text:
    HALEY, et al. VS BENNETT.

      Of the lien of a vendor, upon real estate, for the purchase monies.

      As to Chancery practice.

    1. Where an original bill is sufficient, both as to allegations, and parties, to authorise a decree rendered, — such decree will not be reversed because a party, not material, has not been brought into Court; or because an amended bill, does not seek process against a party, who has answered. -

      2. Where a vendor of real estate, seeks to enforce a lien for the purchase money, against the estate in the possession of the vendees’ assignee, it is not necessary that all the mesne . conveyees, (having no interest,) should be brought before the Court.
    8. Where a vendor seeks to establish his equitable lien for the purchase money, against real estate sold, in the possession of the vendees’ assignee — the fact that a decree has been made against the vendee, for any deficiency which might exist, after a sale of the premises, such vendee being only before the Court, by decree, pro confesso,■ — will not authorise a reversal here — the case being brought before this Court, by the vendees’ assignee, alone.
    4. Miter, if the case had been prosecuted here, by the vendee himself.
    5. All the essential incidents of a mortgage, in particular re-gardtoa lien upon the premises for the purchase money, attach to, and control a contract for the sale of lands, where the vendor makes a bond conditioned for title, when pay-,/ ment is complete.
    6. The vendor óf real estate, who parts with the possession, and executes a bond; conditioned for the making of titles, when the purchase money is paid, — has a lien upon the estate, which he may enforce in Chancery, against the estate itself, in the possession of the assignee of the vendee.

