text:
    MOODY VS KEENER.
    1. In a declaration against a bailee for non-delivery of a deposit, averments are only necessary, which serve to shew the grounds upon which the accountability of defendant arises.
    2. And where the deposit is alleged to have consisted of bank notes, it need not be stated by what bank the notes were issued, —a general description, in such cases, being sufficient.
    3. Nor is it necessary to allege that defendant continued to ha,ve the deposit in possession, — if it passed from him lawfully, or without culpable default, it is matter of defence, which he is bound to shew.
    4. Nor is an averment necessary, that a reward was tendered for transportation or safe keeping of the thing deposited.
    5. Trover may be brought for bank notes sealed in a letter.
    6. A witness may state that he is a public officer, without producing his commission.
    7. A verdict must respond to the issue, or it will be bad, and no judgment can be rendered on it.
    8. Thus — in case against a post master, for negligently loosing and refusing to deliver a letter, &c. of plaintiff, — a verdict, that defendant undertook and assumed, &c. is erroneous.
    Error to the Circuit court of Tuskaloosa county.
    Case against a bailee for non-delivery of a letter containing bank notes.
    The declaration, in this case, contained five counts, as follow:
    The first charged, that the defendant, at the time of the receipt of a certain letter below mentioned, was post master at Tuskaloosa, and that plaintiff deposited at the post office at Louisville, Alabama, for the purpose of having the same conveyed to Tuskaloosa, and delivered to one Charles Lewen, plaintiff’s agent at Tuskaloosa, a certain sealed packet or letter, to be carried in the mail, with a suitable subscription on the same, in which were bank notes to the amount and value of one thousand and seventy-five dollars, the property of plaintiff. And plaintiff averred that the said letteg wagsrenaived by the post master at Louisville, and by and forwarded to the post office at T%sl?aloosa, purpose of being delivered to said Chad plaintiff averred, that the letter was lelivered dant at Tuskaloosa, and further averre letter was received by defendant, said CHEM^Lewen demanded the letter. Yet defendant did not deliver the said letter to Charles Lewen, agent as aforesaid, but neglected and refused so to do, whereby the said sum of money was lost to plaintiff.
    The second count, charged that plaintiff deposited with the post master at Louisville, for the purpose of having the same carried by mail to Tuskaloosa, to be delivered to tiiesaid Charles Lewen, agent of plaintiff, and that the post master at Louisville received for that purpose, a certain other letter, in which was enclosed bank notes to the value of one thousand and seventy-five dollars, the property of plaintiff, which said letter was superscribed and sealed, and was of proper size, form and description, and such as was lawful tó be carried by mail. And plaintiff averred, that the latter was forwarded in the mail, and was received at the post office at Tuskaloosa, and that at the time the letter arrived at Tuskaloosa, the office of post master was vacant by the death of the previous incumbent, and that defendant thereupon, of his own accord, entered tie office, and took upon himself the duties thereof, and assumed the control thereof, and of the mails received at it. And plaintiff further averred, that the said letter came safely to the hands of defendant, and that it was the duty of defendant to deliver said letter to said Charles Lewen, when demanded, — and that Charles Lewen, at a proper time, did demand said letter, but that defendant, not regarding the duty he had assumed and undertaken to perform, and well knowing that said Charles Lewen was entitled to receive the said letter, refused to deliver the same, by reason whereof, the bank notes were lost to plaintiff.
    The third count, alleged that the plaintiff deposited at the post office at Louisville, to Ihe end that the same might be carried by mail to Tuskaloosa, and there delivered to Charles Lewen, agent of plaintiff, a certain other letter containing bank notes, to the value of one thousand and seventy-five dollars, directed to Charles Lewen, at Tuskaloosa. And the plaintiff averred, that the post master at Louisville, i eceived the letter, and sent the same by mail to Tuskaloosa, and that it was delivered and received at Tuskaloosa, and when the letter arrived at Tuskaloosa, the office of post master was vacant, by reason of the death of the previous incumbent, so that there was no post master duly appointed at said office, and thereupon, defendant unlawfully possessed himself of the office, and assumed the authority of post master, without title or authority, and opened the mails, and claimed to be superintendent thereof. And plaintiff averred, that the mail containing the letter, enclosing the bank notes, duly sealed, came to the possession of defendant. And plaintxff averred, that the letter was properly deliverable to said Charles Lewen, when he should afterwards demand the same, and that said Charles Lewen did, within proper hours, demand tiie same of defendant, at the post office in Tuskaloosa, and that defendant refused to deliver the same, whereby plaintiff lost the bank notes aforesaid.
    The fourth count, stated that plaintiff deposited at the 'post office at Louisville, to the end that the same might be carried by mail to Tuskaloosa, and there delivered to Charles Lewen, agent of plaintiff, a certain other letter containing bank notes, to the value of one thousand and seventy-five dollars, the property of plaintiff', directed ;o Charles Lewen, at Tuskaloosa; and plaintiff averred that the post master at Louisville, received the letter and sent the same by mail, which arrived at Tuskaloosa. And plaintiff averred, that when the mail and letter arrived at Tuskaloosa, the office of post master at Tuska-loosa was vacant, by reason of the death of the previous incumbent, so that there was no post master duly appointed at Tuskaloosa, and thereupon defendant possessed himself of the office, and assumed the power and authority of post master, and took upon himself the control of the office, by receiving, opening, distributing and forwarding the mails, and controlling and superintending the same. And the plaintiff averred, that the said mail containing the letter enclosing the bank notes sealed and directed to Charles Lewen, the property of plaintiff, came to the possession of defendant. By means whereof he became bound, and it was his duty safely to keep the letter, and deliver the same to Charles Lewen, when he should demand it. And plaintiff averred, that defendant did not take proper care of said letter, but kept the post office so negligently, and took so little care of said letter, that the same, through his neglect and carelessness, want of attention and diligence in the discharge of the duty of post master, so assumed by him, that the letter and the money was wholly lost, and could not be found, and could not be delivered to said Charles Lewen, when demanded, wherefore plaintiff had sustained great loss and injury, in the loss of s^iid sum of money.
    The fifth count averred, that at the time the mail and letter arrived at Tuskaloosa, the defendant was post master there: that the mail containing the letter enclosing the amount of money in bank notes, sealed and directed to Charles Lewen, the property of plaintiff as aforesaid, came to possession of defendant. By reason whereof, it became the duty of defendant safely and securely to keep said letter, and deliver the same, when demanded, to Charles Lewen, to whom the same was directed. Plaintiff further averred, that defendant, not regarding his duty, did not take proper care of said letter, but so negligently and carelessly kept said post office, and took so little care of the letter, that the same, through his mere neglect, carelessness, want of attention and diligence, in the discharge of the duty of post master, so assumed by him, — the said letter, together with the money therein enclosed, was lost, and could not not be found, and could not be delivered, with the amount of money enclosed as aforesaid. And said plaintiff averred, that said Charles Lewen, afterwards demanded in a proper manner and time, that the said letter should be delivered to him, but the same could not be found, and could not be, and was not delivered. And so plaintiff said, that through the mere carelessness and negligence of said defendant, the said sum of money was lost to plaintiff. Wherefore plaintiff said he was injured, &c.
    To the declaration there was a demurrer, which being overruled, defendant plead the general issue: and a verdict was rendered, as appeared by the entry, in the following form: “ That defendant did undertake and assume upon himself, in manner and form as plaintiff had complained against him, and they (the jury) assessed plaintiff’s damages, by occasion of defendant’s non-performance of the said undertaking and assumption, at one thousand and seventy-five dollars, besides costs,” &c.
    Judgment accordingly.
    The bill of exceptions stated, that plaintiff, without introducing any evidence of the establishment of a post office at Louisville, in Alabama, offered evidence to prove, that he had deposited the letter named in the declaration, in the post office, in said place; to which defendant objected, unless it was proved that there was a post office at that place, by higher evidence than the post master, by whom it was proved; which objection was overruled, and defendant excepted. Plaintiff then introduced a witness, and asked him if he was post master at Louisville, to which defendant objected, because there was higher evidence of the fact, that he was post master; which objection the court overruled, and defendant excepted, &c.
    The following is the assignment of errors:—
    1. The court below erred in overruling the demurrer to the several counts of the declare t'.on;
    2. In admitting the evidence objected to, as set forth in the bill of exceptions;
    3. In rendering judgment for defendant in error against plaintiff in error, on the verdict of the jury.
    1st. Because the verdict was uncertain and insufficient ;
    2d. Because it varied from, and was not responsive to the issue joined between the parties;
    3d. Because it found only a part of the matters in issue;
    4th. Because it was a verdict in assumpsit, and not in case;
    5th. Because it did not find the defendant below guilty of the charges in the several counts of the declaration, or any one of them;
    Cth. Because it was neither a general or special verdict applicable to the issue, or issues joined between the parties.

      Peck, for the plaintiff in error.

      Porter, for the defendant in error,
    contended—
    1. That in declaring, in cases like this, the general rule must be adopted, — that essential averments only should be looked for: and as to these, only certainty to a common intent was required.

