text:
    LARKINS VS RHODES.
    As to co-partnerships for the purchase of lands.

      As to resulting trusts.

    1. Chancery will not consider the question of an alleged co-partnership in the purchase of lands, where neither the allegations or proofs in the cause, recognise the existence of any agreement in writing in relation to such co-partner* ship.

      2. Whether money paid by one in pursuance of an alleged oral agreement, to purchase lands in co-partnership, would authorise relief in Chancery, as a resulting trust, must depend upon the ceitainty of the evidence adduced in the cause: and though in this country, parol evidence is admissible to raise a resulting trust, yet it is to be received with caution, and must establish the cause with clearness and certainty.

      2. So where on a bill filed, charging a co-partnership in the purchase of lands, between complainant and the defendant, and the payment of money by the former for that object — and there were neither allegations or proofs of an agreement in writing; — and the answer denied the co-partnership, and admitted the receipt of money from the complainant, but averred that it was received to pay off a debt owing from him to respondent, to which the money so received had been applied, it was held—
    First — That a denial by respondent, that the money received was to be invested in lands, for the joint benefit of the parties, put the complainant on proof of that fact.
    Secondly — That there being no proof of an agreement in writing, the case could not be considered, on the ground of a co-partnership — but was so far .within the statute of frauds,

      Thirdly — That the allegations of a payment to the complainant, of money, to be invested on the joint account of the parties, not being sustained by proof, the case was not within the principle authorising a relief in Chancery.
    la error to a decree of the Circuit Court of Jack,son county, exercising Chancery jurisdiction.
    This was the case of a bill in equity, filed by John Larkins against Henry Rhodes.
    It alleged, that some time previous to the opening of the land office, for the sale of the public domain in Jackson county, orator and defendant entered into a co-partnership, for the purpose of entering lands; and to effect which, they proceeded to survey and examine certain lands, and accordingly, Selected five half quarter sections, which they agreed to enter jointly. That orator then furnished the defendant with the sum of three hundred and eight dollars, to carry out their agreement, which was more than a' just proportion of funds to be furnished by orator: but the overplus was to have been applied to the purpose of entering other lands in partnership, as aforesaid. That Rhodes, after receiving the said funds of orator, repaired to Huntsville, and in violation of his agreement, that said lands were to be entered jointly, in fact made the entries in his own name alone — which lands, so entered, the bill set forth particularly. It was also Stated, that a portion of the said lands so entered, was cleared, and that Rhodes had rented part of such improved land, and cultivated other portions, without having accounted to orator, although he liad been frequently requested to do so. The bill with the usual allegations, prayed a division of the •lands, and that the same, with a moiety of rents and profits, should be decreed to him.
    The answer of Rhodes, in positive terms, denied having entered into a co-partnership with the complainant, for the object of jointly purchasing any lands, whatever. It alleged that respondent, had assisted complainant in the survey of certain lands, which complainant desired to enter on his own account; but stated that these were not part of the lands described in complainant’s hill. The answer also denied, that the funds as alleged in the bill, had been supplied by complainant, to respondent, in order to make any such joint entries of lands; but averred that the said lands had been purchased by respondent, with his own funds, and for his exclusive benefit. Respondent admitted that within the year eighteen hundred and thirty, he had received of complainant, the sum of three hundred and eight dollars; but that it was paid to him in liquidation of certain claims; (which he described,) held against complainant at that time. The answer after sundry immaterial statements, closed with a demurrer, and the usual conclusion.
    The case was heard upon the bill, answer, exhibits, and voluminious testimony, (the particulars of which, are at length set out in the opinion of this Court;) when' the Chancellor below dismissed the hill, to revise which decree the complainant sued out a writ of error.
    The cause was argued in this Court by S. Parsons for the plaintiff in error, and by M’ Clung, contra.
   GOLDTHWAITE, J.

On the thirtieth of August, eighteen hundred and thirty-three, the complainant Larkins, exhibited his bill in the Circuit Court of Jackson county, against the defendant Rhodes — Charging, that a short time before the land office was opened, for the entry of lands, situate in Jackson county, he entered into co-partnership with Rhodes, in entering lands in said county, and after the parties had examined and surveyed several tracts, he, the complainant furnished Rhodes with three hundred and eight dollars, which was to be used in purchasing on joint account, five half quarter sections; that Rhodes was to supply one half of the necessary funds, for this purpose, and as the said sum furnished by complainant, was more than one half the cost, the balance was to be applied to the entry of other lands, to be owned in the same manner.

The complainant alleges that Rhodes made the entries with the money thus furnished by complainant, and a like sum supplied by himself — that he has taken the patents in his own name, and refuses in any manner to recognize the complainant as having any right or interest in the lands so entered; and he prays a division of the lands, that an account of the rents and profits may be taken, and for general relief.

The respondent denies all the allegations of the complainant, relative to a co-partnership of any description, and also denies the receipt of any money from the complainant, for the purpose of entering lands on joint account. He admits the receipt of the sum of money named in the bill, but insists it was paid to him on account of debts which were due from complainant to respondent; which are stated to be as follows:

No. 1. A balance due on a note, due 1st March, 1826, of $66 40

2.. A note due 10th March, 1830, for 275

3. A debt for money lent to pay for land of Ely Monks, 101 25

4. A note of Jonathan Martin, due 18th February, 1830, which complainant had promised to pay to respondent, 50 00

The respondent admits that he received the sum charged in the bill, in the manner following, that two hundred dollars were sent to him by one William Larkins; which was applied—

1. To the payment of No. 1, $66 40

2. To the payment of No. 2, 101 25

3. To the payment of No 4, in part, 32 35

200 00

The remaining one hundred and eight dollars, were paid to him by complainant in person, and applied,

1. To the payment of the balance' due on No. 4, $19 66

2. The balance of the sum was credited on No. 2, 88 34 — 408 00

' 308 00

Respondent also alleges that he sued complainant on the note, number two, in Tennessee, and recovered a judgment against him for the balance due, and sets forth as an exhibit to his answer, an exemplification of that judgment. On a reference to this exhibit, it appears that judgment was rendered in the cause, two days previous to the exhibition of complainants bill. This judgment was appealed from and confirmed in the appellate Court on the fifteenth of January, eighteen hundred and thirty-four.

A number of witnesses were examined on interrogatories, whose testimony, so far as is considered material, will be hereafter examined; and the cause was heard on the bill, answer, exhibits and testimony, in the Court below, which dismissed the bill, and decreed costs against the complainant; which decree he now seeks to reverse by writ of error.

The facts disclosed by the bill, present the complainant’s equity, on his own statement, in two aspects:

1st. A right to one half of the lands alledged to have been entered by respondent by virtue of the co-partnership-

2d. An interest in the same to the amount of the funds furnished by him to respondent, and actually invested in lands, by reason of which a trust would result to the complainant. — Botsford vs Burr.

The evidence taken on behalf of the complainant, though strong to induce the belief that a co-partnership actually existed between the parties, in relation to the entry of some lands, entirely fails to make out any agreement in writing. Indeed it is not contended that any written agreement ever existed, evincing a co-partnership. So far therefore as the cause is .to be considered in this aspect, it may at once be dismissed as clearly withuvthe statute of frauds.

Considering the case as one of a resulting trust, by reason of the funds alleged to have been supplied by the complainant, which were used in the entry of lands, as he asserts, it becomes essential to ascertain if the answer of respondent admits the charges of the bill, and sets up .new matter in-avoidance, which it is necessary to support by evidence; or. whether it substantially denies all the allegations, and thus forces the complainant to proof.

