, when the said supposed trespasses in the said first count mentioned, were committed, as therein set forth and alleged, was the stable, close, soil and freehold of him, the said defendant, to wit, in the county aforesaid. Wherefore the said Edward Herdon, in his own right, at the said time, when the said supposed trespasses, in the said first count mentioned, were committed, as therein set forth and alleged, committed the said supposed trespasses, in the introductory part of this plea mentioned, in and upon said stable and close, in said first count mentioned, so being the stable, close, soil and freehold of him the said defendant, as he lawfully might for the cause aforesaid, which are the said several supposed trespasses, whereof the said plaintiff hath above, in the- said first count thereof, complained against him, the said defendant; and this he, the said defendant, is ready to verify: Wherefore, he prays judgment, if the said plaintiff ought to have or maintain his said action thereof, as to the said first count against him, the said defendant, &c.

    “ And for a further plea in this behalf, to the second count of the plaintiff’s declaration, as to the breaking and entering the said other close therein mentioned, tand in which the said supposed trespasses in the said second count mentioned, are therein alleged to have been committed, and seizing and carrying away a certain other supposed chesnut sorrel stud horse of him, the said plaintiff, in the said second count mentioned, and converting and disposing of the same, to the use of him, the said defendant; he, the said defendant, by leave of the Court, now here first had and obtained, says, that the said plaintiff, ought not to have or maintain his said action thereof, against him, because he says, that the said close, in the said second count mentioned, and in which the said supposed trespasses, in the said second count mentioned, are therein alleged to have been committed, now is, and at the said time, when the said supposed trespasses, in the said second count mentioned, were committed, as therein set forth and alleged, was the close, soil and freehold of him, the said defendant, to wit, in the county aforesaid: Wherefore, the said Edward Herndon, in his own right, at the said time, when the said supposed trespasses, in the said second count mentioned, were committed, as therein set forth and alleged, committed the said supposed trespasses, in the introductory part of this plea mentioned, in the said close, in the said second count men-tionecl, so being the close, soil and freehold of him, the said defendant, as he lawfully might, for the cause aforesaid, which are the said several supposed trespasses, whereof the said plaintiff bath above, in his said secocd count thereof, complained against him, the said defendant — and this, he, the said defendant, is re’iy to verify: .Wherefore he prays judgment, if he, the said plaintiff, ought to have or maintain his said action thereof, as to the said second count against him, the said defendant.
    “And for a further plea in this behalf, as to the said first count, in the said plaintiff’s declaration contained, by leave of the Court now here first had and obtained, he, the said defendant, saiih, that'as to the breaking to pieces, damaging and spoiling of divers, to wit, locks, stables and hinges of, and belonging to .the door of the stable of him, the said plaintiff, in the said first count mentioned; and also as to the coming with force and arms, and whatever is against the peace of the State of Alabama, in said first count supposed to be done, he, the said defendant, is not guilty thereof, in manner and form, as the same is charged against him, the said defendant, in the said first count, and of this, he puts himself upon the country; and as to the residue of the said trespasses above, in the said first count supposed to be done, the said Edward Herndon says that the said plaintiff ought not to have or maintain his said action thereof, against him, the said defendant; because, he says, that long before the said time, when the said trespasses are, above in said count, supposed to he done, to wit, on the-day of-in the county aforesaid, and from that day always thereafter, up to and at the said time, when the said trespasses, as above in the said first count supposed to be done, he, the said defendant and the said plaintiff, had been, and then and there were possessed of and owned the said chesnut sorrel stud horse, in the said first count mentioned, in common, by divers titles; and he. the said plaintiff, and he, the said defendant, being so possessed of the said chesnut sorrel stud horse, in the said first count mentioned, in common, as aforesaid, he, the said Elijah Bartlett, long before the time when the said trespasses, are as above, in the said first count, supposed to be done, to wit, on the-day of-, in the county aforesaid, took and kept to himself, the exclusive possession, use and enjoyment, of the said chesnut sorrel stud horse, in the first count mentioned, and from the day and year last aforesaid, always afterwards, up to and at the said time, when the said trespasses are, as above in said first count, supposed to be done, kept and maintained to himself such exclusive possession, use and enjoyment of the said chesnut sorrel stud horse, in the said first count mentioned, and wholly and entirely hindered and prevented him, the said defendant, during- the whole time aforesaid, and at the said time when the said supposed trespasses are, above in the said first count, supposed to be done, from using or enjoying said ches-nut sorrel stud horse, in common with him, the said plaintiff, or at all in any manner whatever: Wherefore he, the said defendant, being such owner of the said chesnut sorrel stud horse, in the said first count mentioned, in common with the said plaintiff as aforesaid, at the said time, when the said trespasses are, above in the first count, supposed to be done, took and led away from and out of the stable, in the said first count specified, the said chesnut sorrel stud horse, in the said first count specified, as it was well and lawful for him to do, for the cause aforesaid; he, the said defendant, then and there, doing as little damage and injury to the said stable and close, of him, the said plaintiff, in the said first count, mentioned, as was possible; which is the same trespasses, in the said first count of the said declaration specified, and whereof the said plaintiff, hath above thereof complained against him, the said defendant, and this, he, the said defendant, is ready to verify : Wherefore, he prays judgment, as to the said first count, if the said plaintiff, ought to have or maintain his said action thereof, against him, the said defendant.
    “And for a further plea in this behalf, to the said first count of the plaintiff’s said declaration, by leave of the Court, now here first had and obtained, he;the said defendant, saith, that as to breaking to pieces, damaging and spoiling of divers, to wit, locks, staples and hinges of, and belonging to the door of the said stable of him, the said plaintiff, in the said first count mentioned, except only as to the breaking of one small lock; and also as to the coming with force and arms, in said first count supposed to be done, he, the said defendant is not guilty thereof, and of this he puts himself upon the country; and as to the residue of the said trespasses, above in the said first count supposed to be done, he, the said Edward Herndon says, that he, the said plaintiff, ought, not to have or maintain his said action thereof, against him, because, he says that long before the said time when the said trespasses are, above in the said count, supposed to be done, to wit, on the day and in the comity aforesaid, and from that day always thereafter, and up to and at the said time, when the said trespasses are, above in the said first count, supposed to be done, he, the said defendant and the said plaintiff, had been, and then and there were possessed of and owned the said chesnut sorrel stud horse, in the said first count mentioned, in common, by clivers titles, and he, the said plaintiff, and he, the said defendant, being so possessed of the said chesnut sorrel stud horse, in the said first count mentioned, in eommón as aforesaid, he, the said plaintiff, long he-fore the said time when the said trespasses are, above in the said first count, supposed to be done, to wit, on the-day of —— in the county aforesaid, took and kept to himself, the exclusive possesssion, use and enjoyment of the said chesnut sorrel stud horse, in the said first count mentioned, and from the day and year last aforesaid, always afterwards, up to, and at the said time, when the said trespasses are, above in the first count, supposed to be done, kept and maintained to himself, exclusive possession, use and enjoyment of the said chesnut sorrel stud horse, in the said first count mentioned, and wholly and entirely hindered and prevented him, the said defendant, during the whole time aforesaid, and at the said time when the said trespasses are supposed above, in the said first count to be done, from using or enjoying the said chesnut corroí stud horse, in the said first count mentioned, in coirn or: with hire, the said plaintiff, or at all, in any manner whatsoever— Wherefore, he, the said defendant, being such owner of the said chesnut sorrel stud horse, in the said first eount mentioned, in common with him, the said plaintiff, as aforesaid, at the said time when the said trespasses are, aboYe in the said first count, supposed to be done, broke the small lock with his hand, above in this place mentioned, and wherewith the door of the stable, in the said first count mentioned, was secured and fastened, and then and there, took and led away, from and out of the said stable, in the said first count mentioned, the said chesnut sorrel stud horse, in the said first count mentioned, as it was well and lawful for him to do, for the cause aforesaid, he, the said defendant, then and there, doing as little damage and injury to the stable and close of him, the said plaintiff, in the said first count mentioned, as was possible ; and he, the said defendant, in fact says, that the breaking of the small lock aforesaid, was necessary to be done, to enable him, the said defendant, to obtain and take possession . of the said chesnut sorrel stud horse as aforesaid, which is the same trespass, in the said first count of the said declaration specified, and whereof the said plaintiff hath, above complained, against him, the said defendant, and this he, the said defendant, is ready to verify: Wherefore he prays judgment, as to the said first count, if the said plaintiff, ought to have or maintain his said action thereof, against him, the said defendant.
    “And for a further plea in this behalf, to the said second count of the plaintiff’s said declaration, by leave of the ¡Court here first had and obtained, he, the said defendant, saith, that as to coming with force and arms and whatever, that is against the peace of the State of Alabama, in said second count supposed to be done, he, the said defendant, is not guilty thereof, in manner and form as the same is charged against him, the said defendant, in the said second count; and of this he puis himself upon the country, — and as to the residue of the said trespasses above in the said second count supposed to be done, he, the said Edward Herndon says, that he, the said plaintiff ought not to have or maintain his said acr tion thereof, against him, because, he says, that long before the said time when the said trespasses are above, in the said second count, supposed to be done, to wit, on the --- day of ———•, in the County aforesaid, and from that day always thereafter, up to and at the said time when the said trespasses are above, in the said second count, supposed to be done, he, the said defendant, and the said plaintiff, had been, and then and there were possessed of, and owned the said chesnut sorrel stud horse, in the said ser cond count mentioued, pm common, by divers titles ; and he, the said defendant, and he, the said plaintiff, being so possessed of the said chesnut sorrel stud horse, in the said second count mentioned, in common, as aforesaid, he,, the said plaintiff, long before the said time, when the said trespasses are above, in the said second count supposed to be done, to wit, on the -- day of-r, in the County aforesaid, toot, and kept to himself the exclusive possession, use and. enjoyment of the said chesnut sorrel stud horse, in the said second count mentioned; and from the day and year last aforesaid, always afterwards, up to and at the said time, when the said trespasses are above in the said second count, supposed to be done, kept and maintained to himself, such exclusive possession, and enjoyment of the said chesnut sorrel stud horse, in the said second count mentioned; and wholly and entirely hindered and prevented him, the said defendant, during the whole time aforesaid, and at the said time when the said trespasses are above, in the said second count, supposed to be done, from using and enjoying the said chesnut sorrel stud horse, in the said second count mentioned, in common with him, the said plaintiff, or at all, in any manner whatsoever: wherefore, he, the said defendant, being such owner of the said chesnut sorrel stud horse, in the said second count mentioned, in common with him, the said plaintiff, as aforesaid, at the said time' when the said trespasses are above, in the said second count supposed to be done, took, and led away from and out of the close of him, the said plaintiff,' in the said second count mentioned, the said chesnut sorrel stud horse, in the said second count mentioned,' as it was lawful and well for him, the said defendant, to do, for the cause aforesaid — he, the said defendant, thereby, then and there, doing as little damage and injury to the said last mentioned close of him, the said plaintiff, as was possible; which is the same trespasses, in the said second count of the said declaration specified, and whereof the ■ said plaintiff hath above complained against him, the said defendant: and this, he the said defendant is ready to verify. — - Wherefore, he prays judgment,” &c. &c.
    The Court sustained a demurrer to the second, third, fourth, fifth and sixth pleas : and upon the general issue, verdict and judgment were rendered for the plaintiff. And the defendant took a writ of er~ ror to this Court.

