text:
    MEAKINGS, et al. VS OCHILTREE, et al.

      As to the action of debt, on a bond conditioned for the performance of covenants.

      As to the construction of the statute of 1824, regulating proceedings on penal bonds,

      1. The action of debt is a proper remedy, on a bond conditioned for the performance of covenants.
    2. The construction of the statute of 1824, “regulating proceedings on penal bonds,” must be controlled by the decisions which have been made under the 8th section, of the 8th and 9th Wm. 3.
    In error to the Circuit Court of Sumter county,
    Benjamin H. Meakings and James B. Burnet, co-partners as merchants trading together, under the name and style of B. H. Meakings and Company, plaintiffs in error, at the Spring term of the Circuit Court of Sumter county, in the year one thousand eight hundred and thirty-six,, declared against William B. Ochiltree and Willis J. Roane, defendants in error, in an action of debt, viz: of a plea that they render to plaintiffs,, the sum of four thousand dollars, which they owed to. and unjustly detained from them. For that, whereas, the said defendants, theretofore, to wit: on the sixteenth day of October, in the year of our Lord, one thousand eight hundred and thirty-four,, at,-^-towit, in the county aforesaid, by their certain writing, obligatory, sealed with their seals, and shewn to the Court there, the date whereof, was a certain day and year therein mentioned, to wit, the day and year aforesaid, acknowledged themselves to he held, and firmly bound, unto the said plaintiffs, in the sum of four thousand dollars, above demanded to be paid to the said plaintiffs; which said writing obligatory, was subject to a certain condition thereunder written, whereby, after reciting, to the effect following, viz: “That whereas, the said William B. Ochiltree, stood indebted to the said B. H. Meak-ings and Company, to the amount of three thousand, eight hundred and twenty-four dollars, and four cents, for which said debt, the said B. H. Meak-ings and Company, held two promissory notes, drawn by the said William B. Ochiltree, payable to the order of the said B. H. Meakings and Company, negotiable and payable at the Branch of the Bank of the United States, at Mobile, to wit, one note for the amount of two thousand one hundred and eighty-six dollars and ninety-six cents, dated the twenty-second day of January, in the year of our Lord, eighteen hundred and thirty-four, and payable twelve months after the date thereof: the other note, for the amount of one thousand six hundred and thirty-seven dollars and eight cents, dated, the eighteenth day of March, in the year of our Lord, eighteen hundred and thirty-four, and paya-,. ble twelve months after the date thereof. And that whereas, the said B. H. Meakings and Company, had agreed to give further time, on the said notes, and that no suit should be commenced on said notes, against the said William B. Ochiltree, provided the condition of the obligation should be complied with, according to the true intent and meaning thereof” It was conditioned, that if the said William B. Ochiltree, should and did, well and truly, on or before the first day of February next, after the date of said writing, suffer, allow’ and permit Peter Doty, as the agent of the said B. H. Meakings and Company, to select from all the notes and accounts, that might be due and. payable to the said William B. Ochiltree, on the first day of January next, after the date of the said writing obligatory, an amount of notes and accounts, equal to the sum of the two promissory notes, before mentioned, held by the said B. H. Meakings and Company, against the said William B. Ochiltree, to wit, the amount of three thousand eight hundred and twenty-four dollars and four cents, that the said Peter Doty, might hold and collect, according to law, and apply the same to the payment of the said debt, due from the said William B. Ochiltree, to the said B. H. Meakings and Company, then that obligation should be void, otherwise to be and remain in full force and effect, as by the said writing obligatory, and the condition thereof, would more fully and at large appear. And although the said Peter Doty, agent for the said B. H. Meakings and Company, was at all times ready and willing, to select before the first day of February next, after the date of the said writing obligatory, from all the notes and accounts, due to the said William B. Ochiltree, an amount of notes and accounts, equal to the sum of the two promissory notes, above mentioned, and although the said agent did, on the first day of February next after the date of the .said writing obligatory, at, — to wit, in the county aforesaid, demand from the said William B. Ochil-tree, all his notes and accounts, that were due and payable to him, on the first day of January next, after the date of the said writing obligatory, aforesaid, that the said Peter Doty, agent, &c. might select from all said notes and accounts, an amount equal to the amount of the two said promissory notes, and hold and collect them according to law, and apply the same to the payment of the said debt, according to the said condition, at, — to wit, in the county aforesaid, and although the said plaintiffs, had given further time to the said William B. Ochiltree, for the payment of the sum of money, in the said promissory notes above described, and had not brought suit upon the same, and had fully and in all respects complied with their agreement, for the forbearance of payment of said debt, due to them from the said William B. Ochiltree, at, — to wit, in the county aforesaid, yet the said William B. Ochiltree, did not and would not, on or before the first day of February next after the date of said writing obligatory, at-to wit, in the county aforesaid, suffer, allow and permit, Peter Doty, agent as aforesaid, to select from all the notes and accounts, that were due and payable to him, the said William B. Ochiltree, on the first day of January, next after the date of the said writing obligatory, an amount of notes and accounts, equal to the sum of the said promissory notes, in the. said condition mentioned; but collected the said notes and accounts himself, at-to wit, in the county aforesaid. By means of which said premises, the said plaintiffs, in the said condition mentioned, to wit, B. H. Mcakings and Company, had sustained damages to a large amount, to-wit, in the amount of four thousand dollars. By reason of which said breaches, the said writing obligatory became forfeited, and an action had accrued to the said plaintiffs, to demand and have, of and from the said defendants, the said sum above demanded. Yet the said defendants, although often requested so to do, had not as yet paid, the said sum of money above demanded, or any part thereof, to the said plaintiffs, or otherwise, according to the said writing obligatory and condition; but to pay the same had hitherto wholly refused, and still did refuse — to the damage of said plaintiffs, &c. — and therefore, they brought their suit, &c.
    To this declaration there was a demurrer, and joinder in demurrer.
    The Court below sustained the demurrer, and plaintiffs took their writ of error.
    It was assigned for error in this Court,—
    1. That the Court bélow erred in sustaining defendants demurrer to plaintiffs declaration, on the ground that the action would not lie upon the cause of action therein set forth.
    2. That said Court erred in rendering judgment for defendant.

      Ellis & Phelan, for plaintiffs in error.
   COLLIER, J.

The plaintiffs in error brought debt against the defendants, in the Circuit Court of Sumter, upon a bond — in which they acknowlege themselves to be held and firmly bound unto the plaintiffs, in the sum of four thousand dollars, with a condition thereunder written, in which it is recited, that the defendant, Ochiltree, was indebted to the plaintiffs on two promissory notes; the dates, amounts, and times of payment of each, are respectively given. It is further stated, that the plaintiffs had agreed to give further time, and not to sue the defendant, Ochiltree, on his notes. In consideration of which, Ochiltree had agreed, that he would •on the first day of February, next succeeding the date of the bond, “ suffer, allow and permit,” Peter Doty, as the agent of the plaintiffs, to select from all the notes and accounts that might be due the defendant, Ochiltree, on the first day of January next preceding the day of selection, an amount equal to his notes to the plaintiffs.

The declaration charges the refusal of Ochiltree to permit the selection to be made from his notes and accounts, and contains all proper averments.

To this declaration the defendants demurred, and their demurrer was sustained by the Circuit Court; and the plaintiffs bring their case here for revision.

It is agreed by the parties, that the only question to be raised in this Court is, whether debt is maintainable upon the bond declared on.

At Common Law, the penalty of a bond, conditioned for the performance of covenants, was held to be the debt, and the usual mode of declaring, was upon the bond merely; to which the defendant, if he relied upon a satisfaction, after craving oyer, and setting forth the bond and condition, pleaded performance; to this the plaintiff replied, a breach of one of the covenants; and upon issue joined, and proof of such breach, the plaintiff recovered a judgment for the penalty, without regard to the damages he had sustained. To be relieved from such judgment, where the penalty exceeded the damages, the defendant was forced to resort to equity, for relief, — there, an issue of quantum damnijicatus, was directed, and the amount for which the execution was allowed to be enforced, was graduated by the damages to which the plaintiff was justly entitled.