The bill charges, the advance of the sum of money named, with a particular and specific object, to wit, its investment in lands; and the charge is clearly divisible into two parts. The answer admits the advance of money, or rather the receipt of it; but entirely denies the fact charged, that it was to be invested in lands in joint account, and insists that it was received as a payment

If the answer had admitted the advance of jtnon-ey,- but denied its investment, it is conceived to be clear, that it would lie with the complainant, to establish the latter fact; and the distinction, if one exists, is not perceived between that case, and the one under consideration. — See Hart vs Ten Eyck.

It may then be assumed that the onus of proving the case rests on the complainant; but before entering on the examination of the evidence, it may be premised that the complainant charges, that the fact, of the payment or advance of the one hundred and eight dollars, part of the three hundred and eight, is alone within the knowledge of the res-pendent, and that he has no means to prove it. unless it be admitted.

Ely Monks, a witness for the complainant, states that respondent had agreed to enter witness’ land, but afterwards declined doing so, giving as a reason, that complainant and himself, were about to enter lands in co-partnership; and then said, witness could get the money from complainant, who had a plenty, and that he himself intended to get some from him. Complainant directed respondent to leave money for the Duncan land with the Register, and he would be responsible for respondent’s half, if lost.

William Larkins stages, that soon after the preference rights, in Jackson county, ceased by limitation, (sometime in eighteen hundred and thirty,) the complainant gave him two hundred dollars, to take to the respondent — one hundred and fifty of which was land office money, the other fifty was not. The money was accompanied with a note to John Acklin, requesting him to take it and furnish respondent with land office money. This he gave to respondent, who afterwards informed him that Acklin changed the money; but that he had to borrow from some friends, to make out his entries.

James Hall states' that he travelled with respondent from Jackson county to Huntsville, and was informed by him that he was going there to enter lands; that the money he got from Larkins, was of Yeatman and Woods’ bank, and that complainant had told him to go to John Acklin, who would change it for him. Witness went to Aoklin’s with respondent, who handed him some money or papers, and then with the money he received from Acklin, went to the land office, and entered land. Respondent told him, he then left at the land office one hundred dollars, to enter one of the tracts of land now in controversy, designated as Duncan’s place.

Dabney Lipscomb states, that from hearing the parties converse, about the time of the entry of lands, he believes it was distinctly understood between them, to what entries, the money advanced by the complainant, was to be applied.' He also states that he understood, (from whom, he does not inform us,) complainant had furnished respondent with money, to enter lands in partnership.

Peter Cartwright was present at the house of the complainant, at a time when the respondent was there, and on something being said about a settlement by complainant, the respondent produced some papers, and as witness thought, commenced calculating interest.

Something was named about land, of which complainant wanted a part — on this respondent became very a'ngry and would not settle, and said complainant should not have any of the land, for he had the advantage of him, and he intended to keep it Witness was called on by complainant to notice what respondent said.

This is all the evidence in the case, which has. any bearing on the advance of money by the complainant to the respondent, and it is not very satisfactory to establish the intention of the respondent, to’use the money advanced by complainant, in the entry of land on joint account.

The testimony of Monks, is not in any way inconsistent with the answer, so far as the receipt of the money is at issue; nor does the evidence given by William Larkins, tend in the least to disprove the answer. The money which he carried to respondent, might have been a payment to him, on account of what was previously due. Hall’s testimony is also not at variance with the answer.

It must however be confessed; that the full proof, which is made, of an agreement between the parties, to enter some lands in co-partnership, which is in direct contradiction of the answer, has an influence .on this case, which it is difficult to resist; and this, when coupled with the declaration, made in the presence of Cartwright, and the conversations held with the complainant, in the presence of Lipscomb, would induce the conclusion, that the money, or at least two hundred dollars of it, had been furnished by the complainant to the respondent, under the expectation that it would be laid out in lands, for their joint account; but if this was the result to which the Court could arrive, no relief could be extended, because none of the testimony in the .cause, identifies or describes the lands which were purchased, at the time the entry was made by the respondent, and spoken of by the witness Hall. On the complainants own shewing, then, there could be no decree in his favor; but much doubt is removed from this case, by the testimony of the wit nesses, who have been examined for the respondent.

The deposition of James Rhodes, William Rhodes, George Griffin, and Charles Blackwell, were objected to in the Court below, without pointing out any specific objection to the same, and it is here- contended, that the commissioner’s certificate is irregular, because it shews the commission to have been executed, on the twenty-eighth of February, when the signature was affixed, and dated the twenty-third of that month. Without deciding that an objection can be taken in this general mode, to depositions, when offered on the final hearing of a cause, we are all of opinion, that the one taken can have no effect. The latter date, if repugnant with the previous one, would be rejected, as of no consequence, whatever; as it is not required that the certificate of the commissioner, should be dated: and the Court must intend that here the error is a mere slip of the pen, if in truth it does hot derive its existence from the individual, who transcribed the record in this case.

So far as the testimony given by the complainant’s witness, Eli Monks, has any bearing in the cause, he is completely discredited by Griffin and Blackwell, who depose that they have repeatedly heard him assert that he knew nothing in relation to this controversy.

James Rhodes supports the answer of respondent, about the loan of one hundred dollars, to enter Monk’s land. He also proves that complainant borrowed from respondent, two hundred and seventy-five dollars, in February eighteen hundred and thirty, which were to be re-paid for respondent to enter lands. He also proves a fact wholly inconsistent with any idea that the entry of Duncan's land, spoken of by Monks and Hall, was intended by the parties as a partnership transaction, as the complainant offered to give respondent two hundred and fifty dollars for the tract, provided he could swap it for another place named.

William Rhodes also says he was present when respondent was going to survey the Duncan place, after he had entered it, and complainant said he had made a good entry, and intimated a willingness to trade for it. This witness fully confirms the answer as to the loan of two hundred and seventy-five dollars, for which note, number two, was given. This sum, respondent told complainant, he must have to enter land with, and complainant der dared it should be repaid, even if he had to go in hank for it, About the time of entering land, respondent applied to complainant to repay him, and was informed he did not then have it, but he would get it and pay him in a few days. The payment sent by William Larkins, was made in the presence of this witness, who was sent by respondent to complainant for more money, hut not finding him at home,he left a message to that effect with his family.

This evidence on the part of the respondent, if it does not divest the case of difficulty, certainly so far confirms and supports the answer, so as to render it sufficiently certain, that the money sent by complainant to respondent, was not laid out in lands on joint account, but was applied to the payment of the demands then held by respondent against complainant.

The Court lias somewhat unnecessarily stated the evidence in this case at length, hut its object has been solely to show, that the case does not come within the principles which govern Courts of Equity, in enforcing a resulting trust. In the English Gases, parol evidence is not admitted to establish a resulting trust against the answer.*

In this country, although parol evidence is admissible to raise a resulting trust, yet it is always received with great caution; and to entitle a complainant to a decree, the proofs should make the case clear beyond all reasonable doubt.—Boyd vs McLean —Steere vs Steere

The decree of the Court below must be affirmed with costs.

      2 John. Ch. 405.

      2 John. C. 62.

      1 John. C. 586.

      5 John, C. 1. Sug. on Vend. 619 620.

      Sug. on Vend. 616 and cases cited.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    HENDRICK VS JOHNSON.

      Of evidence in actions for obstructing one in the use of a mill.

    1. One sued as a tort feasor, for damages for a private nuisance, cannot defend on the ground, that he has injured plaintiff in the enjoyment of a right which he had no authority to exercise.

