text:
    FRENCH VS. GARNER, et al.
    1. Equity will not interfere after a judgment at law, unless the party can impeach the justice of the judgment by facts; or on grounds of which he could have availed himself, and was prevented from doing, by fraud or accident; or the act of the opposite party, unmixed with fault or neglect on his part.

    2. And in all such cases, the fraud or accident becomes a material matter of allegation and proof, and the jurisdiction of the court can only arise from such circumstances, and must be set forth with certainty and precision: and also that the accident or fraud is unmixed with any negligence on the part of the individual, who seeks relief.
    3. The rules for allowing parties to come into equity, after trials at common law, are of great strictness and inflexibility; and therefore, where relief was sought against a judgment at law, on account of sickness on the part of a defendant, and his witness; but the name of the witness was not disclosed, and the precise facts he could establish; and it was not stated that the other facts necessary to be proved could have been established, if the witness had been present; or that complainant could not have applied for a new trial at law, and no excuse was shewn for not doing so — The bill was not supported.
    4. A note in the hands of a defendant, given by plaintiff, but payable to a third person, although belonging to defendant in right of his wife, is not available as an off-set, unless there is an express promise on the part of plaintiff, to pay the amount called for by the note, to defendant.
    5. In general, Courts of Equity, in relation to matters of set-oilj follow the rules adopted by Courts of Law; but there are cases, in which a set-off will be available in equity, which would not be so at law. Thus, in a matter where mutual credit is given, between the parties, for a demand not allowable as a set-off at law — equity will allow it. '
    0. Where, a special agreement is alleged to exist, to allow a note held by a defendant, but which would not be a good set-off at law; and it is doubtful whether the agreement could be enforced, except in a Court of Equity — there would seem to be a good ground for equitable interference.
    7. Where a portion of a judgment, enjoined in equity, will remain due after offsetting complainant’s demand; the injunction will only extend to the sum covered by the off-set, and the plaintiff at law, will be permitted to proceed with his execution, for the remainder, and his costs of suit.
    Error to the Circuit court of Dallas, exercising Chancery jurisdiction.
    Bill of complaint, tried before Judge Crenshaw.

    ■ In this case, an injunction was obtained to stay proceedings on a judgment at law, which at a subsequent term, was, on motion of defendants, dissolved, and the hill dismissed for want of equity.
    From this order, plaintiff in error appealed, and assigned that—
    The chancellor below erred in dissolving the injunction, and should have decreed in favor of complainant, on the motion to dissolve.

      James B. Clarke, for plaintiff in error.
    Clarke, for the plaintiff in error,
    presented two points for the consideration of the court :
    1. That complainant presented a sufficient excuse for not defending the suit at law ;
    2. That he presented a case for equity cognizance, notwithstanding the judgment at law.
    To support the first proposition, he cited 1 Story’s Eq. 94, 95, 106, 107, 120; 2 lb. 657; McBroom vs. Somer-ville, 2 Stew. 515; 2 Porter, 181; 4Littell, 163; Hauser vs. Mann, 1 Murphy, 410; 3 Am. Dig. 85; Peirson vs, Meaux, 3 Marsh. 6 ; 3 Bibb, 254; 2 lb. 275. To support the second point: 1 Story’s Eq. 96; 2 lb. 656, 657, 659, 661; Hause vs. Mann, 1 Murphy, 410 ; 3 Am. Dig. 85; Peirson vs. Meaux, 3 Marsh. 6; 3 Bibb, 254; 2 lb. 275.
   GOLDTHWAITE, J.

— The bill, in this case, charges that the complainant made his note dated the eleventh day of January, eighteen hundred and twenty-six, payable to the defendant, Garner, or bearer, three days after the date of the same, for the sum of one hundred and sixty-nine dollars. Of this note, the complainant paid sixty-nine dollars, on the fourteenth day of May, eighteen hundred and twenty-six. In April, eighteen hundred and twenty-seven, the complainant became possessed (in right of his wife) of a note of the defendant, Garner, for the sum of one hundred dollars, given to one Lock, the father of complainant’s wife.

This note was due in January, eighteen hundred and twenty-seven, and after the death of Lock, came to the possession of the complainant, as his property: Garner, the defendant, promised the complainant that he would discount and set-off the amount due from him on this note, against the note of the complainant then held by him, but the settlement was delayed under some pre-tence, that he had omitted to bring the note with him.

In eighteen hundred and thirty-two, Garner (for the use of Peters, the other defendant,) commenced a suit at law against the complainant, on the note held by him; to which suit the complainant pleaded, and intended to rely on the note given to Lock, as a set-off. A witness was subpcened to prove Garner’s agreement to allow the note held by the complainant as a set-off, but at the time of the trial, this witness and the complainant were unable to attend the court, in consequence of sickness. The counsel for the complainant never having conversed with the witness, or knowing with certainty what he could prove, was unable to continue the case, and a judgment was rendered for the balance, appearing due on the note, with interest. The bill further charges, that the defendant, Peters, has no interest in the suit, though instituted in his name — that Garner is yet entitled to the money — that he has left the State, and has no effects within it from which the money due to the complainant on the note given to Lock, can be made — and concludes with a prayer of general relief. An injunction was issued restraining the defendants from collecting the judgment. At a subsequent term, the defendants appeared and moved to dismiss the bill for want of equity; which motion was sustained, and the injunction dissolved. From this decree, the complainant appealed, and here insists that two grounds for the interposition of a Court of Equity are presented by the bill:—

1. Because the complainant was prevented from sustaining his defence in a Court of Law, by inevitable accident ;

2. Because chancery has original jurisdiction of the case presented by the bill, and the relief sought by it could not have been available, on the plea of set-off.

It is a settled principle, that a Court of Equity will, not interfere after a judgment at law, unless the party can impeach the justice of the judgment by facts, or on grounds of which he could not have availed himself; or was prevented from doing it, by fraud or accident, or the act of the opposite party, tmmixed with negligence or fault on his part—(Duncan vs. Lyon 3 John. Chan. Rep. 351; Royster vs. Watkins, 3 Porter, 436.) What circumstances of fraud or accident will permit a party to go into equity after a judgment at law, does not appear from any adjudicated cases, but it is evident that in all such cases, the fraud or accident becomes a material matter of allegation and proof, as the jurisdiction of the court can only arise from such circumstances. There can be no hardship, also, in requiring the party in such a case, to state with certainty and precision every fact which enters into the particular matter of fraud or accident, in order that the opposite party may disprove or controvert them if necessary; and in addition to such allegations, it must be shewn, in conformity with the rule before stated, that the accident or fraud is unmixed with any negligence on the part of the individual who seeks relief. In the present case, the complainant does not disclose the name of the witness, the precise facts which he could establish, or shew that all the other facts necessary to be proved, could have been established by him, if the witness had been present. He does not shew that he could not have applied for a new trial, to the court which tried the cause, nor shew any excuse for his not doing so. It would be his misfortune, if not informed of the result of the trial, if he could with such information, have had an opportunity to have moved for a new trial. The rules for allowing parties to come into equity after trials at law, ought to be of great strictness and inflexibility; Otherwise, as observed by Chancellor Kent, in the case before cited, they would create a great public grievance, by encouraging negligence, protracting litigation, exhausting parties, and drawing within the cognizance of courts of equity, the general review of trials at law. The bill cannot be supported on the allegations in relation to the matters of accident.

The second point presents a question of some importance, and was not, in all probability, raised or examined in the court below.

The note attempted to be set-off, appears to be made payable to Lock, and does not appear to have been endorsed. It is alleged to have belonged to the complainant, in right of his wife. These facts, if true, are conclusive to shew, that the note in his hands would not have been available by him as an off-set to the action, unless he could have shewn an express promise by Garner to pay him the amount of the note so held. If such promise was made, a present right of action would have accrued to the complainant, and in that event, he could have maintained his defence at law. No such promise is alleged by the bill to have been made, but an agreement is set up between Garner and the complainant, that one note should be discounted from the other. In general, courts of equity, in relation to matters of set-off, follow the rules adopted by courts of law; but there are cases in which a set-off will be available in equity, which would not be so at law. Thus, in a matter where mutual credit is given between the parties for a demand not allowable as a set-off at law, equity will allow it. Judge Story observes, in his commentaries, “ there is great reason to believe that whenever there is a mutual credit between the parties touching the same, a set-off is on that ground alone maintainable in equity, though the mere existence of mutual debts, without such mutual'credit, would not, even in a case of insolvency, sustain it.” — (2 Story’s Equity, 662.) In this case, a specific agreement, to allow the note held by the complainant is alleged, and it is questionable if this agreement can be enforced elsewhere than in a court of equity.