      7. Nor is a vendor in such case, bound first to proceed against the vendee, for the recovery of the purchase money, before he seeks satisfaction, in Chancery, against the premises sold.
    8. And a vendor in such case, may well maintain ejectment for the lands sold: though a recovery in such action might be prevented by the vendee’s bill in Chancery, to redeem.
    9. But the recovery by a vendor, of the possession of the premises, in ejectment, would not have the effect of disan-nulling the contract of sale.
    10. The vendor in such a case, could only maintain the possession until the rents and profits had discharged the in-cumbrance; when Chancery would compel a conveyance to the vendee, or his assignee.
    This case was brought up by writ of error to the Circuit Court of Franklin county, exercising Chancery jurisdiction, to reverse a decree, rendered below, against the plaintiff in error.
    The original bill was filed by defendant in error, on the fifteenth day of February, eighteen hundred and thirty-three, to subject a certain lot of land, with the improvements thereon, in the town of Tus-cumbia, to the payment of the purchase money for the lot.
    The bill stated, that the complainant was the owner of lot, number five hundred and sixty-three, in the town of Tuscumbia, Franklin county; and at the request of one David A. Browder, who he prayed might be made a party to the suit, he contracted to sell the lot to him, at the price of five hundred dollars. This contract took place about the eighth day "of February, eighteen hundred and thirty-one, and was at that time esteemed to be for the value of the premises. The payments were to have been made as follows: One hundred dollars,, on the twenty-fifth day of December, eighteen hundred and twenty-eight; the like sum on the twenty-fifth of December, eighteen hundred and twenty-nine ; the like sum on the twenty-fifth of December, eighteen hundred and thirty; and the like sum on the twenty-fifth of December, eighteen hundred and thirty-one: for which, notes were executed, and the sum of one hundred dollars was paid down— the notes yet, however, remaining unpaid. The complainant executed his written undertaking to Browder, at the same time, to make him a deed, whenever the purchase money should be paid for said lot; but as he. kept no counterpart of the paper, he was unable to set it out.
    The bill stated that complainant was advised, and believed that Browder agreed to convey, and did bargain, so far as he was able, the said lot to one Robert K. Haley, who he prayed might also be made a party to the bill, and who at the date of the bill, occupied the premises. Complainant represented that the lot at the date of the bill, had a tolerably commodious framed dwelling house on it, with two rooms below, and two stories high, and some other improvements, but that the improvements were daily disappearing, and that the complainant was advised that Haley threatened to destroy the dwelling house, rather than that orator should ever get it, and that the kitchen, a good log house, had disappeared, and great spoliation had taken place on the premises, under the possession of Haley..
    The hill farther stated that Browder had long since left the State, in embarrassed pecuniary circumstances, and that there was no reasonable prospect of his ever paying the purchase money due to the complainant: that Haley also, was, as complainant was advised and believed, in bad circumstances, and that nothing could be obtained from him, if the complainant had a right to make a pecuniary demand on him: That the lot, with the improvements, if sold to the best advantage, would not pay the claims of the complainant on Browder. Complainant was. satisfied that unless Haley was restrained by injunction, he would continue to waste the property, and wantonly injure it, which complainant was advised, Haley had threatened to do.
    The bill further stated, that complainant became the owner, by purchase from the United States, and one Charles A. Stokes, and a copy of the title was appended to the bill. The bill prayed that an injunction might be granted, restraining Haley from waste, and from removing any of the improvements from the lot, to the end that complainant might be saved harmless against any damages, said Haley might commit or suffer to be committed, while in possession, and until a final decree; and that in case ■said Haley did not give security for the safe keeping of the premises, the sheriff might be commanded to take the property in possession, and that a receiver might be appointed by the Court, to rent the premises, and to hold the rents and profits, subject to a final decree, and that further relief might be granted to protect the rights of complainant: That the lot might be decreed to be sold to pay the claims of complainant, disposing of the surplus in such manner as should be right, and that complainant might have a decree against Browder, and execution thereupon, and writs of subpoena and injunction, and further relief, &c. All of which was sworn to, &c.
    The exhibits A, B, and C, contained copies of the notes from Browder to complainant, as set forth in the bill: the patent from the United States for the lot to Charles A. Stokes and complainant; and the relinquishment of all claims on the part of Stokes, to complainant.-
    And it appearing to the Court, at the April term, eighteen hundred and thirty-three, that the subpoenas had not been served, it was ordered that an alias issue against Haley; and as it appeared that Browder was not an inhabitant of the State, publication was ordered against him, for six weeks in succession, two months previous to the next term, when, if he did not appear and answer, the bill was to be taken pro confesso against him.
    It was further ordered, adjudged and decreed, that the defendant, Robert K. Haley, be required to enter into bond, with sufficient security, in the penalty of one thousand dollars, forthwith, conditioned, that he waste and destroy not the property mentioned in the complainant’s bill, until the matters complained of in said bill, should be heard and adjudged of by the Court. And in default of said Haley’s entering into bond, with sufficient security, for the amount, and conditioned as aforesaid, then and in that event, the'sheriff was required to take the property into his possession, and appoint a receiver to take charge of said property, and rent or lease the same, until the matters contained in the complainant’s bill were inquired into and adjudged of by the Court, and Said receiver so appointed, was to report to the Court from term to term, his proceedings therein.
    And on the thirteenth day of May, eighteen hundred and thirty-three, the writ was served upon Robert K. Haley, the plaintiff in error, and he entered into bond with security, conditioned agreeably to the order of the Court; and during vacation he filed his answer, which stated: that respondent, in the year eighteen hundred and twenty-eight, was persuaded to buy the improvements on the lot No. 563, in the town of Tuscumbia, for which he paid to John W. Norris the sum of four hundred and seventy-five dollars ; and before the purchase he went to complainant and made a contract with him, to take respondent’s note, for two hundred and twenty dollars, payable in a short time, with a deduction of what Browder had paid, and was to give up the four notes he held on Browder, before Browder left the county. Under this verbal contract with complainant, respondent conveyed to John W. Norris, one hundred acres of land in M’-Nairy county, Tennessee, at the estimated value of three hundred dollars, and a fine horse, and forty dollars — making, in all, four hundred and seventy-five dollars, for the framed house that was built by David H. Browder, on said lot. Which last verbal agreement, respondent insisted, rendered the contract between Bennett and Browder, void. When respondent came into possession of the lot, which was on the twenty-fifth day of December, eighteen hundred and twenty-eight, he went to complainant and offered to give his note as above stated, according to the contract with complainant, and because respondent would not give complainant three tons of iron for another lot, complainant refused to take the note, but never claimed payment of Browder’s notes of respondent until last fall. The house had cost'respondent about eight hundred dollars, as it had undergone extensive and valuable repairs, since respondent came into possession.
    The answer further stated, that respondent had, a short time before bill filed, offered complainant a horse in part payment, which complainant agreed to take, but afterwards declined taking him, — respondent then sold him, for eighty dollars. Respondent informed complainant, if he did not comply with the verbal contract, as above set forth, by giving up the notes of Browder, he would remove the house from the lot No. 563, which was probably the reason complainant had prayed an injunction.
    The answer further stated, that the kitchen, on the premises was so decayed, that it fell down in the spring of the year eighteen hundred and thirty-two, during the absence of respondent from the State. — That a lot in the vicinity of No. 563, sold for forty dollars, which was about the value of the lot in dispute. The answer contained some unimportant and irrelevant matter, and prayed respondent might be dismissed with his costs, &c.
    The answer was accompanied with a copy of the bond of complainant to Browder, and its assignment to Norris, and also from Norris to plaintiff in error, which was as follows:
    “The State of Alabama, Franklin County.— Know all men by these presents, that I Samuel Bennett, am held and firmly bound unto David A. Browder, in the penal sum of five thousand dollars, and for the true payment of which I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal, and dated the fifth day of August, eighteen hundred and twenty-eight. The condition of the above obligation is such, that whereas the said Bennett hath, some time previous to this date, bargained and sold unto David A Browder, a certain lot of ground, lying and being, in the town of Tuscumbia, designated and known in the plan of said town, as lot No.-563, for the sum of five hundred dollars, in the following payments, viz: fifty dollars in cash, the receipt whereof is hereby acknowledged; fifty dollars, due the twenty-fifth December, eighteen hundred twenty-seven; one hundred dollars, due the twenty-fifth of December, eighteen hundred and twenty-eight; one hundred dollars, due the twenty-fifth of December, eighteen hundred and twenty-nine; one hundred dollars, due the twenty-fifth of December, eighteen hundred and thirty; and one hundred dollars, due the twenty-fifth December, eighteen hundred and thirty-one — and when said Browder shall have completed the payments for said lot of ground, then the said Bennett hinds himself to make said Browder, or his assigns a good and sufficient title, in fee simple, free from the claim of all and every other person, whatsoever; and then this obligation to he void, otherwise to remain in full force and virtue.
    (Signed) “ Samuel Bennett, [l.s.]
    “ Witness — John Caldwell.
    “Received on the within the sum of fifty dollars in full of the payment due the twenty-fifth December, eighteen hundred and twenty-seven. This fourth of December, eighteen hundred and twenty-eight. “ Samuel Bennett, [l.s.]
    “ I assign all my right, title and interest in and to the within described lot of land, to John W. Norris, for five hundred dollars, to be secured. Given under my hand and seal, this tenth day of August, eighteen hundred and twenty-eight.
    “ D. A. Browder, [l.s.]
    “ I assign all my right, title and interest, in and to the within described lot, and the house, to Robert K. Haley, for value received. December, twenty-fifth, eighteen hundred and twenty-eight.
    “ John W. Norris, [l.s.]”
    And at the October term of the same Court, eighteen hundred and thirty-three, it appeared to the satisfaction of the Court, that publication had been made, agreeably to an order, made in this cause, at the last term of the Court, requiring the defendant, David A. Browder, to answer the complainant’s bill, on or before the first day. of the present term of the Court; and as the said defendant failed to appeal’ and answer the bill, it was considered by the Court, that the bill be taken pro confes-so as to him, and set for hearing ex parte, at the next term of the Court;'that the parties have leave to take depositions and the cause be continued.
    And at the April term, eighteen hundred and thirty-five, the complainant obtained leave to amend his bill, upon filing the same sixty days from the rising of the Court; and it appeared to the satisfaction of the Court, that the defendant, Brow-der was not an inhabitant of this State — it was, therefore, ordered, that unless he appeared on or before the first day of the next term, and answered the complainant’s amended bill, the same would be taken pro confesso against him. Publication was also ordered for four weeks successively, two months previous to the next term of the Court, and the cause was continued.
    The amended bill repeats what is contained and charged in the original bill as already set out, and then goes on to say, that at the last term the complainant obtained leave to amend his bill, and to make one Stokes, who was a joint purchaser with complainant of the lot, from the United States, a party to this suit. That Stokes, as complainant was advised, did not reside in this State, and to the end that Stokes might be made a party respondent, complainant prayed subpcena and publication, and that the lot might be sold, to pay the purchase money yet due, with interest, from Browder; and that Stokes, and all claiming under him, might be estopped, and enjoined from setting up any claim in derogation of the rights of complainant, &c.
    And at the October term, eighteen hundred and thirty-five, it appeared to the satisfaction of the Court, that Charles A. Stokes, one of the respondents in this cause, was a non-resident of this State, and on motion, it was ordered by the Court, that unless he appeared here, and answered the complainant’s bill, on or before the first day of the next term of the Court, the same should be taken, pro confesso, and set for hearing, ezparte, and that the order should be published for three weeks, at least two months before the next term of the Court, &c.
    And at April term, eighteen hundred and thirty-six, it appeared to the satisfaction of the Court, that John W, Norris, one of the defendants, was a nonresident of this State, and on motion, it was ordered by the Court, that unless he appeared and answered complainant’s bill, on or before the first day of the next term of the Court, the same should be taken pro confesso, and set for hearing’ ex parte, and that, the order should be published for three weeks, at least two months before the next term of the Court, &c.
    And then the complainant filed his second amended bill, which was not dissimilar to the original bill, or to the bill as first amended. It was styled, the amended bill of Samuel Bennett, complainant, against Robert K. Haley, David A. Browder, Charles A. Stokes and John W. Norris, and stated that, theretofore, to wit, on the fifteenth day of February, eighteen hundred and thirty-three, complainant had filed his original bill in the Court, against D. A. Browder and Robert K. Haley, and amended the bill by making Charles A. Stokes a party, and obtained leave for that purpose, and made John W. Norris, a party; that said original bill charged, that complainant had been the owner of the lot, five hundred and sixty-three, in the town of Tuscumbia, and had bargained and agreed by contract in writing, to sell the same, to one David A. Browder, at the price of five hundred dollars, to be paid as follows: One hundred dollars, on the twenty-fifth of December, eighteen hundred and twenty-eight; the like sum on the twenty-fifth of December, eighteen hundred and twenty-nine; and so on, annually, until four payments should be made, making four hundred dollars, with interest, and to secure said four annual payments, four several notes were given, for one hundred dollars, each, and interest, as above stated, and filed as exhibit, A. — all on one piece of paper, which notes were due and unpaid: the first hundred dollars of the, whole amount having been paid: that complainant gave his written obligation to Browder, to convey him a title, when the balance of the purchase money should be paid; which said obligation was not in the possession of complainant, and which therefore, he was unable to set out. That in this bill, he had charged that Browder spld his interest to said Haley : that Haley lived oil the lot, and threatened to destroy the improvements, &c. and that no more of the purchase money had ever been paid, than the hundred dollars, which complainant had received of Browder: That complainant, together with Stokes, had been the purchasers of said lot, and patentees therefor, from the United States, and that Stokes had disposed of his interest to the complainant, as appeared by exhibit, C, of the orginal bill, and also of this bill, together with the exhibits A and B; all of which complainant prayed might be regarded as exhibits of this amended bill.
    The amended bill, thus amended a second time, went on to state that complainant- had been informed, that Browder had indorsed the bond for titles, made by complainant to John W. Norris, and that Norris transferred it to Hale}'-. Complainant here remarked, that as well as he could remember, the first bond for title, was lost or destroyed, and a subsequent one made, as set out in Haley’s answer to the original bill, and which complainant thought, had the several indorsements above named, and which were prayed to be referred to, as if made exhibits of this bill. Complainant was advised that Norris should be made a party, which was prayed to be done. In the original bill, an injunction was prayed for, and obtained, restraining Haley from committing waste on the lot, and it also prayed, that the said lot might be sold, to satisfy the balance of the four hundred dollars, with the interest, being so much of the purchase money, yet due and unpaid. Complainant prayed that all the parties might be controlled, governed and estopped by a decree to be made and had in this cause: that the lot might be sold to raise the unsatisfied balance of purchase money, together with the interest and costs: that the title of Stokes might be decreed to complainant, and that by the decree of this Court, to be made, the purchaser at the sale to be made, should be vested with the legal estate, in the lot, in fee simple, and that Stokes, Haley, Browder and Norris, and all others claiming under, by or through them, should be forever bared, enjoined and estopped, from setting up any claim or title, adverse to the title so to be decreed, and made to the vendee under an order of sale of the Court: that Stokes, Haley, Brow-der and Norris, might be parties respondents to the amended bill, and to the bill on file in the case,— that subpoenas issue, &c. Complainant charged that Norris and Browder had gone to parts unknown; that Norris lived in Tennessee, and Haley in Franklin county. Complainant thereupon prayed, that the amended bill be received, and publication be had to bring in the absent defendants.
    The answer of John W. Norris, then came in, which stated, that on the twenty-fifth day of December, eighteen hundred and twenty-eight, he transferred to Robert K. Haley, a bond he held, made by complainant, and which complainant had given to Browder, who transfered it to respondent; the bond was conditioned to make title, to lot number five hundred and sixty-three, in the town of Tuscumbia, upon the payment of the purchase money, and bore date, fifth of August, eighteen hundred and twenty-eight, for which Haley gave respondent one hundred acres of land, in M’Nairy county, Tennessee, valued at three hundred dollars, and a horse and goods to the amount of one hundred and seventy-five dollars, — in all, making four hundred and seventy-five dollars. Before Haley confirmed the contract with respondent, he made a contract with complainant, to take Haley’s note for a less amount, and payable in a shorter time, in the place of the notes he held on Browder, and complainant released Browder, on the four notes, mentioned in the bond, and in the original bill of complainant. The answer further stated, that when Browder left Tuscumbia, he took with him, a good team and wagon, and complainant was present, and claimed nothing on the notes, — that Haley was in good standing in respect to property, and complainant appeared satisfied with the contract to take Haley; and complainant did agree to take Haley’s ofifer in the place of the notes of Brow-der, which he held, and was to give up the notes to Browder, before he left Alabama. Respondent further stated, that defendant, Haley, had made great and valuable improvements on the property, since he came into possession, — prayed to be dismissed with costs, &c. .

      Francis Terry, a witness for defendant, Haley, proved, that the kitchen, referred to in the original bill, as having been taken away by defendant Haley, fell down from decay, and that the same was not wrongfully taken down by defendant.

      Robert G. Kelso, also for defendant,, proved, that defendant Haley, had made improvements on the house, on lot number five hundred and sixty-three, painting, plastering, digging well, hanging blinds, under — pinning the house, &c.

      James Elliott, for defendant, proved the lot, number five hundred and sixty-three, to be worth but ten or twelve dollars more than his own lot, which is adjoining, and is worth at most, but fifty dollars.

      Colin Bishop, a witness for complainant, proved the assignment by Charles A. Stokes, of his inter-«st.in lot, number five hundred and sixtv-three, to complainant, which is endorsed on the patent from the United States to Stokes and complainant.