      The declaration should show enough, to evidence the claim, and not limit ins defence.
    The averments claimed es essential — to wit, that the letter was in the post office; — that it was carried on a mail route ¡ — that the postage was paid; — and the particular description of the bank notes, lost: — were neither requisite to enable the plaintiff to recover, or to assist the defendant in Ms defence. The defendant could be liable without proof of any of these facts; for if proper to be averred, they must be proved. — If the letter came to the possession of defendant, he was liable, whether a post master, or not: and so whether the letter was carried upon a mail route recognised by law, or not. Suppose the letter had been carried upon a mail route, not established by act of congress, could that fact avoid the responsibility of defendant ? Surely not. As to the averment of postage, this was certainly not material; for if defendant usurped the office, he would be liable for the letter; and could not demand the postage, as a condition precedent to its delivery. — The usurpation of the office, per quod, this letter was lost, — is part of the declaration. The particular description of the notes, was not essential in this action. Such description, might be essential in Detinue, but not in the action for mere damages. — 1 Saund. ?. & E. 394, 395, 396; 2 Stewart & Porter, 60; 1 Ohitty’s P. 364, S65, 371, 372, 373; Ibid, 147; 2 Ibid, 152, n. o.; 2 Saund. P. &, E. 74, a. 1.
    2. The proof of the witness being a public officer, was sufficient without the production of his commission. —3 Dane’s Ab. 73; 3'John. 431;' 4 D. & E. 366; 1 Phil. Ev. 179, 180; 6 Binney, 88; 9 Mass. JR, 231; 2 Srta. 1005; 3 D. & E. 632; 3 Wils. 443.
    3. That under the several counts, the judgment was good. The first count charged, that defendant was a post master, and had received the letter, which being demanded, defendant refused to deliver.
    The second count charged, that the defendant, while acting as, and assuming the duties of post master, received the letter: and disregarding the duty he had undertaken to perform, refused to deliver, &c.
    The third count charged, that defendant unlawfully took possession of the letter, and refused on demand to deliver.
    The fourth, that defendant assumed duties of post master, took possession of the letter, and negligently lost it.
    The fifth, that defendant so carelessly kept the office, that the letter was lost, &c.
    The plea was the general issue.
    Here, the defence reached to every count; and of course defended every charge and averment in the declaration. None of these counts put in issue only the mere receipt of the letter. That was one item of the averments; and the court cannot doubt here, but that the jury found this fact. If so, other enquiries arose — what became of the letter — was it negligently lost, or did the defendant refuse to deliver it in violation of his undertaking, when he assumed lo act as postmaster. One of the charges is the assumption of the office. — By this assumption, defendant, as is conténded, became bound for the diligent exercise of its duties. What were these duties 1 One, was to deliver this letter on demand. Wliat say the jury ?— “ Defendant did undertake and assume, in manner and form as plaintiff had complained, and by reason of the non-performance of defendant’s undertaking and assumption,” the damages are assessed, &c. This, of course, is not contended to be a technical finding in the action of trespass on the case; but is it not equal to the issue ? If not so, it must he alone on the ground, that, the entry is in assumpsit. Now, there is certainly more affinity between the actions of assumpsit, and trespass on the case proper, — than between assumpsit and debt: and what says this court as to judgments in the latter action —“ That judgment is entered as in assumpsit, the action being debt, is no error” — Carroll vs Meeks, (3 Porter, 226.)
    The judgment rendered in this case, must have the same effect, as if rendered strictly in case: and this tests its sufficiency — 3 Porter, 229; 1 lb. 15; 3 Stew. & Por. 317; 3 Stew. 29; lb. 38; lb. 192; 1 Chitty’s P. 209, 396.
   GOLDTHWAITE, J.

— In the examination of this case, we shall consider the several questions, in the order in which they have been presented by the argument of counsel; and

1. As to the sufficiency of the several counts of the declaration—

It is insisted that each count is bad, because there is no averment of the establishment of post offices at either Louisville or Tuskaloosa — nor of a post route, between these places — nor of the appointment of a post master at Louisville. If the defendant is not liable for the neglect complained of, unless there were post offices established at these places, a post route designated, and a post master at Louisville appointed, there would be a reason for an averment of each of these facts; but his liability does not, nor can arise out of these or similar matters, as the declaration is framed.

It is charged with great precision in the three first counts, that the letter came to the hands and possession of the defendant, to be delivered to the plaintiff’s agent, to whom it was directed ; and that the defendant failed and refused to deliver it when demanded from him; whereby it was wholly lost. The two last counts aver it to have been lost by the neglect and carelessness of the defendant, after it came to his custody. It is laid down in all the authorities, that whenever the declaration shews a duty or a contract, the action on the case will well lie, although it may be questionable, if it lies for a mere non-feasance. In all cases of deposit, though they are said to arise in contract, there is also a moral duty, to deliver the thing deposited to the owner upon demand—Max vs Roberts, et al, (12 East, 89.)

The case made on these counts of the declaration, shews that the letter came to the hands of the defendant; and thus the law imposes the legal obligation, to deliver it to the owner when demanded, and a neglect or refusal to do so, is a tortious act, for which case will lie.

“ If,” says Judg”e Story, (in Ms treatise on bailment, p. 93,) “ the depository improperly refuses to re-deliver the deposit when it is demanded, he henceforth holds it at his own peril. If, therefore, it is afterwards lost, either by his neglect, or by accident, it is the loss of the depositary ; for he is answerable for all defaults and risks, in such cases.”

It follows from these principles, that the averments contended to be necessary, are not so-; for the accountability of the defendant, does not grow out of any of the machinery incident to the post office department, but from the single act of refusing to deliver to the owner, a deposit in the hands of the defendant for a particular purpose.

It is next insisted, that it should be stated by what bank the notes were issued, in order that the court might be able to judge if it was authorised to issue notes.

The enunciation of this proposition is somewhat startling, when we reflect that there is within the United States, more than three hundred banks. No court could ex cathedra, undertake to determine from the statement made of the name of a bank, that it was authorised to issue bills; and if the averment was necessary, it would introduce great prolixity in pleading, as the mere statement of the names of many different banks, would very much encumber the record. A greater certainty ought not to be required in an action of this nature, than is in an indictment for larceny, of similar descriptions of property. As to such indictments, it has always been held not to be necessary to set out the instruments or bills ver batim, but a description of them, in a general manner, is sufficient — (2East’P. Crown,602,777;) — thus, one bank note for the payment of five pounds, of the value of five pounds, or the like—Rex vs Johnson, (3 M. & S. 539;)— but in actions like this, a much less general description will suffice, as the thing is not recovered, but damages merely, for its loss.

It is further insisted, that the first, second and third counts, are bad, because they do not contain an averment, that the letter was in the office when demanded, or that it had been lost, by the carelessness of the defendant.

The authorities cited, do not shew that this is necessary ; but if it was, the averment is substantially made. Each of these counts alleges the letter to have been given into the hands of the defendant, and that he omitted and refused to deliver it, when demanded. It was not necessary for the plaintiff to allege that he continued to have it in possession. If it passed from the defendant’s possession lawfully, or without a culpable default by him, it was matter of defence which he was bound to shew; and the law will not presume, after it is traced to its hands, that it was not there when demanded from him.

.Another objection, on which great stress has-been laid, is, that no averment is made of the postage having been paid or tendered. No authority has been adverted to, which sustains this position, and the analogies of the law are all against it. There is no question as to the right to detain property subject to a lien, until the lien is discharged; but in no single case, so far as our researches have extended, is it necessary to allege a discharge or tender, in pleading.

The same right of lien, exists in the case of carriers, by land or water, and, indeed, in most cases of bailment: yet in none of the forms used in the books, do we find such an allegation. Even in actions against ship owners, on bills of lading, where the condition is express, to deliver on payment of freight, no tender or offer to pay is ever averred. Indeed, it falls within the acknowledged principle, that all matters of defence, must be pleaded, or given in evidence; and the plaintiff need, in no case, negative a fact which should be advanced by the defendant, as a complete bar to the action. But the position itself is unsound, when applied to the case of things which are lost, because the reward is only due when the thing bailed has been securely kept or delivered.

It would be absurd to suppose that an individual was bound to pay for the transportation of that, which he never had received; or that the depository ought not to be made liable for a tortious act, in' relation to the thing deposited, without a tender of the necessary expenses or reward. The right to detain, wherever a lien exists, is unquestioned, but the mere right will not estop the inquiry into the fact, that the thing has been lost or destroyed.

The last objection taken to the declaration, is, that the fifth count is substantially a count in trover, and therefore bad. It is not perceived that this count, even if in trover, would be insufficient, as that action certainly would lie for money in a bag—Kettle vs Bromsell, (Willis, 118;) and we see no reason why it should not, for money or notes, sealed up in a letter.

But the case of Orton vs Butler, (5 Barn. & Ald. 652,) establishes no such principle as contended for. That was an attempt to introduce the action of trover for money, not distinguishable from any other money; and to substitute the action of trover, for that of money had and received. In that case, it is admitted by the court, that the action would well lie for so many pieces of gold or silver. There never was, nor can there ever be a serious question, but that trover can be brought for bank notes, if sealed up in a letter, as well as for money in a bag—(Bac. Ab. Trover, D.)