This view of the bill presents a distinct ground for equitable interference, and in our opinion the Circuit court erred in dismissing the complainant’s bill as without equity; for which error, the judgment is reversed, and the cause remanded for further proceedings: But as a small portion of the debt due on the note given to Garner, will remain unpaid after off-setting the complainant’s demand, if he shall make out his case, the injunction in the court below must only be retained for the sum covered by the note held by the complainant. As to the remainder, and for the costs of suit, the plaintiff at law will be permitted to proceed with his execution.


source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    HITHCOCK VS. M’GEHEE.
    1. By the employment of an attorney at law to conduct a cause in court, a personal trust and confidence is reposed, which can not be delegated to another, but by consent of the person interested.
    2. If a delegation thus made without authority, be afterwards assented to by the party interested, with full knowledge of the facts, it will be as binding on him, as if made by his authority.
    3. Or, if information be seasonably given to the person interested, of such unauthorised delegation, and he do not dissent from it, he will be held to have acquiesced in it.- — Silence in such a case will amount to a ratification.
    4. But where no information of the delegation was given, until nearly three years had elapsed, and then only on application of the person interested; although no dissent was expressed— yet no ratification could be presumed.
    Error to the Circuit court of Mobile.
    Action on the case — tried before Judge Harris. The action was brought to recover the amount of two promissory notes, placed in the hands of defendant, for collection, as an attorney at law, which defendant alleged he had handed to a third person, also an attorney, to collect.
    The defendant plead .the general issue, on which a verdict was rendered against him, for the amount, called for by the notes.
    It was proved by a witness, that in March, eighteen hundred and twenty-four, there were placed in his (witness’) hands, claims against Messrs. Armstrong, McGehee & Co., of which firm the late William MeGehee was a partner, amounting to fifteen or twenty thousand dollars, either to secure or collect. On the twentieth of March of that year, William MeGehee, by two several deeds, transferred to witness, all his estate, both real and personal, which he admitted himself to possess, not previously encumbered, to secure in three equal annual payments, the claims then in the hands of witness. Among the credits transferred by MeGehee, was a note of Thomas McDaniel, said by MeGehee, to be then in the hands of Messrs. Crawford & Hitchcock, then practitioners of the law — the one resident at St. Stephens, the other at Cahawha: that the note, the interest in which was transferred to witness, on the twentieth of March, eighteen hundred -’and twenty-four, was the same, in regard to which, suit was then pending, in the Circuit court of Mobile — the witness had no doubt.
    In the deed, by which the note of McDaniel was transferred, it was stipulated, that if the brothers of MeGehee, then residing in Georgia, should become his securities, for the debts intended to be secured by the deed, within a time limited, that then the notes, ■&c. transferred to witness, should be by him transferred to them. They became his securities, within the time provided, and in August, eighteen hundred and twenty-four, witness transferred all notes, &c. to them, and delivered the evidence of transfer to. their agent in Tuscaloosa.
    Witness did not recollect, that Mr. Hitchcock ever gave him any other notice, of his having turned over for collection, to the late Judge Perry, of Cahawba, the note of McDaniel, than the following: in January, eighteen hundred and twenty-seven, during the sitting of the Supreme court, at Tuscaloosa, either William McGehee, or witness at his request, enquired of Mr. Hitchcock, whether he had collected the note of McDaniel, or whether, and when, it would probably be collected. Mr. Hitchcock replied, that upon his leaving Cahawba, then Ms late residence, for Mobile, he ceased to practice law in the county of McDaniel’s residence, and turned over to H. G. Perry, esq. his note for collection. He also remarked, that five hundred, or five hundred and twenty-five dollars, on the note, had been collected, by H. G. Perry — one hundred of which, had been retained by Mr. P., and the residue paid to himself. Mr. Hitchcock refused to pay over- to McGehee, the sum received by him, from Mr. P.— claiming it, as he said, because of Mr. McGehee’s indebtedness to him, for professional services, in the Circuit court of Tuscaloosa county, as also a further sum of something like five hundred dollars, for services in. the same court. McGehee denied any indebtedness, and insisted that he had given his note to Crawford & Hitchcock, at St. Stephens, for five hundred dollars, in full for professional services, to be rendered by them; and that he had fully paid thát note to one Hatch, their assignee. The parties separated without any adjustment, each somewhat dissatisfied, with the view taken of the professional services of Crawford & Hitchcock, by the other.
    Whether McGehee and Hitchcock ever had-another interview, or any letter was ever written on the subject, witness could not say. YHtness thought McGehee, several times, made inquiries of Mr. P. about the collection of the note; and once, if no more, witness had a conversation with Mr. P., at the request of McGehee, and expressed a wish that the same should be collected.— Whether McGehee ever did any thing further, to shew his assent to the substitution of Mr. P. for Crawford & Hitchcock, witness was not advised.
    The proceeds of the note in question, were to go to Abner McGehee, of Montgomery county, who had advanced, as witness understood, largely for William Mc-Gehee, and William McGehee was his agent, in the collection of the claims transferred by him.
    After the evidence closed, the defendant moved the court to charge the jury, “ that if they believed that the defendant put the notes, mentioned in the declaration, into the hands of II. G. Perry, an attorney, for collection, and that the plaintiff on being informed thereof, did not dissent to the employment of said Perry, as an attorney, to collect the same — from his omitting to dissent to such transfer, they were authorised to presume his assent to the said Perry’s employment.”
    This charge the court refused to give, and the refusal was here assigned as error.
    Thornton, for plaintiff in error.
    Campbell, contra.
    Thornton, for the plaintiff in error
    — cited McGehee vs. Greer, decided at the present term, (page 537 of this volume,) to shew that the refusal of the court below, to charge as requested by defendant, was error.

      Campbell, for the defendant inerror.
    — Can an attorney at law make a substitute, in the management of a cause entrusted to his care ?—(1 Liver. Agency, 54—Sugden on Pow. 175, 264.) The fact of ratification is a compound one, depending upon a variety of circumstances, where it is not express. The whole matter ought to have been submitted to the jury,—which was done.—,(2 Peters, 132—3 ib. 81—7 ib. 287.) Ratification of an agent’s acts, in violation of his duty, can not be inferred from the silence of the principal, unless all the facts are known.— (9 Peters, 607.) Delay, in the communication of a departure from instructions, deprives the party of the right of construing silence into acquiescene. — (17 Mass. 103.)
   ORMOND, J.

— By the employment of an, attorney at law to conduct a cause in court, a personal trust and confidence is- reposed, which cannot be delegated to another, but by the consent of the person interested.

This proposition is not questioned, and is indeed conceded in the motion which is made in the court below. It is equally certain, that if a delegation thus made without authority, be afterwards assented to by the party interested, with full knowledge of the facts, it will be as binding on him as if made by his authority. It is also true, that if information be seasonably given to the person interested of such unauthorised delegation, and he do not dissent from it, he will be held to have acquiesced in it: both these principles in view, I will now proceed to examine the question.

The proposition contained in the charge, -which the plaintiff moved for, is simply that if the defendant did not dissent from the employment of Perry to conduct the suits, when informed of the fact by the plaintiff, that he must be presumed to have assented to it. To ascertain whether the charge was correct or not, we must consider it in reference to the testimony.

In February, eighteen hundred and twenty-four, the notes were put in the hands of the plaintiff for collection. In January, eighteen hundred and twenty-seven, when the plaintiff is applied to by the defendant for information about the suits, he informs the defendant that the claims have been transferred to Perry — that about five hundred dollars had been collected, of which the plaintiff had received four hundred, on account of some claim he asserted against defendant; — the remaining one hundred had been retained by Perry for his fee, and the residue was not collected. An angry altercation ensued, and the parties separated.

The plaintiff’s counsel, by the charge moved for, have selected a single point of view presented by the testimony, and desired that the jury might be confined to that alone. Had the charge been given as asked for, a great many circumstances highly important to a proper understanding of the case, would have been taken from their notice.

For example, it was the duty of Hitchcock, in a reasonable time after placing the notes in the hands of Perry, to have given his client notice of the transfer. This notice is not given for nearly three years, and then on an application by the defendant to the plaintiff for information, at which time he is informed by the plaintiff, that he had, since the transfer, received from Perry a part of the money, a fact inconsistent with his having constituted. Perry the agent of the defendant. These facts were all necessary to loe considered and weighed, to determine the liability of the plaintiff; yet by the motion of. the plaintiff, they were all proposed to be taken from the consideration of the jury, and the merits of the case rested on a presumption which the jury were to draw from the existence of facts which, under all the circumstances, were of but little importance. Had the information been given early after the substitution, silence would undoubtedly have been a ratification. But to say, that because no dissent was expressed upon information received at such a length of time, and under the circumstances detailed in the testimony, that therefore, assent may be presumed from that fact alone, is a proposition I think not warranted by law. In this case, its manifest tendency was to prevent the jury from considering the whole case. These were facts in the case, from which the jury might have inferred that Perry was not the agent of the defendant, but of the plaintiff, and that in fact there had been no substitution. From taking any such view as this, the jury would have been deprived, by the charge moved for by the plaintiff.

I have not been referred to any case precisely in point, but I think the following cases are analagous—(Bank of the U. S. vs. Corcoran, 2 Peters’ R. 132; Bell vs. Cunningham, 3 Peters’ R. 81; Owings vs. Hall, 9 Peters’ R. 629 ; Amory vs. Hamilton, 17 Mass. R. 109.

Let the judgment be affirmed.