To enable Courts of law to administer justice definitively and prevent circuity of action, the statute of 8 and 9, Wm, 3, c. 11, s. 8, was enacted,— which requires the plaintiff to “assign as njany breaches as he shall think fit,” and the jury are required to assess, “not only such damages and costs as have been heretofore usually done in such cases, but also damages for such of the assigned breaches, as the plaintiff shall prove to have been broken; and like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions.” The form of the judgment, still is, that the plaintiff recover the amount of the penalty of the bond, dischargeable by the damages ascertained by the verdict.

But, notwithstanding the statute authorises Courts of law to afford to a defendant the relief, which equity alone could previously give, yet the penalty of the bond, is still considered to be the debt, — in fact, the form of the judgment, clearly indicates this, (1 Saunders R. 58, C, note e. and cases there cited.) And, as at common law, debt would lie upon a bond for the performance of covenants, it is still a proper remedy. (2 Selwyn’s N. P. 517. Phil. ed. of 1808. 12 Johns. R. 216. 13 Johns. R. 189. 3 Blackford’s R. 499.)

The first section of our own statute of eighteen hundred and twenty-four, “regulating proceedings on penal bonds,” is almost a literal transcript of the 8th section of the 8th and 9th Win. 3, already quoted, and has been holden by us, to require the same proceeding and form of judgment. The decisions which have been made under the latter, must control the construction of our statute; and these have ■determined that bonds, such as the one under consideration, may still be sued on in an action of debt.

The judgmént is reversed, and the cause remanded.

HOPKINS, C. J. not sitting.


source: Caselaw Access Project

author: COLLIER, J.

license: Public Domain

text:
    CLARLITKO VS ELLIOTT.

      As to a contract for a sale of the lands of an Indian reservee, located under the treaty of the 24dh March, 1832, betioeen the United States and the Creek Indians.

    1. A contract for the sale of his land, by an Indian reservee, located under the treaty of the 24th of March, 1832, and by which the reservee agreed to make title to a contemplated vendee, at some future day, — requires the certificate of an agent, appointed for that purpose, and the approval of the President of the United States, to render it valid.
    2. Such a contract, without the certificate of an agent, or the approval of the President, is not valid as a conveyance operating inpreesenti, or as a stipulation for one to be executed in futuro; and therefore, an undertaking by the reser-vee, to protect his tenant in the possession, until the conveyance could be perfected, being dependent upon the principal contract, for the sale and conveyance, is in the same predicament.
    In error to the Circuit Court of Talladega county.
    In this case, the plaintiff in error as landlord, complained before a magistrate in Talladega county, that the said plaintiff, on the-day of -, in the year of our Lord, one thousand eight hundred and thirty-four, was seized and possessed of a certain tract or parcel .of land, known and designated, as the south half of section .eighteen, in township, eighteen, of range six, east, in the Coosa land district, to wit, in the county aforesaid, together with the messuage and appurtenances, thereupon situate and belonging; and being so seized and possessed of said land, he, the said plaintiff, rented, and to farm let, the said land, with the said messuages and appurtenances thereunto belonging, afterwards, viz: within three years from the exhibition of this said complaint, at-in the county aforesaid, to one Thomas Elliott, of said county, for a certain consideration, by the said Elliott, paid to plaintiff. And the plaintiff averred that the said term, for which said Thomas Elliott had rented the said land, and appurtenances, had long since expired, and then was or had been for a long time, viz: for six months anterior to the exhibition of the complaint, fully completed and ended. Yet, that said Thomas Elliott, well knowing the term had been long since, fully completed and ended, and although the possession of the land, and the messuages and appurtenances Thereupon situate, and thereto belonging, had been lawfully demanded by plaintiff, to wit, by his agent, lawfully authorised in his behalf; yet the said Thomas Elliott, regardless of said demand, and regardless of his duty in that behalf, unlawfully detained the possession of the said land above described, and the messuage thereupon situate, from the plaintiff, at and in the county aforesaid, on the day and year aforesaid, and still unlawfully detained the same, to the great damage of plaintiff, who prayed process of unlawful detainer to issue, &c.
    The sheriff was therefore ordered to summon defendant to appear before the magistrate and answer the charge. On the trial of the case, defendant pleaded not guilty, and also, that he had had the peaceable and quiet possession of the premises, in the complainant’s complaint, set out, for the space of three years together, immediately preceed-ing the complainant’s complaint made, and that his estate therein, was not yet ended.
    To the last mentioned plea, there was a demurrer, and joinder in demurrer, which, upon argument, was overruled by the Court.
    Issue was joined upon the pleas, and plaintiff proved, that on the twenty-fifth day of February, eighteen hundred and thirty-seven, defendant was notified by plaintiff in writing, that the term for which defendant had rented the premises in question, had long since been fully completed and ended, and that plaintiff > demanded the possession, and hoped the same would be delivered without a resort to a law suit.
    Plaintiff further proved, that after said demand and notice being given as aforesaid, defendant refused to give up possession of said land, and still continued to occupy the same: That on the sixteenth day of April, eighteen hundred and thirty-four, after the location of plaintiff on the land, he rented the premises to the defendant for the term of one year, to be fully completed, and ended, on the sixteenth day of April, eighteen hundred and thirty-five, and that defendant, had paid the rent agreed upon to the said plaintiff; all which was done under the superintendence of one of the deputy marshalls of the United States.

      Defendant then offered the following agreement in evidence, viz:

    “Agreement entered into, the twenty-sixth day of October, eighteen hundred and thirty-five, between Clarlitko, a Creek Indian, and Thomas Elliott, all of the county of Talladega, and State of Alabama. The said Clarlitko, is entitled to a half section of land, by the treaty, concluded on the twenty-fourth day of March, eighteen hundred and thirty-two, between the United States and the Creek tribe of Indians, which tract of land, is more particularly described, upon the locating agent’s books, to which books, reference is hereby made, (and which tract may be also better known, as the halt section on which the said Elliott now lives;) the said Clarlitko, hereby agrees to sell and convey said land to the said Thomas Elliott, for and in consideration of the sum of one thousand dollars. And the said Clarlitko, further binds himself, to ■perfect the titles to the said land, unto the said Elliott, his heirs and assigns, as soon as the President of the United States shall direct the manner in which such conveyance shall be made. If the President shall not direct the manner in which such conveyance shall be made, until the five years from the said treaty, then the said Clarlitko, binds himself to procure a patent, for said land, under said treaty, and forthwith to execute to said Elliott, good and legal titles to said land. The said Clarlitko., further binds himself to keep and maintain the said Elliott, in full possession and enjoyment of said land, until he shall perfect the titles to the^ same, unto the said Elliott.

      “The said Elliott, on his part, binds himself, to pay unto the said Clarlitko, the aforesaid sum of one thousand dollars, as soon as the titles to said land shall be perfected unto him, by said Clarlitko, as is required in this agreement. And the parties bind themselves, each to the other, in the sum of two thousand dollars, to perform their respective agreements, as set forth in this instrument. In testimony whereof, the said parties have hereunto set their hands and seals, the day and year above written. It being understood that this is to take effect, only, in the event, that a pretended contract for said land, entered into by said Clarlitko, with Brasher and M’Elderry, shall be declared void.
    Signed, sealed and delivered,
    in presence of his
    H. H, WYCHE, CLARLITKO, X [l. S.]
    james lawson, > mark
    F. L. DAUDSON. 3 THOMAS ELLIOTT, [l. S.]
    To the introduction of this instrument in evidence, the plaintiff objected, — his objections were however, overruled by the magistrate, and the agreement read to the jury, — who, after deliberation, returned a verdict of not guilty.
    The case was then carried to the Circuit Court of. Talladega county, where the judgment of the justice below was affirmed.
    The errors assigned in this Court, were:
    1. That the Court erred in deciding, that the bond offered in evidence, before the justice of the peace, by the defendant, was competent to go to the jury.

      2. The Court erred in not reversing the judgment rendered by the justice of the peace, against the plaintiff'.

      Chilton for plaintiff — Peck & Clark, contra.
   COLLIER, J.