      James Hodges, for complainant, proved the bond for title from Bennett to Browder, to be in the handwriting of John .Caldwell, then in Texas, and signed by complainant. The endorsement and notes, were in the hand-writing of Browder.

      John W. Norris, a ‘witness for defendant Haley, and who appears to be also a defendant in the action, proved that Haley gave him four hundred and seventy-five dollars, for the house on lot numbered five hundred and sixty-three. The payment was made in one hundred acres of land in M’Nairy county,. Tennessee, valued at three hundred dollars, and the balance in a horse and goods, and that defendant said, complainant was to give up to Brow-der, the four notes for one hundred dollars each, which he held against him, and take in lieu of them, a note from Haley for a less amount, and payable in a shorter time.
    And at the October term, eighteen hundred and thirty-six, the cause came on to be heard on the bill, answer and proofs taken, and it appeared, to the satisfaction of the Court, that the facts alleged in the bill were true, and that there was yet due to complainant, as alleged in the bill, four hundred dollars of the purchase money, for the said lot, numbered five hundred and sixty-three, in theplan of the town of Tuscumbia, in that county and State, and that there was the additional sum of two hundred dollars interest on the same, making the complainant’s demand six hundred dollars, and that the said lot was liable for the payment thereof, and that said Haley was entitled to said lot, so'incumbered. It was therefore considered, adjudged, ordered and decreed, that unless the said sum of six hundred dollars, with interest from the date of fhe decree, and the costs of the suit, were paid to said complainant, by the first day of January next, (eighteen hundred and thirty-seven,) that then said lot should be sold by the sheriff to th'e highest bidder, in cash, and the proceeds to be first applied towards the payment of this judgment, and the costs, &c. and the surplus, if any, to be paid over to Robert K. Haley. And if the lot should not sell for enough to satisfy complainant’s claim, that then the deficit should be levied of the goods and chattels, lands and tenements of David A. Browder.
    And now at this present term of this Court, came the plaintiffs in error, and they said that in the record and proceedings in this case, and in rendering the decree, error had intervened.
    1. The Court below erred in rendering a decree in this case, in favor of the defendant in error, when it should have decreed in favor of the plaintiffs in error, — the case not being made out by proof.
    2. The Court below, erred in refusing to dismiss the hill in this case, for want of equity, apparent upon its face, and for want of jurisdiction.
    3. The Court erred in rendering a decree in favor of the defendant in error, before the respondents below, were brought into Court, either by subpoena or publication.
    And the defendant said that there was no error in the record.

      J. L. Martin, for the plaintiffs in error.

      M’ Clung, contra.
   GOLDTHWAITE, J.

The case which is presented on the record, is one of some novelty, and not entirely divested of difficulty.

The complainant sought, in the Court below, to subject a lot, in the town of Tuscumbia, in the same manner as if he had conveyed it by deed to Browder, one of the defendants below, and it by him, had been reconveyed, in mortgage, to secure the payment of the notes given for the purchase money. In point of fact, no deed or conveyance, of any description, was ever made by the complainant, but the legal title remains the same as before the sale, he only declaring, in writing, that he had sold, and binding himself to convey a title in fee, when full payment should be made of the notes given for the purchase of the lot. ,

From the bill and the title bond, which is set out as an exhibit to the answer of one of the plaintiffs in error, it appears that the complainant parted with the possession of the lot, and only retained the title as a mere security, for the payment of the consideration money. There is nothing in the contract stated, or in the papers exhibited, from which the conclusion can be drawn, that time of payment was intended or considered by either party, as essential to the continuance of the contract. If the money due to the complainant by the notes, should not be paid at maturity, the right to have back ,the lot, ■with its increased value, by reason of the improvements made on it, does not appear to have been contemplated, nor that the notes should become void, by a surrender of ihe lot to the complainant. The particular form of the contract can not be considered as material. It is, to all intents and purposes, in the nature of a mortgage, and all the equitable incidents of one, must attach to the com tract.

In Maryland, it has been held, that the vendor of real estate, without deed, has an equitable lien on the landsold for the payment of thepurchasemoney, into whatsoever hands it might pass, with notice that the contract of sale has not been complied with.—Ghislin vs Ferguson, 4 Harr. & Johns. 522. So, in South Carolina, an imperfect agreement, intended as a security has been supported in equity.—Menude vs Delaire, 2 Desaus. 564; Watson vs Wells, 5 Con. Rep. 472; Wadsworth vs Wendell, 5 Johns. Ch. R. 224 ; Daniels vs Davison, 17 Ves. jr. 433.

So also, in the case of a sale and .conveyance, the vendor has an implied lien on the estate sold, even against bona fide purchasers, with notice of the non-payment.—Mackreth vs Symmons, 15 Ves. 337; Walker vs Preswick, 2 ib. 622.

It is without doubt, that the complainant could have maintained ejectment for the lot sold, and his right to a recovery at law, could not have been prevented, but by the purchaser filing his bill to redeem the premises; but if possession had been recovered, the contract would not thereby have been disannulled. The 'complainant could only have held it until the rents and profits had discharged the incumbrance, after which equity would have compelled a conveyance to the purchaser or his assignees.

There is no rule of equity known to us, which will prevent the complainant from subjecting the lot to the payment of the purchase money, nor is he, (as has been supposed by the counsel for the plaintiffs in error,) bound to proceed against Brow-der, before he seeks satisfaction out of the mortgaged property — for so we must consider it.

In the case of Dunkley vs Van Buren, 3 Johns. Ch. Rep. 431, it was held, by Chancellor Kent, as the settled rule, that the mortgagee may proceed at law, on his bond or covenant, at the same time that he is prosecuting on his mortgage, in Chancery, and after a foreclosure, may collect the deficiency at law,—Perry vs Barker, 13 Ves. jr, 198; Newhall vs Wright, 3 Mass. R. 154; Hatch vs White, 2 Gall. 152.

The plaintiff in error, Haley, in his answer, sets up as a defence, that he entered into a new and distinct contract with the complainant, by which the mortgage, as he insists, was discharged; but the only evidence in the cause, to support the answer, is of declarations made by the respondent himself. This branch of the case may, therefore, be dismissed without further consideration.

The other principal reasons, for which it is said that the decree rendered should be reversed, are, because Charles A. Stokes, who is made a party defendant, by an amended bill, was not properly brought into Court.; and because no process in the amended bill was sought against the respondent, Haley, and defendant, Browder.

In reply to both these positions, it may be observed, that the original bill was sufficient, both as to allegations and parties, to authorise the decree rendered. Stokes can he considered as a material party, alone on the supposition, that a decree was necessary to he had, to divest him of an outstanding legal title to the lot. This was wholly unnecessary, as would have been the case, if the title to the lot had passed by deed, and the complainant had had no title, or a defective title to the premises.

It is a well settled rule of law, that the mortgagor can not dispute the title of the mortgagee — and as. the decree does not attempt to divest the title from Stokes, there was no error in omitting to have him before the Court.

So, likewise, it was wholly unnecessary to have Norris, who sold the premises to one of the plaintiffs in error, before the Court; he had no interest whatever in the suit, and it would be exceedingly incon-envient, to require that all the mesne conveyancees, should be brought before the Court, for no other purpose, than to disclaim and recover costs of a complainant. The general rule as to parties, was well and properly laid down by Chancellor Kent, in the case of Haimes et al. vs Beach, et al. (3 John. Ch. Rep. 459,) and it is, that all incumbrancers or persons, having an interest, at the commencement of the suit, subsequent as well as prior in date to the plaintiff’s mortgage, must be made parties, otherwise, they will not be bound by the decree.

It was also insisted, in the argument of the case, that the facts of the bill are not admitted by the answer of one of plaintiffs in error, and as Browder was only before the Court, on a decree pro confesso, all the facts in the bill should have been proved. The only material facts which were necessary to establish, were the sales, and the bond which is made an exhibit in the, answer of Haley, and these are not only admitted, but established by proof.

If Browder had brought the case to this Court, the decree, so far as it renders a judgment against him, for the deficiency which may exist in the sale of the lot, would have been reversed in this Court, as not warranted by equity practice.—(Dunkley vs Van Buren, 3 Johns. Ch. Rep. 331. Globe Insurance Company vs Lansing, 5 Cowen, 380.) But as the case is removed to this Court, by Haley alone, and as the decree in this particular, does not affect him, he can have no advantage of this error.

The decree must be affirmed.

ORMOND, J. not sitting.


source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    THE STATE OF ALABAMA VS GREENWOOD.

      Touching objections to the summoning of a grand juror.

      As to several fleas in criminal cases.

    1. This Court will take judicial notice, who are the Circuit Judges of this State; and a mis-pelling of the name of a Judge, in a transcript certified to this Court, will be regarded as a mere clerical error.
    2. The question, as to whether a grand jury has been drawn, summoned and i'mpanneled, according to law, can only be considered under a plea in abatement.

      %. The certificate of the Clerk below, appended to a transcript in this Court, as to an indictment in a cause, which is subjoined, must be taken as true.
    4. So, where papers in a cause are sent from one county to another, by a change of a venue, and afterwards removed into this Court, — it will be presumed from the Clerk’s certificate, in the absence of any contest as to their verity, below, that the Clerk has transmitted the proper papers.