COLLIER, C. J. and GOLDTHWAITE, J. — Not sitting.


author: COLLIER, C. J.

text:
    HAGAN, et al. vs. CAMPBELL AND CLEAVELAND.
    1. The rights of riparian proprietors, depend upon the fact, whether the land is bounded by a river where the tide ebbs and flows : or whether it lies along a stream above tide water.
    2. In the first case, the right of the owner to the soil, at common law, extends to high water mark, only.
    3. The shore below the common tide, belongs to ¿he public : though by grant, it may become vested in the citizen.
    4. The rule, that a country bounded by a river, extends to the point of low water, it seems, does not apply to. the case of a grant by the public, to an individual.
    5. At common law, the grantee of lands, (from government,) bounded on tide water, is not allowed to extend his riparian rights beyond ordinary high water mark : — such grants are construed favorably to the grantor, as a trustee for the public ; and no alienation will be presumed, not clearlyexpressed.
    6. Riparian proprietors are entitled to all accessions made, to the lands granted, either by the retreating of the river from its former limits ; or by the slow and secret deposit of sand, or other substances.
    7. The beds of navigable streams, as well as the sea, are the property of the public : and if, by the instantaneous casting up of sand, or other substances, the water is thrown back, and an addition is made to the land — the public may claim the accession.
    8. fiecus, if the accession be slow and secret, when it becomes the property of the owner of the adjacent lands.
    9. Where the term “ river,” is used in a grant, as a boundary — • high, or low, water mark must be intended — not a middle point.
    10. A plat or plan of survey may be referred to in a grant, and become part of it; — showing the proper lines, and ascertaining the locality,
    11. Where aliñéis described in a grant, as running towards one of the cardinal points, it must run directly in the course, unless controlled by some object.
    12. And where the distance marked out in a plat, can not be included by allowing the lines 'to deviate, the grant which refers to the plat, must be construed to' mean, that the lines shall be extended without a variation of course.
    13. Ignorance of fact by a grantor, in regard to assertions in a grant, describing undeserved merit to the grantee, will not control the language of the grant, or limit its operation in favor of one, not claiming under a subsequent grant from the same source.
    14. Where, in a grant of lands, bounded by a river, a free passage or road is reserved, — such reservation does not prevent the freehold of all the lands embraced in the grant, from vesting in the grantee; or limit his riparian rights : — the use of the road only is reserved.
    15. It seems, that where accretion is made impracticable, without the authority of government, by the labor of a third person, — excluding the water from its former limits, — such third person is a trespasser, and can derive no profit from his labor: In such case, his labor inures to the benefit of the riparian proprietor.
    16. The grant made by the British government, in seventeen hundred and sixty-seven, to William Richardson, of a cert tain tract of land in the district of Mobile, on the west side of the river Mobile, conferred on the grantee, in that grant, a title to high water mark, only.
    17. But the confirmation of that grant to John Forbes & Co. in eighteen hundred and seven, conveyed to the grantee, all the lands lying east of the original tract, to the channel of the river.
    18. And to embrace all the intervening soil, the north and south lines of the original tract, — held, properly to run, without variation of course, from high water mark, to the margin of the channel.
    19. By these grants, and each of them, there was conferred upon the grantees, or their assignees, the right to the gradual increase of soil by the receding of the river.
    20. Whether one, who does not own lands, adjacent to a river, where the tide ebbs and flows, may, for the benefit of commerce, erecta wharf or other improvement, between high and low water mark, quere.

    21. Though it is clear, no part of such erection can rest on the land of another person, nor can the latter be excluded from the use of the water, or be denied, his riparian rights.,
    This was art action of trespass to try title, prosecuted by the plaintiffs in error, in the Circuit court of Mobile county; and tried before Harris, J. The plea was, not guilty; and issue being joined, a verdict was rendered in favor of the defendants.
    From a bill of exceptions taken at the trial, it appeared that the plaintiffs gave in evidence to the jury, a grant and survey, (a copy of which accompanied the bill,) and proved that the same had been confirmed by an act of Congress, of the third of May, eighteen hundred and nineteen, and deduced title to themselves by mean conveyances under the grant. It was proved that the defendants had, before the commencement of the action, built a wharf upon the ground, for the recovery of which, the same was brought, and at the institution of the suit, held the possession. It was also shewn, that at the date of the grant, the ground occupied by the defendants was covered with the water of the river or bay of Mobilewhether the .ground ever had been uncovered by water, was not clearly shown, inasmuch as the evidence was contradictory. Evidence was adduced to show that John Forbes & Co. the original grantees, had reclaimed, by ditching and otherwise, a portion of the land originally covered with water, but it did not show that their reclamations extended to the wharf and land in possession of the defendants. Evidence was offered by the plaintiffs, tending to show that the southern boundary of the tract embraced by the grant, if extended to the channel of the river Mobile, in the same direction in which it stfikes the water, would include the land and wharf occupied by the defendants, but evidence was given by the defendants, showing that the wharf and land sued for, lay below a straight line drawn from the point where the southern line struck the river at .high-water mark and the channel of the river, and if a line was run from that point at high-water mark, directly to the channel, the land in controversy would not be embraced.
    “The court instructed the jury, that by the terms of the grant, the eastern boundary of the tract is the river. Its termination is a question of law. A grant extending to the river, where the tide ebbs and flows, terminates at high-water mark, unless by its terms, it be extended further. The land between high and low-water mark, that is, between the flow and ebb of the tide, belongs to the sovereign, and does not pass by a grant, unless specially given. Such lands as you may find to have been drained by John Forbes & Co., and to have been reclaimed, passed by the grant. If, from the evidence, you believe that the land for which this suit was brought, was at the date of the grant covered by the waters of the river or bay of Mobile, and that it was not subsequently reclaimed by the plaintiffs, nor those under whom they claimed, and that by the terms of the grant, it was not extended further than to the river Mobile; then it is the opinion of the court, that the plaintiffs have no right to recover the premises in question. The court instructed the jury, that the land lying between high and low-water mark, that is, between the ebb and flow of the tide, did not pass by the grant under which the plaintiffs claim, but that if the land, which, at the date of the grant, lay between high and low-water mark, that is, between the ebb and flow of the tide, had been reclaimed by the grantees, so that the water of the said river Mobile had been excluded from it, in that case, the plaintiffs might recover the land thus reclaimed, by virtue of the grant.” To all which, the plaintiffs excepted, &c.
    The grant referred to, in the bill of exceptions, was dated at Pensacola, the twenty-fifth day of September, eighteen hundred and seven, and made by the Intendanf of the Province of West Florida, to John Forbes & Co. By this grant, it was shown that the British government, in seventeen hundred and sixty-seven, granted to William Richardson, a tract ofdan'd situate in the District of Mobile, on the west side of the river Mobile. That in seventeen hundred and seventy-four, Pantan, Leslie & Co. purchased of William Richardson, the tract embraced by the British grant, and that John Forbes, (a partner of the house of Pantan, Leslie & Co., then continued under the firm of John Forbes & Co.) by his memorial to the tribunal of the Intendancy of West Florida, asked a confirmation of his title. The grant, after reciting the reference of the memorial and its accompanying documents, to the appropriate officers of the Spanish government, and their action thereupon, 'proceeded as follows:
    “ It is therefore declared that this house, John Forbes & Co. should be protected, as by the present decree they are protected, in the possession of the said tract of land, so that in no time to come they can be molested or disturbed in their possession of the same, on account of its being'royal domain; with which intention, the corresponding title should be issued to them in the ordinary form, and consequently, the “ plat” or figurative plan made by Don Josef Collins, the assistant surveyor, to be corrected, as is done by Don Vincente Sebastian Pintado, the surveyor-general of this province, in the copy which he has made of it, with the certificate which follows ; by which it appears that the two hundred and sixty-three English acres, reduced to the geodetic measure of this province, compose three hundred and ten arpents, seventy-seven and one-eighth perches of Paris, consisting of eighteen lineal perch of said city, and one hundred superficial perches to the arpent, superficial measure, according to the received custom of these provinces; and by the process of survey made the second of May, eighteen hundred and two, by said Collins, it is shewn that the tract of land in question is situate in the district of Mobile, on the west side of the river, a quarter of a league, more or less, to the north of the fort, and terminated by the bank of said river on the east side, and bounded on the north by lands of Jeremiah Terry, said now to be royal domain, on the south by vacant lands, and a lot belonging to said house, (John Forbes & Co.) and according to information on the west by lands of G. Fisher and others, which are said to belong to the royal domain; and although in the foregoing plan, copied from the original made by Don Josef Collins, there is an error in the reduction of acres into arpents, supposing two hundred and eighty of the last to be equal to two hundred and sixty-three of the first; as also an error in the superficies of the trapezium, which figure said land represents; which, according to its dimensions, contains two hundred and eighty-seven arpents. Nevertheless, it must always be understood, in order that it may never operate to the prejudice of the party interested, that the said two hundred and sixty-three English acres, are equal to the three hundred and ten arpents seventy seven and one-eighth perches aforesaid, as calculated by the surveyor-general; and the distance,- in the plat marked out, as being from the river to the limits (east) of the land, and left unsurveyed at that period, being impassable, has since been rendered useful, by the owners having ditched and, drained the same, and which they are to receive in compensation for the above mentioned error; with the reserve, however, of leaving a free passage on the bank of the river, without altering the figure of said tract on the other side. Whereupon, exercising the power which the King, our Lord, (God preserve him,) has confered on me in his royal name, I confirm and ratify, to the before mentioned John Forbes & Co.,-the possession of the three hundred and ten arpeáis and seventy-seven perches and one-eighth of land, which are superficial, and contained in the plat, number one thousand eight hundred and nine, with the correction made by the surveyor-general, in order that they may, as their own property, possess, sell, or dispose of the same, at their own free will and pleasure, (provided it does not interfere with the claims of a third party,) with the condition that they have to observe and comply with the land regulations made and published by this Intendancy, on the seventeenth of July, seventeen hundred and ninety-nine, or as far as it relates to the local situation and quality of the land. In testimony, &c.”
    The copy of the survey corresponded with that described in the grant, both as to its number, and the figure of the tract. On it were traced lines, shewing the eastern boundary of the British grant, and from the points where the northern and southern lines strike this boundary, they were continued without deflection, to the channel of the river. And the marsh or fiat lying between the channel and the high water mark in seventeen hundred and sixty-seven, was deafly described in the plat

      [In order to elucidate the case, the Reporter has added a copy of the plat, taken from the Spanish grant, made part of the bill of exceptions.
    By act of Congress of 1819, all claims,to land, founded on complete grants from the Spanish government, reported to the Secretary of the Treasury by the commissioners from the districts east and west of Pearl river, &c. were recognised and declared valid — -(See 3 Story’s U. S. Laws, 1748, s. 1, 2.]