      Stewart, for the plaintiff in error.

      Erwin, contra.
   GOLDTHWAITE, J.

— Bartlett declaired against Herndon in the'Court below, for breaking and entering his stable and close, breaking and destroying locks, &c. and for taking and converting to his own use, a horse of a particular description, there found.

The declaration contains- two counts, which are in the usual form of trespass quare clausum fregit et de bonis asportavit, and are similar to each other ins every respect except this: In the first, the defendant below, is charged to have broken and destroyed, divers locks, staples and hinges, and to have taken and converted the horse — -and in the second, the breaking and destroying of the locks, &c. are omitted: in neither count, is the trespass charged to have been unlawfully done.

The defendant below, pleaded, first — not guilty, on which issue was joined.

Second — To the first count of the declaration, a plea of liberum tenementum, in the usual form, as to the stable and close, but omitting to notice in any manner, the taking and conversion of the horse.

Thirdly — A similar plea to the second count.

Fourth — To the first count, not guilty as to breaking the locks, staples and hinges, and as to other trespasses, justifying on the ground, that he had been and was a tenant, in common with the plaintiff, of the horse, under divers titles; that the plaintiff had, before the commission of the trespasses, appropriated the horse to his sole use, and excluded the defendant from any enjoyment or use of the same, and that he being such tenant in common, broke and entered the stable and close of the plaintiff, and took the horse,as he lawfully might, doing as little damage as was possible to the stable.

Fifth — Also to the first count — not guilty as to all the breaking and damaging of locks- staples and hinges, except one small lock; and as to that, and the entering the close and stable, and taking off the horse, the same justification as set forth in the fourth plea.

Sixth — ‘To the second count, a justification as to' the breaking and entering the close and stable, for the same reasons as set forth in the two last mentioned pleas.

To all these pleas, a demurrer was filed, and the Court below, gave judgment sustaining the same. The cause was tried and a verdict found on the general issue, on which verdict and judgment were rendered for the plaintiff.

The case is removed by the defendant below, to this Court by writ of error, and he now assigns in this Court for cause of reversal of the judgment of the Court below,"that it erred in sustaining the demurrer to the several pleas.

The Court will first consider the fourth, fifth and sixth pleas; as the principles involved in each, are entirely similar to each other.

It is attempted to justify the breaking and entering the stable, andtaking off the horse, for the reason that the plaintiff and defendant were tenants in common, of the horse under divers titles, and because the plaintiff below, had excluded the defendant from the use of the horse, and had assumed the exclusive possession of the same, he was justified in regaining the horse, if he could, without a breach of the peace; and that so to do, he might, if necessary, enter the plaintiff's close, and break open the stable; provided he did the least injury possible, under the circumstances.

It is'true that one tenant in common, cannot maintain an action at law, against his co-tenant, for the taking of the chattel owned by them, unless the chat- , i i t tei be destroyed or so changed that the possession can never be regained. Seldon vs Hickock. — Holidays vs Camsell — Fennings vs Lord GreenvilleBarnardiston vs Chapman — Martyn vs Knowllys. But it does not seem to follow as a consequence, that one tenant in common, may invade the close of another, to take the chattel owned by them jointly, although that one might be in the exclusive enjoyment of it, and refuse to permit the other to participate therein;

■ A sole owner would not be permitted thus to right himself, by committing a trespass on the lands, or in the house of one who might wrongfully withhold his property. That a tenant in common has no sucli right, is fully established by authority, if authority ° f ^ / can be required to support a proposition, apparently so clear.

It seems plain that there is no sufficient justification set out in the fourth, fifth and sixth pleas, and that there was no error in sustaining the demurerrs as to them.

The second and third pleas are supposed to rest on ground peculiar to them alone; it is admitted that they do not justify, or attempt to justify, the taking of the horse; that the defence set up by them, goes however to. the whole gist of the action, which is con-* tended to consist solely in the breaking and entering the close, and that all the other matters stated in the count, are merely in aggravation of this trespass, and that it is consequently only necessary to answer the main charge.