      5. A defendant in a criminal case, cannot be compelled to select and rely upon one of several pleas, submitted by him.
    6. While the statute of this State, authorising a party to file more pleas than one, does not include criminal cases,— yet the right thus to plead, exists at common law.
    7. That an order of a Court below, transfering a case here, sets out, that the questions raised, are novel and difficult to the counsel, — will not authorise this Court to refuse jurisdiction. .. .
    Indictment for larceny,
    In this case, tfee bill was íoond 1b She? fc and on motion of the defendant, and for cause shewn by affidavit, the venue was changed to Talladega; where ths defendant being convicted, brought hik case up to this Court, on a reservation of novel and difficult points.
    The record stated, that the defendant, Hugh B. Greenwood, in his own proper person, having heard the said indictment read, pleaded to it, in manner and form, following, to wit: And the said Hugh B. Greenwood, against whom the State hath exhibited her indictment, comes in his own proper person, and having heard said indictment read, saith, that he ought not to be charged in said indictment, because, he says, William Candon, who was foreman of the grand jury, by whom said indictment was found, was not summoned as one of the grand jurors of the grand jury, aforesaid, to appear at the present term of this Court, as a gránd juror, and this he is ready to verify, by the return of the sheriff, made upon the venire facias-, and so he says, that said grand jury, aforesaid, by whom said indictment -was found, as aforesaid, was not a legally organized and constituted grand jury: wherefore, the said Hugh B- Greenwood, prays judgment of the said indictment, and that the same be quashed. And for a further plea in this behalf, the said Hugh B. Greenwood, by leave of the Court for this purpose, first had and obtained, comes in his own proper person, and having heard the said indictment read, says that he ought not to be charged on the said indictment, because he says, that the grand jurors of the grand jury, by whom the said indictment was found, were not summoned by the sheriff of this county, to serve as grand jurors at the present term of this Court, at least thirty days before the sitting of this Court, and this he is ready to verify, by the return of the sheriff made upon the venire facias] and so, said Hugh B. Greenwood, says, that the said grand jury, was not a legally organized and constituted grand jury; wherefore he prays judgment of the said indictment, and that the same may be quashed. And for a farther plea in this behalf, the said Hugh B. Greenword, by leave of the Court first had and obtained, comes, and the said indictment being read to him, he says, that he ought not to be charged upon said indictment, because, he says, that the grand jurors, of the grand .jury, by whom the said indictment was found, were not selected by the clerk of this county, and the sheriff of this county, under the superintendence and inspection of the Judge of the County Court of this county, from the list of free-holders and householders, selected, according to the provisions of the first section of the act, entitled an act, for the better selecting, drawing and summoning jurors, passed, January fourteenth, eighteen hundred and thirty-six, and this he is ready to verify; and so the said Hugh B. Greenwood says, that the said jury, were not a legally organized and constituted grand jury, therefore he prays judgment of the said indictment, and that the same may be quashed. And for a further plea in this behalf, the said Hugh B. Greenwood, by leave of the Court here for that purpose, first had and obtained, comes in his own proper person, and having heard the said indictment read, says he ought not to be charged in said indictment, because he says that the grand jurors of the grand jury, by whom the said indictment-was found, were not selected by the clerk of this Court, and the sheriff of this county, under the superintendence and inspection of the Judge of the County Court, according to the provisions of the first section of the act, entitled an act to alter the mode of selecting grand jurors, approved, January the ninth, eighteen hundred and thirty-six, and this, the said Hugh B. Greenwood, is read to verify, and so he says, that the said grand jurors aforesaid, by whom the said indictment was found, was not a legally constituted grand jury; wherefore he prays judgment of the said indictment, and that the same may be quashed; which said third and fourth pleas above pleaded, were verified by the oath of said Hugh B. Greenwood, as true in substance and in fact, and by him subscribed and sworn to in open Court.
    And upon the coming in of said pleas, the Attorney General, who prosecuted for the State, moved the said Court to put the defendant to his election, upon which seperate one of said pleas, he would rest his defence, and to strike out the remaining pleas, and the Court having heard and considered said motion, sustained the same, and ordered the said defendant to make his election of one seperate plea, accordingly. This the defendant refused to do, and further refused to offer any other plea, and stood mute ; whereupon the Court ordered the clerk to enter the plea of not guilty, on his behalf, which was accordingly done. But inasmuch, as the question, whether a defendant in a criminal prosecution is allowed to plead more than one plea in abatement, is considered by the Court novel and difficult, the same is reserved by the Conrf, for the final determination and decision of the Supreme Court.
    And then the defendant made oath, that he did not not believe he could have a fair and impartial trial in the county of Shelby, for reasons set forth in his affidavit, and among others, that the prosecutor was a man of great influence in said county, who had used efforts to prejudice the minds of the community against him, and that he and his friends, by their efforts, had produced a belief in the minds of many, that defendant was guilty, — defendant prayed that the trial and venue of this prosecution, might be changed to some adjoining county, free from like exceptions, and the Court then heard and considered the application of said defendant, for change of venue, and ordered, that the venue should be changed in the prosecution from the county of Shelby to the county of Talladega: and it was further ordered, that the clerk should make out a transcript of all entries in the case, relating to the prosecution in this Court, and subjoin the same to the original papers in the prosecution, and send the whole, enclosed under seal, by some discreet person, to the clerk of the Circuit Court of Talladega county: and then the defendant and his sureties and witnesses, all came and were recognized in open Court, to be and appear at the Circuit Court of Talladega county, to be holden for the county of Talladega, on the fourth Monday, after the fourth Monday in March, in the year eighteen hundred and thirty-seven, and to continue there from day to day, and from term to term, until discharged by due course of law; and so also, were all the witnesses on the part of the State.
    And then, to wit, at the Spring term of the Circuit Court of Talladega county, came the prosecu^ tor and the defendant, who in his own proper person, for a plea, said he was not guilty, and thereupon came a jury of good and lawful men, who being impanneled, sworn and charged, well and truly to try the traverse, between the state and the de-fendantj upon their oaths aforesaid, said they found him guilty, in manner and form as charged, in the indictment; and the defendant, on Saturday of the first week of the term of said Court, was brought into open Court, and asked by the Court if he had any thing to say, why the judgment of the Court, on said conviction, should not be pronounced upon him; and he moved to arrest the judgment of the Court, for the following reasons, to wit:
    1. That if appeared by the record, that the Court in which the indictment was said to be found, was not held by one of the Judges of the Circuit Court of this State.
    2. That it did not appear by the record that the grand jury, by whom the said indictment was found, was selected and impanneled, according to law.
    3. That it did not appear by the record, that the indictment hud been returned by the grand jury, into the CoaU at which said indictment is said to; have been found: nor does ft appeirr, b f the record whether the grand jury, returned the raid indeed-meat, a true bill, or not a true bill; nor that the indictment npon which said conviction was had, was the same, upon which the venue had been charged.
    And the said motion being heard, was overruled, and so the judgment was not arrested, but entered, and sentence awarded. "
    And',the case was brought to the present term, of this Court, on the grounds taken in the motion below, in arrest of judgment.

      Peck, for the plaintiff in error,

      Attorney General, contra.
   ORMOND, J.

The facts of this case are, that an indictment was found at the Circuit Court of Shelby county, against the defendant for horse stealing. The defendant, on being arraigned, pleaded four several pleas in abatement. The Court on motion of the Attorney General, put the prisoner to his election, on which one of the pleas he would rely, and to abandon the rest; which election he refused to make: whereupon the Court directed the pleas to be stricken out, and on refusal of the prisoner to plead further, caused the plea of not guilty to be entered for him. The matters of Jaw arising thereon, were reserved for the revision of this Court, as novel and difficult. The cause was then removed by change of venue, to Tallade-ga county, where the prisoner was tried and convicted, and moved in arrest of judgment, for the following reasons:

1. That it appeared from the record, that .the Court in which the indictment was said to be found, was not held by one of the Judges of the Circuit Court of this State.

2. That it did not appear by the record, that the grand jury, by whom the said indictment wasfound, Was selected and impanneled according'to law.

3. That it did not appear by the record, that the indictment had been returned by the grand jury, into the Court at which said indictment is said to have been found, nor does it appear by the record, whether the grand jury returned the said indictment a true bill, or not a true bill: nor that the indictment upon which said conviction was had, was the same upon which the venue had been .changed.

Which motion in arrest of judgment, was over-ruled by the Court, but reserved for the decision of the Supreme Court, as novel and difficult.— These matters are all relied on in this Court as error, and will be severally considered.

The first cause for the arrest of the judgment, is a mere clerical error of the clerk of Shelby Circuit Court. In making out the transcript in pursuance to the rule of the Supreme Court, he states, that ''the Circuit Court of said county, met agreeable to law. Present, the Honorable Pholemy T. Harris, one of the Judges of the Circuit Court, ” &c. It is impossible for this Court, to shut its eyes to the fact, that this is a mere clerical error of the clerk, in spelling the name of the Judge. It would be trifling with the gravity of judicial proceedings-to suffer such an objection to prevail. It is compared to the case of a plea of misnomer, but it bears no analogy to such a case. This Court must take judicial notice that Ptolemy T. Harris, is one of the Circuit Judges of the State, and will intend that this is a mere clerical error.

The answer to the second cause assigned is, that it appears from the transcript of the record, sent from Shelby county, that the grand jury were drawn, summoned and impanneled, according to law, and if the objection here raised can be made, it can only be by plea in abatement.

The objections raised by the third cause assigned, rest upon the supposition, that the indictment should have been copied upon the records of Shelby Circuit Court.

All the papers relating to the cause, including the indictment, were in fieri, when the order for change of venue was made; and as it did not become a record until after enrolment, the objection could as well be made in the Court where the indictment was found, as elsewhere. The papers, are by law, entrusted to the custody of the clerk, and the certificate which he has made in this cause, that the indictment has been subjoined to the transcript, imports as absolute verity, as would his production of it, on trial in the Court where it was found. In either case, were it not the true indictment, the matter might be disputed in a proper mode.