      Hopkins, for plaintiffs in error.

      Thornton, contra.

      Hopkins, for plaintiffs in error,
    relied on the following points:
    1. That the Spanish grant made low-water mark the eastern boundary of the tract — (Co. Litt. Tit. Confirmation, Lib. 3 ch. 9, sec. 515, note 1, page 295; and sec. 521, note 1, page 297; 6 Cowen, 281; 4 Com. Dig. (E. 12) 546, and (G. 4) 54.
    2. That the effect of the direction in the grant, to preserve the figure of the tract, is to continue the northern and southern lines to the channel of the river, in the same direction, in which they run to the high-water mark — (1 John. 156; 5 Wheat. 375; 6 Cranch, 237.
    3. If the eastern limit of the tract had not been changed by the Spanish grant, the grantee would have aright by accretion, to all the land which might be left, below the original high-water mark, and above what might become at any time the high-water mark, by a change of the high and low-water marks; but the right to such accretion is merged by the Spanish grant, into the right of the sovereign, to all the land there may be at any time above what may be low-water mark — (10 Peters’ B.. 662, 717, 721.)
    4. If there had been a junior grant to the river, the effect of which, would make high-water mark the eastern boundary, a claimant under it could not, under any circumstances, acquire by accretion, any of the land between high and low-water marks, which lay within the previous grant to Forbes & Co., because such land had been previously granted, before the junior grant was made, and consequently, before the title on which the right of accretion depends, was conveyed to the junior grantee. A government may grant to low-water mark; and if such a grant be made, it is a grant of every thing which a government is capable of granting; and the right of accretion upon a junior grant in a direction to interfere with the previous absolute grant of the same land, cannot be conferred. The government could not, by express terms, give the land between high and low-water marks, to a junior grantee, which had been previously granted to another, and such land can never be acquired by a junior grantee, in virtue of the right of accretion.
    5. After a grant to such a river, the sovereign cannot grant the land between high and low-water marks to a third person, as such a second grant would destroy the right of accretion, and deprive the first grantee of his river front. But in this case, a junior grantee of land bounded by the river, might know, and had constructive notice of the fact, that he could never acquire by accretion any thing in a direction, to interfere with the land between high and low-water marks, previously granted to Forbes & Co.
    Thornton, for defendants in error.
    The whole question, in this case, depends on the construction of the grant to the plaintiffs, as to the extent and direction of the southern boundary line. The question of fact is settled by the bill of exceptions, that the locus sued for, is below the southern line of the plaintiffs’ grant, if extended at right angles to the channel of the river, from where it struck the water; and is not included in the grant thus bounded and defined.
    The argument of the plaintiffs counsel is, that the grant is to the channel of the river, including all -water and land, between its nothern and southern lines — extended in the same undeviating course, from their commencement, as in the old English grant, to the channel of the river.

    We contend for the defendants in error—
    First — That the last, or supplemental grant, contained, in addition to what was embraced by the first, such lands as had been actually reclaimed by the grantees, at the date of said supplemental grant. If this construction should be accorded, the proof was, that the land thus reclaimed was all above, or north of the ground sued for. For this point, we merely ask the attentive examination by the court, of the whole grant.

    Secondly — We contend, that if the grant was intended to embrace water, or ground covered with water, as well as actually reclaimed ground, then it was only such space, as would be contained between the northern and southern lines extended to the river, which is made the eastern boundary expressly, but that the grant there stopped; and that the right of riparian proprietor only, attached for any thing beyond the river to the eastward, and towards the channel.
    The court below, as I understand it, (and so it seems the opposite counsel understand the charge,) recognised the right of the riparian proprietors, as to all reclamations in front of his land; but charged that the grant extended only to the river as its eastern boundary, that is, to high-water mark. The error imputed to the court below, is refusing to charge, that the grant ought to be construed, as if it had expressly said, that the grantees should have and possess all the land and water contained between the north and south lines of the original grant, extended in the same unvarying course throughout their whole extent, to the channel of the river. Now, admit that the sovereign can grant the shore, that is, the space between high and low-water mark, and the water of theriver to the channel, — which it would seem has been done, and sustained by the English Judges; yet, by all the authorities, nothing can be taken by intendment, against the sovereign in his grants; but they must he construed strictly — (6 Peters’ K 738; Dyer a 362, a; Cro. Car. 518; 11 Peters’ R 421.) I feel assured, that the express terms of the grant do not go to the extent contended for. All the purposes and motives of the grant, as declared on its face, are accomplished without this construction; and it is so unjust, that it ought not to be presumed to have been intended, even if it could be supported by intendment. The benefit of the water is a natural advantage, intended for those who own the contiguous soil, or terra firma, and ought to belong to all who border upon it, in proportion to the extent of that border. In the nature of things, the riparian proprietorship has reference to the water, and not to the shape or quantity of land extending back from the marginal basis. If the rights of the riparian proprietor are referable to the fact of his owning the contiguous land, that is. as arising from such ownership of the marginal soil,— then the absurdity of the doctrine, that those rights are at all dependent upon, or to be affected by, the course of his other boundary lines, can be easily exposed. Suppose, at the bend of a river, the marginal proprietor, A, should claim the extension of his lines in the same course, as when they strike it, as in the following diagram

    he would deprive all the reparian owners, B, C and D, of any rights of accretion, piscary, waifs, &c. though they are liable to have all their property swept off by the stream, from all benefit of which, they are thus excluded. Now, by the rule for which we contend, and seek to apply to the case in hand, no such inequality in the enjoyment of the advantages of nature will result.
    For the principles applicable to artificial improvements, as were the wharf, &c. of the defendants, see Angel on Tide Waters, page 125 to 163.
   COLLIER, C. J.

— In order to a solution of the questions of law arising upon the record, we will inquire—

First — What was the true eastern boundary of the land embraced in the grant made by the British government?

Second — What was the additional extent of the confirmatory grant made by the Spanish authorities ?

First — The record contains no copy of the British grant, and ^ascertain its terms, we must refer .to that made by the Spanish authorities, in which it is recited. From that, it appears that the land was situated in the then district of Mobile, “on the west side of the river Mobile.”

The rights of riparian proprietors are diverse, depending upon the fact, whether their land is bounded by a river, where the tide ebbs and flows; or whether it lies along a stream above tide water. In the former case, the right of the owner to the soil, according to the common law, extends but to high-water mark—(3 Kent’s Com. 344, and Angell on Tide Waters, 68.) The shore below the common tide belongs to the public, though by grant, it may become the property of the citizen—(3 Ib. 347.) But in Arnold vs. Mundy, (1 Halsted’s R. 1,) it was determined, that a grant of land lying upon navigable water, reached only to high-water when the tide was at its flow, and to low-water mark when it had receded, thus diurnally changing the extent of the owner’s right. And in Handley’s lessee vs. Anthony, (5 Wheat. R. 374,) the court considered that the cession by Virginia to the United States, of all her right to the territory “situate, lying and being to the north-west of the river of Ohio,” was a relinquishment of title to the land lying above low-water mark on the north-western bank of that stream, and the case would not be varied, “ if, instead of an annual and somewhat irregular rising- and falling of the river, it was a daily and almost regular ebbing and flowing of the tide.” The rule, that a country bounded by a river would extend to low-water mark, has (say the court) been established by the common consent of mankind. It is founded on common convenience.” Whether the rule recognised in that case would have have been considered applicable to a grant made by the public to an individual, the opinion does not inform us— but we suppose that it would not.

It is, however, unnecessary to enquire, what has been the course of judicial decision in the United States upon this subject; for the grant of seventeen hundred and sixty-seven, must be expounded with a reference to the English common law, as applied in Great Britain and her dependencies. And that system of jurisprudence, according to all authority, does not allow the riparian owner, under a gran,t from government, of lands bounded on tide water, to go beyond ordinary high water mark—(Storer vs. Freeman, 6 Mass. R. 438; Cortelyou vs. Van Brundt, 2 Johns. R. 357.) The rule which determines this to be the extent of the grantee’s interest, is founded upon the principle, that such grants are construed most favorably for the sovereign; and derives force from the consideration, that public grants are made by a trustee for the public, and no alienation should be presumed, that was not clearly expressed.