2. As to the admission of the evidence objected to—

It is contended, that a witness cannot be permitted to state that lie is a public officer, without producing his commission, because the commission is better evidence of the appointment, than the assertion of the individual. There is nothing in this objection: it has been so often settled, that it is now at rest. Even in cases affecting the lives of individuals, the rule is admitted to prevail—Berryman vs Wise, (4 Term. Rep. 366;) Potter vs Luther, (3 John. 431;) Gordon’s case, (1 East’s P. C. 315 ;) Reed vs Gillet, (12 John. 296.)

3. That no judgment could be legally rendered on the verdict of the jury, such as is stated in the record.

Before we consider this question, we may remark, that we are strongly impressed with the belief, that this verdict, in the words stated, was not returned by the jury which tried the cause; and that it is probably the act of the clerk, in making up the formal judgment on the minutes of the court. If so, it could have been amended by the 'Circuit court, from the verdict itself. But no such power exists in this court at this time, and whatever may be the facts as existing in the court below, we can only look to the record as we find it.

The words of tlic verdict are, on their oaths do say, that the defendant did undertake and assume upon himself in manner and form as the plaintiff hath complained, and they assess the plaintiff’s damages, by occasion of the defendant’s non-performance of the said undertaking and, assumptions, to one thousand and seventy-five dollars.”

The utmost favor has always been extended to verdicts, and they are not construed strictly, as pleadings are; and we find this rule laid down — (Hob. 54.) “ That though the verdict may not conclude formally and punctually in the words of the issue, yet if the point in issue can be concluded out of the finding, the court shall work the verdict into form, and make it serve.”

In the case of Hawks vs Crifton, (2 Burr. 698,) on a writ of error upon a judgment of the King’s Bench, in Ireland, in an action of trespass for assault and battery, the defendant pleaded not guilty, and son assault: to the latter plea, the plaintiff replied, de injuria sua propria, &c. — and issues were joined. The verdict was, “ guilty of the trespass within written,” and judgment rendered thereon. The judgment was affirmed, and the rule laid down in the case in Hobart, is cited with unqualified approbation. It will be observed, that here, by that plea, the fact of the assault was admitted, but there was also another issue on the plea of not guilty, so that there was a direct response to one of the pleas, and a verdict could not have been found for the plaintiff, unless the jury had negatived the defence set up by the defendant’s plea of son assault.

Lord Mansfield says, “ it is very clear what the jury meant, and the verdict ought not to be avoided, though the clerk may have been irregular faulty in point of form.”

In the case of Porter vs Rumery, (10 Mass. 64,) the facts were, that the defendant to a writ of right, pleaded not guilty, and a plea of non tuum and disclaimer, to which the plaintiff replied that the defendant was in possession, and on which issue was joined, as well as on the plea of not guilty. On these issues, the jury returned a general verdict of not guilty: judgment was rendered for the defendant, and the plaintiff prosecuted his writ of error. It was held by the Supreme court of Massachusetts, that the judgment was well enough, for the jury could not have returned the verdict they did, unless they had also passed on the special issue.

The case of Fairfax’s ex’r vs Fairfax, (5 Cranch, 19,) was an action of assumpsit against an executor' — pleas non assumpsit and plene administravit, and issues thereon. The jury found a verdict, which was thus recorded: “ We, the jury, find the issues for the plaintiff, and assess the damages to two hundred and twenty dollars, and ninety-five cents;” Judgment was rendered on this verdict against the executor, de bonis testator is. The Supreme court reversed the judgment, because it was not specially found what assets the defendant had to be administered. Yerdiets rendered on the issue of plene administravit may be considered as an exception to the general rule, from the necessity which arises in the particular case of finding a special verdict for the amount of assets to be administered; as, if there was but ten dollars unadministered, the verdict must be for the plaintiff, but notwithstanding as to the balance beyond the sum found administered, the judgment would only be quando acciderunt. Hence arises the necessity, in this particular case, for the great certainty required.

In the case of Patterson vs the United States, (2 Wheat, 221,) the action was debt, on a bond conditioned that certain merchandise, which had been imported into the United States, and re-shipped, should not be re-landed within the United States, and that the certificates ants' other proof of the delivery of the cargo at some place without the United States, should be produced at the collector’s office at Baltimore, within one year,

The defendant, after oyer, pleaded—

1. Performance;

2. That the merchandise was not re-landed within the United States, and certificates were produced, &c.;

3. A similar defence.

The replication to the first plea, alleged a breach of the bond, by not producing proof, &c. as required by the condition; to which there was a rejoinder* and issue.

There was an issue also on the second plea,

To the the third, there was a demurrer, on which judgment was given for the United States.

On the issues, the jury returned this verdict: “ That the within mentioned writing obligatory, is the deed of the within named Robert Patterson, &c. and they find there is really and justly due upon the said writing obligatory, the sum 23,989 dollars, and 58 cents.” On this yerdict judgment was rendered, which was reversed by the Supreme court; and Judge Washington thus declares the rule : “ A verdict is bad, if it varies from the issqet in a substantial matter, or if it find only a part of that which is in issue. Whether the jury find a general or special verdict, it is their duty to decide the very point in issue, and although the court, in which the cause is tried, may give form to a general finding, so as to make it har-monise with-the issue, yet, if it appears to that court, or to the appellate court, that the finding is different from the issue, or is confined to a part only of the matter in issue, no judgment can be rendered on the verdict.”

“If the jury find the issue, and something more, the latter part of the finding will be rejected as surplusage; but this rule does not apply to a case where the facts found in a verdict are substantially variant from those which are in issue.”

Unless these cases are attentively examined, they will seem to conflict with each other ; but the seeming discrepancy vanishes, when the rule extracted from Hobart is analised. It is not necessary that the verdict should conclude formally or punctually to the words of the issue, but the point in issue must he ascertained out of the finding. In the cases from Burrow and Massachusetts Reports, this could be done, but it could not be done in the case from Wheaton. The issue was, whether a particular act had been done; the jury found a different matter not in issue between the parties.

Let us now apply the rules, ascertained by these cases, to the present issue and verdict. The charge against the defendant is negligence, and the issue is formed on that alone. The jury, instead of finding this issue, return a verdict that the defendant undertook and assumed on himself, in manner and form as the plaintiff had complained, and they assess the plaintiff’s damages, by occasion of the defendant’s non perfoi'íncmcc of the said undertakings and assumptions, at, &c. Now, can we conclude the point in issue, out of this finding ? We cannot, without saying that we will presume the fact, from the mere circumstance that a trial has been had, and a verdict returned. The point in issue was the negligence of the defendant, and this we cannot r,- ¡her from the words of the verdict. The facts found are (to trae the words of Judge Washington,) substantially variant from those which are in issue.

Another rule might he given which will very satisfactorily determine that this verdict is hud.

A verdict to sustain a judgment must be such as an appellate court will direct an inferior tribunal to enter judgment upon. If this rule is founded in principle, (and that it is we cannot doubt,) let the case be supposed of a verdict such as this actually returned, and the court considering it as variant from, or no answer to the issue 3 refuse to enter judgment on it, ought an appellate court to compel them so to do, by mandamus or otherwise ? We think it assuming a greater latitude of construction than has ever obtained.

The view we have taken is also confirmed by the case of Steans vs Burrell, (1 Mason, 153,) in which Judge Story observes, “ that where a verdict is not expressed substantially in the terms of the issue, the case ought to be extremely clear)that should induce a court to make it the ground of a final judgment.” As the verdict is not responsive to the issue for this defect, the judgment of the Circuit court must he reversed, and the cause remanded.