The law is stated differently by two approved authors of treatise’ on pleading—Gould page 366, sustains the position that it is only necessary to answer as to the breaking and entering—while Chilly, page 497, maintains that is also necessary to justify, as to the asportation of the goods. The authorities cited by the latter, have been examined, and do not bear him out in laying down such a rule: though, the rule itself seems a very reasonable one :—on the the other hand, Judge Gould seems fully supported by some of the authorities to which he refers—particu-, larly the case of Taylor vs Cole.

in the first case cited, Mr. Justice Buller, in his; opinion, fully sustains the position assumed by Judge Gould, and quotes a case as decided in the common pleas, where it was held that to an action of trespass, for taking and converting to the defendant’s use, a halter, it was a good plea to justify as to the taking alone, and if the plaintiff desired to make the conversion the gist of the action, he should have replied it by way of novel assignment.

If this question was now, for the first time to be decided, we might feel a strong inclination to adopt the rule laid down by Mr. Chilly, and also to reject the plea of liberum tenementum, as amounting to the general issue, according to the opinion of Chief Jus-^ tice Willes, in the case of Lambert vs Strother; s with him we concur, that it would be too much, to now overrule such pleas.

It is, perhaps, better to follow precedent, in matters of pleading and practice, than to depart from known rules, although such rules may not receive our full assent to the reasons on which they are based.

Testing the second and third pleas, by the rules we have extracted, they would seem to be good, and .to contain a full answer to the several counts they assumed to answer; and if it was the desire of the plaintiff to recover damages for the conversion of the horse, he should have new assigned, if he could not controvert the pleas, as pleaded — or if the stable and close, in truth, were his freehold, or he was entitled to the possession of the same-; — that he should have either taken issue on the pleas, as presented, or have new assigned, setting forth his premises, or right of possession, with greater certainty.

The Court has omitted to notice the argument of counsel, on the omission of the word “ unlawfully In both counts of the declaration, it is alleged, that the taking was with force and arms, and we should be disposed to consider this a sufficient allegation of unlawfulness, did we deem it was necessary, to insert it in form or substance, in the declaration.

For the error of the Court below, in sustaining the demurrer to the second and third pleas in the record, the judgment must be reversed and the cause re manded.

      Coke on Litt. m Chlt X57a<69173 2S¿adi7g

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         3 Term Rep. 292. 5 Wilson R. 20. 1H. Black R. 555.

       Willes, 318


source: Caselaw Access Project

author: HOPKINS, C. J.

license: Public Domain

text:
    LYON VS MALONE.

      Question as to actions at law Tnj and against late co-: partners.

    1. One partner, who after a dissolution of the firm, pays the firm debt, and takes the note of his late as sociate in payment thereof, may well maintain an action at law upon the note, — notwithstanding he may have received the books and accounts-of the co-partnership, for collection and settlement; — the consideration not being impeached, and it not appearing but that the debt was paid out of the separate funds of the payee.
    In error to the Circuit Court of Mobile county. The action in this case was assumpsit upon a promissory note, made by the plaintiff in error, to the defendant, for the payment of money. The cause was tried upon issues taken to the pleas of non assumpsit and payment. Upon the trial, Lyon proved there had been a partnership between the parties, which was dissolved before the note was executed; that after the dissolution, all the remaining books and accounts of the partnership, to an amount exceeding six thousand dollars, were placed in the hands of Malone, to be collected for their joint benefit; that afterward, Malone paid a debt due from the former firm and took from Lyon the note sued upon in this case; that the affairs of the partnership, were unsettled — but at the time of the trial, all the debts due from the partnership, had been paid.
    It did not appear that Malone had rendered arty account, nor did it appear from the record, whether the value of the books and accounts, placed in the hands of Malone, was sufficient to pay the debts owing from the-firm, or what amount of money had been collected from them. . The amount of the debt which the firm owed, did not appear» Some other immaterial facts were proved.
    The Circuit Court of Mobile county, instructed the jury, — “ that the plaintiff could recover, notwithstanding the co-partnership transactions, as it did not appear, oil the face of the note, that it was a co-partnership transaction. ” Lyon excepted to the opinion of the Court — and its correctness is made a question by the assignment of error here.
   HOPKINS, C. J.

— The general rule that actions of contract are not maintainable between partners, on the partnership account, is admitted by the counsel of each party, and recognised by the Court; and the question is, whether this case be within any of the acknowledged exceptions to the rule?

For the plaintiff in error, it was contended, that the exceptions do not include any case, -where the plaintiff in the action, cannot prove that a final settlement has been made, by which it was ascertained that he is entitled to what he demands; because without such proof, it cannot appear, which of the parties is indebted to the other upon the partnership account.

Of the authorities which were cited to support this position, the only one that does sustain it, is the case 0f Robson vs Curds. In that case the parties were partners in the business ofbuying and selling cattle. A bill was drawn in payment .for some of the cattle purchased of the partners, and payable to Robson alone, who indorsed, it to Curtis, and he indorsed it over. The bill being afterward dishonored, he promised, that if Robson would take it up, he, Curtis, would pay Robson one half the amount. Robson took up the bill and sued Curtis in an action for money paid, but was non-suited-- as Lord Ellenborough decided, “that if there had been partnership dealings, and only one item remained unadjusted, the difficulty as to partnership, would disappear; but as that was not the case there, since some of the cattle remained unsold after the sale, on which the bill was drawn, the action was not maintainable.

In the case of Coffey vs Brian, which differs in nothing that is material from that of Robson vs Curtis, it was held that the plaintiff had a right to his action.

In Colly er on Part. (149, 150,) it is admitted to be difficult to reconcile the two cases; and the author of the work, indicates his preference for the decision in the case of Coffey vs Brian. During the partnership, one partner can maintain an action against the other for money advanced by the former to the latter, to supply his share of the stock of the partnership, or upon a note or bill, made or accepted, for value received on the partnership account, by one in favor of the other — Coily er on Part. 147.

In the case of Neale vs Turton, et al. it was admitted by the Court, that where one partner draws upon another partner by name, who individually accepts, the drawer may recover at law; because the acceptance acknowledges the existence of a separate right. According to the principle of the decision of the case of Nevins vs Townsend et al‡ — an action lies upon a note made by one partner, in his individual name, to the other, for money lent by the payee, to the firm. The execution of the note was relied on by the Court in that case, as showing that the money was advanced as a loan, and not to furnish an item in the part- ' 1 nership account.

In the case Van Ness vs Forrest, the note of Van Ness, who was a member of a commercial company, consisting of many persons, was made by the partner of Van Ness, who was also a member of the company, for goods of the company, purchased of Forrest, the President of the company, by the makers of the note ; which was payable to Forest, by the description of President of the company. The Supreme Court of the United States, held in that case, that the action on the note was maintainable; that the legal right to the action was in Forrest, who was a trustee for the company, and that the principle which denies the right to one partner, to sue another on a partnership transaction, did not apply to any case, where a note was given for money, not by or to a firm; but by one or more partners, individually, to another partner; as an individual. If a note or bill, be made or drawn in the name of a firm, in favor of an individual member of it, such member can maintain no action on either, as he is one of the makers or drawers, as well as the payee, and can maintain no action against himself. In all the cases, except one, of which we have taken notice, the supposition that the partner, who was sued, might be .entitled, upon a final settlement with the one who was plaintiff, to a dividend larger than the sum for which he was sued, was not suffered to defeat the action. The actions in all of them, were commenced during the continuance of the several partnerships.— The principle which upheld those actions, is, that the notes or hills, upon which the suits Were brought, acknowledged a .separate right in the plaintiffs, respectively, and the execution of a note, after the dissolution of a partnership, is a less equivocal acknow-ledgement of such a right in the payee. Actions between persons who have been partners, upon contracts made after the dissolution of the partnership, or on other causes arising subsequent to the dissolution, but originating in their relation of partners, as to third persons, are maintainable — Collyer on Part. L ' ^ (156, 157.)

The note in this case is according to our statute law, evidence of the debt, which Malone demanded.