Though the proprietor or his assigne®? under the British grant, acquired no title to the soil lying between high and low-water mark, yet they were entitled to all accessions made to their land, either by the retreating of the river from its former limits, or by the slow and secret deposit of sand or other substances, so as to leave the soil theretofore inundated, uncovered by water—(Angell on Tide Waters, 68; 3 Kent’s Com 344, et post.)

In New Orleans vs. the United States, (10 Peters’ R. 717,) “ the question is” said to be “ well settled at common law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded, is subject to loss by the same means which may add to his territory; and as he is without remedy for his loss in this way, he cannot be held accountable for . his gain.” The beds of navigable streams, as well as the sea, belong to the public. And if by the instantaneous casting up of sand or other substances, the water is thrown back and an addition made to the land, the sovereign may claim the accession, upon the ground that it was but a part of the bed of the river or sea, of which he was the proprietor. But if the increase was occasioned by a process so slow and secret, as renders it impossible to discover how much is added in each moment of time, it belongs to the proprietor of the land to which the addition is made —(Angell on Tide Waters, 68; 3 Kent's Com. 345; and the King vs. Lord Yarborough, 3 Barn. & Cress. R. 91.) The civil law, from which the common law on this subject is copied, says, “what the river adds by alluvion to your estate, becomes yours by the law of nations. Alluvion is a latent increase. That seems to be added by alluvion, which is so added by degrees that you cannot know how much in each moment of time — (Angell on Tide Waters, 69.) And to the same effect is the very learned and elaborate argument of Mr. Livingston, (and the cases therein cited,) in regard to the Balture at New Orleans—(2 Am. Law Journal, 326, 330.)

Without extending to greater length our enquiries upon this branch of the case, we think it is sufficiently shown that the British grant only conveyed to its grantee a title to the land above high-water mark, with a right to the gradual accessions by alluvion, &c.—(Bullock vs. Wilson, 2 Porters' R. 436; see a note by the Reporter, 6 Cowen’s R. 536, 541, et post; and 10 Peters’ R. 662.)

Second — The Spanish grant, after stating the boundaries of the land conveyed by the British government to William Richardson, and that it lies on the west side of the river Mobile, and is “ terminated by the bank of said river on the east side”- — shows a deficit in the number of acres proposed to be granted, and continues, Nevertheless it must always be understood, in order that it may never operate to the prejudice of the party interested, that the said two hundred and sixty-three English acres are equal to three hundred and ten arpents, seventy-seven and one-eighth perches aforesaid; and also that the distance described in said plat or plan of survey between the river and the limits (east) of the tract, and which was left at the time unsurveyed, it being then impassable, has since been rendered useful by the owners having ditched and drained the same, and which they are to receive in compensation for the above-mentioned error, with the reserve, however, of leaving a free passage on the bank of the river, and without altering the figure of the tract on the other side,’5 &c. Here is a clear grant of all the soil lying between the tract first granted and the river, designated upon the plat or plan of survey accompanying the Spanish grant. Where the term “ river” is used as a boundary, either high or low-water mark must always be intended, and not some middle point. The land embraced by the British grant is “ terminated by the bank of said river (Mobile) on the east side,” — by the “east side,5’ we are to understand the eastern boundary of the tract, and not the eastern margin of the river. It is, then, clear, beyond controversy, that the grant of seventeen hundred and sixty-seven, extended to the river, which, as already shewn, was high-water mark.

The grant of eighteen hundred and seven, reaches not only to the eastern limits of the first grant, but embraces “ the distance in the plat marked out as being from the river to the limits east of the land, and left unsurveyed at that period, (1767) &c. and which they (John Forbes & Co.) are to receive in compensation for the above-mentioned error,” &c. Here, again, “ the limits east of the land,” mean the eastern boundary of the British grant— “the river” evidently refers to some point below high-water ; for if high-water mark were intended, there would have been nothing additional granted, as the first grant extended thus far.

If all the soil lying east of the British grant and the channel of the river, had been expressly granted, there then could have been no controversy as to the extent of the claim of Forbes & Co. And is not their title as clearly made out by the proof, as it would then have been? The marsh lying between the land covered by the grant of seventeen hundred and sixty-seven and the river, is described in a plat or plan of survey accompanying, and made part of the grant of eighteen hundred and seven, and together with the land embraced by the former grant, is all conveyed to the grantees. This marsh either then was, or had been subject to inundation by the flowing of the tide, and by the manner in which it is described in the plat, must have been at least a part of it below high-water mark in eighteen hundred and seven. Here, then, the Spanish government, in terms not at all dubious, have granted the soil between the original trad and the river. The original tract, we have seen, had for its boundary on the east, high-water mark. What distance, then, could have been described in the plat or plan of survey, but the land lying between high-water and the channel of the river ? Besides, the copy of the survey accompanying the record, indicates as clearly as possible that the intervening space was marsh or flat land, partially inundated, and that it extended to the stream, even when the tide had receded.

The north and south lines, running from west to east, are plainly traced on the plat, and continued without any deflection, from the point at which they strike high-water mark, act'oss the marsh to the channel of the river. Here is a conclusive indication of what land was embraced by the survey. A copy of the plat, or plan of survey, we have seen, is made part of the grant; so that the grant of eighteen hundred and seven must be regarded as quite as explicit an indication o'f the eastern limits of the tract, as if it had in toiidem verbis, transferred to John Forbes & Co. all the land lying between the north and south lines, extended east to the channel of the river. This single view is decisive of the case, as presented by the record; but least it may appear upon another trial, that the plan of survey now before us, is not a correct copy of the original, it will be proper to consider the case in reference to such a contingency.

Even if the original plat or plan of survey should not discover a continuation of the northern and southern lines of the original tract, drawn east to the margin of the channel of the river; yet, inasmuch as it designates the marsh lying between high and low-water, and the grant of eighteen hundred and seven relinquishes to John Forbes & Co. the part of the marsh lying east of the land embraced by the British grant, “ in compensation” for a deficiency between the land intended to be thereby granted, and that received by the original grantees, — these lines must be run without deflection from high-water mark to their eastern termination. How else could all the land east of the British grant and west of the river be embraced ? There is certainly no warrant for maintaining, that less than all, was relinquished to the grantees in eighteen hundred and seven. If these lines should diverge, then they would embrace a larger quantity of land than lies east of the tract, but if they should converge, then the quantity would be less. So that the only way in which the Spanish grant can operate according to its terms, is for these lines to continue an unvarying course to their termination.

That it is competent for a grant to refer to a plat or plan of survey, in order to ascertain the locality and lines of the land, is a proposition, which it is supposed no one will dispute. In Jackson ex dem. Livingston vs. Freer, (17 Johns. R. 29,) it appeared that a large tract of land was granted by the commissioners of the land office — it was described by its exterior lines alone, and a survey directed to be made by the surveyor general — and patents were to be issued for the several lots according to the return and map of such survey. The survey and return was made, and patents issued describing the several lots by reference to the map of the survey on file in the office of the Secretary of State. It was held, that the patents were to be understood as referring not only to the map on file, but also to the field book of the actual survey.

And it fe well settled, that where a line is described as running towards one of the cardinal points, it must run directly in that course, unless it is controlled by some object. Thus, in Brandt. ex dem. Walton vs. Ogden, (1 Johns. R. 156,) it was determined, that “ the term northerly in a grant, where there is no object to direct its inclination to the east or to the west, must be construed to mean north, and there being no object to control, it must be a due north line.”—(See also Jackson ex dem. Woodworth vs. Lindsay, 3 Johns. R. 86; Jackson ex dem. Clark vs. Reeves, 3 Caine's R. 293.) As “ the distance in the plat marked out as being from the river to the limits east of the land,” cannot be included by allowing the north and south lines to converge, and as divergent lines are not authorised, the grant of eighteen hundred and seven, must be construed as directing an extension of these lines to the river, -without variation of course.

It is not essential to the plaintiffs title, to show that all the marsh was drained previous to eighteen hundred and seven, or that it had been reclaimed since that period. It is true, that all this is described in the Spanish grant, as having been rendered useful by the owners having ditched and drained the same, and which they are to receive in compensation for the deficit in the quantity intended to be conveyed by the British grant. That the Spanish authorities believed that the marsh, or the greater part of it, lying between the river on the east,’ and the original tract On the west, had been drained, we think probable, from the terms employed. Yet an ignorance of fact, in this particular, can not be held to control the plain language of the grant, and limit its operation to so much of the land as was actually drained; — most certainly not in a controversy with a mere occupant, who relies upon no title subsequently acquired'Vrom the authorities of Spain. The plat or plan of survey does not trace any ditch as having been cut through the marsh; and the river being declared to be the eastern boundary of the land covered by the grant, there is no authority for stopping at any point between the channel and high water mark.