source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    ROSSER VS RANDOLPH.
    1.Although formerly doubted, it has by recent decisions become a settled principle, that chancery will sustain a bill filed by an individual, to enjoin a nuisance,- — which, although it affects him, is also public in its character; — but as one of the tratis-cendant powers of the court, it will be exercised sparingly.
    2.And where the exercise of such a power is desired by a party, it must be satisfactorily shown, that the proposed erection will inflict an irreparable injury, incapable of being adequately compensated in damages; or which threatens, materially, to impair the comfort of the existence of those living near it:— a strong and mischievous case of pressing necessity; and therefore,
    3. Where the erection of a mill would deprive a complainant of the use of a spring of water, and water of as good quality could not be procured by digging in its neighborhoood; or the injury rendered the spring, could not^jje^objji^tgd, by a reasonable amount of labor, — the exercise of the jurisdiction of the court would be complete; as no adequate compensation could be made, to the injured party, for such a privation; and no one can be allowed to use his property in a manner, so seriously prejudicial to his neighbor; but — ■
    4. Where a complainant filed his bill stating, that E was about to erect, or had erected a mill which would affect, injuriously, the health of complainant’s family, and that of the neighbors ; and also injure his spring; — and it appeared from the testimony, that the health of the family was not impaired, and that by digging a ditch two hundred and fifty yards in length, the spring would be protected from the injurious effects caused by the mill, — chancery declined to interfere.
    5. And chancery will not interfere in this extraordinary manner, to sustain or enforce even an undoubted right, capriciously, or pragmatically insisted on.
    6. It seems that the legislative provisions on the subject of erecting mills do not affect the common law right of the citizen; and any person may erect a mill on a stream of water running through his own land, without, the necessity of - an application to the County court. The right is exercised, however, at the peril of the proprietor, and the erection must not affect, injuriously, the rights of others.
    Error to the Circuit court of Tuskaloosa county, exercising chancery jurisdiction.
    Bill to abate a nuisance. In this case, the bill stated that complainant lived on Adams’ creek, a tributary of Big Sandy creek, in said comity; and that Benjamin F. Randolph had purchased of the United States, a tract of land lying on said creek, adjoining the lands of complainant, and had intimated his intention of building a saw-mill thereon, which complainant was apprehensive would destroy the health of the neighborhood, and put in imminent danger the lives of his family. That Robert 1 Martin and Benjamin Rosser, junior, having older and better rights to the establishment of mills, had taken out writs of ad quod damnum for that purpose. That defendant had afterwards taken out a similar writ. All the writs were executed at the same time, and returned to the same special term of the County court, when the applications of Martin and Rosser were granted, and an order to that effect entered of record, and the application of defendant was discharged, and permission to build a mill at the place contemplated by defendant, absolutely refused. That notwithstanding the refusal of the application of defendant, he still persisted in his desire and intention of erecting a saw-mill and dam, on and across said Adams’ creek, at the place he had in view when he made the application, a short distance above a spring of complainant, and about four hundred yards from the residence of complainant, three-eighths of a mile from the residence of Alfred Massingale, three hundred yards from the residence of Josias Rosser, and about eight hundred yards from a negro quarter of said Robert Martin. That the dam which defendant must necessarily erect to make his contemplated mill effective, would back the water, and throw it over about live acres of bottom land, all of which was covered with forest trees and thick undergrowth, the decomposition of which, and the stagnation of water, would, in the opinion of complainant, and others, among whom was a physician of high reputation, whose advice had been obtained, produce disease, and endanger the lives of complainant’s family. If said dam was built ten feet high, which was the height contemplated, it would back the water over the site where Rosser was authorised to build a mill, and when the water was let off, by the act of sawing, or otherwise, from a pond at defendant’s site, caused by a dam of any effective height, the flood would impair by overflowing, if not wholly destroy, the mill-dam, &c. which Martin was authorised to erect. Such letting off of the water would also completely flood, overflow, ruin and render useless complainant’s spring, situate on his land, two hundred and fifty yards below defendant’s mill seat; which spring, if destroyed, would introduce disease and death into complainant’s family, as it was the only spring complainant had on his land, and for the destruction of which, complainant could not be compensated. The mill of defendant was not called for or demanded by the wants of the neighborhood, &c. That defendant, notwithstanding the rejection of his application for the privilege to build a mill by the County court, and in violation of law, still persisted, and was going on to erect his contemplated mill, and had employed workmen, and procured materials for so doing, all of which was contrary to equity, &c.
    The bill prayed for the writ of subpoena, and for an injunction to restrain defendant and his agents from erecting the mill, and also for abating the same if erected, &c.
    Upon hearing the bill, the chancellor said—
    The complainant complains of the intended acts of defendant, as creating a public and private nuisance. Chancery has jurisdiction to restrain the erection of private nuisances—Coulter vs Hunter, et al, (4 Rand. 58;) Tan Bergen vs Tan Bergen, (2 J. C. R. 272;) Lardner vs Newburgh, (2 J. C. R. 164, 165;) Corning vs Lowerre, (6 J. C. R. 439.) An injunction agreeably to the prayer of the bill of complainant, was therefore granted.
    ' The answer of defendant admitted it to be true, that he had bought the lands for the express purpose of building a mill, and that it was situated in a large forest,— that the surrounding land was public land, poor and thinly settled, and of no value, except for the timber it contained. That he bought it at the request of the neighbors, who wanted a mill erected, as the neighboring mills could not supply the demand for lumber. That he had sued out a writ of ad quod, damnum, in the execution of which, the jury had assessed the damages of complainant at twenty dollars, for the overflowing of his spring, and had found that the mill might be erected without overflowing the lands of others, with a dam of ten feet. The jury had also found, that the health of the neighborhood would not be materially annoyed by the erection of the mill; and the said sum of twenty dollars was allowed for cutting a ditch to obviate the overflowing of complainant’s spring. That complainant, and also Benjamin Rosser, junior, and Robert Marlin, were present, and the jury heard fully all their objections. That the writ was returned to the County court, in the absence of defendant, when complainant made himself a party, and the court had improvidently rejected the application of defendant, on the ground, that the health of the neighborhood would be annoyed, notwithstanding the finding of the jury to the contrary, as above stated.
    After defendant had entered said land, for the purpose of erecting said mill, Benjamin Rosser, junior, a son of complainant, also entered a tract of land for the purpose of obstructing and interrupting defendant. — Defendant’s writ of ad quod damnum was also prior in point of time to the writs of Rosser and Martin. That complainant was interested with Martin in the building of his mill, and that the apprehensions concerning the injury defendant’s mill would do to the health of the neighborhood, were only colorable on the part of complainant, as the mills of Rosser and Martin would overflow the lands directly in front of complainant’s house and near to him, and would much more probably induce ill health than the mill or dam of defendant. The answer denied that the mill of defendant could by any means affect, injuriously, the health of the neighborhood, or- that the dam would overflow any other lands than his own, and averred that the mill would be a public benefit, and that its erection would be a violation of no law, and that the distances of the mill-site from the various residences, as mentioned in complainant’s bill, were exaggerated, &c.
    The defendant also demurred to such parts of the bill as were demurrable, and prayed to be dismissed, «fee.
    The evidence shewed that the mill of defendant was ninety rods north of the dwelling of complainant, and Ms spring one hundred yards off in the direction of the mill, which said spring was overflowed when the mill was in operation, and thereby greatly injured, and there was no other spring convenient to the dwelling house of complainant, from which he could be supplied. The extent of ground overflowed, was about three acres, thickly timbered, and the Fall previous, some of the members of complainant’s family, and other persons in the neighborhood, had chills and fevers. The neighborhood had been previously very healthy, but there were four or five other mills now in the vicinity. None of the ill health of the neighborhood was, however, ascribed exclusively to defendant’s mill. The mill was useful in the neighborhood for supplying lumber, and was wanted for that purpose. That the injury to the spring might be prevented by digging a ditch two hundred and fifty yards long, and four or five feet deep at the spring, and that water could be procured in the neighborhood by digging, and that defendant, in defiance of the injunction issued from the court, restraining him from proceeding in the erection of his contemplated mill, had actually completed its erection.

      The chancellor, upon hearing the bill, answer and testimony, decreed, — that that part of the bill which charged the mill to be a public nuisance, was not a suitable matter of equity jurisdiction. That touching the complaint of a private nuisance, or the injury done to complainant’s spring, chancery never interfered even in case of private nuisances, unless where the injury complained of was irreparable in its character, and one for which no adequate remedy could be obtained at law. The case shewed that the injury to the spring might be remedied by digging a ditch around it..
    It was therefore ordered, adjudged and decreed, that the complainant’s bill should be dismissed; but owing to the peculiar circumstances of the case, that the respondent should pay the costs.
    And now, at the present term of the court, plaintiff came and said there was error in the proceedings and decree below, in this, to wit:
    That the chancellor dismissed complainant’s bill; and
    That the decree ought to have been rendered in favor of complainant.
    For all of which, plaintiff prayed a reversal of the decree.

      Crabb & Porter, for plainiiff in error.

      Ellis & Peck, contra.
   ORMOND, J.

— It was made a question at the bar, whether a bill could be filed by an individual to enjoin a nuisance, which, although it might affect him, was also public in its character; and whether the proper mode of proceeding, was not by information.

Although in the case of the Attorney General vs the Utica Insurance Company, (2 Johns. Chan. Rep. 371,) this right is doubted by Chancellor Kent, and was formerly doubted in England, the question appears to be settled by the recent English decisions, and was so determined by this court, in the case of the State, ex rel. of the Mayor and Aldermen of Mobile, (5 Porter, 279.)

Notwithstanding the power of the chancellor to interfere by injunction, in the case of a private nuisance, is unquestionable — yet, it must be admitted, that the control thus exercised over an individual, in the use or enjoyment of his property, is one of the transcendant powers of the Court of chancery — a power necessary to be vested in the court for the security of all, but which should be cautiously and sparingly exercised.

It is difficult, if not impossible, to define, in advance, all the cases in which the court would be authorised thus to interfere; but it may be safely laid down as applicable to this class of cases, that it must be satisfactorily shown, that the proposed erection would inflict an irreparable injury, such an one as could not be adequately compensated in damages; or it must threaten materially to impair the comfort of the existence of those living near it, to entitle those aggrieved to the aid of the preventive justice of the law. But a clear and plain case must be made out.

Both in England and the United States, the Court of chancery is exceedingly unwilling to interfere by injunction, until the nuisance has been established by a trial at law.

In the case of Van Bergen vs Van Bergen, (3 Johns. Chan. Rep. 287,) Chancellor Kent- thus slates the law: “ The cases in which chancery has interfered by injunction, to prevent or remove a private nuisance, are those in which the nuisance lms been erected, to the prejudice or annoyance of a right which the other had long previously enjoyed. It must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law, to entitle the party to call to his aid the jurisdiction of this court/’

Again, in the same case, quoting the opinion of Lord Eldon with approbation., he puts the jurisdiction of the court upon the ground. “ of material injury, and of that special and troublesome mischief which required a preventive remedy, as well as a compensation in damages.” To the same effect is the case of Wingfield vs Crenshaw, (4 Henn. & Munf. 474.) With tills sound and lucid exposition of the law, we entirely agree, and will now proceed to apply its principles to this case.