The plaintiff in error, by bis attorney in fact, made complaint in writing, to a justice of the peace, of Talladega county, on the ninth of February last, stating that in eighteen hundred and thirty-four, he was seized and possessed of the south half of section eighteen, in township eighteen, in range six east, in the Coosa land district,lying, being and situate in that county: — and that afterwards, within three years, he rented the same, with its mes-suages and appurtenances to the defendant,, for a consideration which had been paid him, which term had expired for six months previous to the exhibition of his complaint. The complaint then alleges a demand of the possession of the premises, of the defendant, and a refusal to deliver, — charges an unlawful detainer, and prays process as the law directs, which was issued and returned.

On the trial before the justice, the defendant pleaded,—

First, — not guilty.

Secondly, — Three years peaceable and quiet possession, immediately preceding complainant’s complaint.

And issue being taken, the plaintiff proved, that on the sixteenth day of April, one thousand eight hundred and thirty-four, (after his location,) he rented the premises in dispute, to the defendant, for one year, and that the same expired on the sixteenth day of April, eighteen hundred and thirty-^ five: that he received the rent agreed upon, which renting and reception of rent, was under the superintendence of a deputy marshal, of the United States for this State.

The defendant, after having duly proved the same, offered to read to the jury, a writing -under seal, entered into between, the plaintiff and defendant, on the twenty-sixth of October, eighteen hundred and thirty-five, which recites, that the plaim. tiff is entitled to a half section of land, by the treaty of the twenty-fourth of March, eighteen hundred and thirty-two, between the United States, and the Creek tribe of Indians, particularly described in the locating agent’s books, (to which reference is made,) and on which defendant then lived; which said land, the plaintiff agreed to sell and convey to the defendant, for one thousand dollars. The plaintiff further bound himself, to perfect the title to the land, unto the defendant, his heirs, &c. as soon as the President of the United States directed the manner in which the conveyance should be made. If the President should not direct the manner in which the conveyance should be made, before the expiration of five years from the date of the treaty, the plaintiff obliged himself to procure a patent under the treaty, and forthwith to execute good and legal titles. The plaintiff also bound himself, to keep and maintain the possession and enjoyment of the defandant in and to the land, until he should perfect his title to the same.,

The defendant obliged himself to pay to the plaintiff, the purchase money, so soon as the title undertaken to be made, should be consummated. The parties bind themselves, each to the other, in the sum of two thousand dollars, for the performance of their respective undertakings.

It is lastly agreed, that the contract of the parties, shall only take effect, in the event of a contract previously made between the plaintiff and Brasher & M’Elderry, for the sale of the same land, being declared void.

To the reading of this agreement to the jury, the plaintiff objected, but his objection was overruled, and the correctness of this decision is the only question presented for revision.

The relation of landlord and tenant, being shewn by the plaintiff’s testimony, the admission of the subsequent contract, raises the question as to its validity, either as an agreement to sell, or a license to occupy.

By the second article of the treaty of eighteen hundred and thirty two, one section of land is to be allotted to “ninety principal chiefs of the Creek tribe,” and to every other head of a Creek family, one half section each. By the third article, it is stipulated, that “these tracts may be conveyed by the persons selecting the same, to any other person, for a fair consideration, in such manner as the President may direct. The contract shall be certified by some person appointed for that purpose, by the President, but shall not be valid, until the President approves the same. A title shall be given by the United States, on the completion of the payment.”

The last recited article of the treaty, imposes checks upon the contracts of the Indian reservees, in regard to their lands, in requiring, — ■

First — That the President may direct the manner in which they shall be conveyed. ■

Second — In requiring the contract to be certified by some person, appointed for that purpose by the President; and,

Lastly — -In declaring that a contract, “shall not be valid, until the President approves the same.”

Waiving the consideration of the question, whether any contract of sale be good, unless the form be prescribed, — we think it indispensable to the validity of every such contract, that it should be certified by the agent provided for, and receive the approval of the President. And this conclusion is attained, not by the application of any rule of construction, but by the express terms of the treaty itself; which declares, that it “shall not be valid, until the President approves the same.”

The agreement in question, was not only, not certified and approved, nor ever contemplated a certification or approval; but it provides, expressly, that a'conveyance of title, afterwards to be made, shall be perfected. The contract then, never having become valid, as a conveyance, operating in prcesenti, or as a stipulation for one to be executed in futuro, — for the want of these essentials, it did not unsettle the relation of landlord and tenant, — but the defendant still continued a tenant at sufferance to the plaintiff.

The tinder taking to protect the defendant in the possession and enjoyment of the plaintiff’s land, was hot a distinct and substantive agreement, but dependent upon the principal contract for the sale and conveyance. And this, as has been shewn., never having acquired validity, all dependent stipulations must be in the same predicament.

This view being decisive of the case, we are relieved from considering the other points discussed at the bar.

The judgment is reversed, and the cause remanded to the Circuit Court, that the proper direction may thence issue, to thejusticé of the peace who tried the cause, (or his successor,) requiring the issuance of a venire facias, de novo.

HOPKINS, C. J. not sitting.


author: GOLDTHWAITE, J.

text:
    FIPPS VS M'GEHEE, et al.

      Touching certain requisites indispensable to the probate of a deed.

      Concerning the title to lands originating under the treaty of the 24th of March, 1832, between the United States and the Creek tribe of Indians,

    1. The act of 1812, which prescribes the mode in which the probate of deeds may be taken, sets out a form, which, in substance, must be pursued; and a deviation from the mode prescribed in the act, is ground of error.
    2. The essentials required in a probate, under this statute, are, that the witness should swear, — to the subscription of all the parties, setting out their names; that the witnesses subscribed, in the presence of the maker of the deed, and in the presence of each other, and on the day and year-named in the deed.

      3. Where the probate of a deed only set forth, — that a subscribing witness appeared, and made oath, that he saw the same signed, sealed and delivered, for the ‘purposes therein mentioned, and that 13. and II. signed the same, at the time said deed was executed, as witnesses, — held defective, as omitting the essential requisites of the statute of 1812.
    4. A grant for lands from certain persons of the Creek tribe of Indians, to whom the chiefs and head men had assigned the same, in pursuance of the treaty of [the 24th of March, 1832, will not support an action of ejectment; the patent for the same not having issued, until after suit commenced.

      !). Semble, — That if the assignees from the Creek tribe, under the provisions of the tteaty of the 24th of March, 1832, had received the assignment, and had been located on the land; or if the land had been located, and designated as reserved for this purpose by the locating agent, and then assigned before the commencement of the suit: — under such a state of things, an inchoate legal title would have vested, which would have been perfected by a patent subsequently issued, and in view of which, the action could yet have been sustained.
    articles of a treaty made at the city of Washington, between Lewis Cass, thereto specially au-thorised by the President of the United States, and the Creek tribe of Indians.
    Article 1. The Creek tribe of Indians, cede to the United States, all their land East of the Mississippi river.

      Article II. The United States engage to survey the said land, as soon as the same can be conveniently done, after the ratification of this treaty, and when the same is surveyed, to allow ninety principal Chiefs of the Creek tribe, to select one section each, and every other head of a Creek family, to select one half section each, which tracts shall be reserved from sale for their use, for the term of five years, unless sooner disposed of by them. A census of these persons shall be taken, under the direction of the President, and the selections shall be made so as to include the improvements of each person, within his selection, if the same can be so made, and if not, then all the persons belonging to the same town, entitled to selections, and who cannot make the same, so as to include their improvements, shall take them in one body in a proper form. And twenty selections shall be selected, under the direction of the President, for the orphan children of the Creeks, and divided and retained or sold for their benefit as the President may direct. Provided however, that no selections or locations under this treaty, shall be so made as to include the agency reserve.
    Article III. These tracts may be conveyed by the persons selecting the same, to any other persons for a fair consideration, in such manner as the President may direct. The contract shall be certified by some person appointed for that purpose by the President, but shall not be valid ’til the Pcsident approves the same.' A title shall be given by the United States, on the completion of the payment.
    Article IV. At the end of five years, all the Creeks entitled to these selections, and desirous of remaining, shall receive patents therefor, in fee simple, from the United States.
    Article V. All intruders upon the country hereby ceded, shall be removed therefrom, in the same manner as intruders may be removed by law, from other public land, until the country is surveyed, and the selections made; excepting however, from this provision, those white persons who have made then-own improvements, and not expelled the Creeks from theirs. Such persons may remain "til their crops are gathered. After the country is surveyed and the selections made, this article shall not operate upon that part of it, not included in such selections. But intruders shall, in the manner before described, be removed from these selections, for the term of five years, from the ratification of this treaty, or until the same are conveyed to white persons.