No testimony was offered to show that there was no consideration for the note. It did not appear from the proof that-Malone had collected any sum from the books and accounts of the partnership, when he 'paid the debt due from the firm, for one half of which, the note in this case was given, or that he had since collected any thing. The fair inference from the execution of the note, if it were necessary to make an inference, is, that the debt of the firm was paid out of the separate fund of Malone.

The judgment is affirmed.

LYON VS MALONE.

The principle of the decision in the foregoing case, is applicable to this case. The judgment is therefore affirmed.

GOLDTHWAITE, J., not sitting.

      istai\k78

       3Bins-4

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       5Cowens Rep. ess.

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      J East 20 51iast 225

       283k D,°

       Conn. R, Rep’5‘


author: HOPKINS,- C. J.

text:
    CLEMENTS, adm’or VS ESLAVA.

      As to recoveries upon a general count, where there has been a special agreement.

    1. A recovery cannot be effected under a general count, where the evidence establishes a cause of action upon which there might be a recovery upon a special count.
    2. Thus, under a general count for money, for the price of mules, one cannot recover, on proof that the mules were to be paid for in lumber, which had not been delivered,
    3- In such case, a defendant may either move to exclude the evidence of the special contract from the jury, or move for instructions from the Court, that the contract proved, varies from that laid.
    On a writ of error to a judgment of the Circuit Court of Mobile county.
    Clements, the administrator of Clements, was complained of, at the suit of Eslava, in the action of assumpsit. The declaration contained a common general count, and set out — that, whereas the defendant’s testator, in his life-time, on the twenty-seventh day of October, A. D. eighteen hundred and thirty-four, at, &c., being indebted to plaintiff in the sum of two hundred and ninety-two dollars, as well for divers goods, wares and merchandize, and mules, before that time sold and delivered, to the testator, at his request; as for the wharfage and use of plaintiff’s wharves, for divers goods, wares and merchandize of the said testator, used and occupied, &c., promised, &c.
    The plea was non assumpsit.

      The proof was, that the testator had purchased mules of plaintiff, the price of which, was to he paid in lumber, to have been delivered in Mobile :■ but there was no evidence of its delivery, though a reasonable time therefor had elapsed.
    The defendant moved the Court below, to charge the jury, — -that defendant was not liable in the form of action brought, because the proof of the contract, varied from that laid in the declaration. This, the Court refused; because the objection should have' been taken to the evidence.
    Exceptions and writ of error.
   HOPKINS,- C. J.

— -There was a general count in the declaration' in this case/ for money, as the price' of two mules. Upon the trial, the proof showed that the price was payable in lumber, to be delivered in Mobile. There was no' proof of the delivery, or of an offer to deliver the lumber. It was proved that a reasonable time for the delivery had elapsed before the commencement of the action. Upon this evidence, the Court below refused to instruct, the jury, that there was a variance between the contract proved and the one set out in the declaration, and that the plaintiff in error was not liable. The Court charged the jury, that if the contract proved, did vary from the one set out in'the declaration, the objection ought to have been taken when the evidence was offered — and that the defendant in error was entitled to recover on the proof submitted, (if they believed it,) the price, which it was agreed should be paid for the mules.

For the refusal of the Court to give the instruction that has been mentioned, and for the charge which was given, the plaintiff in error excepted.

Whether the facts proved, are evidence of the cause of action, set out in a declaration, or of a different cau.se of action, upon which there can be no recovery except on a special count, is a legal question, that a Court ought to decide.

If the proofs do not support the cause of action contained in a declaration, or tend to do so, they are irrelevant, and might be excluded from a jury, on motion to the Court. Where the cause of action proved, is one for which there might be a recovery on a proper special count, there cannot he a recovery upon a general count. In such a case, .the defendant to the action has his election, either to move the Court to exclude the proof of the special agreement, from the jury, or to instruct them that such evidence proves a different contract from, the one set out in the general count, and does not sustain it.

In this case, the contract set out in the declaration, was to pay the price of the mules in money, and the breach alleged, was the failure to pay the money. Proof that the plaintiff in error had agreed to pay the price in lumbor, which he had not delivered, was not evidence of the cause of action contained in the declaration, or of the breach assigned, but it was evidence of a different agreement, on which the defend-an^ in error might sustain a proper special count.

The Court erred in refusing to instruct, as the plaintiff in error requested, and in giving the charge, which was excepted to, and has been assignedbere for error.

The judgment is reversed, and the cause remanded.

GOLDTHWAITE, J. not sitting.

       34^sta^ ^_4 Bibb, 349.


author: GOLDTHWAITE, J.

text:
    PERRYMAN VS BURGSTER.

      Practice in the Supreme Court:

    1. A motion to strike a cause from the docket, on suggestion that; the transcript has been improperly filed, — comes too late, after the Court has permitted the cause to be docketed, and a‘ judgment obtained On certificate, to be set aside.
    In this case, it was moved by
    Porter, of counsel, for the defendant in error,
    to strike the cause from the docket. The judgment in the case had been affirmed on certificate, and the same afterwards set aside,' as was alleged, without the knowledge of defendant’s' counsel. It also appeared, that the record had not been filed within the time required by law; but at a subsequent day, had been suffered to be docketed, on motion to the Court.
   GOLDTHWAITE, J.

— The writ of error in thiscause, was sued out on the eighteenth day of May, eighteen hundred and thirty-six, returnable to the then next ensuing term of the Supreme Court. The' record was not filed within the three first days of the term, but on the seventh of July, was permitted to be' filed by leave of the Court.

It is alleged that a writ of error had previously been sued out, returnable to a former term of the Court, which was not filed, as required by law; and a judgment was rendered at the last term on certificate; which, judgmeut was set aside, hut for what cause, does not appear.

It is now moved to strike this cause from the docket, as having been irregularly placed there.

It is the opinion of the Court, that this motion comes too late;- and that the irregularity should have been taken the advantage of, when the motion was made to file the record, or when the motion was made to set aside the judgment, rendered on the certificate.


text:
    GAYLE and HUESTIS, adm’rs VS AGEE.

      As to actions surviving against defendant, where a co-defendant dies.

      As to discontinuance.

    1. Where a suit is commenced against two, upon a promissory note, and one of the defendants dies, the action should be prosecuted against the survivor.
    2. In such case, it is .error to revive the suit against the representatives of the deceased party, and to proceed to judgment against them.
    3. Where suit is thus commenced against two, and upon the death of one it is prosecuted against his representatives, without noticing the survivor — a discontinuance as against the latter ensues.
    Error to the Circuit Court of Wilcox county.
    Joseph Agee, the executor of Noah Agee, commenced an action of assumpsit against John Gayle, and Matthew Gayle, to October term, eighteen hundred and twenty-seven.
    The-cause of action was a joint and several note, signed by J. Q,. Guild, Matthew Gayle, jr. and John Gayle.
    At Fall term, eighteen hundred and twenty-eight, the death of John Gayle was suggested, and a scire facias awarded to Matthew Gayle and J. W. Hues-tis, his representatives. These administrators having appeared and been made parties, the case was continued down to Spring term, eighteen hundred and thirty-one, when judgment was rendered by de? fault, against Matthew Gayle and Heustis, the ad-mintrators of John Gayle.

      Gaijh & Vandegraaffe, for the plaintiff in error.
   HOPKINS, C. J.

— This was .an action of assump-sit upon a note, for the payment of money.

The writ was executed upon Matthew Gayle and John Gayle, two of the makers of the note. rI he death of John Gayle was afterwards suggested, ar.d his administrators, Matthew Gayle and Jabez W. Huestis were made parties to the suit, by scire facias. The judgment was rendered against the administrators.

There is no declaration in the ease, and for the want of one, the judgment would be reversed.

As the cause of action survived against Matthew Gayle, the action ought to have been conducted against him alone, after the death of the other defendant. It was error, to make the administrators of J0lln Gayle, parties to the suit.

As no step was taken against the surviving defendant, after the death of Gayle was suggested, and the suit was conducted afterwards against his administrators, the action was discontinued against the surviving defendant.