The allegations of the bill, material to be stated, are, that the defendant wa3 about erecting a mill near the dwelling of the complainant, and that the health of his family, and that of the neighborhood generally, would be thereby endangered — also, that the flow of water from the mill, while in operation, would drown and render valueless a spring on which he relied to furnish himself and his family with pure water. That the defendant had not procured an order of court, authorising him to erect the mill, and prays an injunction.

The injunction was granted, in the first instance, but the defendant, in defiance thereof, proceeded to build his mill, and put it in operation. Its effects on the health of the complainant’s family, and on liis spring of water, are therefore susceptible of proof.

Many witnesses have been examined, but it does not appear from the testimony, that the health of the complainant’s family has suffered by tbs erection of the mill. But it appears very conclusively, that whilst the mill is in operation, the spring of the complainant is overflowed by the rash of water about two feet, and continues so some short time after the mill stops; — and that the water of the spring is injured by the overflow of the creel?, after it has subsided, from the sediment which is deposited. It also appears from the testimony, that by digging a ditch two hundred and fifty yards long, the spring will be protected from the overflow of the creek.

It was decided at the present term of this court, in the case of Hendrick vs Johnson, (6 Porter,) that the legislative provision, on the subject of the erection of mills and other water works, did not affect the common law right of the citizen. That any person has, without application to the judge of the County court, the right to erect a mill on a stream of water running through his land. This right he must exercise at his peril, and in such a manner as not to affect the rights of others.

The question, here, is not whether complainant is injured by the erection of the defendant’s mill;. but whether the injury is of such a character as to entitle him to the interposition of a Court of chancery.

If, by the erection of the defendant’s mill, the complainant was deprived of the use of his spring of water, and water of as good quality could not be procured by digging in its neighborhood, or the overflow from the-creek obviated by a reasonable amount of labor, the jurisdiction of the Court of chancery would be complete — as no adequate compensation could be made for the privation of such an important element of existence as water; and no one should be allowed to use his property in a manner so prejudicial to his neighbor.

The spring appears to be situated almost in the bed of the creek, so that the smallest flood in the creek renders it useless. It however appears from the testimony, that by digging a ditch .two hundred and fifty yards long, and some of the witnesses add, by making an embankment, the spring will be protected from the rise in the creek, caused by working the mill — and it does not appear but that a well could easily be had in its neighborhood. This being the case, we do not see on what principle the jurisdiction of a Court of chancery can be sustained. By the application of labor, the value of which can be ascertained, or which the defendant, if applied to, might be willing himself to do, the spring can be restored to its original state; thereby giving to complainant the full enjoyment of his spring of water, and at the same time securing to the defendant those rights which appertain to him as owner of the adjacent land. A Court of chancery will not interfere in this extraordinary manner, to sustain or enforce even a right capriciously insisted on.

It does not follow, that because the erection of the mill is a nuisance, for which the complainant may have an action on the case, that therefore he is entitled to the interposition of a Court of chancery—Attorney General vs Nichol, (16 Vesey, jr. 338.)

As already stated, to call into exercise the extraordinary power of tile court, “ there must be a strong and mischievous case of 'pressing necessity.” This does not seem to be one of these cases, but is one in which a court of law can afford full and adequate relief.

The decree of the court below is affirmed at the cost of the complainant in the court below, and in this court.


text:
    RANDOLPH VS ROSSER.
    1. A writ of error will not lie to reverse a decree in chancery for costs only; though if the decree be opened for investigation on other points, it may be reformed also in the matter of costs, and
    2. The general rule in chancery is, that costs do not necessarily follow the event of the cause. — The court may direct the costs to be paid by either party, or jointly by both, as justice may require.
    3. Semble, That a question relating to eosts, is a question of practice, rather than principle. Quere de hoc.

    Error to the Circuit court of Tuskaloosa county, exercising- chancery jurisdiction.
    This case is identical with the case of Rosser vs Randolph, immediately preceding.
    From the decree of the chancellor below, a writ of error was taken by defendant to this court.
    The plaintiff in error, assigned as error—

      That the court below decreed that the plaintiff in error should pay the costs, — for which he prayed that the decree, in this particular, might be reversed, <fcc.

      Ellis & Peck, for the plaintiff in error.

      Crabb, contra.
   ORMOND, J.

— This writ of error is prosecuted, to reverse a decree of the chancellor, dismissing a bill in chancery, at the costs of the defendant in the court below. The only error complained of, is, that costs were improperly adjudged against the present plaintiff.

The general rule is, that costs do not, in chancery, as a necessary consequence, follow the event of the cause; but that the chancellor may direct the costs to be paid by either party, or jointly by both, as justice may require.

It has, however, been decreed by this court, that a writ of error will not lie, to reverse a decree for costs only ; but if the decree be open for investigation on other points, it will be reformed also as to the matter of costs—(4 Stewart & Porter, 138.)

No question is made here, but that relating to the costs, and this being a question of practice, rather than of principle, we do not think it proper to disturb the former decisions of this court.

The decree of the court below is affirmed, at the costs of the plaintiff in error.


text:
    ROBERTS VS TAYLOR, et. al.
    1. The endorsement of a note or bond, is a contract within the meaning’ of the "statute against gaming, and
    2. Being within the statute, is void as between the original parties.
    3. What might be the the legal consequence of the endorsement of a uote in such case, in respect to an innocent holder, without notice— Quere.

    4. It may well admit of doubt, whether, independent of all statutory regulations, money won at play may not be recovered back;
    5. And in all cases of contracts arising out of gaming, between the original parties, the courts will interfere, where the money has not been' actually paid.
    Error to the Circuit court of Dallas county, exercising chancery jurisdiction.
    Bill for injunction and relief. The bill stated, that Hives and Yaughn made to complainant a promissory note for one thousand dollars, for a valuable consideration, payable twelve months after date, and that after-wards, while on a visit to Montgomery, complainant fell in company with Taylor and Blevins, who invited complainant to play at cards — prevailed upon him to indulge with too great freedom in inebriating liquors, which impaired the soundness of his judgment, and while complainant was in this situation, said Taylor won from him the note which complainant endorsed to Taylor, who brought suit on it in the Circuit court against the makers. Yaughn, one of the makers, was to have defended the suit under a contract with complainant to indemnify said Yaughn in the costs, but omitted to do so, to favor the interest of Taylor. Judgment was obtained on the note by Taylor, against Yaughn.
    Prayer for subpoenas to answer, and for an injunction to restrain Taylor and his attorney, and all other persons, from proceeding further to collect the amount of said judgment; and that Yaughn be enjoined from paying any person but complainant the sum of money called for by the note, and for other relief. An injunction to that effect was obtained.
    The answer of Taylor stated, that at the time spoken of in the bill of complaint, he, respondent, was dealing a game called Faro for another person, and won of complainant seventy or eighty dollars, which was all the money complainant had. Respondent then desired complainant to cease playing, who refused and insisted upon betting the note mentioned in the hill of complaint. One Blevins then staked a note for one thousand dollars, against the note held by complainant. Respondent avered that the game was played fairly — that complainant was not intoxicated, and that there was no liquor drank in the room. Complainant wanted to bet other notes, and continue playing, but respondent refused to play further, and when respondent advised complainant to desist from further playing, complainant answered that he understood his own business best. Respondent won complainant’s horse also, but restored it to him. Complainant endorsed the note to respondent, without a request to that effect by respondent. The answer denied all fraud, artifice, combination, &c.
    The answer of Blevins stated, that the note was won by one Taylor, at a game called faro, at Montgomery. Complainant seemed to be sober, and the game was played fairly. There was no liquor in the room, and complainant was not solicited to drink, by any person. Complainant proposed playing for the note without solicitation from any quarter, and after having lost the note mentioned in the bill of complaint, endorsed it to Taylor. The answer denied all fraud, artifice, trick, combination, &c. Respondent also demurred to the bill.
    Upon the coming in of the answers, the injunction was dissolved, and the bill dismissed. The chancellor, in his decree, was clearly of opinion that chancery had jurisdiction under the statute, and proceeded to dispose of the case.
    It appeared from the facts, that Roberts fairly lost the note, at a game called faro, and endorsed and delivered it to Taylor. At common law, a wager fairly won might be recovered in a court of law, but equity never interfered, independent of the local statutes. In the case of Rawden vs Shadwell, money was decreed to be paid back to the losing parties, which had been previously paid on a bond given to secure the payment of money won at backgammon, but that decree went exclusively on the ground, that the money was paid on a bond which was declared void by statute. It was doubtful whether equity would, at this day, interfere in a case between gamblers, to a further extent than the jurisdiction given by statute, and where money has been paid on a note or bond given to secure the payment of money won at play, it was very doubtful whether equity would help the party to recover it back.
    In this case, the game was fairly played, and the note fairly won, and the chancellor could make no distinction between a note and money or other property, where the original consideration was not in question, though he did not admit that unfairness was a good ground for the interposition of the court. The rule in 'pari delicto melior est conditio possidentis applied in this case, and he was bound to leave the parties where, by their unlawful proceedings, they had placed themselves. To this effect, the chancellor cited the case of Lee’s adm’r vs Ware— Hill’s So. Ca. Reports.
    The plaintiff in error assigned, that
    The court below erred in dissolving the injunction, and dismissing the bill of complaint.