The reservation of a free passage on the bank of the river, did not prevent the freehold in all lands described in the plat or plan of survey from vesting in the grantees — -the title vested charged with the servitude. The free passage was subject to be changed by the grantees, or their assignees, as the river might gradually recede from its limits, so as to continue it along the bank. Nor can the fact of a road running along the bank of a navigable river, be held to limit a grant having the river for its boundary, so as to exclude its proprietor from riparian rights; and in this case there cannot be the slightest pretence for such an idea. The freehold in the land over which the road run, did not continue in the Spanish government; — that was transferred by the grant, while its use only was to be enjoyed by the public—(Cortelyou vs. Van Brundt, 2 Johns. R. 351.) And the title to all the soil lying between the original tract and the river, having passed by virtue of the grant of eighteen hundred and seven, to John Forbes & Co., and of course to his assignees, they immediately became entitled to the right to alluvial formations, in the same manner as other riparian proprietors are, on navigable streams.

But even supposing that the Spanish grant only conveyed the title, to what was known as high-water mark, at the time it was made, the plaintiffs then would have been entitled, as riparian proprietors, to every increase of land by alluvion. And if accretion is made impracticable, without the authority . of government, by the labor of some third person excluding the water from its former limits, — shall such third person, who was himself a trespasser, derive a profit — or shall not he who lias been deprived of an increase of soil by natural causes, enjoy what art has reclaimed ? We merely propound this inquiry — the view we have taken of the case does not render its solution necessary. We need not consider whether, if the present were a controversy for land made by alluvion, the north and south lines should not take the nearest course from high-water mart to the river. And it is alike profitless to inquire whether one who does not own the adjoining land, may erect a wharf or other improvement for the benefit of commerce, between high and low-water mark, since it is clear that no part of such erections can be rested upon land of a third person, nor can such third person be excluded the use of the water, or denied other riparian rights.

The grant o'f eighteen hundred and seven, speaks its own meaning, with so much distinctness, as to relieve us from an examination of the doctrine in regard to the construction of public grants. The rule, that where there is any doubt, the construction is made most favorably for the public, is not denied, but its application is limited — it applies only in cases of real doubt—(See Charles River Bridge vs. Warren Bridge, et al. 11 Peters' R. 544—in which the learning on the subject is exhausted.)

Our conclusions, upon an examination of the plaintiffs title, are—

1. That the British grant transfers the title to high-water mark only.

2. That the Spanish grant confirmed the former, and in addition, granted all the land lying east of the original tract, to the channel of the river.

3. In order to embrace all the intervening soil, the north and south lines of the original tract must run without variation of course from high-water mark to the margin of the channel.

4. Either grant conferred upon its grantees, or their assignees, the right to any gradual increase of soil by the receding of the river.

The judge of the Circuit court was of opinion, and so instructed the jury, that the grant of eighteen hundred and seven, only transferred the title to high-water mark on the east; unless the marsh had been reclaimed previously, or subsequently, by John Forbes & Co. or those claiming under them. The i nstructions, we have shown, cannot be sustained — the grant ascertains its own limits on the east, which is not liable to he varied by showing a portion of the marsh, or even all of it, unreclaimed in eighteen hundred and seven, or at any time since.

The judgment of the Circuit court must consequently he reversed, and the cause remanded.

GOLDTHWAITE, J. not sitting — having been of counsel.


author: GOLDTHWAITE, J.

text:
    MAGEE vs. TOLAND.
    1. Personal property is divided into things in possession or in action, and property in things in possession, is either absolute or re lalive.

      2. A bailment is a qualified, limited, or special property, in a thing capable of absolute ownership.
    3. Neither the bailor or bailee oí a personal chattel has an absolute property in the chattel. The property in both is qualified, and each of them is entitled to his action, if the goods be damaged or taken away. The bailee, on account of his possession, and the bailor because the possession oí the bailee is immediately his possession.
    4. A chose in action, is any right to damages, whether arising from the commission of a tort, the omission of duty, or the breach of a contract.
    5. Possession of lands by a guardian, in socage, is the possession of the ward : The possession of a bailee, is the possession of the bailor, and the possession of a guardian, is also possession of the ward.
    6. The possession of the guardian of an infant female ward, is the possession of the ward; and if the ward marry, the possession, eo instanti, is transferred to the husband, and the bailment is then in possession of the husband, in point oí law, as much, as it could afterwards be, by an actual manucaption.

    7. The actual enjoyment oí a chattel, which accrues to the wife before marriage, is net necessary to vest her interest in the husband.
    8. If a chattel be found, and not converted to the use of the finder ; or if it be hired, or loaned, or otherwise bailed; it does not thereby become a chose in action ; and if it belong to a woman who marries, her right immediately vests in the husband, at least so far, that if she dies it will survive to him.

      Error to the Circuit Court of Greene.
    Detinue for a slave. To the declaration, defendant plead non detinei, and the jury found a special verdict, as follows:
    That on the first of January, eighteen hundred and thirty five, the slave was, and for a long time previously had been, the property of Jane Carnathan, then a minor and unmarried, and was in possession of her guardian, George Hays: That on the said first of January, eighteen hundred and thirty-five, the slave was hired by the guardian to defendant, John T. Magee, for the term of one year, and was delivered to defendant: That on the eleventh of June, eighteen hundred and thirty-five, Jane Carnathan intermarried, with James Toland, the plaintiff : That on the twenty-sixth of August, eighteen hundred and thirty-five, said Jane died without issue, leaving the plaintiff, and the following brothers and sisters, to-wit, George Carnathan, Margaret Stewart, and Mary Magee, wife of defendant, John T. Magee, surviving: That from the first of January, eighteen hundred and thirty-five, as aforesaid, said John T. Magee held possession of the slave, by virtue of the hiring aforesaid, and did not assert or claim any other right, title or interest in the slave, adverse to the right of said Jane, and the plaintiff, to the slave : That from the first of January, eighteen hundred and thirty-five, until the death of said Jane, on the twenty-sixth of August, eighteen hundred and thirty-five, neither the said Jane, nor the plaintiff, James Toland, ever had the actual possession of the slave : That from the said first of January, eighteen hundred and thirty-five, until the present time, the slave'had been, and remained, and was, at the present time, in the possession of the defendant: That defendant had never been appointed administrator of said Jane : That on the first of October, eighteen hundred and thirty-six, plaintiff demanded the slave of defendant, who refused to deliver him to plaintiff, and that the value of the slave was five hundred dollars.
    But because the jury were not advised whether, under the farts, the plaintiff was, by law, entitled to the slave ; if the court should be of opinion that the plaintiff was entitled to the slave, then the jury found for the plaintiff: seats, for the defendant.
    The court being of opinion, under the facts, that the plaintiff was entitled to the slave, judgment was rendered accordingly ; and to reverse this judgment, the writ of error was sued out, and the rendition of judgment assigned as error.
    Erwin, for the plaintiff in error.
    Jones, contra.
   GOLDTHWAITE, J.

— It is obvious that the special verdict presents the question, whether the possession of’ the slave in controversy by the bailee of the guardian of the wife, at the time when the marriage was contracted, was such a possession by the wife as to transfer the property to the husband, by the mere act of marriage?

The solution of this question involves an inquiry into the rights of property acquired by a husband, which attach to him immediately, and in consequence of the marriage. The plaintiff in error concedes the general rule to be, that the husband, in virtue of the marriage, acquires an immediate property in the choses in possession of the wife, hut he denies that any other than an actual possession can authorise the application of the admitted rule. This is certainly an ingenious distinction, and deserves to be well examined, as its adoption must have the effect materially to abridge the rights of the husband, as generally understood.

Personal property is divided into things in possession .or in action; and property in possession is again divided into two sorts — an absolute and a qualified property.— The first of these sub-divisions, is the one which the plaintiff in error denominates as an actual possession — it being where a man has solely and exclusively, the right; and also the occupation of any moveable chattel, so that it can not be transferred from him, or cease to be his, without his own act or default. A qualified, limited, or special property, may arise, either from the nature of the thing owned, or from the peculiar circumstances and situation of its owner. Many things may be owned, which are incapable of actual occupation, and absolute dominion at all times, such as wild beasts or birds, but partially reclaimed, and not domesticated.

But the more important distinction of a qualified, limited, or special property, grows out of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. Such is the case of a bailment, or delivery of goods to another, for a particular use or purpose: there is no absolute properly in either the bailor or the bailee, for the bailor has only the right, and not the immediate possession: the bailee has the possession, and only a temporary right. But it is a qualified property in them both, and each of them is entitled to an action, in-case the goods be damaged or taken away: the bailee, on account of his immediate possession; and the bailor, because the possession of the bailee is immediately his possession also. Such are the views of Blackstone, in relation to personal property in possession. His definition of a chose in action considered as property, is equally satisfactory and precise: it is where a man has not the occupation, but merely a hare right to occupy the thing in question, the possession whereof may however be recovered by a suit or action at law ; from whence the thing so recoverable is a thing or chose in action. He considers that all property in action depends upon contracts, either express or implied, which he asserts to be the only regular means of acquiring a chose in action—(2 Black. Com. 388 to 396.) It will be remembered, that this learned author is treating of the nature of property in things personal, and therefore does not enter into any discussion of the distinction between rights of action for injuries done: he is only speaking of dioses in action as property, and in this view no objection can be taken to the definition given,-as we cannot conceive that one can have a property in a wrong done, or injury suffered.