      In error to the Circuit Court of Benton county.
    On the twenty-sixth day of April, eighteen hun< tired and thirty-six, William M’Gehee and John EL Thomas, sued out their writ of trespass to try title against the plaintiff in error, to recover possession of the South-west quarter of section twenty-six, township fourteen, range eight, East, — of the Coosa land district, containing one hundred and sixty acres, more or less, lying in Benton county.
    On this writ, they declared at spring term, eighteen hundred and thirty-six, and to the declaration there was a plea of, “not guilty.”
    Article VI. Twenty-nine sections in addition to the foregoing, may be located, and patents for the same, shall then issue to those persons, being Creeks, to whom the same may be assigned by the Creek tribe. But whenever the grantees of these tracts possess improvements, such tracts shall be so located as to include the improvements, and as near as may be, in the centre. And there shall also be granted, by patent, to Benjamin Marshall, one section of land, to include his improvement on the Chattahoochee river, to be bounded for one mile, in a direct line, along the said river, and to run back for quantity. There shall also be granted to Joseph Bruner', a colored man, one half section of dan d, for his services as an interpreter.

      On the trial of the cause, Spring term eighteen hundred and thirty-seven, the defendants in error, offered in evidence, in support of their action, a deed from Benjamin Marshall, James Islands, Qseo-let Fixico and William M’Gilvery, dated the twenty-sixth day of October, eighteen hundred and thity-five, containing the following recitals.
    “Whereas a treaty between the United States of America and the Creek tribe of Indians, was made and concluded at the city of Washington, on the twenty-fourth day of March, in the year of our Lord, one thousand eight hundred and thirty-two; and by the second article of said treaty, after the general cession of the lands of said tribe, East of the Mississippi, certain parcels of land were allowed and reserved to the principal chiefs and heads of families of said tribe. And also, further, by the first part of the sixth article of said treaty, other lands were allowed to said tribe, in the words following, viz: “Twenty-nine sections, in addition to the foregoing, may be located, and patents for the same shall then issue to those persons being Creeks, to whom the same may be assigned by the Creek tribe.” And whereas, at a general council of said nation, and of the principal chiefs and head men of the nation assembled, began and held, at the house of Peter Dudley, Esq. in the county of Tallapoosa, on the second day of October, in the year of our Lord, one thousand eight hundred and thirty-five; by virtue of the right and power, in said tribe, by the last mentioned article of the treaty aforesaid, vested, the said tribe relinquished, released, assigned over and conveyed, unto Benjamin Marshall, James Islands, William M’Gilvery and Oseolet Fixico, of said tribe, all their right, title, property and interest in and to, t vventy-three sections and one half, of said twenty-nine sections, allowed and located as aforesaid.” &c.

      Article VII. All the locations authorised by this treaty, with the exception of that of Benjamin Marshall, shall be made in conformity with the lines of the surveys; and the Creeks relinquish all claim for improvements.
    Article VIII. An additional annuity of twelve thousand dollars, shall be paid to the Creeks for the term of five years, and thereafter the said annuity, shall be reduced to ten thousand dollars, and shall be paid for the term of fifteen years. All the annuities due to the Creeks, shall be paid in such manner as the tribe may direct.
    Article IX. For the purpose of paying certain debts due by the Creeks, and to relieve them in their present distressed condition, the sum of one hundred thousand dollars, shall be paid to the Creek tribe, as soon as may be, after the ratification hereof, to be applied to the payment of their just debts; and then to their own relief, and to be distributed as they may direct, and which shall be in full consideration of all improvements.
    Article X. The sum of sixteen thousand dollars shall be allowed as a compensation to the. delegation sent to this place, and for the payment of their expenses, and óf the claims against them.
    Article XI. The following claims shall he paid .by the United States.
    For ferries, bi’idges and causeways, three thousand dollars, provided the same shall become the property of the United States.
    For the payment of certain judgments obtained against the Chiefs, eight thousand five hundred and seventy dollars.
    For losses,- for which they suppose the United States responsible, seven thousand seven hundred and ten dollars.
    For the payment of improvements, under the treaty of 1826, one thousand dollars.
    The three following annuities shall be paid for life.
    To Tuske-hew-haw-Cusetaw, two hundred dollars.
    To the Blind Uchu King, one hundred dollars.
    .To Neah Mico, one hundred dollars.
    There shall be paid the sum of fifteen dollars, for each person who has emigrated without expense to the United States, but the whole sum allowed under this provision, shall not exceed fourteen hundred dollars.
    There shall be divided among the persons, who suffered in consequence of being prevented from emigating, three thousand dollars.
    The land hereby ceded, shall remain as a fund from which all the foregoing payments, except those in the ninth and tenth articles, shall be paid.
    Article XII. The United States are desirous that the Creeks should remove to the country West 'of the Mississippi, and join their countrymen there, and for this purpose it is agreed, that as fast as the Creeks are prepared to emigrate, they shall be removed at the expense of the United States, and shall receive subsistence while upon the journey, and for' one year after their arrival at their new homes — Provided, however, that this article shall not be construed, so as to compel any Creek Indian to emigrate, but they shall be free to go or stay, as they please.
    Article XIII. There shall also be given to each emigrating warrior, a rifle, moulds, wiper and ammunition, and to each family, one blanket. Three thousand dollars, to be expended as the President may direct, shall be allowed for the term of twenty years, for teaching their children. As soon as half their people emigrate, one blacksmith shall be allowed them, and another when two-thirds emigrate, together with one ton of iron and two hundred weight of steel, annually, for each, blacksmith.— These blacksmiths shall be supported for twenty years.
    Article XIV. The Creek country West of the Mississippi, shall be solemnly guaranteed to the Creek _ Indians, nor shall any State or Territory ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves, so far as may be compatible with the general jurisdiction which Congress may think proper to exercise .over them. And the United States, will also defend them from the unjust hostilities of other Indians, and will also, as soon as the boundaries of the Creek country, West of the Mississippi are ascertained, cause a patent or grant to be executed to the Creek tribe, agreeably to the third section of the act of Congress of May 2d, 1830, entitled, “An act to provide for an exchange of lands with the Indians; residing in any of the States or Territories, and for their removal West of the Mississippi ”

      The conveyance then goes on to mention the number, &c. of the sections, and includes section twenty-six, township fourteen, range eight, the South-west qurrter of which is sued for; after which follows the habendum, to William M’Gehee and John H. Thomas; covenants of warranty, and that the grantors were authorised by the assignment from the Creek tribe, to convey, &c. The consideration was thirty-three thousand dollars in hand paid. The deed was signed, sealed and delivered in the presence of 3EL G. Barclay, R. B. Roland and John B. Hogan, subscribing witnesses.
    Article XV. This treaty shall be obligatory on the contracting parties, as soon as the same shall be ratified by the United States.
    In testimony whereof, the said Lewis Cass; and the undersigned Chiefs of the said tribe, have hereunto set their hands, at the city of Washington, this 24th day of March, A. D. 1832.
    LEWIS CASS,
    Opothleholo, his x mark.
    Tuchebatcheehaclgo, his x mark.
    Efiematla, his x mark.
    Tuchebatche Micco, his x mark.
    Tomack Micco, his x mark.
    William McGilvery. his x mark.
    Benjamin Marshall.
    In the presence of Samuel Bell, William R. King, John Tipton, William Wilkings, C. C. Clay, J. Speight, Samuel W. Marclis, J. C. Isaeks, John Crowell, I. A.
    Benjamin Marshall, 1 Thomas Carr, > Interpreters, John H. Brodnax. 3
    The deed contained a certificate from the clerk of the County Court of Benton county, that it was filed and duly recorded in his office.
    The following is the affidavit, upon which, it appears to have been admitted to record:
    “State of Alabama, ) _ ’ Í ss. Benton county. 3
    Personally appeared before me, M. M. Houston, clerk of the County Court of Benton county, aforesaid,!?.. D. Roland, one of the subscribing witnesses to the foregoing' deed of conveyance, from B. Marshall, and others, to William M’Gehee and John H. Thomas, and made oath, that he saw the same, signed, sealed and delivered, for the purposes therein mentioned, and that Hugh G. Barclay, and John B. Hogan, signed the same, at the time said deed was executed, as witnesses. Given under my hand, &c.”
    Now, therefore, be it known, That I, Andrew Jackson, President of the United States of America; having seen and considered said treaty, do, in pursuance of the advice and consent of the Senate, as expressed by their resolution of the second of April, one thousand eight hundred and thirty-two, accept, ratify and confirm the same, and every clause and article thereof.