      Peck & Clark, for plaintiff in error.

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

— If this bill can be sustained, it must be on the ground/ that the endorsement of a note or bond is a contract, within the meaning of the statute, against gaming.

The language of the act is, that “All promises, agreements, notes, bills, bonds, or other securities or other conveyances whatever, made, signed, given, granted, drawn or entered, or executed by any person or persons whatsoever, after the passing of this act, where the whole or any part of the consideration of such promise, shall be for money or other valuable thing laid or betted at cards, &c. shall be utterly void, and of no effect, &c.

That an endorsement of a note or bond is a contract or agreement, entered into by the parties to such endorsement, is a question too clear to admit of doubt, or to require authority to support, and, by necessary consequence, included in the terms of the act above referred to. Being within the act, it is clearly void, as between the original parties to the transaction; whatever might be the legal consequence of such ai» endorsement, in' the hands of a bona fide holder, without notice of the consideration of the original transfer.

This court, in the case of Tindall vs Childress & May, (2 Stewart & Porter,) intimated an opinion, that the case of a transfer or assignment of a note, was not embraced by the statute against gaming; but that question did not necessarily arise in that case, as the plaintiff there was an innocent holder — and the court, after considering the question, say : “ But it is unnecessary to discuss this question, or to collate authorities upon it, as the complainant, from the evidence before us, occupies the place of an innocent holder.” The parties before us, are the parties to the original gaming transaction, and, it seems to us, that not only on principle, but also to carry into effect the manifest object of the legislature, we must declare this assignment such an agreement as is declared void by the legislature.

If, then, the assignment be void, the defendants in error can acquire no title thereby in the note, and the property in it still remains in the complainant.

It is, however, insisted by the defendants counsel, that a court of chancery cannot Interfere, after a judgment at law, where the defence was legal, and might have been made on the trial at law. The principle, as stated, is undoubtedly correct, and has been frequently sanctioned by this court ;■ but we do not think it applies to this case. Without determining what was the intention of the legislature in the enactment, that “ The courts of equity shall have jurisdiction in all cases of gambling consideration, so far as to sustain a bill of discovery, or to enjoin judgments at law,” it is sufficient, in this case, that the plaintiff in error is not concluded, by the omission of Vaughn, the maker of the note, to make a defence at law; nor was Vaughn under any obligation to do so.

It is, then, the naked case of one, without any consideration, obtaining the title to a note, instituting proceedings thereon in his own name, and obtaining judgment. He can be considered in no other light than that of a trustee for the true owner; and the proceeding by bill in equity, enjoining Vaughn from paying over the money, was strictly correct.

It is said that the parties are in pari delicio, and that the court should not interfere between them. We cannot think so. Between the professional gambler, and his deluded victims, there is a great inequality of guilt; but we do not decide on that principle solely. We hold that in all cases, as between the original parties, the courts will interfere, when the money has not actually been paid; and it may well admit of doubt, on principle, though the weight of authority is against it, whether, independent of all statutory regulation, even money won at play may not he recovered back.

That eminent jurist, Judge Story, in his Commentaries on Equity, says: “ But it is difficult to perceive why, on principle, the money should not be recovered back, independent of any statutable provision; since it is in furtherance of a great public policy ; a'nd it is very certain that if money is paid on a gaming security, it may be recovered back, — for the security is utterly void. Is not the or inal gaming contract equally void, and therefore equally within the rule and the policy on which it is founded.” — (See 2 Story’s Equity, and cases there referred to — 303.)

But no final decree can be entered in this court, as Yaughn has never answered; nor have any proceedings been had against him.

The decree of the court below must therefore be reversed, and the cause remanded for further proceedings, in conformity with this opinion.


author: GOLBTHWAITE, J. COLLIER, C. J.

text:
    MADDEN VS BLYTHE.
    1. It is too late to raise an objection, that certain counts were hot properly inserted in a declaration, after pleading to issue.
    2. Where evidence is given, applicable to one count of a declaration, though not applicable to another, a refusal to instruct the jury, as in case of non-suit, is no error.
    3. Where the facts, proved by the plaintiff on the trial of a case, are admitted, and the correctness of the charge of the court, the facts being admitted, is not controverted, — the defendant cannot be allowed afterwards to allege, that the charge of the court determined the facts, and by that means withheld them from the consideration of the jury.
    Error to the Circuit court of Talladega county.
    Assumpsit on the verbal acceptance of a written order for money.
    The declaration contained a special count on the order, and the common money counts. Plea, the general issue, and a verdict for plaintiff.
    The bill of exceptions stated, that on the trial of the case, plaintiff offered in evidence a writing, of which the following is a copy, to wit :
    “ Mr. Z, Madden — Dear Sir: You will please settle five hundred dollars with Mr. Stephenson, it being the amount received of him on your bills. A balance of fifty-five dollars, you will please remit soon, as we are in great need. 17th September, 1835.
    “ J. & S. Christian,
    “ J. G. Revis.”

      A witness was introduced on the part of plaintiff, who testified that at the instance of Christian and Revis, he presented the paper, of which the above is a copy, to defendant, Madden, who stated that ho owed the plaintiff that amount, but that the plaintiff owed him, said Madden, a store account, and that he owed the plaintiff for cleric hire. The witness further strded, that the plaintiff and the defendant were not upon speaking terms, and were very inimical to one another: that there was an account to settle between them, and that the plaintiff died, without the parties ever having had a settlement— which was all the testimony introduced.
    Upon this testimony, the defendant moved the court to instruct the jury as in case of a non-suit, which motion was by the court overruled, — whereupon, the court instructed and charged the jury, that as the defendant had acknowledged he was indebted to Stephenson, and the counsel for the plaintiff, having stated that the store account of the said Stephenson with the said Madden, amounted to something over fifty dollars, which they were willing to allow, the defendant was entitled to recover. The charge and opinion of the court were excepted to.
    Plaintiff in error assigned, that the court erred—
    1. In overruling the motion of the defendant below, for a non-suit, because there was clearly not sufficient evidence to support the first'count in the declaration, and the second count was a nullity.
    2. The court erred in giving the instruction to the jury, because it was unconditional and peremptory: — the amount of Stephenson’s debt to Madden, was assumed without proofand the court determined the question of fact, whether the defendant owed the plaintiff anything.
    3. The court erred in giving the charge to the jury, as specified in the hill of exceptions.

      Brown, for the plaintiff in error.

      Peck Sf Clark, contra.
   GOLBTHWAITE, J.

— There is no error in the refusal of the court below to instruct the jury, as in case of non-suit; for, admitting the evidence was insufficient to establish the acceptance o.f the order declared on, specially; yet it was proper to be received on the money counts, and the party is too late, after pleading to issue, with the objection, that these counts were not properly inserted in the declaration. If such was the case, we should be compelled, continually, to decide in this court, all the questions which arise when there is a variance between the writ and declaration.

We do not wish to be understood as admitting, that it is irregular to file the money counts, when the action is brought on a written instrument, and that alone is endorsed on the writ. That question need not be decided, until it is presented for adjudication.

But it is insisted, that the charge of the Circuit court determined the facts of the case, and withdrew them from the consideration of the jury. We cannot arrive at this conclusion, from the statement in the bill of exceptions. It frequently happens, in practice, that counsel and parties admit, or do not question, the facts in evidence, but request the instruction of the court, on the law arising from them, as if they were assumed to be true. In this case, it is evidently so, for on no other reason could the request have been made to non-suit the plaintiff. It was as much as to say, the facts in evidence are admitted, but they constitute no legal cause of action.

This view of the case is sustained by the whole bill. All the evidence is stated, and no question is made either as to its admissibility or truth. To permit the party now to allege that the charge was given, not on the law, but the facts of the case, would be productive of no beneficial results. The correctness of the charge, admitting the facts to be true, is not controverted, nor indeed could it be, as no issue was made by the pleadings, under which a set-off could be given in evidence without notice, and the allowance of it by the plaintiff, was a favor accorded to the defendant, and was not a right which he could insist on.

The judgment must be affirmed.

COLLIER, C. J.

— With all deference, I am constrained to dissent from the opinion pronounced by his Honor,, Judge Goldthwaite.

The Circuit judge, in his charge to the jury, employs this language: “That as the defendant had acknowledged he was indebted to the said Stephenson, and the counsel for the plaintiff, having stated that the store account of the said Stephenson with the said Madden, amounted to something over fifty dollars, which they were willing to allow that the plaintiff was entitled to recover,” &c. The defendant’s acknowledgment was not made by him personally in court, but was proved by a witness who gave evidence on the trial.

Now, it seems to me, that the judge assumed every fact embraced in his charge, as conclusively shewn, without leaving it to the jury to make their own inference, from the testimony they had heard. And though from the facts set forth in the bill of exceptions, the jury would doubtless have attained the same conclusion as was expressed by the Circuit judge, — I yet think his charge obnoxious to the law, which declares that “ The judges of the Superior and Inferior courts shall not charge juries with respect to the matters of fact, but may state the testimony, and declare the law” — (Aik. Dig. s. 134, pp. 283


author: COLLIER, C. J.

text:
    COGGINS VS THE STATE.
    1. In an indictment for playing at cards, under the statute, it is sufficient if the indictment allege, thatdefenclantplayed at cards at a store-house for retailing spirituous liquors, — without an averment, that he played a game at cards ; or that he played a game with any person.