By the same process of reasoning, we attain the conclusion, that the indictment thus subjoined by the clerk, in accordance to the rule of the Supreme Court, was the one on which the venue was changed; that it is the same which was returned to the Circuit Court of Shelby county, by the grand jury, and that they found it a true bill. Nearly all these principles were determined by this Court, in the case of Collier vs the State. (2 Stewart, 388.) There was no error in refusing to arrest the judgment.

But in compelling the prisoner, to elect on which one of his pleas in abatement he would rely, and in compelling him to abandon the rest, the Court erred. The act of the legislature, in allowing more pleas than one to be filed, does not extend to criminal cases. But the right thus to plead, exists at common law. In 1 Chitty’s Criminal Law, 434, this is denied; but he cites no adjudged case in support of his opinion, whilst the contrary doctrine is held by Hawkins, a much higher author on criminal law, .supported by high authority. This seems then to be the better law, and we do not feel, warranted in depriving the prisoner of any de-fence secured to him by the common law, and not repealed by statute. — [2 Hawkins 66, and authorities there referred to.]

It is- insisted by the Attorney General, that as the order of the Court, referring this case, set out, that the questions were novel and difficult, to the counsel for the prisoner, this Court cannot take jurisdiction. But as it would be improper for the Judge, to send up the case as one of novelty and difficulty, unless he esteemed it so, we must understand him, as endorsing the opinion of counsel, and thus making it his own.

Upon the sufficiency of the plea, as that question is not presented, we express no opinion.

The judgment must be reversed, and the cause remanded.


author: COLLIER, C. J.

text:
    THE STATE OF ALABAMA VS MIDDLETON.

      Of pleas in abatement, as to the competency of a grand-juror.

      As to the competency of grand jurors.

      Touching the verification of pleas in abatement.

      As to the form of such plea; and the signing of the same.

    1. One against whom an indictment is preferred, may well object, by plea, to the competency of a grand juror who found the bill.

      2. It is in this State, essential to the competency of a grand juror, that he should be a free-holder or house-holder, when his name is returned to the clerk by the sheriff.
    3. Thus, it is a good plea to an indictment, that one of the grand jurors who found it, was not a free-holder or householder, at the time the list of jurors was returned.
    4. Though it would seem, that the competency of persons to act as grand jurors, should not be tested by the fact of their continuing free-holders or house-holders, up to the time of being drawn to serve as such.
    If persons possess this qualification when their names are returned by the sheriff, though aftenvardsjthey are divested of it — they would be competent jurors.

      5. All the acts of this State relating to juries, are to be construed in pari materia, as forming parts of an entire system.
    6. A plea in abatement, that one of the grand jury, who found an indictment was not a free-holder or house-holder, at the time the grand jury were impameled, or at the time of an indictment found, would be bad.
    7. Such a plea to be available, should aver, that the juror was not a free-holder or a house-holder, at the time his name wqs returned to the clerk, by the sheriff.

      8. A plea in abatement, which, at the foot thereof, has the words, “sworn to and subscribed in open Cqurt:” signed by the party pleading, and attested by the clerk, is sufficiently verified, without a formal affidavit.
    9. A plea in abatement, to the competency of a grand juror, who found the bill, may properly conclude with a prayer of judgment, that the indictment be quashed.
    10. Nor is it required that such plea shall be signed by counsel : the pleading of it in proper person would seem most regular.
    At the September term, eighteen hundred and thirty-six, of the Circuit Court of Tuskaloosa county — John Thomas, foreman, James Pinion, N. W. Ware, Wiley Watson, Curtis Ivy, James M’Creight, Dennis Springer, Jesse Hughes, Thomas M’Crackin, John Poe, sen., David Baugh, Thomas B. S. M’Ge-hee, John Terrell, and William L, Reese, good and lawful men of said County, impanneled, sworn and charged to inquire for the body of Tuskaloosa county, within the State of Alabama, exhibited a bill of indictment against the defendant, in the following words and figures, to wit:
    “The State of Alabama. Circuit Court for Tuskaloosa county. Fall Term, 1836. The grand jurors for the State ef Alabama, elected, impannel-ed, sworn, and charged to inquire for the body of Tuskaloosa county, upon their oath, present, that Zachariah Middleton, late of said county, in the county aforesaid, on the 26th day of July, in the year of our Lord, 1836, with force and arms, at -, in the county aforesaid, in and upon one Nimrod Freeman, in the peace of God, and the saicl State, then and there being, did make an assault, and him, the said Nimrod Freeman, then and there did beat, wound and ill treat, and other wrongs, to the said Nimrod Freeman then and there did, to the great damage of him, the said Nimrod Freeman ; and against the peace and dignity of the State of Alabama. A. B. Meek, Attorney General of the State of Alabama. John Thomas, foreman of the grand jury. Endorsed — a true bill”
    And at the March term of the same Court, the defendant came personally, and filed his plea in abatement, as follows, to wit:
    “ The State of Alabama vs Zachariah Middleton. Assault and battery-. And the said Zachariah Middleton, in his own proper person, comes, and the said indictment being read to him, says, that he ought not to be charged on the said indictment — because, he says that James M’Creight, one of the grand jurors, by whom the said indictment was found, was not, at the time the grand jury were impanneled, nor at the time the said indictment was found as aforesaid, a free-holder, nor was he a house-holder, within the county of Tuskaloosa aforesaid ; and this he is ready to verify. — Wherefore he prays judgment of said indictment, and that the same may be quashed, &c. ¡Zachariah Middleton. Sworn to and subscribed in open Court, March' 27th, 1837, before J. J. Samuel, clerk.”
    And thereupon, the Attorney General, who prosecuted in behalf of the State, said, that the plea of the said defendant, pleadéd in the prosecution, and the matters and things therein contained, as therein set forth, were not sufficient in law, to bar or preclude, the said State from prosecuting the said in» dietment, against the defendant, and this the Attorney General, who prosecuted as aforesaid, was ready to verify by the record, when and where the Court might order and direct; wherefore, he prayed judgment, and that defendant might answer over, &c. To which there was a joinder by defendant, &c.
    And then came the Attorney General, and the defendant, and all and singular the matters of law arising upon the demurrer, to the defendant’s plea, by him pleaded in abatement, being seen, heard, and by the Court fully understood, it seemed to the Court, that the plea and the matters therein contained, were not good and sufficient in law, to quash the indictment; and leave was given the defendant to plead over, and the defendant having pleaded over, said he was not guilty, in manner and form as charged in the indictment, and for trial put himself upon the country,' and the Attorney General did the same; and thereupon came a jury, who being elected, tried and sworn, upon the issue of traverse joined, the truth to speak, on their oaths,said, the defendant was guilty in manner and form, as charged in the indictment, and they assessed a fine of ten dollars against him by reason thereof; It was therefore considered by the Court, that the State, for the use of the county aforesaid, should recover of the defendant, the fine aforesaid, so assessed by the jury, and the costs of the prosecution, &c.
    And it was agreed that the point reserved in the case, and referred to this Court, was, upon the demurrer of the State, to the plea-in abatement, and whether the plea was sufficient in law, to quash the indictment.

      E. W. Peck, for the defendants
    The Attorney General, contra.
   COLLIER, C. J.

The defendant was indicted in the Circuit Court of Tuscaloosa, for an assault and battery, and being brought into Court, he pleaded in proper person, that one of the grand jurors, (naming him,) by whom the indictment was found, “was not, at the time the grand jury were impanneled, nor at the time the indictment was, found, a freeholder, nor was he a house-holder within the county of Tuscaloosa.” The plea concluded with a verification, prayed judgment of the indictment, and that the. same be quashed; and is verified as follows:

The Attorney General demurred to the defendants plea, and the demurrer being sustained, the questions of law thereupon arising, were referred to this Court for decision, as novel and difficult.

The argument has presented to our consideration, these questions:

1. Can a party against whom an indictment is found, object by plea, to the competency of a grand jurorl

2. If the objection can thus be made, does the plea contain matter of disqualification'?

3. Is the plea sufficiently verified?

4. Is it good in point of form?

5. Should it.not be signed by counsel?

1st. — By the. twelfth section of the Declaration of Rights, (of our State constitution*) it is declared, that, ’“No person shall, for any indictable offence, be proceeded against criminally, by information; except in cases arising in the land and naval forces, or the "militia, when in actual service, or, by leave of the Court, for oppression or misdemeanor in office.”

By the eleventh section of the same article, it is provided, that, “No person shall be accused, arrested or detained,' except in cases ascertained by law, and according to the forms which the same has prescribed, and no person shall be punished, but in virtue of a law, established and promulgated,prior to the offence, and legally applied.”

The section first recited, is a'clear inhibition to proceed by information against one, charged with an indictable offence* and is equivalent to an express guaranty to the accused, of the right to demand an indictment, before he can be put upon his trial, as an offender, “against the peace and dignity of the State,” except in the cases excepted. As--sumingthis as a position, which can hardly be de--nied, let us inquire into the nature of an indictment. .

An indictment may be-defined to be an accusation, at the suit of the State, by the oaths of a grand jury, (or at least twelve of their body,) of the-same county wherein the offence was committed, im-panneled to inquire of all offences in the county, determinable in the Court, .which they are appointed to aid. It is a brief narrative, of an of-fence committed by any person, which the public good requires should be punished; and hence is called, a prosecution at the suit of the State. — (3 Bac. Ab. 542,-4.)