      In Testimony whereof, I have caused the seal of the United States to be hereunto affixed, having signed the same with my hand.
    Done at the city of Washington, this fourth day of April, in the year of our Lord, one [L. S.] thousand eight hundred and thirty-two, and of the Independence of the United States, the fifty-sixth.
    ANDREW JACKSON.
    By the President.
    Edw. Livingston,

      Secretary of State.
    The plaintiff in error objected to the admission of this deed in evidence, because:
    1. The deed was not so authenticated, as to au-thorise it to be read, without further proof.

      2. There was ho evidence to shew that grantors had any estate to convey.
    3. There was no evidence aside from the recitals contained in the deed, to shew that the Creek tribe had made to the grantors the assignment, contemplated in the sixth article of the treaty, made between the tribe and the Untied States, under which they claimed.
    The Court ruled, that defendants in error might commence their proof of title, with the conveyance to them, but that, nevertheless, they would be bound to trace it to its source, as the deed offered did not amount to a complete title: That this question only involved the course of proof, and defendants in error might commence at either end of the chain of title. But the deed was permitted to be read, solely as evidence of a conveyance from grantors to defendants in error, and not as evidence of any of its recitals; for proof of which the Court charged expressly, it was wholly insufficient. Under these views, the deed was read to the jury, notwithstanding the objections of plaintiff in error.
    A patent was then offered in evidence, from the government of the United. States, to James Islands, and the other grantors, in the deed before mentioned, for the lands to which this action applies, which patent was as follows:
    “The United States of America:
    “To all whom these presents shall come, greeting.
    “Whereas, under the sixth article of the treaty, made and concluded at the city, of Washington, on the twenty-fourth day of March, in the year of our Lord, one thousand-eight hundred and thirty-two, between the United States and the Creek tribe of Indians, — by which it was provided, that twenty-nine sections should be located, and patents for the same be issued, to those persons, being Creeks, to whom the same might be assigned by the Creek, tribe. The chiefs and head men of the said tribe, in council, on the seventh day of October, in the year of our Lord, one thousand eight hundred and thirty-five, assigned to James Islands, William M’Gilvery, Benjamin Marshall, Oseolet Fixico, of the said tribe, section twenty-six, in township fourteen, of range eight, containing six hundred and twenty acres, in the Coosa land district, in the State of Alabama as being one-of the sections to which the said tribe was entitled, under the said sixth article; and that assignment having been approved by the President of the United States, on the sixteenth day of April, in the year of our Lord, one thousand eight hundred and thirty-six: now know ye, that there is therefore granted by the United States, unto the said James Islands, William M’Gilvery, Benjamin Marshall, and Oseolet Fixico, and to their, heirs and assigns forever, the tract of land above described, to have and to hold the said tract, with the appurtenances, unto the said James Islands, William M’Gilvery, Benjamin Marshall and Ose-olet Fixico, and to their heirs and assigns, forever.
    “In testimony whereof, I, Andrew Jackson, President of the United States, have caused these letters to be made patent, and the seal of the General Land Office to be hereunto affixed.
    “Given under my hand, at the city of Washington, on the eighteenth day of November, in the year of our Lord, one thousand eight hundred and thirty-six, and of the independence of the United States, the sixty first.
    By the President,
    ANDREW JACKSON,
    a. j. donelson, Sec’ry.
    Recorded, vol. 1st, P. 2, ) Creek Patents. )
    Hopson M. Garland, Recorder
    of the General Land Office,’
    This patent was objected to by the plaintiff in error,—
    1. Because its date was long subsequent to the commencement of the action. The action was commenced on the twenty-sixth day of April, eighteen hundred and thirty-six, and the patent offered, bore date the eighteenth day of November of the same year.
    2. Because there was no evidence which coupled it with the deed first above mentioned.
    The Court overruled the objections, and the patent was read to the jury.
    The Court charged, that the patent was sufficient evidence of the assignment to Islands, and the other grantors in the deed first above recited, and that the patent and deed together, formed a sufficient title to enable defendants in error, to recover, if the jury were satisfied from the other proof, that plaintiff in error was in possession.
    The jury returned a verdict for the plaintiffs below, and assessed their damage, at seventy-five dollars.

      The bill of exceptions stated, that on the trial of the cause, the plaintiffs, as one link in their chain of title, offered in evidence, a deed, the. copy of which, with its authentications, were annexed to the bill, and made part of it: That its introduction was objected to by defendant.
    First, — Because it was not so authenticated as to authorise it to be read without further proof.
    Secondly, — Because there had been no evidence to shew that the grantors, had any estate to convey; and
    Thirdly — Because there was no evidence, aside from the recitals in the deed, to shew that the Creek tribe had made to the grantors, the assignment contemplated in the sixth article of the treaty, made between said tribe and the United States, under which article they claimed.
    The presiding Judge ruled, that the plaintiffs would not be restricted from commencing their proof of title, with the conveyance to the plaintiffs: But that they, nevertheless, would be bound to trace it to its source, as the deed proposed, did not amount to a complete title: That the objections only involved the course of proof, and so the plaintiffs might commence át either end of their chain of title. The deed was permitted to be read, alone as evidence of a conveyance from the grantors to plaintiffs, and not as evidence of its recitals, — for proof of which it was expressly charged to be wholly insufficient. With these views, the deed was permitted to be read to the jury, although objected to by the defendant;
    The bill further stated, that plaintiffs then offered in evidence, a patent from the government of the United States, to James Islands and others, grantors in the deed before mentioned, for the lands sought to be recovered in the action. A copy of the patent is annexed to the bill, and makes part of it, and is the same as already set forth: That de-fendent objected to the reading of the patent, on the ground that its date was long subsequent to the commencement of the action, and because there was no evidenee that coupled it with the deéd: That the Court overruled the objections, and the patent was read to the jury:
    That the Court had charged the jury, that the patent was sufficient evidence of the assignment to M’Gilvery, and the other obligors in the deed just above recited; and that the patent and deed together, formed a sufficient title to enable the plaintiffs to recover, if the other proof satisfied them, that the defendant was in possession, &c.
    To the charge as to the influence of the patent, and as to the deed seperately, forming a sufficient title to authorise a recovery, the bill stated, the defendant excepted, and as to all the matters above set forth.

      Martin for plaintiff in error. Chilton, contra:

       The cases arising under rights acquired, or supposed to be acquired, by virtue of the treaty between the United States and the Creek tribe of Indians, of the 24th of March 1832, and the various constructions placed upon the several provisions of that treaty, — .together with the necessity of having the treaty in a situation for frequent reference, — have induced the reporter to publish the treaty, in hcec verla.

   GOLDTHWAITE, J.

On the trial of-this cause, the defendants in error, offered the following evidence of title to support their action:

First, — A deed from Benjamin Marshall, James Islands, Oseolet Fixico and William M’Gilvery, dated, twenty-sixth of October, eighteen hundred and thirty-five, conveying to them, the land, the subject of controversy. This deed recites, that by virtue of the treaty of the twenty-fourth of March, eighteen hundred and thirty-two, twenty-nine sections of land, out of the country ceded, might be located, and patents for the same, should be issued to those persons, being Creeks, to whom the same should be assigned by the Creek tribe:. That at a general council of the Creek nation, and of the chiefs and head-men of the nation, assembled at the house of Peter Dudley, on the second day of October, eighteen hundred and thirty-five, the said tribe, by virtue of the power in them vested by the treaty, relinquished, released, assigned over, and conveyed, to Benjamin Marshall, James Islands, William M’Gilvery and Oseolet Fixico, all their right, title, property and interest, in and to, twenty-dhree and a half sections, out of the twenty-nine, allowed and located, as aforesaid, designating tw'enty-three and a half sections by number, &c. among which is found the one the subject of this suit; after which follows the habendum to the defendants in error, and covenants of warranty of title, and that the grantors were authorised by the said assignment from the Creek tribe, to convey, &c.