The judgment is reversed.

GOLDTHW AITE, J., not sitting.

       aí'c. Dig. .259, §4.


author: GOLTHWAITE, J.

text:
    HANKS VS HINSON & PATTERSON.

      As in pleadings, in cases of appeal from justices of the peace.

      Ev deuce in actions for use and occupation.

      1. The statement ov declaration filed in a case, commenced before a justice of the peace, and removed into the Circuit Court by appeal, is not subject to the technical rules of plead] ing.

      'S. So, a statement in such case, need not be laid with a venue; nor do more than shew in general terms, the cause of action sued upon, and a breach.
    3. In an action by a firm, for use and occupation of a house, — ■ evidence that the house was sold to one of the firm, but whether on account of the firm or not, was not known by the wit-mess, but that the vendee had his account with the firm, credited with the amount of the purchase money, and that the de-findant rented the house of that member of the firm,— held not incompetent testimony to go before the jury.
    4. One sued for the rent of a house which he has occupied, cannot dispute the title of his lessor, without shewing eviction or disturbance.
    In error to the Circuit Court of Wilcox county.
    This case was originally commenced before a justice of the peace, and removed into the Circuit Court by appeal. The action was commenced in the name of A. C. Hinson & Co. to recover of Hanks,the amount of an open account, alleged to be for rent, and before the justice, a judgmeut was recovered by the plaintiffs for thirty-eight dollars, and costs of suit.
    On the appeal to the Circuit Court, a statement was filed in the name of Atlas C. Hinson and Duncan A. W. Patterson, alleging an indebtedness for the use and occupation of' a house. The statement was in short, but contained no title of the term, nor statement of the venue.
    To this statement was entered, first — a demurrer, which did not appear to have been disposed of. Secondly — wow-assumpsit; and thirdly — that the house rented, was not the property of the plaintiffs.
    A verdict was rendered upon an issue joined to these pleas, and by bill of exceptions, the case was removed here.
    Upon the trial, it was proved by one Burnett, that one Ellis, purchased a certain house from witness, and had removed it to a lot in the town of Barbours-ville, without stating that he was the agent of any one. That the said house was erected upon the lot of one Bettis, whose permission it was riot shewn, that Ellis had obtained, either to place the house there or to occupy it.
    It was also proved, by one Acker, that the said Ellis had been commissioned by him, to open a grocery store in Barboursville, ‘and erect a house there: That Burnet had applied to him for payment for said house, purchased by Ellis, as his agent; and that Hinson and Patterson, had made application to said Acker for payment for goods purchased by Ellis.
    It was further in proof, by the evidence of one Patterson, that Ellis had sold said house to witness’ brother, one of the plaintiffs; but whether the sale was to him, individually, or for the firm, wras not known : nor whether Hinson and Patterson had ever traded in partnership in houses or lands — but that an account which Ellis had contracted with the firm, had been credited with the amount paid for the house: That Hanks had rented the house front the said Patterson, one of the plaintiffs, and had oc-> cupied it.
    All this latter testimony was objected to by the defendant, as variant from the contract set out in the declaration; which objection was overruled by the Court, who charged *the jury, that the testimony a® to Ellis, being the agent of Acker &c. was no bar to the plaintiffs recovery.
    The bill of exceptions, stated, that there was much testimony on the question, whether the house was or not, co-partnership property, and whether purchased by Ellis for himself, or as the agent of Acker: But the evidence shewed that the plaintiffs were co-partners in merchandise, and that they were in possession of the house — one of them having rented it to the defendant.
    There were assigned in error:
    First — The matters set forth in the bill of exceptions.
    Secondly — That there was no venue laid in the declaration.
    Thirdly — That there was no consideration.

      Bedford for plaintiff in error; J. B. Clarice, contra.
   GOLTHWAITE, J.

— The assignment of errors, brings before the Court, the inquiry as to the sufficiency of the declaration or statement of the cause of action, in a case, commenced before á justice of the peace, and tried, on appeal, before the Circuit Court of Wilcox county.

It is said, and so is that the fact, that no venue is laid in the declaration; but that is perhaps, wholly unnecessary in summary proceedings of this character, in which the pleadings are supposed to be framed under the direction of the Court trying the cause.

It is also said that no sufficient consideration is set forth,to support the promise to pay; but on examination, this does not seem supported by the record, which alleges the defendant to have had the use and occupation of a house, at his special instance and request, for which he promised to pay plaintiffs the sum of twenty-eight dollars. It is not usual to test the pleadings in cases originating before justices of the peace, by the rules which obtain in other cases. It is' sufficient, if the statement of the plaintiffs’ cause of action, shews in general terms, a debt due, or a contract to be performed, and a non-payment of the debt, or breach of the contract.

This Court has decided, that it will not scrutinize proceedings similar to these, by the technical rules of pleading.1 — From this decision, we ffel nq inclination to depart. We consider the declaration as substantially good.

The assignment of errors, brings before us, the act of the Court below, in the admission of testimony, and its charge to .the jury, on certain evidence before it.

It seems to have been a question how far the co-partnership of the plaintiffs, in relation to the ownership of the house, used and occupied by the defendant was established, or what evidence was competent to make out that point. The plaintiffs offered a witness, who deposed that one Ellis had sold the bouse to Patterson, one of the plaintiffs ;• but he could not say whether the purchase was for himself, or on account of the firm — but, that an account, which Ellis had contracted with the firm, was credited with the sum agreed to be paid, — that the defendant rented the house to Patterson, and occupied it seven months. The contract was not in writing.

To this evidence the defendant objected, for two reasons: First — 'because it did not establish the contract, as laid in the declaration; and, Second — ■ because there was no evidence that the firm account against Ellis was credited by the direction of either partner. The bill of exceptions states, that there was a conflict of evidence relative to the copartnership.

'fhe evidence offered, and admitted, seems to have been strictly legal in character, and tended to establish the existence of a co-partnership. What weight it was entitled to, in a conflict of evidence, was matter entirely for the consideration of the jury. We do not think there was error in the admission of this evidence.

Evidence was offered, to shew that Ellis was the agent of one Acker, and that the house was erected on land of, and belonged to one Bettis ; and the Court charged, that those circumstances, if admitted, constituted no defence to this action.

This charge is questioned, because it. said, if the defendant was responsible, either to Acker or Bettis, for the occupancy of the house, he ought not also to be liable to the plaintiffs — whom he shews to have no title.

If he occupied the house as the tenant, of the plaintiffs, it was not competent for him to dispute their title, when sued for rent, without shewing disturbance or eviction. Neither is shewn by the evidence, or was attempted to be shewn in the Court below.

There was no error therefore, in the charge, as given — and this disposing of the errors assigned, the judgment-must be affirmed.

       2 Stewart 66 — ciark 5 Wind'°k 874>


text:
    CHAMBERLAIN VS DARRINGTON.

      Points as to several counts.

      As to error, and practice in.

      As to writings importing consideration.

      1. The rule, that if there be one good count, coupled with others bad, a demurrer to the whole declaration will be overruled, provided there be not a misjoinder of actions — prevails also in error.
    2. An inferior Court will not be held to have committed error, in refusing a charge, no ground to sustain which has been laid by evidence.

      3. The practice of bringing before this Court voluminous books or papers, by attaching them to the bill of exceptions, or as references, is irregular and improper.
    4. Such parís of records, books or documents as are pertinent to matters to be considered in the appellate Court, should be inserted in the bill of exceptions.
    5. In all actions founded upon instruments in writing, whether raising an absolute or contingent duty, the onus probandi, of illegal or no consideration, rests on the defendant, and require no proof of consideration by the plaintiff.
    6. Thus, where the holder of a land note, on receiving the amount thereof from the maker, in a writing on the same, obligated himself to return the amount, if the Courts should determine such notes not to be valid, in an action to recover the amounts so paid, founded on the writings — it was held, that no evidence of consideration, by the plaintiff, was necessary.
    This was an action of assumpsit, tried in the Circuit Court of Washington, and prosecuted by Bar-rington vs Chamberlain.
    The plaintiff declared, for that, theretofore, to wit, on the twenty-ninth day of April, A. D. eighteen hundred and nineteen, at, &e. the said Barring-ton, together with R. W. Carter, made their certain writing obligatory, sealed with their seals, and bearing date the same day and year aforesaid; and thereby, then and there promised on or before ike twenty-eighth day of April, A. D. eighteen hundred and twenty-one, to pay--, or bearer, one hundred and fifty dollars, with interest from date, if not punctually paid, for value received.