    Error to the Circuit court of Autauga county.
    Indictment, for playing at cards, under the statute.
    The indictment charged, that defendant, on a certain day, in the county aforesaid, “ did then and there play at cards, at a store-house for retailing spirituous liquors, to wit, the store-house of Wiley Coggins, 'there situate, contrary to the statute in such cases made and provided, and against the peace and dignity,” &c.
    Defendant demurred, and for cause of demurrer, said that—
    1. The indictment did not allege, that defendant played a game at cards, with any person at a store-house, for retailing spirituous liquors ;
    2. That the indictment did not shew, that the defendant played a game of cards with any person.
    The demurrer was overruled, and defendant plead “not guilty.” Yerdict, “guilty.”
    The defendant here assigned for error—
    That the Circuit court ought to have sustained his demurrer, for the reasons therein contained.

      Dargan, for the plaintiff in error.

      Attorney General, contra.
   COLLIER, C. J.

— The first question raised, was brought directly to the view of the court, in the case of the State vs Holland, et al, (3 Porter’s R. 292.) There, the indictment charged the defendants with playing at curds, and the court determined that it was in conformity with the statute which prescribed its requisites.

in regard to the second point, it must depend upon the statute on which the indictment is founded. The first section of the act of eighteen hundred and twenty-eight, subjects to a criminal prosecution, any person who shall play at any tavern, inn, store-house for retailing spirituous liquors, &c. at any game or games with cards or dice. The second section enacts, that it shall be sufficient for the indictment to charge, that the person or persons offending, did play at cards or dice (as the case may be) in some of the places above specified, without stating what description of game, or without stating that money or any other thing was bet upon the event of the game; and upon making proof of the charge prescribed by the statute, it shall be considered, that the of-fence is made out without proving what the game was or is called, or without proving that any thing was bet thereon. It was certainly a desideratum in the enactment of this statute, to suppress the very prevalent vice of gaming, in places of public resort; and that this intention might be the better advanced, great latitude was allowed in framing the charge. It is not even necessary to allege every thing which is essential to constitute the offence. For instance, one may be charged with playing at cards or dice, yet it must be shewn that he played a game, though it is not required of the prosecutor to shew What it is, or was called.

The second section, in enumerating the requisites of an indictment, does not declare that it shall be alleged with whom the accused played at cards or dice; and as it •probably prescribes what is sufficient, it would be going quite beyond all precedent, if not transcend our legitimate authority, to maintain that the legislature have not correctly pointed out what the indictment must contain.

It seems to us, that both the letter and policy of the act we are considering, so forcibly negative the necessity of the averment, which the defendant deems material, as to place the question beyond doubt. Here is a general description of an offence, in the words of the statute, and nothing more can be required—Huffman’s case, (6 Rand. R. 685.)

Besides — Is it quite certain that there is no game at cards, which one person could not play alone, especially if he was stimulated by another to bet with him 1 If there be none already known, the astuteness of the professed gamester, surely will be competent to the task of devising one, whenever it shall be ascertained that it is not obnoxious to legal penalties.

In every point of view in which this case has presented itself to us, we think it free from error, — and it is therefore affirmed.


author: GOLDTHWAITE, J.

text:
    STEEL VS WORTHINGTON.
    1. In an action of detinue, for the’ recovery of a slave bought b3r plaintiff at a constab'e’s sa’e, but which was afterwards sold by the defendant, in the execution, to the defendant in d,.tinue, —evidence of general notorietv, that the s’are had been purchased at the constab'e’s sn'e by the plaint if, when offered to raise a presumption of a know’edgo of p ai»tiff's c aim to the slave, on the part of defendant in detinue, is not admissible.
    2. But in such an action, the bill of sa’o of the s’ave, executed by the coustab'e to the purchaser, is adrnissib'e, as conducios to prove a title in the p aintiff, and as evidence to prove the fac-tum of thesa'e; and it is not necessary to the introduction of such evidence, that it shou’d be made to appear, that a judgment and execution had been obtained against the defendant in the execution, whose property was sold. '
    Error to the Circuit court of Jefferson county.
    Detinue for the recovery of a slave. Plaintiff declared against defendant, of a plea that he render to him a certain negro slave named Lawson, the property of plaintiff, and which defendant unjustly detained,&c. — to which defendant plead —
    1. Non detinet;

    2. Non detinet infra sex annos;

    3. Actio non accrevit infra sex annos.

    Upon the issues, thus framed, there was a verdict for defendant.
    The hill of except ons stated, that on the trial, plaintiff prove! the rx-'1 nt'on of a regular hill of sale, under seal, nimio. b> u ifi.u'4T>]e ■■ifllu tonuiy, to ike plaintiff, us purchaser of the slave in controversy, at a public sale by said constable, pursuant to statute, in the discharge of his official duties by virtue of sundry executions from a justice of the peace of said county''against one Reid, under whom defendant also claimed by subsequent purchase ; and offered the same thus proved, m evidence,’ as conducing to shew title in himself to said slave, which evidence, the court, upon the motion of the defendant, excluded from the jury; and the plaintiff excepted.
    In the further progress of said trial, the plaintiff proved possession of the sa d slave in himself, for five or six days, a short time previous to the commencement of the present suit, that the said slave went to town (where defendant and said Reid both resided,) by permission of plaintiff’s overseers, with instructions to return home in a seasonable time, which he failed to do. It also appeared in evidence, that about the time the said slave went to town, as aforesaid, he went into the possession of said Reid, who sold and conveyed him soon after to the defendant.
    At this stage of the case, the plaintiff, for the purpose of raising a presumption of notice to defendant, of plaintiff’s claim to said slave, offered to prove a general notoriety in the town, that plaintiff was the owner of said slave, before and at the time of said sale, by Reid to the defendant; which evidence, the court, on motion of defendant, excluded from the jury, and the plaintiff excepted.
    And at the present term, plaintiff assigned for error, that—
    The court below rejected the evidence offered by the plaintiff, as shewn in the bill of exceptions.

      Crabb & Capers, for the plaintiff in error.

      Peck & Clark, contra.
   GOLDTHWAITE, J.

— At the trial of this cause, in the Circuit court, the plaintiff offered in evidence, and proved the execution of a bill of sale for the slave in controversy. The bill of sale is stated to have been regular, made by a constable to the plaintiff, as purchaser of the slave, at a public slale, pursuant to law, in the discharge of his official duties, by virtue of sundry executions from a justice of the peace, against one Reid, under whom the defendant also claimed by subsequent purchase. The court excluded this bill of sale, but its reason for so doing is not stated.

That this evidence was proper to be admitted as conducing to prove a title in the plaintiff, cannot, we think, be denied, without violating the rules of law. So far as this evidence tended to prove the factum of a sale by the the constable, it was certainly as regular and proper to be admitted, as the declaration of witnesses to the same fact. The legal effect of this act of sale, is not the question which appears to have been decided by the court; and if the case turned on this point, it should so appear on the record. It was not necessary, to the introduction of this evidence, that it should first be made to appear that a judgment and execution had been obtained against Reid, for there were many other cases, in which the mere factum of a sale would be properly in evidence. As if after a sale had been made by a constable without color of authority, the person whose property had been sold, was to ratify the act, or receive the money arising from the sale, knowing of the purchase payment of another. These cases are mere illustrations, to shew, that the bill of sale might properly he admitted in evidence, in cases where no judgment or execution existed. We do not undertake now to determine, that cases may not exist where it would be proper for a court to disembarrass the questions before a jury, by the exclusion of a paper title, which was not regularly deduced, and which could be evidence for no purpose; but even in such cases, it should clearly appear that the evidence could have no bearing on the case before the jury.

The evidence excluded by the court below, might have had no effect on the rights of the parties, and if so, the court should have charged on this point, but it should not have been rejected or excluded without distinctly shewing the reason for its exclusion.

The question as to the rejection of evidence of general notoriety, was rightly determined by the Circuit court. General notoriety, public rumor, general reputation, etc. etc. are too uncertain to have any legal effect whatever, in the determination of the rights of individuals; and the cases in which hearsay evidence is proper to be admitted, are clearly defined and laid down in the books. This is not such a case as authorised the introduction of this species of evidence.

The judgment of the Circuit court is reversed, and the cause remanded.


text:
    LEGATEES OF HORN VS GRAYSON.
    1. Appraisers of the property of a decedent, are to return their appraisement to the County court, on oath; aud although the record does not disclose the fact that it was sworn to, yet on error,such will be presumed to be the case.
    2. The judge of the County court is authorised, by statute, to grant an order for the sale of the crop, in such manner as may seem reasonable, aud the interests of the estate may require.
    3. Where an executor or administrator seeks a settlement of his accounts, the law requires, that tl e vouchers si a 1 be pres n-ted to the judge of the County couit, who shall hear, examine and state them, and report them for al/otvance. The judge then must cause notice, for at least forty days, previous to further action on the accounts, to the end that all persons interested may examine, and, if necessary, prepare to contest them.
    4. And in such case, the record must show, that the requisitions of the statute have been comp icd with : unless dispensed with by the appearance of parties.
    5. Where accounts have been audited, examined and stated as the 'aw requires, and a! owed after due notice,— the sett cment is binding on a 1 persons interested, and there is no authority for re-examination.
    6. Where the record docs not shew that an exception was taken to a decision below — the objection will be considered as waived.
    Error to the Circuit court of Wilcox county.
    This was an appeal from the action of the County court, on the settlement of the accounts of an executor. The opinion of the court in the case, sufficiently exhibits the matter at issue between the parties.
   ORMOND, J.