      2. Thus in an action on the case against one for obstructing plaintiff in the use of a mill, evidence is not admissible to show, that proceedings are ponding between plaintiff and defendant, in the County Court, on an application to establish a mill; and that the defendant made the first application to the County Court for a writ of ad quod damnum.
    On a writ of error to the Circuit Court of Dallas county.
    Barnard Johnson declared in two counts, against William Hendrick, in the action of trespass on the case, to recover damages for a nuisance.
    The declaration stated, that the plaintiff, being in the lawful possession of a certain saw mill, situated upon a stream, the right to the current of which he also possessed, the defendant theretofore, to wit, on the first of February, eighteen hundred and thirty-four, wrongfully and maliciously did build, erect and set up, upon and across said creek, a certain dam, whereby the water in said creek was obstructed, and hindered from flowing from said mill of the plaintiff; and the said mill was hindered in its operations, and became wholly-useless to the plaintiff.
    The defendant to this declaration demurred, generally, which being overruled, he plead the general issue; and verdict and judgment were entered for the plaintiff.
    In the progress of the trial, the Court below was requested, by the defendant, to charge the jury, that if there was no evidence of a prescriptivé right in the plaintiff, in and to the use of the mill; and if the same were not established by prescriptive right, or by the statutes of this State, then the jury could find no damages for any injury done the plaintiff’s-mill. Which the Court refused.
    The defendant then offered to read in evidence on the -trial, the judgment and records, by authenticated copies thereof, of the County Court, establishing defendant’s mills, after the plaintiff’s mill had been erected. He also proposed showing by the testimony of the clerk of the said County Court,, that the defendant was the first applicant, and first obtained a writ of ad quod damnum, to establish his mills.
    This evidence the Court refused to permit to go-to the jury, and on motion of the defendant, sealed a bill of exceptions in the cause.
    Argued by Gayle for the plaintiff in error, — -/. B,. Clark, contra.
   GOLDTHWAITE, J.

This is an action on the case for obstructing Johnson, (the plaintiff below,) in the use and enjoyment of a mill, owned by him, and situate in Dallas county. The obstruction complained of, was caused by damming up the stream on which Johnson’s mill was placed, and forcing the water back on the wheels and machinery.

The action was commenced on the first of April, eighteen hundred and thirty-four, and tried on an issue formed on the plea of not guilty, at the Spring term, eighteen hundred and thirty-five, of the Circuit Court of Dallas county, when a verdict was found, and judgment rendered for Johnson.

On the trial, Hendrick (the defendant below,) offered in evidence the record of certain proceedings had in the County Court of that county, on his application for a writ of ad quod damnum. This record shows that Hendrick applied to the County Court for leave to erect a mill and dam, and on the twenty-second of November, eighteen hundred and thirty-three, a writ of ad quoddamnum was issued, under which an inquisition was made by a jury, on the twenty-ninth of the same month, which ascertained that by the making of the dam, as contemplated by Hendrick, the water of the stream would be forced back, and raised on Johnson’s dam, more than one foot, and proceeded to assess his damages by reason of the same, at nine hundred dollars. The writ and inquisition were returned to the February term, eighteen hundred thirty-four, of the County Court, when Hendrick appeared and applied for a summons to issue to Johnson, to shew cause, &c.' under the statute. — (See title Mills and. Millers — Aikin Dig. 324.)

On the return of the process awarded, Johnson appeared and contested the right claimed by Hen-drick, and at February term, eighteen hundred and thirty-five, a judgment was rendered by the County Court, by which it was determined that on the payment to Johnson by Hendrick, of nine hundred dollars, so assessed by the jury, under the writ of ad quod damnum, he should have leave to erect a mill or mills, and to build a dam across the stream on which Johnson’s mill was placed, which dam might be made nine feet seven inches high. From the judgment, each party prayed an appeal to the Circuit Court, which was granted, and is presumed to have been pending when the trial was had below.

The evidence thus offered, was not admitted— Hendrick then offered to shew by the records of the County Court, and the evidence of its clerk,, that he was the first applicant for any writ of ad quod damnum, and that he had first obtained this writ.

This also the Court refused to admit. And these refusals to permit the evidence thus offered, to go to the jury, are now assigned, as error.

It is not easy to perceive what influence these proceedings could have had on the trial of this cause, as it is certain that a perfect right could not be acquired by Hendrick, until the judgment of the Court was had on his writ of ad quod damnum; and no judgment was rendered on the same, until long after the institution of this suit. Indeed if he had have obtained permission to erect a dam, prior to the commencement of the suit, no right could have accrued to him, under the judgment, before he had paid to Johnson the damages awarded to him, as the payment is a condition annexed to the grant of right, which must be complied with, before the right is complete. This question has been thus decided on a similar statute in Kentucky.

Whether Johnson had obtained the permission to erect a dam across the water course, does not appear, neither is it stated that he had a prescriptive right, if indeed such a right could be had^but this inquiry is perhaps immaterial, for however the law may be, as to the right of any person to erect a dam, without the leave of the County Court, on an inquisition, ascertaining that the erection would create no nuisance, — we are clear that a tort feasor cannot object in an answer to a suit for damages, caused by a nuisance, that he has only injured and obstructed the plaintiff in the enjoyment of a right which he had no authority to exercise. If the de-fence in this case had been the abatement of Johnson’s dam., as a public nuisance, the inquiry would properly arise; but in the present action, we are clear that it was^wholly immaterial for the jury to consider, whether Johnson had erected his mill, with or without authority. The only question raised by the issue was, whether the plaintiff had been injured by an illegal act of the defendant, and this having been decided, and this Court being of opinion there is no error in the action of the Court below, the judgment is affirmed.

HOPKINS, C. J. not sitting;

      3 Marsh 37.


author: PER CURIAM.

text:
    HARRISON VS DANELLY.

      Of cases taken by appeal from magistrates’ Courts.

      1. Cases removed into the Circuit Court by appeal from a justice of the peace, should be tried ele novo, according to the requirements of the statute of 1819.

    On a writ of error to the Circuit Court of Cov-ington county.
    James Harrison sued out a summons from before a justice of the peace of Covington county, on a claim of debt against Danelly, founded upon the note of the latter, for forty dollars. The justice having given judgment against Danelly, he took an appeal to the Circuit Court.-
    The record brought up to this Court, showed, that the proceedings were quashed on motion, by the Circuit Court, (supposed,) for some irregularity in the' warrant or other proceedings, before the justice.

      Porter for the plaintiff in error.

       Aikins Dig. 261. §12.

   PER CURIAM.

Upon an appeal of the defendant from a judgment of a justice of the peace, in favor of the plaintiff, the proceedings which had been had before the justice, were removed into the Circuit Court of Covington county, and there, on the motion of the defendant, quashed. No counsel has appeared here to direct our attention to any supposed defect. We have examined the record, and think there^ is no defect which is not cured ’by the thirty-eighth section of the act of eightéen hundred and nineteen.

This opinion applies to six other cases in this Court, between the same parties. Each of the cases ought to have been tried de novo in the Circuit Court, as the act of eighteen hundred and nineteen directs.

The judgment in each caséis reversed, and each cause is remanded.

       Aik. Dig. 261.


author: HOPKINS, C. J.

text:
    MUNDINE VS GOLD.

      Of matters tobe found by a jury.

      Of offsets.

    1. The jury, and not the Court, are to weigh evidence, tending to prove a fact in issue, and to determine what facts are proved by the testimony.