    And afterwards, to wit, on the same day and year aforesaid, the said writing obligatory went into the possession of the said Chamberlain, who became, and was entitled as the bearer thereof to receive the said sum of money in said writing obligatory specified.
    And whereas, afterwards to wit, on the twenty-eighth. day of December, A. D. eighteen hundred and twenty-one, at, &e. the said Chamberlain, then being the holder and bearer of said writing obligatory, presented the same to the said Barrington for payment, who then and there paid the said sum of money due on the said writing obligatory, to the said Chamberlain, on the said Chamberlain executing to the said Barrington, an instrument in writing on the back of the said writing obligatory, in the words following, to wit:—

      “ Received of the within in full, and I obligate and bind myself, should the Courts determine that notes of this description are not valid, to return the money paid.”
    And the said Barrington averred, that the Courts had determined, that notes of that description w’ere not valid. By means whereof, &c.

      In addition to the count above stated, there was a count for money had and received.
    To this declaration the defendant plead—
    Firs t — Non-assumpsit.'
    Secondly — That the obligation was given without consideration.
    Thirdly — The statute of limitations of six years.
    And upon these pleas issue was taken to the country; under which a verdict was found for the plaintiff.
    A hill of'exceptions taken during the trial showed these facts.
    The plaintiff, in order' to maintain the issue, on his part, introduced as evidence, a printed note, as alleged in the declaration, and proved that it was what was commonly known as a land note; and of the character of the notes in the cases of Carrinton vs Caller and Holder vs Meggison & Hill, reported in the second volume of Stewart’s Reports, 175. He then introduced as testimony, the receipt written on the hack of said note, and the case cited from 2d Stewart’s Reports.
    The defendant, on his part, gave evidence of a notice previously served upon the attorney of the plaintiff, and which required proof of the consideration for which the obligation had been given. But no evidence of consideration was adduced. The defendant further proved, that Barrington had been an efficient, serviceable and active witness in the cases cited from Stewart’s Reports, and had paid the witness who deposed to the fact, the sum of two hundred and fifty dollars, for professional services, in defending those causes.

      Defendant also proved, that at a preceding term of the Circuit Court of Mobile county, a recovery had been effected against one Waters, upon his pleas of a want of consideration in the cause of action, which was also one of these land notes, and the recovery had both in Chancery and at law. And further that sundry recoveries had been had in the District Court of the United States, upon notes of the same description with that sued upon in this action —upon pleas of fraud, similar to those relied upon, in Carrington vs Caller..

    On this evidence the Court was requested to charge—
    That the plaintiff having offered no evidecne of a consideration for the promise, though in writing, it was nudum pactum, and void.
    The Court refused this charge, and informed the jury — First, that the receipt which had been read to them was evidence of a consideration.
    Secondly — That a promise to pay money, or to wager on the event of a suit pending in the Circuit Court, in which plaintiff was a witness, was contrary to good morals and sound policy, and would not sustain an action.
    The Court refused.
    Thirdly — That money paid under a mistake of the law, could not be recovered back.
    This the Court also refused.
    Fourthly — That money paid under an illegal contract, could not be recovered back.
    Which the Court refused.
    Fifthly — That where a contract grows immediately out of, and is connected with, an illegal or immoral act, a Court of justice will not lend its aid to enforce it: and if a contract be in part, only connected with the illegal transaction, and growing immediately out of it, — though.in part a new contract, — it is equally tainted.
    This likewise, the Court refused. And the Court as a reason for refusing to give these several charges, as requested, alleged that they did not arise in the cause.
    And here for assignment of errors, the defendant said:—
    First — There was no sufficient cause of action shewn in the declaration of the plaintiff below.
    Secondly — That the Court erred in its several decisions, and in refusing to instruct the jury, as shewn in the bill of exceptions.

      Stewart and Thornton for plaintiff in error.
   GOLDTHWAITE, J.

— The first assignment in error, presents for the consideration of this Court, the question, whether there be any sufficient declaration in the cause'?

On examination of the record, we find, in addition to a count on a written instrument, which will be subsequently considered, a count for money had and received; which is framed in strict conformity with the most approved precedents. We may therefore dismiss the consideration of this assignment, with the observation, that the general rule is the same, after error brought, as that which prevails on a demurrer to the whole declaration. If thpre be one good count, the demurrer will be overruled, although it may be incorporated with others which are defective, provided there is no misjoinder of actions.

For the correct understanding of the other assignment of error, it will he necessary to set forth the substance of the first count of the declaration.

It alleges, “that on the twenty-ninth day of April, eighteen hundred and nineteen, the said plaintiff, and one R. W. Carter, made their certain writing obligatory, sealed with their seals, and bearing date the day and year aforesaid, and thereby, then and there promised, on or before the twenty-eighth day of April, eighteen hundred and twenty-one, to pay- or hearer, one hundred and fifty dollars, with interest from the date, if not punctually paid, for value received ; and whereas afterwards, to wit, on the same day and year aforesaid, the said writing obligatory, came to the possession of the said defendant, and he thereby became and was entitled, as the bearer thereof, to receive the said sum of money, in the said writing obligatory specified, according to the tenor and effect thereof; and whereas, afterwards, to wit, on the twenty-eighth day of December, eighteen hundred and twenty-one; at St. Stephens, to wit, in the county of Washington, the said defendant, then being the holder and bearer of said writing obligatory, presented the same to the said plaintiff, and the said plaintiff, then and there paid the said sum of money, due on the said writing obligatory, to the said defendant, on the said defendant executing to the said plaintiff, an instrument in writing, on the back of the said writing obligatory, of the following tenor, to wit: received of the within in full, and I obligate and bind myself, should the Courts determine that notes of till» description are not valid, to return the money paid — and the said plaintiff avers, that the Courts have determined that notes of this description are not valid, of which the said defendant had notice; by means whereof, the said defendant, then and there became liable to pay to the said plaintiff, the said sum of money, in the said writing obligatory specified” — ■ and concluding with a promise to pay, in consideration of such liability; and the declaration, after the addition of the count for money had and received, concludes with assigning as a breach of the contract, the non-payment of the several sums of money, in the usual form.

The defendant pleaded, non-assumpsit, that the instrument, which is the foundation of the plaintiff’s action, was made and given without any consideration in law, and the statute of limitations of six years; on all which pleas, issue was joined to the country.

On the trial of the cause, as we are informed 'by the bill of exceptions, the plaintiff introduced a printed note, which is alleged in his declaration, and proved that it was what is commonly called a land note, and of the same character and description of the notes in the cases of Carrington vs Caller and Holder vs Meggison & Hitt.

The plaintiff then gave in evidence the receipt, which is written on the back of the printed note, and set forth verbatim in the declaration and indorsed on the writ; and gave in evidence further, the above cited cases in 2 Stewart, 175.

The defendant gave in evidence, a written notice to the attorney of the plaintiff, dated in October, eighteen hundred and thirty-four, service of which was acknowledged, apprising the said attorney, that on the trial of the cause, he should require him to prove the consideration for which the above recited receipt was given.

No evidence of any consideration, was offered by the plaintiff’s attorney.