— This was an appeal from the County court of Wilcox count}7, to the Circuit court of that county, on the final settlement of the accounts of the defendant in error, as the executor of A. C. Horn.

In the Circuit court, the following errors were assigned :

1. The court erred in receiving the inventory and ap-praisement of said estate, without being sworn to;

2. The court erred in receiving the account of sales of the property belonging to said estate, the same not being sworn to;

3. The court erred in permitting the said Grayson to sell a part of the personal property at private sale;

4. The court erred in auditing and allowing the accounts of the said Grayson, at the same term;

5. The court erred in receiving the account current of the said Grayson, ex'or, the same not being sworn to;

6. The court erred in not permitting the heirs and legatees of the estate of A. C. Horn, to go into an examination of all the vouchers and accounts of the said Gray-son, at the time of the final settlement;

7. The court erred in declaring a balance in favor of the said Grayson.

The Circuit court affirmed the judgment of the County court, from which a writ of error has been prosecuted to this court.

The matters to be considered here, are the parts of the record brought to our notice by the assignments of error in the Circuit court.

The first three assignments of error are not well taken. The statute requires the appraisers to return the appraisement on oath, and although the record does not disclose the fact that it was sworn to, it must be presumed that such was the fact.

The second assignment of error is not sustained by the record.

It is sufficient to remark, in reference to the third assignment, that the fifteenth section of the act on this subject, authorises the judge of the County court “to grant an order for the sale of the crop, in such manner as may seem reasonable, and the estate may require.” Nothing seems to have been done in this case which the statute did not authorise.

The fourth assignment of error is well taken.

By the twenty-seventh section of the act entitled “Executors and Administrators,” (Aik. Dig. 182,) it is provided, “ That the Chief justice of the Orphans’ court is empowered to take, receive and audit all accounts of executors, administrators and guardians.” — “ And the said Chief justice, after auditing such accounts, and causing them to be properly stated, shall report the same for allowance, to the next term of the Orphans’ court, the executor, administrator or guardian, giving at least forty days notice of his intention of having such account presented at the said court for allowance at such term, by posting up notice,” &c.

By a subsequent act, (pp. 252, s. 33, Aik. Dig.) it is enacted, “ That hereafter, it shall be the duty of the judges of the County court, in their respective counties, to give the notice now required by law to be given by executors, administrators and guardians, of the term of said court at which any executor, administrator or guardian may be required by said judge to present for allowance, bis settlement or account current, made as prescribed by law, in vacation.”

If an executor or administrator wishes to settle his accounts, this law makes it his duty to present his vouchers to the judge of the County court, whose duty it is to hear, examine and state them, and report them for allowance. It is then made the duty of the judge, to cause notice or advertisement to be given be made in the mode described in the act, at least forty days previous to any further action on the account. The object of the law is manifest. The account is to be stated — that all persons interested may examine it, and prepare, if necessary, to contest it. As the County court is one of special and limited jurisdiction, it is necessary that the record should show that the requisitions of the act have been complied with, unless they are dispensed with by the appearance of the parties.

At the April term, eighteen hundred and twenty-eight, there was this entry made on the minutes of the court: “Squire G. Grayson, executor of the last will and testament of Andrew C. Horn, applied for an annual settlement of his accounts: wherefore, it is ordered by the court, that notice be given by advertisement at the door of the court house, and three other public places in the county, requiring all persons interested in said estate, to appear at the court house in Canton, on the second Monday in June next, if they think proper; as at that time his vouchers will be examined, audited and determined.”

It is plain that this is not a compliance with the law; there is no room left here for presumption; instead of being examined and audited before advertisement'— those matters are postponed to the final settlement. On the second ¡Monday in June, the account was audited and allowed, and ordered to be recorded, no evident e appearing on the record that the notices of the settlement for forty days previous had been made.

On the ninth March, eighteen, hundred and twenty-nine, certain vouchers of the defendant, numbered from forty-one to fifty, were examined and ordered to be filed in the office for settlement. No further notice is taken of this account, and yet this account is afterwards found in his general account, on final settlement, as having been previously allowed.

On the ninth August, eighteen hundred and thirty, the record states that in pursuance to previous notice, (he defendant submitted his voucher, numbered from fifty-one to sixty-one, which were examined, audited and allowed against said estate.

On the twenty-eighth July, eighteen hundred and thirty-one, the defendant having been attached to compel a final settlement, an order similar in all respects to the former, is made, auditing and allowing the residue of his accounts.

These proceedings, not being in conformity to the requirements of the statute, cannot be sustained. If the objection could be surmounted, that the accounts of the executor were never audited, examined and stated, as the act requires, the record does not disclose that any notice was ever given of the time when the act ounts were to be presented for the final action of the court. This objection is fatal.

The fifth assignment is not sustained by the record.

Upon the final settlement of the executor, under the attachment, the legatees appeared by counsel, and moved the court to go into an examination of all the vouchers and ac. omits before that time audited and allowed; and also moved t.ie court to exclude certain accounts offered for allowance, on the ground, that it did not appear, except by the oath of Grayson, that the accounts had been presented within the time required by law, which motions were refused by the court. There was no error in refusing the motions. If the accounts had been audited, examined and stated, as the law required, and allowed after due notice, they would have been binding on all, and there would have been no authority for a re-examination. Nor was there any ground for refusing to allow the claims of the executor for debts paid. If, in truth, they had been paid after they were barred by the statute of non-claim, that fact should have been shown by those who objected to their admission.

But if the court had erred on both points, the question would not now be open for revision. The record does not shew that any exception was taken to the decision of the court, and therefore the objection must be considered as waived. There was, therefore, no error, as supposed by the sixth assignment.

The striking abalance by the court, in favor of the executor, on the settlement of his accounts, cannot be consumed to be a judgment against the estate, and therefore is not error.

The judgment of the Circuit court must he reversed, and the cause remanded to the Circuit court, that that court may direct the County court to proceed to audit, examine and state the account of the executor, and after advertisement according to law, to allow or reject the same.


text:
    RUSSELL, et al. VS PEIRCE.
    1. The Supremo court has no jurisdiction of a case brought up by writ of error, for reversing an order of the Circuit court, exercising Chancery jurisdiction, dissolving an injunction,— and the proper mode of bringing up such a case, is by appeal from the order of dissolution.
    2. The statute of January, eighteen hundred and thirty-six, is an enabling statute, and gives a remedy which was not before provided, — and a party desirous of availing himself of it, must pursue the directions of the statute.
    Error to the Circuit court of Jefferson county, exercising Chancery jurisdiction.
    Bill to restrain proceedings at law.
    An injunction was ordered; which, on the coming in of the answer, was dissolved.
    The chancellor dissolved the injunction, on the ground that the answer of David Peirce denied the allegations made in the bill, so far as to entitle him to proceed in his action at law; and because it was further shewn, that complainants had taken no steps to procure testimony, since the previous term of the court.
    From this order, the plaintiffs took out their writ of error, returnable to this court.

      And at the present term, the plaintiffs in error assigned for error—
    That the chancellor erred in dissolving the injunction, and decreeing that the defendant in error he allowed to prosecute his action at law; for which reason, plaintiffs prayed said decree might he reversed, and said injunction reinstated, and the cause remanded for a final hearing in the court below, upon the equities of the case.

      E. W. Peck, for the plaintiff in error. But

      W. K. Baylor, contra
    — moved a dismissal of the writ of error; and argued that an appeal was the only mode, by which the decision of a chancellor dissolving an injunction, could be corrected.
   COLLIER, C. J.

— The writ of error, in this case, is sued out to reverse an interlocutory order of the Circuit court of Jefferson, dissolving an injunction theretofore granted, at the instance of the plaintiffs. The defendants counsel has moved its dismission upon the ground, that the case should have been brought up to the first term of^’this court succeeding the dissolution of the injunction.

There was'no right of revision allowed in a case of this kind, previous to January, eighteen hundred and thirty-six—(6 Cranch’s R. 51; Ala. R. 13, 101.) By a statute then enacted, it was made “ lawful for the complainant to take an appeal from such order of dissolution to the Supreme court; and whenever such appeal shall be taken to the Supreme court, from,” &c. “ it shall be heard and determined at the next term of the Supreme court, io all cases whatsoever.” Without pretending to determine whether a case like the present could only be determined at the term of the court to which it was returned, we think it clearly appears that the cause has not come here in such manner as to authorise us to entertain it. The act, we have shewn, is aa enabling statute, and gives a remedy which was not before provided for the case; and if a party would avail himself of it, he must pursue the directions of the law. What is that remedy ? Not that the complainant shall have a writ of error, but that he may “ take an appeal.” This mode of bringing the case here has not been adopted. The court has no jurisdiction of the cause as presented, and do therefore direct it to be dismissed.