      2. Thus, where a defendant, under the plea of set off, adduced proof to show a' sale by him to plaintiff, of a horse in part, for a judgment represented by plaintiff to exist in his favor, against one — which judgment did not exist as stated, though money from the party against whom the judgment was represented, could have been secured, — it was held—
    1. That the jury should have been instructed to allow a ret off to the amount, which would have been due on the judgment, if they believed the defendant could have collected that amount, in the event of the representation of the existence of the judgment being true.

      2. But if the jury believed that nothing, .or if any thing, less than the value of the horse could have been collected on such a judgment, the defendant was entitled to a set off, to the value of the horse at the time of sale.
    On a writ of error to the Circuit Court of Shelby.
    This was assumpsit by Gold against Mundine, for cotton, and goods, sold and delivered; and for money lent and advanced to, and had and received by, defendant.
    The pleas were, non-assumpsit, payment and set off, and failure and want of consideration: and on issue to these pleas, a verdict was rendered for the plaintiff.
    On the trial, a hill of exception,? was taken, which disclosed these facts, to wit:
    The defendant in support of his plea of set off, proved that previous to the institution of the suit, he sold to plaintiff a horse for eight dollars, and a judgment of forty-five dollars, with some years interest,' said to have been on the dockets of either justice Johnson or justice Neckele, against one Pil-green and one Clark; but that there was no such judgment as represented, upon either of the justices dockets. Defendant also proved that a person was indebted to Pilgreen, and that money was after this transaction collected from him, leaving a balance due to Pilgreen.
    The plaintiff proved, that at the time of the purchase of the horse, he was of the opinion, and so told defendant, that the persons against whom he represented the judgment to be pending, were insolvent: and that the horse at the period it was purchased, was not worth more than fifteen or twenty dollars, though it was subsequently sold for more than fifty dollars.
    In reference to this state of the facts, the Court below instructed the jury that the defendant was not entitled to set off the plaintiff's demand to the amount of the supposed judgment and interest;but that he was only entitled to the value of his horse at the time of sale, without reference to the contract of sale between the plaintiff and the defendant — there being no evidence of fraud in the sale of the horse.

      To which opinion of the Court, the defendant excepted.

      Ellis & Peels for the plaintiff in error.
   HOPKINS, C. J.

The action in this case^was' assumpsit, in which the defendant in error was the' plaintiff in the Circuit Court of Shelby county; One of the pleas of the plaintiff in error, upon which issue was taken, was set off. In support of this plea, the plaintiff in error proved, that he sold, previous to the commencement of the action in this case, a horse to the defendant, for the sum of eight dollars, and a judgment for forty-five dollars, and several years interest thereon, which the defendant represented would appear in his favor on the docket, of one of two justices of the peace, who were mentí mod,- against one PiJgreen and L. B. Clark.lie proved also there was no such judgment on the docket of either of the two justices, and that after the sale of the horse, a sum of money due to Pil-green was collected by one of his creditors from his debtor, as we understand the' bill: of exceptions in the case.

The deiendant in error proved, that when he purchased the horse, he informed Mundine that the persons against whom, he represented he had d judgment, were insolvent. The value of the horse was proved not to have exceeded, at the time of the sale, fifteen or twenty dollars; but a subsequent sale of the horse was made for more than fifty dollars.

Upon this testimony, the Circuit Court instructed the jury, the plaintiff in error was not entitled to a set-off to the amount which was represented to be due on a judgment that had never been rendered; but to the value only of the horse, at the time of the sale, without reference to the contract of sale. The plaintiff in error excepted to the instructions of the Court.

Although there was proof, that Gold informed Mundine, when the contract for the sale and purchase of the horse was entered into, that he thought the persons against whom, he represented he ' had. a judgment, were insolvent; there was evidence also, which tended to prove that one of the persons had a debt due to him, which might have been secured for a partial, if not sufficient, for the full satisfaction of the judgment, if such a judgment had belonged to Gold.

It is the right of a jury and not of a Court, to ¡Iweigh evidence, which tends to prove any thing in I issue, and to determine what matters of fact are proved by the testimony. The jury in this case should have been instructed, that if they believed from the evidence, Mundine could have collected a judgment of the amount, for which Gold represented he had one, of the persons against whom he said it was, they ought to allow Mundine a set-oiF to the amount which would have been due on the judgment, if the representation had been true. But if they believed nothing, or if any thing, less than the value of the horse could have been collected on such a judgment, they ought to allow Mundine a set-off to the value of the horse at the time of the sale.

Two parts of the record seem to have been intended as bills of exceptions. The evidence set out in one, is a little different from that in the other. We have have noticed the one which is first set out in the record, because it contains an exception to the opinion of the Court. As the other contains no exception to the charge of the Court, we can take no notice of it for any purpose.

Let the judgment be reversed, and the cause remanded.


text:
    COCKERHAM et al. VS DAVIS.

      As to admissions of one co-defendant against an~ other.
    1. Where a party instituting legal proceeding®;, used the name of another, as plaintiff, as was alleged, without the consent or knowledge of the latter,--on a bill filed by such nominal plaintiff to enjoin anexecution issued against him for the costs of such suit — it was held—
    1. That the allegation of the insolvency of (he party commencing the proceedings, ivas a material fact, and being denied in the answers of part of the defendants, should have been supported by proof.
    2. That the answer of the party instituting the proceedings, could not be used against the other defendants.
    On a writ of error to a decree of the Circuit Court of Jefferson, exercising Chancery jurisdiction, perpetuating’ an injunction of proceedings at law.
    Edward Davis filed a bill for injunction, against Elisha Cockerham, John Davis, Baker Dulany, and ■Catharine Lawley, alleging, that an execution was in the hands of the sheriff of Tuscaloosa county, issued from the office of the clerk of the Circuit Court of Jefferson county, wliicli recited, that the defendants, Elisha Cockerham, Baker Dulany and Catharine Lawley, claimants, had recovered judgment against John Davis and orator, for whose use, suit was brought for the sum of one hundred and thirty-nine dollars and forty-two cents. That uñtill informed of said execution, orator did not know of
      the existence of any suit in his favor, nor had au-thorised any to he prosecuted in his name: and that John Davis was entirely insolvent, &c.
    The answers of Cockerham, Dulany and Lawley, showed that the execution was issued in their favor, on the determination of an issue which had been- made up to try the right in certain property, levied on under an execution in the name of John Davis, for the use of Edward Davis; but these answer,? made no'admission of the insolvency of John Davis.
    The answer of John Davis admitted the general allegations of the bill, and his insolvency.
    On a final hearing' on bill and answers, the injunction granted, was perpetuated. On which the defendants took a writ of error.

      Ellis for plaintiff in error, — Peck contra.
   GOLDTHWAITE, J.

The Court in this case, decline at this time, to pronounce any decision on the main question which arises, as the Court for the trial of this cause consists of only two members, and a question having been argued which renders any decision on the merits of the case, unnecessary.

The insolvency of John Davis, who commenced the original proceedings, which caused the present bill to be exhibited, as well as the want of assent of Edward Davis to the use of his name, are material facts, which not being admitted by the answers of his co-defendants, must be supported by proof; and there being no proof of these allegations, the objection is fatal.

The answer of one co-defendant can not be used against another — therefore, although the fact is fully admitted in the answer of John Davis, his admission cannot prejudice the rights of his co-defendants. — Collier vs Chapman.

For this reason, the decree rendered below, must be reversed; and this Court proceeding to render such decree, as the Circuit Court should have rendered, doth order, adjudge and decree, that the bill of complainant be dismissed, and that the respondents, except John Davis, recover of the said complainant, their costs in this Court,and the Court below.

COLLIER, J. not sitting.

      2 Stew. 163.


author: COLLIER, J.

text:
    M'LEOD VS MASON.