The action of a grand jury, being essential to an indictment, it would follow, that a paper having all its forms, but which has never been before them, or which a less number than are authorised by law’, have concurred in returning a “true bill,” is not a legal accusation. And on such paper, the accused, cannot, according to the eleventh section of the declaration of rights, be put upon his trial.— Nor would the case be changed, though this representation of an indictment should be found by the requisite number of grand jurors, if some of them were disqualified, so as not to be, what the law terms, “good and lawful men.” In order to authorise one to “be accused, arrested or detained,” it is necessary, not only that the law should have ascertained the offence, but in the accusation, arrest or detention, the forms which the law has prescribed, as preparatory to its punishment, should be observed; and it is not only essential, to authorise the infliction of punishment, that the law be established and promulgated prior to the offence, but that it be legally applied.

It hath been remarked, that for an indictable of-fence, the law authorises the accused to insist upon an indictment; that to constitute a good indictment, at least twelve of the grand jury should concur in returning it, a “true bill .” An indictment found by an incompetent grand jury, is not a proceeding according to the forms which the law has prescribed, and is not one upon which the accused, compatibly with his constitutional rights, can be tried. Now here is a clear right, but how shall it be made available?

In the- case of the State vs Boyington, (2 Porter’s R. 100,) it was determined by a majority of this Court, that an exception to the competency of a grand juror, for disqualification from personal causes, can only be taken by challenge to the juror, before indictment found; and that “it is the acknowledged privilege of all persons present, of those anticipating prosecutions, or others, as the friends of the Court, to point out the objection, and cause the exclusion of the juror.” But while the Court thus recognises the right of challenge to a grand juror, either by one to be prosecuted, or as an amicus curies, they determine that his incompetency could not be pleaded, in avoidance of an indictment at common law.

With entire respect for the opinions of the members of the Court, who concurred in the judgment, in the case of the State vs Boyington, we are constrained to dissent from their conclusion. Let it be granted that it does not satisfactorily appear from the elementary authors, whether the right to plead in avoidance of an indictment, theincompeten-ey of a grand juror, was introduced by the statute of Henry the IV, or was known to the common law, and we think, the difficulty of determining the .question, should, in itself, induce the allowance of the plea. In adjudging legal questions of doubt, the true rule in favor of life and personal liberty, is, to lean to the accused.

If- the case of the State vs Boyington, was not likely to be productive of injury, and to deny in many instances, the right to insist upon a legal indictment, we should be the less disposed to depart from it. It imposes upon every one who may by possibility be indicted, the necessity of being present in Court, and scrutinizing the grand jury before they are sworn. To shew the unfitness of such a requisition, those who are accused of offences, and confined in jail, are to be brought into Court, to supervise the impanneling of the grand jury, or they are to be deprived of the constitutional guaranties, afforded by the eleventh and twelfth sections of the first article of our constitution. Again,— the man of peaceful habits, who never expects to become obnoxious to criminal justice, yet after the grand jury are impanneled, he is concerned in a ren-counter, for which he is indicted; on .coming into Court, and objecting to the incompetency of a grand juror, he is told that his objection, though it rests upon the basis of the constitution, cannot be entertained: — that having pretermitted the occasion to aid the Court, with his friendly advice, it is no longer available.

In our judgment, the statute of Henry the IV, was not introductive of a plea to the disqualification of an indictor, but Such plea was allowable at common law, of which the statute was in affirmance. The statute was in advancement of the, liberty of the subject, and was doubtless induced by a desire of the Commons, to establish as firmly as practicable, the barriers to the usurpations of the Crown and the assumptions of the Clergy, both of which, the history of that period informs us, were unwarrantably great, — so as to keep alive, a spirit of jealousy, between the representatives of the people, and the aristocracy of the nation.

Upon principle, such plea is permissible: No man is required to defend himself, until an indictment is found, and cannot be held to have waived any matter of defence, of previous occurrence, by an omission to insist on it earlier. The case of the United States vs Burr, is not a contrary authority: there, the objection was to particular jurors, for favor. The prisoner was in Court, and the grand jury had been summoned for the purpose of examining the charge against himself and others, who were supposed to be implicated with him. And it is not even there determined, that a plea to the competency of a juror, would not have been entertained; though for the particular objection we are considering, we think it would not.

2. By the first section of the act of eighteen hundred and eleven, (Aikin’s, Digest, 296,) the sheriff .of every county, is required, within two years, to furnish to the clerk of the Superior Court of his county, a list of free-holders and house-holders within the same: which list is to be filed in the clerk’s office, and the names returned, to be put in a box, to be kept by the clerk for that purpose.— The second section, prescribes the manner in which the jury shall be drawn from these names.

The first section of the act of eighteen hundred and twenty-six, directs, that immediately after the sheriff of any county, shall have returned to the clerk of the Circuit Court of his county, a list of free-holders and house-holders, within the same, it shall be the duty of the Judge of the County Court, with other officers, (particularly named,) to assemble at the court house of their county, on a day, to be appointed by the clerk of the Circuit Court, and to select from the list of free-holders and house-holders, such persons as they, or a majority of them, may deem qualified to serve on juries; and the names of the persons so selected, shall be put into a box, to bé kept by the clerk, for that purpose; and the persons who shall be selected in such manner, shall be liable to serve on juries, and shall be chosen in the manner now prescribed by law.

By the first section of the act of January, eighteen hundred and thirty-six, it is enacted, that after its passage, the clerk of the Circuit Court, and the sheriff, under the superintendence and inspection of the Judge oí the County Court, in each county, shall select from the whole number of persons qualified to serve on juries, twenty-four suitable persons, best qualified, in their opinions, to serve on the grand jury, for each term of the Circuit Court, in the several counties in this State, &c.— ■ These are the only provisions in our statutes, which it is deemed material to notice.

We think it very clear, that in this State, it is essential to the competency of a juror, that he should have been a free-hokler or house-holder, when his name was returned by the sheriff to the clerk. Our acts of the legislature can not be considered as merely directory, in pointing out the mode in which the jury are to be d>-awn, nor are their provisions, in defining the qualifications of the jurors, merely recommendatory. The privilege, to any particular class, of serving on juries, is not guarantied by the constitution — “ft is only the inviolability of jury-trial, which is secured: this the legislature have not interfered with.

All the acts relating to juries, are to be construed in pari materia — as constituting an entire system. The act of eighteen hundred and eleven, impliedly excludes all persons who are not free-holders and house-holders, from being drawn on the regular jury for the term, and makes the one qualification or the other, essential to their capacity; and the implication, according to all rules of construction, is quite as potent, as if express negative terms were employed.

The act of eighteen hundred and twenty-six goes beyond that of eighteen hundred and eleven, and authorises the individuals charged with the selection of the jury, to distinguish between free-holders and house-holders, and to exclude such as they may think unfit for the office. A discretion, which we think well given; but perhaps not always wisely exercised.

The act of eighteen hundred and thirty-six must be taken in connection with the act of eighteen hundred and twenty-six: the same qualifications are necessary under the former as under the latter; and the same discretion in the selection of the jury. But the plea does not, in our opinion, conform to the act of eighteen hundred and twenty-six. That act contemplates a return by the sheriff to the clerk, of a list of, the free-holders and house-holders in his county, .and requires, that from this return a selection shall be made of persons deemed suitable jurors. We have no statute, making it necessary that the free-holders and house-holders shall continue sucli up to the time they are actually drawn to serve on the jury: if they possess this qualification when their names are returned by the sheriff, though they may afterwards part with it, they are competent jurors. The plea only negatives the fact, that the juror objected to, was unqualified, at the time the grand jury were impan-neled, or the indictment found. Now, all this may be true, and the juror have been free from all exception.

.As the plea asserts the disqualification of a grand juror, it is' essential to its legality, that it should disclose such facts, which, if true, would make out a good answer, to the indictment. From what has been said, it will be apparent, that it is necessary, in order to the incompetency of a juror, for the cause relied.on, that he should have been neither a free-holder or house-holder, when the list Was returned to the clerk; and the omission, thus to state the condition of the juror, was fatal to the plea

3. We think the plea was sufficiently verified: it would have been more regular, had the affidavit been more full and complete in itself. Yet, the terms, “ Sworn and subscribed in open court, 27th March, 1837,” signed by the defendant, and attested by the clerk, introduced as they are, at the foot of the plea, must be held to mean, that the defendant has sworn to its truth, and has attested his oath by subscribing the plea.

4. The plea is unobjectionable in point of form : it does not question the jurisdiction of the Court, nor indeed should it; it arraigns the legality of the indictment, because of the, in competency of a grand juror: and hence properly concludes with the prayer of judgment, that it be quashed.

5. There is no statute or rule of Court, which requires such a plea to be pleaded by counsel. A party may appear in his own defence or by counsel; but as he is personally present, on the trial of an offence against the State, it would seem most regular, that the plea should be in proper person; though he may have the aid of counsel, in determining what defence he should interpose, and how it should be made available, as well as in sustaining it for him.

Our opinion is, that the plea is defective in substance; that the demurrer was properly sustained;* and that the judgment must be affirmed.


text:
    MEAD VS STEGER.

      ’Touching the admissibility of parol evidence to vary a written contract.

    1. It is not allowable to contradict, extend, or vary substantially, a written contract,- or its legal import, by parol evidence.

      2. Where parties have agreed upon the terms of a contract, which is afterwards reduced to writing, the verbal agreement is merged in the written contract, and cannot be varied by parol evidence, and even though the verbal and written contracts were simultaneously made, the rule is not varied.
    3. But where a monied consideration is expressed in a deed,-parol evidence has been admitted, to shew the consideration to have been greater or less than that stated, as it is not usual to state it with precision:
    4.So, where by fraud or undue means, there was an omission to state the contract truly:
    5. Or, where the contract contains a latent ambiguity:
    6. Or, where a deed contains nothing respecting the consideration, it may be upheld by shewing what it was:

      7. Or, where a deed, after stating a certain consideration, adds the general words, “and for other considerations,”— parol evidence has been admitted, to shew what those other considerations were:
    8. So, a lesser or a greater consideration of the same character, maybe shewn; and,.
    9. So, where a deed is made, “in consideration of natural love and affection, and one dollar,” parol evidence has been admitted to shew that other valuable considerations passed.
    Error from the Circuit Court of Jackson county.