In its more enlarged sense, a chose in action may be considered as any right to damages, whether arising from the commission of a tort, the omission of a duty, or the breach of a contract. And in this sense, it is considered by most other elementary writers—(Bro. Title, chose in action, Lilly’s Abr. 264.)

It will be unnecessary to ascertain with exactness and precision, the nature of a chose in action or a right of action, if the slave in dispute is within the definition of property in possession, as given by the most approved elementary author, and fully supported by the authorities which he cites.

It appears that the slave was owned by the wife previous to, and at the time of the marriage, and was in the possession of the defendant as a bailee for hire, holding under the guardian of the wife. The authority already referred to, expressly states, that the possession of the bailee is also that of the bailor, and it only remains to show, that the possession of the guardian is also the possession of the ward. Independent of the manifest reason, that such a rule should obtain, we find no direct decision on the precise point, in relation to personal property, but the authorities are numerous and concurrent, that the possession of lands by the guardian in socage, is the possession of his ward, and that no entry is required to be made by him—(Coke on Litt. 15, a,—Newman vs. Newman, 3 Wils. 516; Doe vs. Keene, 7 Term Rep. 386.) No reason is conceived by the court, why the possession of the guardian should not he held as the possession of the ward, in relation to all personal chattels capable of possession, as it is clearly a title derived under the ward, and held solely and exclusively for his benefit. The guardian has an interest in the thing possessed, without which he would not be able to sustain an action; but such interest is consistent with, and ancilliary to the property of the ward, — it never has been supposed otherwise.

As the possession, of the defendant below was the possession of the wife, at the time when the marriage was contracted, it results that the property in the slave in question, was transferred to the husband at the instant of marriage, and was then as much in his possession in point of law, as it could afterwards have been by an actual manucaption.

It is, however, contended, that whatever may be the rule of the common law on this subject, this case must be governed by a previous decision of this court, which is said to decide the identical question here presented. The case referred to, is Johnson vs. Wren, 3 Stewart, 172. Without undertaking to pronounce what weight that case ought to have on one presenting a similar state of facts, we content ourselves with observing, that there the question of possession was left to the jury on the evidence, and was not before this court on any exception to the charge of the Circuit court. It is true, that the court seemed to consider the estate, in the slaves, as one in action and not in possession; but as the point did not arise in this court, we do not feel inclined to consider it as closing the investigation in this case. Another distinction between that and this case, is to be found in the fact, that there, the wife, and here, the husband is the survivor. Neither does this case-resemble, in any respect, that of Mayfield vs. Clifton, (3 Stewart, 375,) which was decided on the conflicting claims of a husband and the children of his deceased wife, to her undivided distributive share of the estate of her former husband.

We will now ascertain how far the principle we have recognised as applicable to this case, has the sanction of adjudicated cases in this country in its support, remarking, that there is a total absence of cases on this subject in the English reports.

In the case of The Ordinary vs. Geiger and wife, reported from the MS. reports of Judge Brevard, in 2 N. & McCord, 151—the facts were as follow: The mother of Geiger’s wife, while sole, made and executed a deed of gift of certain negroes, to her four children, jointly. Af-terwards, one of these children married Geiger, the intestate. On the marriage, one of the negroes given as aforesaid, was sent with her on her going to live apart from her mother, and remained with her ever since. No regular partition was ever made of the property between the donors. After the death of Geiger, his widow intermarried with the other defendant, and they jointly administered on his estate, and in the inventory returned to the ordinary, made no mention of the negroes given as aforesaid. The question was, whether this omission was a breach of the condition of the administration bond. The court were all clear, that a right of possession, vested instantly on the execution of the deed of gift, and that the female defendant was entitled, as a joint lineal to the property given, and therefore that on her intermarriage with Geiger, the property and right of possession which she had, vested in him, and became a part of his personal estate, and ought to have been returned as such in the inventory.

In Davis vs. Rhame, (1 McCord's Chan. Rep. 195,) the slaves had been allotted by partition to Miss Davis, (afterwards Mrs. Clark) —She was then a minor, and her slaves went into the possession of Rhame, her guardian, who dying, his executor took possession of them. After the death of Mrs. Clark, her husband obtained possession of them. The court decided that the possession of the guardian was the possession of the ward, and consequently her husband’s.

The same principle was recognised and confirmed in Saussey vs. Gardner, (1 Hill, 191.)

In North Carolina, the same principle has been acted on, in the case of Armstrong vs. Simonton’s adm’r, (2 Taylor, 266; S. C. 2 Murphy, 351.) The slave sued for was owned by the plaintiff, whose daughter intermarried with Simonton, and to whom, residing in Georgia, she loaned or gave a slave. After the loan or gift to Si-monton, the plaintiff intermarried with Abel Armstrong, who died before Simonton, and before this suit was commenced. The judge who tried the cause, instructed the jury, that if the transaction was a loan, determinable at the will of the lender, and there toas no adverse possession set up, the property vested absolutely in Abel Armstrong, on his intermarriage with the plaintiff, and that his executors could alone recover it. This opinion was pronounced correct by the Supreme court.

In Kentucky, in Banks' adm'r vs. Marksberry, (3 Litt. 275,) the facts were as follow: In seventeen hundred and seventy-three, Samuel Marksberry executed a deed, by which he gave a female slave to his daughter, Rachel, but by the terms of the deed, was to retain possession during his life. Rachel intermarried with William Banks, in seventeen hundred and ninety, and after having several children by him, of whom the plaintiff was one, died in seventeen hundred and ninety-eight. Her father, Samuel Marksberry, the donor, died some years afterwards. The plaintiff, in eighteen hundred and twenty one, took administration on the estate of Rachel Banks, his mother, and instituted the suit to recover the slaves descended from the one given to her. It was ruled, that the slaves were not choscs in action, and that the interest of Rachel vested in her husband, although she never had the possession, and died before she was entitled to it by the terms of the gift. The language used by the court is peculiarly appropriate, and may be quoted to illustrate this case. “ The slaves were in the possession of the donor, but his possession was consistent with the title of Sirs. Banks, and not adverse. There is no proof that he ever did, prior to her marriage, set -up any claim to the slaves, incompatible with the deed of gift; and under that he had only a right to the use of them for life, while the absolute property in fee belonged to Mrs. Banks. She had, in fact, the general, and he only a special property in the slaves; and it is a known rule of law, that the general property of a chattel, draws to it the possession. She was not indeed in the actual enjoyment of the slaves, but surely every chattel, of which the owner is not in the actual enjoyment, cannot be denominated a chose in action. Nor is such actual enjoyment of a chattel which accrues to the wife before marriage, necessary to vest her interest in the husband. If a chattel be found, and not converted to the use of the finder, if it be hired or loaned, or otherwise bailed, it does not thereby become a chose in action, and if it belongs to a woman who marries, her right immediately vests in the husband, at least so far, that if she dies,' it will survive to him.”

Similar decisions have obtained in Virginia, from the earliest establishment of courts. (See Dade vs. Alexander, 1 Wash. 39—cited with other cases with approbation, in Wallace vs. Taliaferro, 2 Call, 470. See also in connection with the subject matter, Doe vs. Polgrean, 1 Hen. Black. 535; Coke Litt. 351, a; 3 Term Rep. 631; Crozier vs. Bryant, 4 Bibb, 174; Pinkard vs. Smith, Littell's Selected Cases, 331.)

Such a concurrence of authority, in so many of the States, holding the peculiar description of property, which is oftener the cause of a qualified or special estate, than any other description of personal chattels, requires the strongest reasons to be shewn for a departure from the general rule. None such have been, or in our opinion can be, shewn.

The judgment of the Circuit court is affirmed.


text:
    MURRAY vs. WILLIAMS.
    1. The proceedings of a justice of the peace, in a case of forcible entry and detainer, can only be reviewed in the Circuit court, on such errors, as the attention of the court is called to by an assignment, — and an omission to make one, is fatal.
    Error to the Circuit court of Russell county.
    Forcible entry and detainer. This case was brought by certiorari, to the Circuit court, where the judgment, rendered on the verdict of the jury, by the justice, was overruled, without an assignment of errors. The writ of error was sued out to reverse the judgment of the Circuit court.

      Geo. Goldthwaite, for the plaintiff in error.

      Phelan, contra.

      Goldthwaite, for plaintiff,
    contended — that there was no error in the record of the justices court; and that an assignment of errors in the Circuit court was indispensable, to enable it to review the decision of the magistrates court: and to this effect, cited, Collier vs. The State — (2 Stewart, 388;) Barr vs. White — (2 Porter, 346;) Al-dridge vs. Hightower — (4th Porter, 418.)
   GOLDTHWAITE, J.

— Process of forcible entry, was issued by a justice of the peace, at the suit of the plaintiff, against the defendant in error, who, on the trial of the cause, was found guilty. He sued out a writ of cer-tiorari to the Circuit court, which reversed the proceedings, without any assignment of errors. To reverse this judgment of reversal, the writ of error is now prosecuted; and the plaintiff in error assigns for error, the omission of an assignment, in the court below.

The proceedings of the justice of the peace could only be reviewed in the Circuit court, on such errors as the attention of the court was called to by an assignment, and the omission to make one, is a fatal defect. This question was so determined in the case of Aldridge vs. Hightower—(4 Porter, 418.)