      Of proceedings on the settlement of guardianship accounts.

      1. A Guardian may voluntarily appear before the Orphans’ Court and effect a settlement of his accounts, without any process from the Court preceding his appearance.
    2. Where a guardian thus voluntarily appears, and makes a settlement of his accounts, he cannot afterwards object, in error, that the record does not show that he derived his trust from the Court, with which his settlement has been made.
    3. In proceedings in the settlement of a guardian’s accounts, if need not appear that his successor was made a party; or from what Court such successor obtained bis trust.
    4. Where a settlement of the accounts of a guardian is made with the Court, at his motion, and upon vouchers furnished by himself, he cannot, in error, avail himself of the fact that the record does not show that publication was made as ordered.
    5. Where a suit is prosecuted for the benefit of a ward, the guardian should describe the ward upon the record, and the judgment should pursue the process.
    (j. And in a proceeding, ex parle, against a guardian on the settlement of his accounts — an order granting execution, against him, to his .successor, by name, is erroneous — it should be in the name of the ward, by the successor.
    On a writ of error to proceedings of the Orphans’ Court of Madison county.
    The record in this case disclosed, that at a term of the- Orphans’ Court of Madison county, held on the tenth day of January eighteen hundred and thirty-six, on the application of George Mason, guardian of Adaline T. Heath, infant child of Joseph M. Heath, it was ordered that George M’Leod, then of Talladega, late guardian of said infant, be cited to be and appear before the Judge of said Court, on the second Monday in February next ensuing, to shew cause why he should not make final settlement of his guardianship of said infant.
    Upon this order, a citation issued to the sheriff of Talladega county, which was returned executed.
    Afterwards, to wit, on the eighth day of March, eighteen hundred and thirty-six, at a special term of the said Court, the following entry was made — ■
    “George M’Leod, late guardian of Adaline T. Heath, infant child of Joseph M. Heath, deceased, having filed in the office of the clerk of said Court, the accounts and vouchers of his guardianship of said infant, for final settlement — it is ordered that publication be made for forty days, in some newspaper, printed in the town of Huntsville, in said county, requiring all persons in any manner interested in said settlement, to be and appear before the Judge of said Court, at the Court house in the said town of Huntsville, on the second Monday in May next, to shew cause, if any they have, why final settlement, as aforesaid, shall not then be made and recorded.
    “And now afterwards, to wit, on the ninth day of May, being a day of a term of the Orphans’ Court of said county, begun and held at the Court-house, in the town of Huntsville in said county, on the second Monday in said month, (May,) in the year of our Lord, one thousand, eight hundred and' thirty-six,' was made the following entry, to wit:” — -
    Here followed a statement of the account current, submitted by George' M’Leod, which was ordered to be recorded.
    Then appeared the subjoined entries, to wit:-
    “State of Alabama, Madison county, I, John C. Thompson, Judge of the County Court of said county, do certify that I have on this day, examined the account and vouchers of George M’Leod, guardian of Adaline T. Heath, infant child of Joseph Mr Heath, deceased, and find it correct as above stated, viz: — that the said guardian has received, and is chargeable with the sum of six thousand, eight hundred and thirteen dollars and nineteen cents; and has expended and accounted for, two thousand; one hundred and ninety-five dollars, and four cents, making a balance due the said Adaline, of four thousand, six hundred and eighteen dollars and fifteen cents: and it appearing to the satisfaction of the Court, that the said George M’Leod, having resigned his said guardianship, and George Mason having been duly appointed guardian of the said Adaline in his stead; — -it is therefore decreed by the Court, that the said George M’Leod pay over unto the said George Mason, the said sum of four thousand, six hundred and eighteen dollars and fifteeii cents, the balance due the said Adaline, upon a final settlement of his guardianship account.
    Given under my hand, this the ninth day of May,eighteen hundred and thirty-six.
    JOHN C. THOMPSON^

      “And afterwards, to wit, on the day last aforesaid — on motion of Samuel Peete, attorney for George Mason, guardian of Adaline T. Heath, infant child of Joseph M. Heath, deceased, — it is considered by the Court, that said guardian recover of, and have execution against George M’Leod, late guardian of said Adaline T. Heath, for the sum of four thousand, six hundred and eighteen dollars and fifteen cents, the balance due from the said George M'Leod this day, on final settlement of his guardianship of said infant, made and ordered to be recorded, together with the costs therein expended.”
    It was in this Court, assigned for error—
    - 1st. That the proceedings in the County Court, for a final settlement, were discontinued.
    2nd. That the citation to defendant, did not name the said George Mason, or shew that he, as guardian, sought the settlement.
    3d. That the record did not show that any previous advertisement of the final settlement was made.
    4th. That the record did not show, that said George Mason was a party te said settlement.
    5th. That it did not appear by what Court, said Mason was appointed guardian; nor by what Court M’Leod was appointed.
    6th. That the Court below erred in rendering a decree or judgment in favor of said George Mason, as guardian as aforesaid.

      Parsons and M’ Clung for the plaintiff in error,— Robinson contra.
   COLLIER, J.

This cause is brought up by writ of error, to revise a decree of the Orphans’ Court of Madison county. The record shews that on the tenth day of January, eighteen hundred and thirty-six, that Court, on the application of the defendant in error, as the guardian of Adaline T. Heath, directed a citation to issue to Talladega, requiring the plaintiff to shew cause why he should not make a final settlement of his guardianship accounts, as the late guardian of the said Adaline.

On the thirteenth of the same month, a citation was issued, and on the fifth of February, executed by the sheriiF of Talladega on the plaintiff; by which he was required to appear and settle his guardianship accounts, before the Judge of the Orphans’ Court of Madison, on the second Monday of that month. Mo proceedings seem to have been had on the citation; but the defendant on the eighth day of March following, filed with the clerk of the Court, the accounts and vouchers touching his, said guardianship, for final settlement.

Whereupon the Court made an order, directing that publication be made for forty days, in some newspaper published in Huntsville, requiring all persons interested, to appear before the Judge of that Court, on the second Monday in May thereafter, at the court house of the county, and show cause why final settlement should not be made. On this latter day, the record shews that a final settlement was made, and the accounts of the plaintiff, touching his guardianship, stated and recorded. In the decree which follows the statement of the account, the Judge recites that he finds the accounts as stated to be correct — and further, that the plaintiff had resigned his guardianship, and that the defendant had been appointed m his stead.

“It is therefore decreed by the Court, that the said George M’Leod, pay over unto the said George Mason, the said sum of four thousand, six. hundred and eighteen dollars and fifteen cents, the balance due said Adaline, upon a final settlement of his guardianship accounts. .

(Signed by the Judge) john c. Thompson.”

Afterwards, but on the same day, the following order was made:

“On motion of Samuel Peete, attorney for George Mason, guardian of Adaline T. Heath, infant child of Joseph M. Heath, deceased,t — it is considered by the Court, that said guardian recover of, and have .execution against George M’Leod, late guardian of said Adaline T. Heath, for the sum of four thousand, six hundred and eighteen dollars and fifteen cents, the balance due from the said George M’Le-.od, this day, on final settlement of his guardianship of said infant, made and ordered to be recorded, &c”

We consider it unnecessary to inquire in regard to the sufficiency of the citation, and the discontinuance of the proceeding commenced by it, inasmuch as it seems to have been abandoned in the Orphans’ Court. After the citation had spent its force, the plaintiff voluntarily come into Court, and filed his accounts and vouchers, for the purpose of obtaining a settlement of his late guardianship.— This step by the plaintiff, without a summons, or other process of th.e Court} was fully authorised by Law.