The introduction of this deed was opposed by the plaintiffs in error, for several reasons:

1. Because it was not so authenticated, as to authorise it to be read in evidence without further proof.

2. Because there was no evidence to shew that the grantors had any title to convey.

3. Because there was no evidence aside from th: recitals of- the deed, to shew that the Creek tribe had mad.e to the grantors the assignment contemplated by the treaty of eighteen hundred and thirty-two.

The presiding Judge ruled, that the defendants in error, would not be restricted from commencing the proof of title, with the conveyance to them, but they would nevertheless be bound to trace their title to its source, — the deed not amounting to a complete title: — That this question only involved the course of proof, and so the defendants in error might commence at either end of their chain of title. The deed was permitted to be read, alone as evidence of conveyance, from the grantors therein named, to the defendants in error, and not as evidence of any of its recitals; for proof of which, it was charged to be wholly insufficient. With these views, the deed was allowed to be read to the jury, notwithstanding the objection of the plaintiff in error.

Second. — A patent from the United States to the grantors in the said deed, for the section of land sued for, dated eighteenth of November, eighteen hundred and thirty-six-, which patent recites, that under the sixth article of the treaty of eighteen hundred and thirty-two, it was provided that twenty-nine sections of land should be located, and patents for the same should be issued to those persons, being Creeks, to whom the same might be assigned by the Creek tribe. That the chiefs and head men of the said tribe, in council, on the seventh day of October, eighteen hundred and thirty-five, assigned to James Islands, William M’Gilvery, Benjamin Marshall and Oseolet Fixico, of the said tribe, tile section of land in dispute, as one of the sections to which the said tribe was entitled, under the sixth article of the treaty, and that the said assignment having been approved by the President of the United States, on the sixteenth of April, eighteen hundred and thirty-six, there was granted, &c.

The introduction of this patent, was opposed for the reasons:

1. Because it bore date subsequent to the institution of this suit.

2. Because no evidence coupled the deed with the patent.

These objections were overruled, and the patent read in evidence to the jury.

The Court charged, that the patent was sufficient evidence of the assignment to M’Gilvery, and the other grantors in the deed, given in evidence; that the patent and deed together formed a sufficient title, to enable the defendants in error to recover, if the other proof satisfied them, that the plaintiff in error, was in possession.

The admission of this evidence, and the charge given, were excepted to by the plaintiff in error, and the questions ai'ising thereon, have now to be examined by this Court. They may be considered in. the following order.

1. The coi’rectness of the charge of the Court on the title, exhibited by the deed and patent introduced.

2. The objection to the introduction of the patent.

3. The objection to the introduction of the deed.

The title of the defendants in error, has its inception in the sixth article of the treaty of eighteen hundred and thirty-two, with the Creek tribe of Indians, which article is as follows:

“Twenty-nine sections, in addition to the foregoing, may he located, and patents for the same, shall then issue, to those persons, being Creeks, to whom the same may be assigned by the Creek tribe. But whenever, the grantees of these tracts, possess improvements, such tracts shall be so located, as to include the improvements, as near as may be, in the centre.”

If this article was to be construed, without considering the previous provisions of the treaty, or without a particular examination of its phraseology, a serious doubt might be entertained, whether any legal estate was intended to be created, in those sections of land, before the issuing of a patent. But there is an evident intention, pervading the whole treaty, that the Indian reservees, of whatever description, (and there are several,) were intended to be put in possession, before the granting of any evidence of title, by patent, or any written evidence, equivalent thereto; and that this possesssion was intended to be protected against all intrusion. So, likewise, it is evidently contemplated, that after a reservation is designated by location, the individual Indian entitled to the same, might apply to the officers of the government, and be placed, by the strong arm of power, in the actual, possession of his lands. To deny to the peaceful action of Courts of law, a power which has been claimed to be exercised, on a summary application* by an executive officer of the government, would present a solecism, which we are not disposed to admit. Thus, the fifth article of the treaty provides, “that all intruders upon the country hereby ceded, shall be removed therefrom, in the same manner as intruders may be removed, by law, from other public lands, until the country is surveyed, and the selections made; excepting however from this provision, those white persons, who have made their own improvements, and not expelled the Creeks from theirs: such persons may remain until their crops are gathered: after the country is surveyed, and the selections made, this article shall not operate upon that part not included in such selections.— But intruders, shall, in the manner before described, be removed from these selections, for the term of five years, from the ratification of this treaty, or until conveyed to white persons.

The portions of this article which are italicised, clearly show, that it was contemplated by the parties to the treaty, that there might be an immediate occupation of a reservation, although not before settled, and that it was the duty of the government to place the Indian entitled in possession, if required. This, in our opinion, created an inchoate legal title, capable of being enforced in a court of law— and this title attached immediately on location.

No mode, it is true, .is designated by the treaty, by which the locations are to be ascertained and allotted; but it follows, ex necessitate rei, that the power which is required by the terms of the treaty, to place the reservee in possession, must have the right to determine where the individual shall be allotted.

The sixth article of the treaty quoted above, is not worded with accuracy. It uses the term grantees in the same sense as assignees. “ Whenever, (is the expression,) the grantees of these tracts possess improvements, such tracts shall be so located, as to include the improvements', as near as may be, in the centre.” All grants must designate the land granted under our system of surveys, (which is recognised by the treaty,) and consequently no location could be made after a grant. The location should precede it.

So, it is conceived, the assignment to, or designation of the individual, who is to have one or more of the sections reserved by this article, should precede the location, and whenever these two acts, have taken place, to wit, the designation of the individual, by assignment from the tribe, and his location by the proper officer of the government, or a location first, and an assignment afterwards, — the legal inchoate title attaches, which is made complete by patent from the United States.

If the grantors in the deed, introduced by the defendants in error, had received an assignment from the Creek tribe, and had been located on the land in question; or if the land had been located and designated as reserved for this purpose, by the locating agent, and then assigned before the commencement of suit, to the said grantors, the right of the defendants in error, could not be gainsayed, but under the decision, made in the case of Jones & Parsons’ heirs vs Inge and Mardis’ heirs, (see ante this volume, page 327,) the patent having been' issued after the suit was instituted, could not by relation, extend back so as to support the action, and there •was, therefore, no title in evidence, to support the action. — Downey vs Gallagher, 2 Sergt. & R. 455.

If the authentication of the deed, was such as to authorise it to be read in evidence, it was properly enough admitted, as evidence of a conveyance to the defendants in error; and for the reasons stated by the Court, it was not its province to direct the particular manner in which the title should be introduced before the jury.

But in deciding that the certificate endorsed on the deed, was sufficient to warrant its introduction, the Court fell into a manifest error.

The act of eighteen hundred and twelve, (Aikin’s Dig. 89.) which prescribes the mode in which the probate of deeds may be taken, sets out a form, of which the substance must be pursued. It requires the witness to swear to the subscription of all the parties setting out their names, — that the witnesses subscribed in the presence of the maker of the deed, and in presence of each other, — and on the day and year named in the deed. The last of these requisites is certainly, a most material one, as it presents the only check against an ante-dated deed, being admitted to probate, as genuine. No suspicion attaches to the present case, but inasmuch as the certificate shewn, is fatally defective, in all these particulars, it should not have been admitted, without proof of its execution.

It follows from these views, that the judgment rendered below, was erroneous, and must be reversed; and if desired, the cause will be remanded.

HOPKINS, C. J. not sitting.


author: COLLIER J.

text:
    OWEN VS WHITE.

      As to the liability of a 'parent, for goods furnished his child during minority.

      As to the sufficiency of evidence in such cases.

      As to instructing a jury in case of a want of evidence.

      As to the grounds for reversing judgment, and remanding a cause.

    1. A father is not bound by the contract of the son, even for articles suitable and necessary, unless an actual authority be proved, or the circumstances be sufficient to imply one.

      2. Where there is a clear omission of parental duty, in providing for the maintenance of a child, the law subjects the father to the payment for necessaries furnished by a third person, upon the ground, that a’neglect of duty in this behalf, implies an authority to bind the parent.