Let the judgment of the Circuit court be reversed, and the cause remanded for further proceedings.


author: OIIMOMD, J.

text:
    GAZZAM, et al. vs. BEBEE & CO.
    1. A discontinuance as to one of the parties, to a case on whom the writ has been executed, is a discontinuance as to all.

      2. To justify a discontinuance against one, who is sued asa partner, and on whom the process has been served, it should appear that he is not a member of the firm.
    Error to the Circuit court of Mobile.

      Case — tried before Judge Pickens. This case was commenced by a writ issued against fifteen defendants, stated therein to be owners of a steam-boat, .for repairs done to the boat, and for work and labor done generally, not averring that the defendants were partners. The declaration charged them as partners and owners of the steam boat, and declared against some of them for repairs done to the boat, in one count, and in the other, for work and labor generally.
    The writ was executed on five defendants — the others not found. The declaration recited that no service was perfected on sundry named defendants, and among them one of those, on whom the writ was executed, and discontinued against them. Judgment for plaintiffs. The following errors were assigned :
    1. That the court erred in proceeding to render judgment against the plaintiffs in error, after the discontinuance entered by the plaintiffs, as to a part of the defendants sued in the writ.
    2. That the discontinuance entered as to a part of the defendants, was a discontinuance as to all.

      3. Tüat the proceedings and judgment in the Circuit court, were irregular in this — that the writ was sued out against, the defendants as joint defend ants, whereas the declaration proceeded against them as co-partners.
    4. That the proceedings and judgment in the Circuit court were irregular, in this — that in the plaintiffs declaration, in the commencement, the defendants were charged as co-partners, and in the body of the declaration, no liability of the defendants, as co-partncns, was shewn — ■ whereby the judgment was uncertain ; in as much as it did not certainly appear whether the recovery was had against them as co-partucrs, or as joint debtors merely.

      5. That the'eourt rendered judgment against John E. O’Connell — whereas, the suit had been discontinued as to him in the declaration.
    6. That the plaintiffs discontinued their suit as to all the defendants, by discontinuing the same as to John E. O’Connell, who was duly served with process.
    7. That the proceedings were irregular and uncertain, in this — that the names of the defendants were not fully set out; that one of the defendants was sometimes called O’Conner, and at others, O’Connell: that, it was therefore uncertain who was sued, and against whom judgment was rendered.
    8. That the proceedings wére irregular and erroneous, in this — that it was uncertain as to whom the plaintiff had discontinued, and as to whom not: that in the declaration it was recited, that the plaintiffs discontinued their suit as to eleven defendants — whereas, in the minutes it was recited, that the plaintiffs discontinued as to six only of the defendants.

      9. That the 'proceedings and judgment were irregular, in this — that the plea was not continued at the spring term, eighteen hundred a’-d thirty-mur, nor at the fall term of eighteen hundred and thirty-four; wherefore, the proceedings were discontinued; and wherefore, the proceedings had at the spring term eighteen hundred and thirty-five, and all subsequent proceedings, were erroneous and void.
    10. That the proceedings and judgment were erroneous, for uncertainty — in not specifying against whom the judgment was rendered, nor in whose favor ; and for the uncertainty, variance, irregularity, and repugnance, in the several proceedings, asset out in the record.
    11. That the indebtedness alleged in the declaration, was laid after the commencement of the suit; wherefore, it did not appear that the plaintiff had any cause of action against the defendants, at the time of the commencement of the suit.

      Thomlon, for the plaintiff in error.
   OIIMOMD, J.

-The writ, in this case, issued against the plaintiff in error and fourteen others, as owners of the steam-boat Courier. 'The writ was served on but six. The action was assumpsit, for work and labor.— The plaintiffs declared against the defendants, as co-partners — and discontinued as to those on whom the writ was not served. A discontinuance was also entered as to John hi. O’Conner, upon whom the writ had been served.

As the writ, in this case, does not describe the defendants as partners, no aid can be derived from the statute, which makes a service on one partner a service on all.

By the fifty-eighth section of the act regulating judicial proceedings at common law, it is declared, “ Where any suit shall be instituted against two or more persons as partners in any firm, if one or more persons, not partners in said firm, shall have been sued as such, the court before whom such suit is pending, shall discontinue said suit against such person or persons, as shall appear not to be partners in said firm, and proceed to judgment and execution against all or any of the defendants in such action, who shall appear to be partners.”

It has been repeatedly held, in this court, that a discontinuance entered as to a party in the cause, on whom the writ has been executed, is a discontinuance as to all. (See Saddler vs. Houston & Gillespie—5th Stewart & Porter, 205—where all the cases are collated.)

The statute above cited, authorises a discontinuance, in a suit commenced against partners, when one or more persons, sued as such, shall appear not to be members of the firm.

To justify a discontinuance against one who is sued as a partner,' and on whom the process has been served, it should appear that he is not a member of the firm; as it is on that condition only, that power is given to discontinue; and when the power is exercised, it should appear on the record that the discontinuance was for that cause. No reason whatever is given here, except that the writ was not executed on John E. O’Conner and others. Therefore, the suit as to them, is dismissed. The reason thus given for the dismissal, is not correct, in point of fact, as it appears from the record that the writ was executed on O’Conner.

The judgment must be reversed.


text:
    JORDAN vs. BELL.
    1. A plea in abatement at the second term, which is rejected as coming in too late, — is no appearance to the writ.
    2. A defect in a writ must be taken advantage of, by plea in abatement.
    3. The time of holding court, is ascertained by law: and writs must be taken to be returnable to the next ensuing court, if issued more than five days previous to the term.
    4. If judgment be rendered at a term to which the writ could not, legally, be returned, such judgment may be corrected on error — if the defect is not waived.
    5. But on returning a writ to the wrong term, or where the day is mistaken, — the objection must be taken by plea in abatement.
    6. The liability of the drawer or endorser of an inland bill, is fixed on presentment for acceptance or payment, and notice— But damages alone accrue on the protest.

      7. And an averment in the declaration, of protest, is necessary to authorise damages to be given.
    8. But the computation of damages by the clerk, without the averment of protest, is a mere clerical error, which may be corrected in the court below; or in this court, at the costs of the plaintiff in error.

      Error to the County court of Mobile.
    This was an action of assumpsit, on an inland bill of exchange.
    The judgment was taken by default; and the errors in the judgment, here insisted on, among, others not considered by the court, were—
    1. That judgment was taken by default for principal, interest and damages, when it was not shewn by averment in the declaration, that the bill had been protested.
    -2. That the judgment was taken by default for a sum in damages, in gross, without the intervention of a jury, including damages, interest, and cost of protest.
    3. That the writ was issued and tested on the seventh day of June, eighteen hundred mid thirty-six, and was made returnable on the second Monday of June next'— and judgment was entered at June term, eighteen hundred and thirty-six.
    4. That the writ was made returnable to the June term, eighteen hundred and thirty-seven, of the County court; and for that cause void in law.

      Thornton, for tire plaintiff in error.
   GOLDTHWAITE, J.

The only assignments to which our attention has been called, arc those which point out the supposed error in the return day of the writ, and the error in the amount of the judgment.

It may he questioned if the day is not well enough stated in the writ, as it is somewhat a forced presumption to conclude tire relative next docs not refer to the “ second Monday,” as well as to “June;” hut, if this is ad-xnitted to be an error, in cornos within the decision made in Nabors vs. Nabors, (2 Porters R. 162.) There the writ was made returnable in Marc:', when it should have been in April; and the defendant attempted to plead in abatement at the second term after its return. The plea was rejected as coming too late, and the defendant refusing to plead to the action, judgment was rendered against him. On a writ of error to this court, it was held, that the attempt to plead the matter in abatement, was not an appearance, and was no waiver of the defect. But the court also decided, that such a defect in the writ is not the subject of error — Unit it must be taken advantage of by plea in abatement, and can be in no other way.

The law having prescribed the time when the several courts in the State shall be held, it is a matter as much within the knowledge of the defendant as of the plaintiff, and he is also informed from the same source, that writs can only be made returnable to the next ensuing court, if issued more than five days previous to the time of its session.

If a judgment is rendered at a term to which the writ cannot be legally returned, such judgment can be corrected on error, if the defect or irregularity has not been waived: but in all cases where the writ is returnable to a wrong term, or where the day is mistaken, they come within the principle, and must be governed by the de cisión of Nabors vs. Nabors.

The liability of the drawer or endorser of an inland bill of exchange, becomes fixed on presentment for acceptance or payment, and on tire notice given of the failure — but damages do not follow as a consequence of such demand and notice. They are given alone by statute, on the protest of the bill — (Dig. 329, s. 7.)

There is no averment in the declaration, that the bill was protested; consequently, no damages could be given; or rather the clerk, in computing the amount for which to enter the judgment, was authorised to allow only the face of the bill, and interest on the same. But this .is a mere clerical mistake, and could have been corrected, on the application of either party to the court below.

By statute, (Dig. 266, s. 48, 49,) this court is directed not to reverse any judgment for such an error, unless application has been made to the court below, and refused —but to order the judgment to be remanded and corrected, at the costs of the plaintiff in errrr.

We direct that the judgment of the County court be corrected, and here rendered for the proper amount, at the costs of the plaintiff in this court.