And as it is the peculiar province of the Court, to adjust the accounts of guardians, executors, &c. it would seem to he too late for the plaintiff to object, that the record docs not shew that he derived Ms trust from the Orphans’ -Court of Madison. Has he not admitted such to he the fact, by filing his accounts in that Court'? for none other than that by which he was appointed guardian, could settle his accounts.

The case of Ripitoe vs Hall, is directly in point. In that case it was holden, that the guardian against whom proceedings were instituted, with the view to repeal his letters of guardianship, having pleaded to the merits, and against whom a verdict and judgment were rendered, could not object in error, that he was a guardian of that Court. That case goes even beyond the present — there the party complaining, was brought in on process — here, he came in voluntarily.

It is argued for the plaintiff, that it is not shewn that the defendant was a party to the settlement, nor from what Court he derived the guardianship of his ward'. In respect to the first branch of the proposition, it may be remarked, that it was not necessary that the defendant should have been made a party to the proceedings in the Orphans’ Court.— It has already been observed that it was competent for the plaintiff to file his accounts, and ask their settlement, in the manner he did; and upon publication being made, the defendant might have appeared, had he desired; but there was no necessity for his being made a party, or even interfering in any manner in the settlement. And it is alike unimportant from what Court the defendant derives his trust. The Orphans’ Court of Madison was satisfied, that he was the then guardian of the plaintiff’s late ward; and that character, from whatever Court derived, entitled him to receive her estate.

The record, it is true, does not shew that publication was made as directed by the order of the Court, requiring persons interested, to shew cause against the settlement; yet this objection cannot avail the plaintiff. Publication was not intended to give him notice. The settlement was made at his motion, and upon vouchers furnished by himself. But it was made for the benefit of the ward, and if her guardian is contended to abide by the settlement, the plaintiff cannot take from him that privilege.

In the last place, it is objected that the decree, is in favor of the defendant, instead of his ward. That part of the action of the Court, which may be technically called the decree, is proper enough, and would have authorised an execution to issue in the name of the ward by her guardian, without any particular direction by the Court. But the subsequent order directs, “that said guardian recover of, and have execution &c.” The words, “said guardian,” re-fering to the defendant, whose name is used in the preceding part of it. We look upon this order for an execution, as wholly unnecessary; yet we are not permitted to disregard it, for it was made at the same time, and by the same authority, that the decree was, and .controls it, by confining the right to sue out execution in his own name, to the guardian.

la prosecuting a suit for the benefit of a ward, •the guardian should discribe the ward upon the record as suing by him — as thus: A B, an infant, &c. by C D, his guardian; and the judgment should pursue the process and declaration. In the case at bar, there is neither process or declaration, but a mere ex parte settlement and decree: And the decree, as it undertakes expressly to direct execution, must award it properly, The plaintiff’s undertaking, out of which his liability arose, was with the Court for the benefit of the ward. Here the decree subjects him to an execution at the s.uit of the guardian, and cannot be sustained.

Had the decree have stopped, with the signature of the Judge, we have said it would be unobjectionable, and quite sufficient for all purposes; but being controlled by what follows, it must be reversed. And as there is enough appearing on the record, might be here rendered, but from the consideration/that we might ourselves, mistake the proper parties; as the guardianship may have been changed, or the ward may have attained her majority.

The cause is therefore remanded.

      Aik. Dig. 82. §27.

      1 Stewart 166.


author: GOLDTHWAITB, J.

text:
    PATILLA VS THE GOVERNOR.

      Of proceedings against delinquent tax collectors.

    1. The several County Courts of this State, have no jurisdiction, whatever, of the offence created in the twelfth section of the act of 1821, providing a penalty where a tax collector makes a false return of taxable property, with a view to defraud the county or State.
    On a writ of error to the County Court of Jackson county.
    The proceedings upon which this case were' founded, originated on the relation of' Carter, the treasurer of Jackson county, who, on the seventh day of July, in the year of our Lord, eighteen hundred and thirty-six, filed a notice to Patilla, and his sureties, as the tax collector of said county, shewing that at a special term of the County Court of said county, a motion would be submitted upon the bond of said Patilla, as tax collector, for suppressing and making false return of taxes, for the year eighteen hujndred and thirty-five, for the penalty, &c.
    This notice being executed, Patilla appeared and plead not guilty; and after full argument, the Court rendered judgment against the tax collector. A bill of exceptions was taken, which set out the evidence, &c. upon which the Court acted, and upon which defendant pi’osecuted a writ of error.

      Ellis & Peck for the plaintiff in erro! — M Clung and Robinson, contra.

       Aikin’s Digest 417. §46.

   GOLDTHWAITB, J.

The proceedings in this' case are too erroneous to he attempted to be supported.

The case seems to have originated under a mistaken impression, that the County Court had jursi-diction of the offence specified in the forty-sixth' section of title taxes.

This section provides — “if any assessor or tax collector, shall make any false return of any list of taxable property, with a view to defraud the State or county of the revenue, he shall forfeit and pay double the amount of the sum, which it was his' duty to'have returned; and shall moreover be liable to a prosecution for fraud, and on conviction thereof, shall be imprisoned, not less than three months, by the verdict of a jury, and shall be, ever thereafter, incaple of holding any office of profit, honor or trust, within this State-”

We deem it sufficient to say, that no part of this' act, gives to the County Court, jurisdiction of any offence committed in contravention of it.

This in no way resembles a prosecution by mo-' tion, under the seventy-sixth section of the same title; by virtue of which the County Court has jurisdiction to entertain a motion against a delinquent tax collector and his sureties, for failing to collect and pay over, the county tax, within the time prescribed by law.

The judgment of the Court below, is reversed.

      Aik. Dig. 417.

       Aik. Dig. 423.


text:
    RICHARDSON VS WILLIAMS.

      Of making an administrator a party in a causo.

    1. Where it was alleged in a petition, filed to supersede an execution, that the party in whose name it was issued, had died before the commencement of the suit, upon which the execution^was founded, — on appeal to this Court from an inferior Court, on a judgment dismissing the petition, it was held—
    1st. That this Court would not, on motion, receive a suggestion of the death of the plaintiff in execution, and make his representative a party.

      2. That the record exhibiting no change of parties since the filing of the petition, the plaintiff in error might be permitted to assign errors, and have a hearing upon the merits.
    The plaintiff in error made a suggestion of the death of the defendant in error to this Court, and moved that his representative be made a party.
    The record in the case, purported to be a petition for the supersedeas of an execution, which was dismissed by the Court below, and from which the plaintiff in error, took an appeal. The ground relied on in the petition, was the allegation, that the party in whose name the execution purported to have issued, had died before the commencement of the suit on which said execution was founded.
   GOLDTHWAITB, J.

In this case the plaintiff in error, filed his petition in the Court below, praying a writ of supersedeas to suspend the proceedings on an execution, which had been issued against him at the suit of the defendant in error, who is therein alleged to have died before the commencement of the suit, of which the execution was sought to be susperseded. No party defendant in the Court below, other than the person alleged to be dead, was made, and the petition was dismissed, and the cause is removed to this Court by appeal.

The plaintiff in error, now moves to be permitted to suggest the death of the defendant in error, and to make his administrator a party to this cause.

We are of opinion that this cannot be allowed— the cause shews that no change of parties has intervened since the filing of the petition, nor does it seem to be a case in which any parties can be made here — nor will the Court undertake to decide at this time, that new parties are necessary.

The motion must be denied, but the plaintiff has leave to assign errors, and the questions presented can be examined on their merits.


text:
    LYNES VS THE STATE OF ALABAMA.