      Assumpsit, on the following instrument in writing:
    “$190. On or before the first day of January next, I promise to pay Allen Steger, or order, the sum of one hundred and ninety dollars, the same being for the hire of negroes, and rent of land:— which negroes are Ned and Davy. Said negroes to be clothed with the usual clothing. Value received, &c. March 12th, 1834.
    samuel mead; [seal.]”
    And at the October term of said Court, plaintiff below, declared against defendant, for that whereas defendant, theretofore, to wit, on the twelfth day of March, one thousand eight hundred and thirty-four, in said county, by his writing of the same date without seal, subscribed by the name and description of Samuel Mead, promised on or before the first day of January, afterwards, to pay to said plaintiff, or order, the sum of one hundred and ninety dollars, for the hire of negroes and rent of land, said negroes being Ned and Davy; And in which said writing, said defendant bound himself, that said negroes should be furnished with the usual clothing. And the plaintiff averred, that said defendant did have, use and enjoy the lands, rented to him by the plaintiff, from the said twelfth day of March, one thousand eight hundred and thirty-four, until the said first day of January next, afterwards, to wit, in said county. And that he did have and use the said negroes, Ned and Davy, all belonging to said plaintiff, from said twelfth day of March, one thousand eight hundred and thirty-four, until the said first day of January, one thou-. sand eight hundred and thirty-five, to wit, in said county. And plaintiff averred, that said defendant did not furnish said negroes with their usual clothing, but wholly neglected the same. By means whereof, said defendant became liable, to wit, on the second day of January, one thousand eight hundred and thirty-five, in said county, to pay said plaintiff, said sum of one hundred and ninety dollars, and to pay him the value of said clothing, which he averred to be worth, to wit, thirty dollars. And being so liable, he the said defendant, then and there, last aforesaid, in consideration thereof, undertook and faithfully promised said plaintiff, to pay him said sums of money, when he should be thereunto afterwards requested. Yet the said defendant, though often requested, had not as yet paid said plaintiff said sum of money, to wit, one hundred and ninety dollars/or any part thereof, nor had he paid said plaintiff, the value of said clothing, or any part thereof, but to pay the same had refused, &c.
    To this declaration, the pleas filed, were, — non-assumpsit — no consideration and failure of consideration; to which pleas, there were replications and issues.
    And at the April term, one thousand eight hundred and thirty-six, the defendant submitted the following affidavit, and the cause was continued, to wit: Samuel Mead makes oath, that the consideration of the note, on which this suit is brought, was the rent of a plantation, for the balance of the year, one thousand eight hundred and thirty-four, after the date of the said note; the hire of «the ne-groes in said note mentioned; and the privilege of cutting and using timber on said land, within • the fence. The said defendant, contracted for the privilege, with a view of getting boat gunnels, and other timber, to be used at his .saw mill, which privilege formed the chief motive that induced affi-ant to make the contract. Said privilege was worth from eighty to ninety dollars. The défendant got, under said privilege, timber to the value of about eight or ten dollars, when said plaintiff prevented said defendant from getting any more timber, and he has never got any more, as he was prevented during the balance of the term. Defendant could prove the facts above stated by Stephen Haynes. Said plaintiff also detained the negro Ned, about eight or ten days, during the term. Defendant also furnished the clothing according to the note.— Sworn to and subscribed by defendant.
    And at the April term of the same Court, one thousand eight hundred and thirty-seven, the parties came, and thereupon, a jury of good and lawful men, being elected, impanneled, sworn and charged, well and truly to try the issue joined, upon their oaths, said, that they found the issue in favor of the plaintiff, and assessed his damages at two hundred and thirty dollars and twmnty cents. It was therefore considered by the Court, that the plaintiff recover of the defendant, the damages aforesaid, by the jury aforesaid, assessed, and also his costs, &c.
    And the defendant filed his bill of exceptions, which stated that plaintiff had read his note declared on, for one hundred and ninety dollars, as above set forth, in evidence, to the jury; and proved that defendant had occupied, during the year one thousand eight hundred and thirty-six, the plaintiff’s land, and-had possessed two of his ne-groes : the witness, however, stated, that if defendant had not occupied the land, and possessed the negroes, during the whole of that time, he, the witness, did not know it.
    Defendant then offered to prove by witnesses present, that the consideration of said note was the rent of a plantation, for the balance of the year one thousand eight hundred and thirty-four, after the date of said note; the hire of the negroes mentioned in said note, and the privilege of cutting and using timber on said land, within the fence: That defendant contracted for the privilege, with the view of getting boat gunnels, and other timber, to be used at his sa w-mill: That said privilege was worth from eighty to ninety dollars: That when said defendant had got timber to the value of from eight to ten dollars, plaintiff, for the balance of the term, prevented defendant from getting any more. And no more was ever got.
    To the introduction of this testimony the plain-' tiff objected, and the Court excluded the evidence offered, in relation to the timber, the privilege, and the prevention aforesaid; to all of which defendant excepted, &c.
    And at the June term of this Court, the plaintiff in error came, and assigned for error, in the record of the proceedings in the Court below, and in the judgment that was rendered thereon, that the Court erred in excluding the evidence, as is shewn in the bill of exceptions, — and therefore prayed that the said .judgment might be reversed, &c. And defendant said there was no error.

      Hopkins and Parsons, for the plaintiff in error.

      J. W. M Clung, contra.
   COLLIER, C. J.

The defendant in error brought assumpsit against the plaintiff, in the Circuit Court of Jackson county, upon a writing, of which the following is a copy:

“ ^190. On or before the first day of January next, I promise to pay Allen Steger, or order, the sum of one hundred and ninety dollars, the same being for the hire of negroes, and rent of land: which negroes are Ned and Davy. Said negroes to be clothed with the usual clothing. Value received, &c. March 12th, 1834.
Samuel Mead. fSeal.J”

The plaintiff in error pleaded, non-assumpsit; no consideration ; and failure of consideration.

On the trial, the defendant proved, in support of his declaration, the occupancy of his land, and the possession of the two negroes, named in the note, to have been with the plaintiff during the year one-thousand eight hundred and thirty-four.

In his defence, the plaintiff offered to prove, that the consideration of his note, was the rent of a plantation for the balance of the year, eighteen hundred and thirty-four, after the date ofhis'note; the hire' of the negroes, Ned and Davy, and the privilege of cutting timber on the land, within the inelosure; that the privilege was of the value of eighty or ninety dollars to him, and that after cutting eight or ten dollars worth of timber, he was prevented by the defendant from cutting more.— The introduction of so much testimony, as related to the privilege by the plaintiff to cut timber, and the refusal to allow it, was objected to by the defendant, and rejected to by the Court: whereupon, the defendant excepted, and here assigns for error, the exclusion of his evidence by the Court.

Was parol evidence admissible to shew any other consideration for the plaintiff’s promise, than that expressed in his note'!

It is not allowable to contradict or substantially vary a written contract, or its legal import, by parol evidence.—(9 Wheaton’s R. 581. 3 Mason, 378.) Nor is it admissible to extend a written contract. (2 Day’s Cases, 137. 1 Caine’s R. 358.)

Where parties have agreed upon the terms of a contract, which is afterwards reduced to writing, the verbal agreement is merged in the .written contract, and cannot be varied by parol evidence.—(3 Conn. R. 9.) In such cases, it must be supposed that the writing, which is subsequent in point of time, truly expresses their definitive, agreement.—Sommerville vs Stephenson & Johnson, 3 Stewart’s R. 271. And even though the verbal and written contracts, were simultaneously made, the rule would not be varied.

But notwithstanding the conclusiveness of the rule, which inhibits the introduction of parol evidence, to contradict or vary a written agreement, a party may shew that by fraud or undue means, there was an omission to state the contract truly. (3 Starkie’s Ev. 1015 & 6. 1 Murphy’s R. 426. 4 Dessaus. 211.) So if it contain alatent ambiguity, parol evidence is admissible, in explanation, otherwise the contract might be wholly inoperative.— (5 Mass. R. 411. 3 Starkie’s Ev. 1021.)

The agreement of the parties in the case before us, may be thus simplified. The defendant undertakes with the plaintiff, that he shall occupy his plantation and have, the possession and services of his two slaves, for the year eighteen hundred and thirty-four. The plaintiff agrees, that as an equivalent, he will pay the defendant the sum expressed in his note: — here, are mutual undertakings, each in consideration of the other. The note in itself, does give the defendant a cause of action, but to entitle him to a recovery, it was necessary to prove a license to occupy the land, and an offer to deliver the negroes. Yet the writing bears on its face, ■ evidence of a perfect contract, and it is not pretended that from fraud or other cause, it omits any stipulation of the parties. It is then clear, that if it come within the principles applicable to ordinary contracts, it was not admissible to shew, that any other cause, than that stated in the note, influenced the plaintiff’s promise. ■

It has been argued, that the general rule, applicable to the admission of parol evidence, where the contract is in writing, does not apply to proof, such as that offered in the Circuit Court by the plaintiff: That there, the proposition was to shew an additional consideration, which it is said, is tolerated by authority. Without pretending to negative this argument, when applied tó a proper state of facts, we are entirely satisfied that it is- not permissible to prove an additional and different consideration from that expressed in the writing,— this would be to contradict it. Where it is said in a deed, that a conveyance is made in consideration pf a particular thing, this imports the whole consideration and excludes the idea of any other. (1 Starkie’s Ev. 1004.) If a deed contains nothing respecting the consideration, it may be upheld by shewing what it was; for this, is not to contradict the deed. (1 Ves. 128. 15 Mass. 92.)