The defendant further gave in evidence, that the plaintiff was an active, efficient and serviceable witness, in the cases of Carrington vs Caller, and Holder vs Meggison & Hill, and gave the witness two hundred and fifty dollars, for his professional services in defending the said causes: The defendant further gave in evidence, that at the then last Circuit Court of Mobile county, a recovery had been had against one Waters; that in that case, the defendant pleaded that the instrument was fraudulent; that the Court gave the defendant leave to file an additional plea, which was done and demurred to; that the defendant then amended his plea, which was also demurred to, and the demurrer sustained : and that at a former term of the said Court of Mobile, a recovery was had against the same defendant, which cause was carried through the Court of law and Chancery, and that both recoveries were upon land notes, so called. The defendant further gave in evidence, that several recoveries had been had in the District Court of the United States, upon notes of the same character, upon pleas of fraud similar to those in the cases of Carrington and Holder, before mentiened.

The defendant requested the Court to charge the jury:

First — That the plaintiff having offered no evidence of a consideration for the promise, though the promise be in writing, is nudum pactum, and therefore void.

Which charge the Court refused to give, but charged the jury, that the receipt which had been read to them, was evidence of a consideration.

Second — That a promise to pay money, or to wager on the event of a suit pending in the Circuit Court, in which the plaintiff was an active witness, is contrary to good morals and sound policy, and will not sustain an action.

Third — That money paid under a mistake of law, cannot be recovered back in an action.

Fourth — That money paid under an illegal contract, cannot be recovered back.

Fifth — That where the contract grows immediately out of, or is connected with an illegal or immoral act, a Court of justice will not lend its aid to enforce it; and if the contract be in part only, connected with the illegal transaction, and growing immediately out of it, though it be in part a new contract, it is equally tainted by the illegal transaction or immoral act.

The last four of the above charges, were refused without any qualification. All this was excepted to. by the defendant, and is now assigned for error.

No exception was taken to the introduction of any of the evidence offered in the Court below, and the case is sought to be reviewed alone on the charges refused to be given, and the charge which was given to the jury.

All the charges asked for, except the first, are considered by the Court to have been properly refused, because no ground is laid by the evidence, for re» questing them; so far as we can ascertain, they have no relevancy, whatever, to the questions presented by the facts, before the Court; and they must be considered as request's to lay mere abstract questions of law, before the jury, for their consideration; which this Court has often decided, cannot be done.

Tiie reference to the cases, decided by this Court, cannot aid the condition of the plaintiff in error; for, if these cases, should be connected with this record, by thus setting them out in the bill of exceptions, the Court would yet be unable to perceive the relevancy of the instructions requested. But, the Court think proper now, to intimate their opinion of the irregularity of attempting to bring before the Court, a printed book or a voluminous record, either by reference or by .attaching them to the bill of exceptions. Such parts of records, books or documents, as are material, alone should appear in the bill of exceptions, and the record should not be encumbered by superfluous matter.

The first charge which was asked, and which has before been stated properly, raises the question, whether the instrument offered in evidence, does of itself import a consideration'? If it does, the charge given, was correct.. If it does not — the position assumed by the Court below, cannot be sustained.

It may not, we think, be questioned, that at common law, no written instruments imported a consideration, save only such as were of a mercantile character, or under seal. This seems to have been the ■construction given in this State, (then Territory,) previous to the year eighteen hundred and eleven.— For in that year, a statute was enacted, declaring, “whenever any suit shall be commenced, in any of ihe Courts, founded on any writing, whether the same be under seal or not, the Court, before whom the same is depending, shall receive such writing as evidence of the debt or duty, for which it was given; and it shall not be lawful, for the defendant or defendants, in any such suit, to deny the execution of such writing, unless it be by plea supported by the affidavit of the party putting in such plea.”

This statute seems to consist of two distinct parts; the first abolishes the distinction existing between sealed and unsealed instruments, so far as any difference then existed, as to one importing a consideration, and the other not so doing. A bond with a condition for the performance of a duty at common law, imported a consideration, as well as one for the payment of money, merely; and it is perhaps, equally clear, that a writing not under seal, nor of a mercantile character, did not of itself, establish a consideration, unless one was set out in the instrument itself.

Why such a distinction should have been permitted to exist so long, is perhaps, a matter of more surprise, than that it should at last be abolished.

By the law merchant, early introduced into our jurisprudence, a promissory note imported a consideration : although it was not until the statute of Anne was enacted, that its negotiable character was established. And yet in any other contract for the performance of a duty, if the writing was not under seal, evidence of the consideration was necessary to be given dehors the instrument, unless stated in the writing itself.

Our statute seems to have the object distinctly in view, to place all written instruments on the same footing, and to cast on the defendant, the onus of shew-iug there was either an illegal or no consideration, in all eases where the action in its form, was founded on the writing: And it seems not to contemplate any destinction between these instruments, which raised an absolute or a contingent duty. In this respect, it is not similar to our statutes, which make notes and bonds negotiable; they all seem to contemplate a note or bond, payable absolutely, and not depending on a contingency.

The other branch of the statute, restrains any defendant from putting the execution of any such writing in issue, unless by plea, supported by affidavit. This introduced a greater change in the law, than the other branch; because, previous to its passage, all instruments, whether sealed or not, must be proved to have been executed, and this rested, of course, on the plaintiff in the action.

The just rights of defendants, seem not to have been disregarded by the authors of this statute; for if a plea, supported by affidavit, was interposed, the plaintiff was bound to proceed with proof, as before, so far as the execution of the instrument was put in issue. But they have not seen proper, in any case, to throw on the plaintiff, the burthen of proof, where the defendant has admitted, under his hand, a debt to be paid, or a duty to be performed; nor can we question the policy or the right, to abolish a distinction, which perhaps had little authority from reason, to countenance it.

In another view of the statute, the rights of defendants seem to have been fully and amply protected. It is only in suits which are founded on the written instrument, that the statutary rule prevails — thus guarding the defendant from all danger of surprise. If on the common counts, or other forms of pleading, other than declarations in the instruments themselves, the written instrument is not evidence, unless proved in the mode proscribed by the common law. See Cass vs Northrop

How far it would now be necessary, to establish a consideration for any written instrument, signed by a party, when offered in any other manner, than in a suit founded on it — is a point on which this Court will not now undertake to express an opinion, as the point is not necessarily put on our consideration in this cause.

The Court is relieved from the consideration of the question just adverted to, by the fact, that in this cause, there is a declaration on the instrument, as the foundation of the action; and although the count on it, may not, perhaps, be strictly technical, yet we hold it to be substantially good, after verdict; and our statute provides that no cause shall be reversed after verdict, for any matter on the face of the pleadings, not previously objected to : provided the declaration contains a substantial cause of action, and a material issue be tried thereon.

The judgment must b.e affirmed.

      2 iStPW»’** Rep.its.

      1 stew. ^Poitor


text:
    HAYNES VS FARLEY, ex’or and BELL.

      As to the specific execution of contracts for the sale of lands.