      Of writs of error in criminal cases.

      ¡Of fleas in abatement for misnomer.

    1. .The legislature having omitted to prescribe the regulations, by which the ordinary constitutional power of this Court, over subordinate jurisdictions, is to be exercised in criminal cases, — the Court in bringing such cases before it for revision must resort to such writs as are known to the law.
    .2. This Court recognizes the writ of error, as a common law writ.
    3. This Court has the unquestionable’ right, in the exercise of its constitutional power, to bring before it criminal cases, by ordering a writ of error.
    ,4. A substantial misnomer of either the Christian or sur-name, is good matter of plea in abatement.
    5. Thus — It may be well plead in abatement to an indictment, charging one by the name of .George Lyons, that defendant’s .true name is .George Lynes.

    At the last term of this Court, it being suggested, that in the record and proceedings, of the Circuit ..Court of Madison, in a case wherein the said Lynes was defendant to an indictment, and upon which •he was convicted, — great error existed — this Court awarded a writ of error.
    The record returned in obedience to said man,date, disclosed — that at the October term, eighteen hundred and thirty-four, of the Circuit Court of Madison, an indictment was found against George
      Lyons,' Solomon Smith, John Ogden and Hugh Clingham, for the offence of playing at cards.
    The plaintiff in error being called to his trial on this indictment, plead the following plea, to wit—
    “George Lynes, indicted by the name of George Lyons, in his own proper person, comeih into Court here, and having heard the said indictment read, saith, that his name is, and always hath been, from his nativity, George Lynes, and by that name hath always hitherto, been called or known, without this that he, the said George Lynes, now is, or at any time hitherto, hath been called or known by the name of Lyons, as by said indictment, is supposed: And this, he the said George Lynes, is ready to verify — Wherefore, he prays judgment of the said indictment, and that the same may he quashed, &c.”
    A demurrer was sustained by the Court to this plea, and upon not guilty, the defendant was convicted of the offence charged.
    Argued here by M’ Clung for the plaintiff in error, and by the Attorney General, contra.
   COLLIER, J.

This Court at its last term, on the application of the plaintiff in error, awarded a writ of error to the Circuit Court of Madison, directing the clerk of that Court, to send up a full and complete transcript of the record of his indictment and conviction at the suit of the State, for playing “at a game of cards, in a public house, &c.” which record is here regularly returned, with the writ of error.

As the present, is the first case of a criminal prosecution, ever brought here by process, from this Court, it may not be out of place, briefly to state the reasons on which we place our right, to revise the judgments of the Circuit Court in such cases, by writs of error.

By the first section of the fifth article oí the constitution of Alabama, it is declared that the judicial power of the State, shall be vested in one Supreme Court, Circuit. Courts to be holden in each county in the State, and such inferior Courts of law and equity, not to consist of more than five members, as the General Assembly, may from time to time direct, ordain, and establish.

By the second section of the same article, the Supreme Court is vested with appellate jurisdiction only, co-extensive with the State, under such restrictions and regulations, as from time to time, may be prescribed by law: Provided, that it shall have power to issue writs of injunction, mandamus, quo warranto Habeas Corpus, and such other remedial writs as may be necessary to give it a general su-perintendance and control over inferior jurisdictions.

The constitution clearly invests this Court with the right of supervision, over the judgments of subordinate jurisdictions; but the legislature have omitted to prescribe the mode, by which judgments in criminal cases, shall be brought up for revision, leaving undefined the “restrictions and regulations,” contemplated by the constitution in this particular.

The Proviso to the second section, gives the right to issue such remedial and original writs, as may "be necessary to give efficiency to the constitutional powers of this Court. We have no power to frame writs for this purpose, but must adopt such as are known to the law. Let us then enquire, whether the writ of error is of common law origin, and what is its office.

In Coke upon Littleton, (288 b.) and in Bacon’s Abridgement, (2. vol. 187.) a writ of error is said to be an original writ, issuing out of the Court of Chancery, in the nature as well of a certiorari to remove a record from an inferior into a superior Court, as of a commission to the Judges of such superior Court, to examine the record, and to affirm or reverse it, according to law; and lies where a party is aggreived by any error in the foundation, proceeding, judgment, or execution of a suit in a Court of record. This writ does not owe its origin to a statute. . Its uses have been in some instances directed by the legislature, and as a remedial process, it has in some cases been extended. Its name indicates its true purpose. And in the case of The Queen vs Paty, it was held to be grantable in all cases ex debito justitice, except in treason and felony. (See further to the same effect, a very elaborate note to Saunders Reports—2 vol. 100-n. 1.)

In treason and felony, it was necessary to obtain the King’s consent, before the writ could issue.— The People vs Yates.

In England, the King is esteemed as the fountain of justice, and the Supreme Magistrates of the Kingdom, entrusted with the whole executive power of the law. No Court whatsoever, within the Kingdom or its dependencies, can claim any jurisdiction, unless it some way or other, derive it from the Crown. The Judges are his representatives, and derive their powers from him.

Now in this country, the Chief Executive Magistrate of the State, possesses no judicial powers. Such as are compatible with our form of government, and which were exercised by the King in England, — by our constitution, have devolved upon the judiciary. The writ of error, being a common law writ, and necessary to the exercise of the constitutional powers of this Court, we consider our right to issue it unquestionable. How far the legislature may trammel this right by “restrictions and regulations,” is any inquiry which need not be made. It is enough for us, that these have not yet been enacted.

To examine the case as presented, the only error relied on, which we deem it necessary to consider, is that which brings to our view, the judgment of the Circuit Court, sustaining the demurrer for the defendant in error, to the plea in abatement of the plaintiff. This plea asserts that the plaintiffs, name is George Lynes, and not George Lyons, as he is charged in the indictment.

The demurrer admits the truth of the plea, and the only question to be determined, is whether the matter of it be fatal to the indictment.

Hawkins lays it down, that a defendant cannot take advantage of a mistaken sur-name in the indictment, though he may of a mistaken Christian name; though, the sur-name by which he is described, hath no affinity with his true one, and he was never known by it.-

Lord Chief Justice Hale states the law as Hawkins ' does, and refers to some very old authors,- the correctness of which he questions, and remarks that it is always safest to allow- the plea of misnomer, both as to the sur-name and Christian name. It is difficult to discover why the distinction between the one name and the other should ever have been introduced—it must have been upon some refinement of reasoning, which has become antiquated and obsolete.

Modern decisions make no distinction between a misnomer of the sur-name and Christian name. In either case, if it be substantial, it is good cause for an abatement of the proceedings.

The usual criterion by which it is determined, whether there should be an issue to the jury upon the plea, is to inquire if the name disclosed in the' plea, has the same sound' with that set out in the' indictment. If it has, the plea does not contain abateable matter. Let us try the plea by this test: Lynes is a name of but one syllable, while Lyons is a name of two, and conveys to the ear, sounds quite dissimilar. M'Cann for M’Carn was held to be a fatal variance in Tannet's cased. So Shakepearé for Shakespeare, in Shakespeare. case. Tarhart for Tabari, was held bad in Bingham vs. Dickies.

The Attorney General has refered us to a note in Roscoets Criminal Evidence, (page 80.) where it is stated that Harris was alleged in the indictment instead of Harrison, the true name, though he ivas sometimes called by the former. And the Supreme Court of Tennesse. in the case of the State vs France held that there was no variance. We have not the report of that case before us, but if it were examined, we think it wo'uld be found to be' a case of larceny, in which property charged to have been stolen, was alleged to be the property of Harris — that his truéname was Harrison, though he was sometimes known by the former name— that there was no plea in abatement, and that the rule of idem sonans, had no influence upon the decision.