      3. If a father abandon his duty, so that his infant child is forced to leave his house, he is liable for a suitable maintenance ; but where the son voluntarily leaves his father’s house, the authority of the father to purchase necessaries, is not implied.
    4. Whether the authority of a parent can be inferred from the proof, is a question of fact for the jury.
    5. Where no evidence is given from which an authority is in-ferrible, the Court may instruct the jury, that the case is not made out; but where the slightest testimony is introduced, such instruction should never be given.
    6. Where no evidence's given from which tlitfauthority of a parent is inferrible, and the Court refuse upon application, to charge the jury to that effect, such refusal is an error, for which the judgment will be reversed and the cause remanded.
    In error to Franklin Circuit Court.

      This was a case in which the plaintiff below had furnished articles to a son, a minor, a pupil at a literary institution, and sought to charge the father.
    The case was tried before a magistrate, who gave judgment for the defendant. The case being removed to the Circuit Court, plaintiff obtained a verdict, whence it was removed to this Court by writ of error.
    The bill of exceptions stated — that- on the trial of the cause, it was proved by the defendant in error, that the articles sued for were furnished to the son of the plaintiff in error, a youth about eighteen years of age, who was a pupil in a college in the town where defendant in error lived; and that .the plaintiff in error lived about eighteen miles from the college.
    ' There yvas no proof of any authority from the father to contract the account with the defendant in error. Whereupon, the plaintiff in error moved the Court to charge the jury, that under the proof, in this cause, the plaintiff in error was not liable, even for necessaries. Such instruction, the Court refused to give. To .vhich refusal of the Court to charge as aforesaid, plaintiff in error excepted, &c.
    Ormond, for plaintiff in error.

      Nooe, contra.
   COLLIER J.

This cause was commenced by summons, at the suit of the defendant in error, before a justice of the peace of Franklin county; where a judgment being rendered against him, he appealed to the Circuit Court of that county; and the case being submitted to a jury, there was a verdict and judgment against the plaintiff in error.

On the trial, a bill of exceptions was sealed by the Judge who presided, as follows: “it was proved by the plaintiff, that the articles sued for, were furnished to the son of the defendant, a youth about eighteen years of age, who was a pupil in a college in the town where the plaintiff lived, — that the defendant lived about eighteen miles from the college. There was no proof of any authority from the father, to contract the account with the plaintiff; whereupon, the defendant moved the Court to charge the jury, that under the proof in this case, the defendant was not liable, even for necessaries; which instruction the Court refused to give. To which refusal of the Court, to charge as aforesaid, the defendant, by his counsel, excepted, &c.”

A father is not bound by the contract of his son, even for articles suitable and necessary, unless am actual authority be proved, or the circumstances be sufficient to imply one. So long as the child continues under the direction and control of the father, it is left to the discretion of the parent, to determine what is necessary for him; unless it appear, that there is a clear omission of parental duty, in providing for his maintenance. Where this is the case, the law subjects the father to the payment for necessaries, furnished by a third person, upon the ground, that his neglect to do that, which natural, moral and municipal law, have prescribed as a duty, implies an authority to bind the parent.— (2 Kent’s Com. 162.)

If a child leave his father’s house, to seek his fortune in the world, or avoid domestic discipline and restraint, or escape from justice, the authority of the father to purchase necessaries, is not implied.— But if a father abandon his duty to his infant child, so that he is forced to leave his house, he is liable for a suitable maintenance. — And the principle of the distinction is, that in the one case, the father is blameless, and in the other, blameable.—(Angel vs McLellan, 16 Mass. 28.)

It is a question of fact, whether the authority of j [the parent, can be inferred from the proof, and con- \ sequently addresses itself to the jury. But if no ^evidence is given, from which an authority is in-ferrible, and none is in fact, insisted on, there can| be no impropriety in thé Judge, in instructing the; jury, that the base is not made out. Such an instruction, should^however, never be given, where any testimony, though slight, is introduced.

In the case before us, it is stated that “ there was no proof of any authority from the father to contract the account with the plaintiff." Here there is an admission of record, that an indis-pensible link in the chain of the evidence, was wanting; and it would have been no usurpation of power, on the part of the judge, to have charged the jury, that the testimony did not entitle the defendant in error to a verdict, but a course of procedure entirely legal.

In the written suggestions which have been submitted to us, by the defendant’s counsel, it is said, that the instructions actually given, were in conformity with what we have supposed the law to be. In reply, it may be observed, that the bill of excep tions does not inform us, what instructions were giyen, hut only what was refused.

The charge asked for, considering the insufficiency of the proof, being proper, its refusal is an error, for which the judgment is reversed, and the cause remanded.

HOPKINS, C. J. not sitting.


author: ORMCWD, J.

text:
    SCOTT VS BRADFORD.

      Touching the construction of the statute of 1821,for the benefit of sureties.

    1 One notified by a surety, under the statute of 1821, to put in suit, any bond, bill or note, held against a principal and surety, — is not bound first, to sue the principal,
    2. All that this statute requires, is, that on written notice fr ,111 the surety, the creditor shall put the claim in suit, in a reasonable time, and prosecute the same with diligence, and failing to do so, the surety is discharged.
    3. And the benefit conferred on the surety, (by the first section of the same statute,) is, that if the creditor, omit to join the principal in the suit, the surety has the right, by notice to his principal, to get judgment against him, atthe same time judgment is obtained against himself, by the creditor.
    In error to the Circuit Court of Jackson county.
    This case was commenced before a magistrate in Jackson county, and carried by writ of error, through the County and Circuit Courts, to this Court, as follows: •
    On the seventh of April, eighteen hundred and thirty-four, the plaintiff in error, signed a sealed note, together with one L. Wood, and as security for Wood, by which they promised to pay, on the first day of January, thence ensuing, the sum of thirty-five dollars, to one J. T. Bradford, administrator of L. James, for house rent, as witness their hands and seals, &c.; which note was placed in the hands of one Benjamin Coffey, as the agent of Bradford. Wood, it appears, subsequently removed to Huntsville, and after his removal, the plaintiff in error, gave notice to Coffey, as the agent of Bradford, that he was required to commence an action on the note, and the note was handed to a magistrate for collection: And the magistrate issued his warrant in favor of J. T. Bradford, administrator of L. James, deceased, for the use of Benj. Coffey, against L. Wood and R. T. Scott, which warrant was served on R. T. Scott. The constable returned L. Wood as not found. On the hearing, the magistrate gave judgment against R. T. Scott, for the debt ,and costs, who removed the cause by appeal to the 'County Court of Jackson county.
    ' And at the August term of the said Court, came a jury of good and lawful men, who on their oaths said, they found the issue in favor of Scott, and thereupon it was considered by the Court, that he go thence without day, and recover of plaintiff, Bradford, his costs, by hita expended, about his de-fence, &c.