    1. Where a vendee of lands takes a bond, conditioned for title at a future day, he may after breach of the condition, elect to proceed at law for damages, or apply to equity for a specific execution.
    2. But where one elects in such case, to proceed at law, equity will not interpose, and compel the vendee to accept a conveyance, — the vendor shewing no excuse, by proof, for the failure to comply with his contract, anterior to the breach of it.
    3. And, it seems, the retention of possession, by the vendee, after action brought for a breach of the bond, would not amount to a part performance of the contract, so as to preclude an action at law, for damages.
    In error to a decree of the Circuit Court of Montgomery county, exercising Chancery jurisdiction.
    This was a bill, filed by the testator of the one of the defendants in error, Farley, to enjoin a judgment at law.
    The bill stated that Pinkston, the testator, with others, previously to the filing of the bill, had executed to Haynes, a bond, conditioned for the execution of titles to certain lands, within five years after its date. It charged, that Haynes well knew, that the lands sold to him, were the property of a company; and that the title to them, was ultimately to be obtained from the United States: And that the term of five years was fixed upon, as a probable time within which the titles would be complete. That some difficulty subsequetly ensued in effecting this object,in consequence of irregularity in the surveys of the lands ; aucl that, consequently, the obligors, without their own default, were unable to comply with their bond, at the period limited in the condition. That Haynes, availing himself of this circumstance, commenced suit upon the bond, against Pinkston, alone, which he prosecuted to judgment, arid was then seek--ing to satisfy. That during the pendency of this suit upon the bond, the obligors obtained a full and coiri-plete title to the premises ; and that Pinkston offered to have conveyed a title to Haynes, but which he rejected. The bill prayed an injunction against the judgment at law upon the bond; and a specific execution of the contract of sale'.
    The injunction was granted, and at Fall term, eighteen hundred and thirty, dissolved.
    Another bill was subsequently filed in the name of Pinkston and Bushrod W. Bell, setting forth the facts before mentioned, with the further allegations,- and statements, that the former injunction had been dissolved, in consequepce of informalities in the release of errors, and the injunction bond; and that, taking advantage of this matter, Haynes had ruled Bell, being then sheriff of the county, for a failure to make the money on the execution which had issued upon the judgment obtained against Pinkston. This bill further alleged, that ever since the commencement and prosecution of the controversy, and from the time of the contract of sale, the defendant Haynes, had been in the possession of the lands.
    The bill, at this stage of the proceedings was answered by Haynes, who did not materially controvert the statement in relation to the sale of the lands, and of the rendition of the judgment; but he denied that any difficulty occurred in obtaining the title to the lands, from the United States; relied upon the breach of the condition of the bond, and stated that no agreement was made as to the time when the title should be made, other than that contained in the bond. He further stated, that many delays occurred on the part of Bell, in making the money upon the execution; and also denied that he had the peaceable possession of the lands.
    At Fall term, eighteen hundred and thirty-one, the death of Pinkston was suggested; and upon a bill of revivor, the suit was revived, in the name of Farley, the executor.
    At.Spring term, eighteen hundred and thirty-six, the cause came on for final hearing, upon the admission, that it was then in the power of the obligors, to make a good and sufficient title to the lands, and that such title had been tendered. And the Chancellor decreed a specific execution of the contract of sale, in ordering Haynes to receive a conveyance; and perpetually enjoined the judgment at law upon the bond.
    This decree was complained of in error here.
   HOPKINS, C. J.

— On the twenty-sixth of April, eighteen hundred and nineteen, the plaintiff in error, received a- bond in the penal sum of seven hundred dollars, payable to himself, and made by James R. Pinkston, and several other persons. According to the condition of the bond, it was to be void, if the ob-ligors should, within five years from the date thereof, make to the plaintiff and his heirs, a sufficient deed for the land described in the condition. At March term, eighteen hundred and twenty-nine, of the Circuit Court of Montgomery county, the plaintiff obtained a judgment at law against Pinkston, upon the bond, for the sum of two hundred and nine dollars.

On the fourteenth of September, eighteen hundred and twenty-nine, Pinkston obtained an injunction of the judgment, and in his bill, which was filed on the equity side of the same Court, and upon which the injunction was granted, he prayed for a specific execution of the contract for the sale and purchase of the land.

He alleged in the bill, in addition to the facts which have been mentioned, that Haynes had been in the possession of the land, ever since the sale of it to him: That when the obligors sold it to him, it was understood between them and him, that the title was in the United States, and that it should be conveyed to him as soon as the obligors, who were purchasers of the United States, could obtain it from the latter : That the time for the conveyance of the title to Haynes, which was limited in the condition of the bond, was supposed by the parties, to be sufficiently remote to enable the obligors to obtain the title from the United States: That some irregularity in the surveys, which had been made for the United States, caused a difficulty in obtaining the title, and that without any default on the part of the obligors, no patent was issued for the land, until after the commencement of Haynes’ action upon the bond: That immediately after the obligors obtained the title, they offered to conyey the land to Haynes, and he refused to accept a conveyance.

A supplemental hill was. afterward filed.by Pink-sio i and Bushrod Bell, in which they alleged that a judgment had been obtained against Bell for the amount of that against Pinkston, for (he failure of Bell, as a Sheriff, either to return or make the money upon an execution, which issued on the judgment against Pinkston. Upon this bill, an injunction of the judgment against Bell, was granted. ■

The answer of Haynes, denied that there was any other understanding between the obligors and himself, as to the time at which the’title to the land should be conveyed to him, than that which appeared in the condition of the bond.

Other facts are stated, both in the bill and answer, of which it is unnecessary to take any notice.

Before the cause was heard, Pinkston died; and his executor, Jonathan C. Farley, made himself a party to it. It was heard upon the bills, answer, the bond as an exhibit, and the admission of Haynes’ solicitor, th'at the obligors in the bond, were then able to make a good title, and that a sufficient deed, from them, ■was deposited in Court, for the acceptance of Haynes.

It is unnecessary to decide the question, whether a person who seeks the specific execution of an agreement ought to be permitted to show by parol proof, that the day for the performance of the contract, was a different one from that fixed in the written agreement. In this case, the allegation in the bill, that it was understood between the parties, the obligors should convey the land to the plaintiff in error, as soon as they could obtain a title from the United States, is denied in the answer, and the answer is uncontradicted by any proof. Nearly five years .elapsed after the expiration of the time within which they had bound themselves to convey the land, before Haynes obtained the judgment at law, on the bond. During all that time, Haynes could not have obtained, had he desired it, a specific execution of the contract.

The title was in the United States, and the obli-gors were incapable of performing their agreement.

No decree for a specific performance would have been made, if they, instead of Haynes, had applied for it, during that time, to a Court of equity. Equity neither requires a vendor to do what he has no right to do, nor compels a vendee to accept less than the complete title for which he has bargained.

When Haynes commenced his action at law, for the breach of the condition of the bond, neither of the parties to it had any remedy in equity. Haynes had a right to his action, and had been entitled to it, from the time the breach occurred.

A vendee, with a valid agreement, may, after a breach of it, elect to proceed at law to recover damages, or in equity, for a specific execution. After he has elected to pursue the former course, the vendor can not, without some ground of equity, compel him to accept a conveyance.' It does not appear, in this case, when the vendors made full payment to the United States, for the land ; and the allegation-in the bill, that a difficulty in obtaining the title from the United States, arose from an irregularity in the surveys, is denied, in the answer, and there is no proof of it. If this allegation consisted of matters of fact, so distinctly stated as to be capable of proof, and that the effect of them could be determined by the Court, it would, denied, as it has been, and without proof as it is, be disregarded.

As Pinkston proved no excuse for the long delay, in obtaining the title, which he and the other obli-gors agreed to convey to Haynes, it is not necessary to determine what ground would be sufficient for a Court of equity to interpose in favor of vendors, and compel a vendee to abandon his remedy at common law, and accept a specific performance of the contract.

The view we have taken of the subject, is supported by the decision of the case of Long vs Coldsim; and it is opposed by no principle, that we know of, upon which a Court of equity acts, in disposing of applications for specific performance.

If a vendee retain the possession of the land, after the vendor’s breach of the agreement, in not conveying on the day fixed for the purpose, it may be evidence of his acquiescence in the delay, and that he continues to look to the fulfilment of the contract; but if, afterward, and before the vendor is able to convey, the vendee bring his action for damages, the assertion of his legal right, is a termination of his previous acquiescence, and evinces his election to rely upon his common law remedy.

Possession held by a vendee, after he brings such an action, is not an act in part performance of the contract. The contract is abandoned, as to all the claim which could be made upon it to a specific performance.

The claim of Bell, if he had any, to relief, rested upon the ground on which Pinkston relied; and as we are of opinion that the execution of the contract, ought not to have been decreed, the decree must be reversed and the bill dismissed.

GOLDTHWAITE, J., not sitting.

      2Sto.Eq. Eq b./ich! jjlVua 290’299'

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