Where a deed, after stating a certain consideration, adds the words, “and for other considerations,” parol evidence is admissible to shew what were those other considerations. (1 Johns. C. R. 370.) But without these general words, it cannot be received. (1 Johns. R. 139. Ibid. 414.)

In Virginia, it has been decided, that where a deed is made, “in consideration of natural love and affection, and one dollar,” parol evidence was-admissible to shew that other valuable considerations passed; (1 Rand. R. 219.) and that either party may aver and prove a consideration, different from that stated in the deed. (4 Hen. & Munf. 113.)

In South Carolina, it has been determined, that a different consideration from that expressed in the deed, cannot be shewn at law, but that a less or greater consideration of the same character may be shewn. (Garret vs Stuart, 1 M’Cord, 514.) Such we understand, to be the authority of'the cases in Roberts on Frauds, to which we have been referred, by the plaintiff’s counsel. (Roberts on Frauds 117. note 58. See further on the point, 6 Harris & J. 276, 299. 1 Har. & Gill, 175.)

Where there is a monied consideration, expressed in a deed, the weight of authority, is in favor of shewing the consideration to have been greater or less, than that stated, for the reason, that it is not usual to state it with precision. But it is against allowing proof of a consideration wholly different from that set forth in the deed. In the case before us, the evidence offered, did not tend to enlarge or diminish the consideration, as where money alone is given, nor from its nature, could it he enlarged or diminished; and as no ground was laid for its introduction, by proof of a fraudulent omission in the contract, we are of opinion that it was properly excluded by the Circuit Court; and its judgment is therefore confirmed. V»


author: ORMOND, J. GOLDTHW AITS, J.

text:
    SUTHERLAND VS GOFF, guardian.

      As to actions by a guardian,

    1, A guardian may -sue in his .own name, where he has the right of possession, or where the possession is injured:— But where the matter lies in action, the suit must be in the name of the ward.

      ¶,. Thus — a guardian cannot maintain assumpsit to recover the value of a slave, the property of the ward, who has been hired by such guardian to the defendant, and whose death, is alleged to have been .caused by the negligence of the hirer.
    :3. And this, although a promise to pay, what an arbiter should determine, be alleged, as made.
    In error to the County Court of Morgan county.
    In-this case, the plaintiff came, and said there was error in the proceedings and judgment of the Court below,
    Because, 1st. Martha T. Goff, instead of her ward, was made plaintiff in th.e writ.
    2. In the declaration .also,
    3. That the judgment was in her favor.
    4. There was a misjoinder of counts, the first or two first, alleging a supposed cause of action in favor of the ward, and the last in her own right.
    5. There was no cause of action stated in the declaration, as the defendant below was not first proceeded against at the suit of the State, and the action was brought before the cause of it arose.
    And the defendant said there was no error, and when the record was produced, it appeared that the defendant, on the seventh day of July, eighteen hundred and thirty-four, sued out a writ, against plaintiff, as follows:
    “The State of Alabama: to the sheriff of Morgan county, greeting. You are commanded to take the body of John Sutherland, wherever he may be found in your county, and him safely keep, so that you hare his body before the judge of our next County Court, to be held for the county of Morgan, at the court house, in the town of Sommerville, on the fourth Monday in July, instant, to answer Martha T. Goff, guardian of Eliza A. Goff, in a plea of trespass on the case in assumpsit, to her damage five hundred dollars. Herein fail not, and have then and there, this writ,” &c.
    This action is brought, to recover of the defendant, the sum of three hundred dollars, which he expressly undertook and promised to pay to the said plaintiff, guardian, &c.
    At the July term of said Court, the plaintiff below, guardian, and next friend of Eliza A. Goff, (an infant under age,) complained of said John A. Sutherland, in custody, &c. of a plea of trespass on the case; for that whereas, theretofore, to wit, on the-day of-eighteen hundred and thirty-four, to wit, at said county, the said defendant hired of the plaintiff, as guardian of the said infant, a certain negro girl slave name Sabre, about twelve years of age, the property of said infant, for the year eighteen hundred and thirty-four, for the sum of three hundred dollars, and by which contract of hiring, the said defendant undertook and agreed with the plaintiff, among other things, to treat the slave with cafe, attention and humanity, and return her to the plaintiff at the end of the year; and whereas said slave was, by virtue of said contract, placed into the possession of the defendant, who was guilty of such gross negligence, -want of care, attention and a proper degree of vigilance, while said negro was in his possession, that by reason thereof, and not from any natural and unavoidable cause, the said negro slave came to her depth, to wit, on the-day of-eighteen hundred and thirty-four, at said county: And whereas, afterwards, to wit, on the —— day of -, eighteen hundred and thirty-four, at said county, the said defendant, in consideration of the premises, and of his liability to the plaintiff,' by reason thereof, undertook and faithfully promised her, to pay for said negro, or for his liability as aforesaid, when he was thereafter requested, such sum of money, to the plaintiff, as the guardian of said infant, as one Isaac Lane, should determine to be the intrinsic value thereof, and the plaintiff avers, that the said Isaac Lane did afterwardá, to wit, on the-day of-eighteen hundred and thirty-four, to wit, at said county, determine and adjudge the said slave, to be of the value of three hundred dollars, of which defendant had due notice. And whereas, also afterwards, to wit, on the day and in the year, and in the county aforesaid, in consideration of the liability of the defendant to the plaintiff, on account of the defendant’s gross negligence, as bailee of a certain negro girl slave, named Sabre, about twelve years old, he, the said defendant, then and there undertook and promised the plaintiff, to pay her the sum of three hundred dollars, for the discharge of himself from all actions, suits or molestations, for such liability to the plaintiff, whenever he should be afterwards requested. Yet the said defendant, although often requested, had not kept or performed his said promise, or either of them, nor paid said money or any part thereof, hut had failed and refused so to do, to the damage of the plaintiff, sued as aforesaid, and therefore she sued, &c.
    At the'January term, eighteen hundred and thirty-five, the plaintiff came into Court, and the de< fendant being called, did not come, and because it was not known to the Court, what damage the plaintiff had sustained, a jury of good and lawful men, came, who assessed the damages at three hundred and fourteen dollars; and thereupon the Court considered, that the plaintiff recover of the defendant, her damages aforesaid, in form aforesaid, assessed, besides her costs, by her about her suit, in that behalf expended.
    And so the writ of error was sued out, &c.

      Hopkins . & Parsons, for plaintiff in error. — •

      M’Clung, contra.
   ORMOND, J.

This is an action of assumpsit, brought by Martha T. Goff, guardian of Eliza A. Goff, against John Sutherland.

The declaration, in substance, recites, that the defendant hired of the plaintiff, as guardian, a negro girl, the property of the ward, and agreed to treat the slave with care and humanity, and to return her at the end of the year; but that by his negligence, want of care, diligence and attention, the negro died, and that in consideration thereof, he undertook and promised to pay the plaintiff, as guardian, such sum of money as one Isaac Lane, should determine to be the -value of the slave; and that Lane estimated the value of the slave, to be three hundred dollars.

These are all the allegations necessary to be set out. There was a judgment by default, and writ of inquiry awarded, and judgment for the plaintiff.

Several errors are assigned, but the only one necessary to be noticed, is “That Martha T. Goff, instead of her ward, is made plaintiff in the writ and declaration”

The law is, that the guardian must sue in his own name, where he has the right, of possession, or where an injury is done to the possession: but where the matter lies in action, the suit must be in the name of the ward. What is the character of the interest here'? It is the value of the slave. It would seem clear, that this is a mere chose in action, and all the difficulty is created, by the reference to a third person, to ascertain the value; and it is insisted, that there was a promise to pay the value of the slave when ascertained, to the guardian. The guardian would undoubtedly have a right to receive the money. Bat does it thence follow, that he has a right to maintain the action in his own name'? It would seem rather, that this reference, was merely the substitution of Lane, for the jury, to ascertain the value of the slave; and if so, the guardian cannot rfiaintain the action in her own name.

It is in all cases, important, to preserve the boundary of actions, and to prevent them from running into each other. It is peculiarly so, in this class of cases, as it might be impossible otherwise to ascertain the interest of the ward. The description in the writ, would not conclude the guardian, as to the interest of the ward. This question has been substantially decided by this Court, in the case of M’Leod vs Mason. (5 Porter’s R. 223.)

Let the judgment be reversed.

GOLDTHW AITS, J.

With the utmost' respect for the opinion expressed by the majority of the Court, I am compelled by my views of the law, to dissent.

The contract which is set out in the first count of the declaration, contains, in my opinion, a sufficient cause of action. The contract is alledged to have been made in relation to property of the ward; it is such a contract, as the guardian, by law, is.au-thorised to make, and the action is substantially for its breach. The promise is laid, as made with the guardian, andi according to my opinion, it can alone be enforced by him.

I do not think the case of Mason vs M'Leod has any immediate bearing on this case. The Court there decided, that a suit accruing to the infant, before the interest of the guardian accrued, must be brought in the name of the infant; but in this case, the whole subject matter of the suit, was a contract made with the guardian, after his interest had ac> " crued, and his liability to perform his duties, had become fixed, by the possession of his ward’s estate.

The case may well be assimilated to that of an executor or administrator, who enters into a contract, having reference to the property of the estate committed to his charge. No one will contend, but that an action growing out of any such contract, would be properly brought by the administrator or executor in his own name, and not in his representative character.

For these reasons, I am of opinion, that the ju dgment should be affirmed.