      And thereupon, Bradford carried the case, upon a bill of exceptions, to the Circuit Court of the same county; which bill stated, that upon the trial of the cause, the plaintiff introduced the note of defendant, and Scott proved that he signed the note as security for Wood. Plaintiff admitted that on the-.day of the date of the warrant, he had received a written notice from defendant to sue. Defendant, (Scott,) then produced a written notice, dated about the date of the warrant, from himself to plaintiff, to bring suit, directing plaintiff, that Wood the principal, was at Huntsville; but there was no proof that this notice was served upon plaintiff, other than that it appeared, that a notice, something like the one produced by defendant, was seen upon a desk in a counting room, where the plaintiff lived, but at what time was not certainly stated. It was also in proof before the jury, that Wood did live at Huntsville, and that the plaintiff at the time he brought suit, knew of Wood’s residence at Huntsville. Upon which defendant moved the Court, to instruct the jury, that if they believed that Coffey, knew at the time of bringing suit, that Wood lived at Huntsville, in Madison county, or elsewhere, it was his duty, under the law, there to have sued him; which instruction was given by the Court, and to which the plaintiff excepted, &c.
    The following is a copy of the notice adverted to in the hill:
    “Notice to B. B. Coffey. Mr B. Coffey — Sir: As agent of Joseph Bradford, I hereby notify you, that you must commence suit immediately, on the note given by Lewis Wood, at Huntsville, as principal, and myself as security, for the sum of thirty-five dollars, made payable to Tipton Bradford, agent of Maria James, upon said Wood, principal, who now resides in Huntsville, or I will plead the statute, made and provided, for the benefit of sureties, upon joint obligations.
    Yours, very respectfully: March 23, 1836.
    (Signed) r. t. scott.”
    And in the Circuit Court, Bradford assigned for error, that the County Court erred, in giving the instructions to the jury, because the statute of eighteen hundred and eighteen, (Aikin’s Digest, 267,) gives the obligee, the option of suing, either of two joint obligors. The statute of eighteen hundred and twenty-one, [Aikin’s Digest, 385,] gives the joint obligor, thus sued alone, the right to give notice to the other, and obtain judgment against him. The sixth section of the same act, only enables one of several joint obligors, to compel the obligee to sue thereon, but does not prescribe against whom the suit slialL be brought, but still leaves him the election given by the statute of eighteen hundred and eighteen. And when this is the case, he can have the benefit of the third section of the statute of eighteen hundred and twenty-one. The only effect of the notice, is to compel the obligee to collect his obligation; otherwise it would take away the election given by the act of eighteen hundred and eighteen.
    And at the October term of the Circuit Court, the parties came, and the matters and things in dispute, being argued, and due consideration had thereon, it was ordered by the Court, that Ihejudgment and proceedings had in this case, in the County Court, be in all things reversed, annulled and held for nought, and that the plaintiff, there in error, recover of the defendant, the costs accruing, and that the case be remanded to the County Court for further proceeding.
    And then the said R. T. Scott, by writ of error, brought the case to the Supreme Court, at this term, and assigned for error, that the said Circuit Court, in its judgment and proceedings erred, in reversing the judgment of the County Court, for the supposed error assigned in the Circuit Court, and prayed that the judgment of the Circuit Court, might be reversed.

      S. Parsons, Attorney for plaintiff in error.

      J. Robinson, contra.
   ORMCWD, J.

This action was commenced by the defendant in this Court, against the plaintiff, on a promissory note, as the surety of one Wood, before a justice of the peace. On the trial, Scott proved that the present defendant, then plaintiff, acknowledged on the day of the date of the warrant, that he had received, written notice from Scott to sue. The justice of the peace rendered judgment for the plaintiff below, from which judgment, Scott appealed to the County Court.

At the trial in that Court, a bill of exceptions was taken, which discloses the fact already stated, of a notice by Scott to bring suit, (and other facts, not necessary to be stated, as they do not influence the opinion of the Court,) — whereupon, the defendant (Scott,) moved the Court, to instruct the jury, that if they believed the plaintiff knew, at the time of bringing the suit, that Wood lived at Huntsville, in Madison county, or elsewhere, it was hiCduty, under the law, there to have sued him, which iii^r^ction was given by the Court, and excepted The jury found for the defendant, and the plaintiff in error prosecuted a writ of error to the Circuit Court, and assigned for error, the charge of the judge of the County Court.— The Circuit Court reversed the judgment of the County Court, and remanded the cause. From that judgment a writ of error has been taken to this Court.

For the benefit of the foreign reader, to whom our statute^ may not be familiar, the sections of the laws embraced within the principles of this decision, are subjoined. — Reporter.

The assignment of error here is, that the Circuit Court erred, in reversing the judgment of the County Court. This assignment brings up for review, the charge of the judge of the County Court.

The correctness or incorrectness of this charge, depends on the construction of an act of the legislature, to be found on page 365 of Aikin’s Digest, section 6, which, in substance, provides, that a surety may give written notice to the creditor, after the maturity of the claim, “ forthwith to put the bond, bill, or note in suit,” and, unless the creditor so required, shall, in a reasonable time, commence and prosecute, with diligence, an action thereon, he shall forfeit his right to recover of the surety.

The requisition of this act is, that on the written notice of the surety, the creditor shall put the claim in suit, and, failing to do so, in a reasonable time, the surety is discharged. But who is the creditor required to sue — the principal or the surety, or bothl

The judge of the County Court determined, that the effect of the notice, under the statute, was to compel the creditor to sue the principal; and that his failure to do so, exonerated the surety. This we think, was an incorrect exposition of the statute. The legislature certainly designed to confer a benefit on the surety. What was it 'l At common law, a surety had a right to discharge the obligation himself, and sue his principal. But the payment of the money was onerous, and might be inconvenient. But, by the aid of this statute, he- can compel the creditor to sue, and if the principal be not joined in the suit, the first section of the same law, gives him the right, by notice to his principal, to get judgment against him, at the same time judgment is obtained against himself, by the creditors If the creditor failed to put the claim in suit in a reasonable time, and prosecute it with diligence, he was absolutely discharged.

This view of the statute in question harmonises with our other statutory regulations. By an act, passed in eighteen hundred and eighteen, Aikin’s Digest, 267, all obligations are made joint and several, and suit is allowed against any one or more of the parties thereto.

Tiie construction which we are asked to put on the act in question, would,- in effect, repeal the act just cited. But the act in favor of sureties, does not require any thing more of the creditor, than to put the bond, bill or note in suit.” This appears to have been promptly done in this case, and that is all the law requires.

The judgment of the Circuí Court is, therefore, affirmed.

The view we have taken, renders it unnecessary to decide the other points raised in the cause.

        “ When any person or persons shall become bound as security or securities, by bond, bill, or note, for the payment of money or any other article, and shall apprehend that his or their principal or principals is or are likely to become insolvent, or to migrate from this State, without previously discharging any such bond, bill or note, it shall belawful for such security or securities, in every such case, (provided an action shall have accrued on such bond, bill, or note,) to require, by. notice in writing of his or their creditor or creditors, forthwith. to put the bond, bill, or note, by which he or they may be bound as security or securities, as aforesaid, in suit; and unless the creditor or creditors so required to put such bond, bill, or note, in suit, shall in a reasonable time, commence an action on such bond, bill, or note, and proceed with due diligence in the ordinary course of law, to recover judgment for, and by execution to make the amount due by such bond, bill, or note, the creditor or creditors so failing to comply with the requisition of such security or securities, shall thereby forfeit the right which he or they otherwise would have had, to demand and receive of such security or securities, the amount which may be due by such bond, bill, or note.”— Aikin's Digest, page 385, §6.

      “ In all cases where judgment shall be entered up in any court of record, or by .any justice of the peace, against any person or persons, as security or securities, their executors or administrators, upon any note, bill, bond, or obligation, and in all cases where execution shall be awarded by or issued from any of the Courts of record, or any justice of the peace against any person or persons, as security or securities, his, her, or their heirs, executors, or administrators, upon any bond, obligation or recognizance, and the amount of such judgment or obligation, or any part thereof, hath been paid or discharged by such security or securities, his her or their heirs, executors or administrators, it shall be lawful for such security or securities his, her, or their heirs, executors or administrators, to obtain judgment, by motion against such principal obligor or obli-gors, recognizor or recognizors, his, her, or their heirs, executors or administrators, in any court, or before any justice of the peace, where such judgment may have been entered ,up, and execution awarded against such security or securities, his her or their heirs, executors, or administrators, for the full amount which shall have been paid, with interest thereon from the time the same shall have been paid and satisfied, until' such judgment shall be discharged.” — Aikin’s Digest, page 384, §3.

       Every joint bond, covenant, bill, promissory note, or judgment of any Court of record of any State or Territoiy of the United States, shall be deemed and construed to have the same effect in law, as a joint and several bond, covenant, bill, promissory note, or judgment; and it shall be lawful to sue out process and proceed to judgment against any one or more of the obligors, covenanters,' or drawers of any such joint bond, covenant, bill or promissory note, or against any one or more of the defendants to any such joint judgment.
      Whenever a writ shall issue against any two or more joint, or joint and several obligors, covenanters or drawers of any such bond, covenant, bill, or promissory note, or against two or more of the defendants to any such joint judgment, it shall be lawful for the plaintiff or his attorney, at any time .after the return of said writ, or an alias writ,, to discontinue such action against any one or more of the defendants, on whom such writ or alias writ shall not have been executed, and proceed to judgment against any one or more of said defendants on whom said writ shall have been executed, or proceed to issue an alias or pluries writ at his election.” — lb, page 267, §55 and 56.