Our opinions are, that the demurrer to the plea, should have been overruled.

The judgment is therefore reversed.

      2 Salk. 504.

      6 John. R, 337.

      2. Bac. Ab. 96.

      2 P. C. 317.

      2 P. C. 175-6.

      Russ. Ry. 351.

      10 East. 83.

       5 Taunt. 14.

      1 Over. R. 434.


author: GOLDTHWAXTE, J.

text:
    GOODLET VS SMITHSON.

      Of title to lands, purchased from the United States.

    1. In tbe case of sales of lands by the United States, the law gives the right, and. the patent is to be considered, not as the title, but as the evidence, by which it is shewn that the perequisites of a legal sale, have been complied with.

      2. A purchaser of lands from the United States, by the act of entry and payment, acquires an inchoate legal title, which may be aliened, descend, or be-divested in the same manner as any other legal title.
    3. So, previous to the issuance of a patent, the estate of one in lands, purchased of the United States, and for which he has received a certificate of final payment, may be levied on and sold under execution, issued on a judgment at law.
    Goodlet commenced an action of trespass to try titles, against Smithson, in the Circuit Court of Benton. The plea was not guilty, upon which an issue was joined to the country.
    On the trial, the plaintiff relied upon a sheriff’s deed, — the land having been sold under an execution issued upon a judgment at law. The plaintiff proposing shewing by proof, that the land he claimed, had been entered by the defendant in the land office of the Coosa land district, previous to the sheriff’s levy upon it; and that full payment had been made by the defendant, who had received a certificate therefor, in due form of law.
    The Court charged the jury, that previous to the issuance of a patent, the purchaser of lands from the United States, had no such estate in the lands, as could be levied on, and sold under execution issued upon a judgment at law,
    The jury found a verdict for the defendant, on this charge: and the plaintiff having excepted to the charge of the Court, sued out a writ of error.

      Thornton for the plaintiff in error, — P, Parsons contra.
   GOLDTHWAXTE, J.

Goodlet instituted this action of trespass, to try titles against Smithson, and sought thereby to recover the possession of the tract of land described in the declaration.

From the bill of exceptions, taken on the trial of the case, in the Circuit Court, it appears, that Goodlet claimed title under a sheriff’s deed. The execution, by virtue of which, the tract of land, which is the subject of controversy, was sold, was regularly issued on a judgment obtained against Smithson; and evidence was offered to prove, that he had entered the land, made full payment, and received a certificate for it in due course of law, from the receiver of public monies for the proper land district. On this evidence, the Court instructed the jury, that previous to the issuance of a patent to Smithson, he had no such estate in the land, as could be levied on and sold by virtue of an execution, issued on a judgment at law.

Goodlet, having failed in his suit, now prosecutes his writ of error, to reverse the judgment rendered against him, and here assigns, that the Circuit Court erred in giving the instructions, before stated, to the jury.

It is not contended that any thing has been omitted, either by the purchaser of the land, or by the officers of the government, which by law is required to be performed, to make the act of purchase complete; but it is insisted, that previous to the time when a patent actually issues, the title derived by the act of purchase, is merely equitable, and the purchaser is invested with no legal estate, and consequently, under our statute, his right can only divested by means of a suit in chancery.

In the ordinary case of contracts between individuals, relating to the sale of lands, the title of the seller, does not pass to the purchaser, except a conveyance in the form prescribed by law, be actually executed, previous to which, the interest of the purchaser is a mere equity; but this, is, because the title to land, can pass alone by reason of some one of the common assurances, or conveyances which are known to the law. In the case of sales made by the United States, the law gives the right, and the patent may he considered, not as the title itself, but as the evidence by which it is shewn, that the prerequisites to a legal sale have been complied with.

The acts of Congress are silent, in respect to the time when the purchaser of the public lands, may enter and enjoy the full and exclusive dominion of his purchase: but it is evidently contemplated by all the legislation on the subject, that the act of purchase, transfers an immediate right of possession to the purchaser, and he may at once enter on the land, if in fact the possession be, as it is always presumed to be, vacant, or if otherwise, the title thus acquired is sufficient to enable him to oust any intruder by due course oflaw.

Previous to the act of the twenty-fourth April, eighteen hundred and twenty, the sales of the pub-jíc iands were usually made on a credit, and the purchaser was not entitled to receive a patent, until the period of credit had expired, and he had made the entire payment for the land; but his right to the possession, was complete with the act of entry, of which the certificate then required to be issued, was the legal evidence; and on this, without the aid of legislative enactment, he could maintain an action at law, against, and recover the land from any one in possession, under a weaker title than himself. When by the act of Congress referred to, the credit on sales was abolished, no change was made in the right acquired by the purchase, nor could the patent issue to the purchaser, ■without some delay, but the certificate which was required to be given to him was, as before, evidence that the purchase was complete.

He had performed every act which the law required from him, when he entered the land and paid the purchase money! all which was to follow, as to issuing of the final and complete evidence of right in the form of a patent, was to be performed •by the ministerial officers of the government; but their omission, could not in any manner change or effect his .title; and although the patent would only be evidence from its date, yet if it became necessa--ry from any cause whatever, to shew the inception of the legal title for the act of entry, it could be shewn by the production of the certificate required to be given, and the title would be referred back to its source.

We arrive then, at the conclusion, that by the act of entry, and payment of the purchase money, the purchaser of land from the United States, acquires an inchoate legal title, which may be alien-* ed, descend, or be divested, in the same manner as any other legal title, and this view of the cáse is amply sustained by authority.

In Pennsylvania, it has been repeatedly held, that the payment of the purchase money, and a survey, though unaccompanied by patent, gives a legal right of entry,—Sims vs Irvine ,-Penn vs Klyne,Copley vs Biddle,—and this rule derives additional

force in its application to this case, as in that State, an equitable title, will not authorise "a recovery in ejectment.—Vanhorn vs Chesnut, —Carson vs Bondurant, In Kentucky in the case of Thomas vs Marshall,* it was held that an entry or survey of ]ands, was an inchoate legal title, which would descend and might be aliened; and vested such a legal right as might be sold under an execution.

In this Court, in the case of Bullock vs Wilson, it was decided, that a certificate of final payment, was evidence of a legal title, on which an ejectment could, be maintained. The case of Masters vs Eastis, cannot be considered as at variance with the principle decided-by the Court, in the case of Bullock vs Wilson. It is true, in that case, it was held that the grantee of the United States, must succeed against the assignee of a certificate, which had previously been held by the grantee, and which he had assigned to him; but it is not stated in what manner the assignment was made, most probably however, by mere indorsement, which could pass no title, for the Court directly ánd explicitily re-cognise the principle, that if a conveyance had been made by deed, the title of the grantee, by the patent, would have enured to the defendant in that action.

How far a patent and a certificate of final payment for the same tract of land, might conflict with each other, when issued to different persons, is a question not now raised, and therefore it need not be considered; but it is conceived no difficulty could arise in such a case, if the rule recognized by this Court, in the case of Masters vs Eastis, were to be applied.

The Circuit Court having erred, in giving the charge before stated to the jury trying the case, the judgment rendered must be reversed, and the case remanded.

         Aik. Dig. 287.

      2 Story, L. U.1775

      3 Dall. 457.

      1 Wash. C.C.R. 207.

      2 do. 354.

       2 Wash C. C. R. 160.

       2 Wash. C. C. R. 33.

      2 Porter 437.

      3 Porter 363.

      ¶Hardin Rep. 19.