author: COLLIER, J.

text:
    BULLOCK VS WILSON.

      Of evidence, in trespass to try litte.

    1. The receivers of public monies in the United States’ land offices, are public officers, whose appointments will be judicially recognised in the Courts of this State.

      %. The duplicate receipt of the receiver of a land office, furnishes, of itself, sufficient evidence of title, to authorise a recovery in trespass to try title.
    3. And it would seem unnecessary, for a plaintiff in such action, to shew that his title had been perfected, by a patent having issued on such receipt.
    4. A patent would not, of itself, be evidence of title, in a suit commenced anterior to its date.
    5. Yet it might not be error to admit such patent in evidence, in a suit commenced previous to its issuance, where its object is to show a confirmation of the inchoate, legal title, obtained through a certificate.
    6. In the action of trespass to try title, a question to a wit • ness, of — “What is the value of the land and premises, sued for,” — would be irrelevant.
    7. On the examinations of a witness, in chief, it is not permissible to ask questions, as the opinions, or conclusions of such witness, unless where the opinion is an inference of skill and judgment.
    8. Though in cross examinations of a witness, it is allowed to make pointed and direct inquiries — yet such direct inquiries must be confined to the elucidation of legal testimony.
    9. Thus — questions by a defendant in trespass to try title, on the cross examination of a witness, of — “Is not the situation of the premises sued for, such, that no one would rent them'?” And “Is not the situation of the premises such, as to be wholly useless to any one?” — would be improper, even in mitigation of damages.

      This was an action of trespass to try title, determined in the Circuit Court of Shelby county, upon the plea of not guilty. On the trial in the Court below, the plaintiff offered in evidence, the duplicate receipt of the receiver of public monies, for the Tuscaloosa land district, dated on the twenty-eighth day of July, eighteen hundred and thirty-three, showing full payment for the parcel of land in controversy.
    It was objected by the defendant, that the certificate was not admissible in evidence — ■
    First — Because a patent had issued for said land, which was in proof.
    Secondly — Because it was not proved that the person who signed the certificate, was duly author-ised.
    It was proved, that the person who had signed the said certificate, had acted in the capacity of receiver for some years, and that the signature to the same, was his hand writing: but no written evidence of his appointment, or of his authority to give such certificate, was produced. And it was said, that there was not sufficient evidence to show the authority of the receiver to is,sue such certificate, and of its validity. But the objections were overruled.
    The plaintiff then introduced a patent, from the United States, to shew a chain of title in himself, as was expressed in the bill of exceptions. It appeared, that the said patent, issued on the twenty-eighth day of January, eighteen hundred and thirty-four, after the commencement of the suit.
    It was objected, that the plaintiff was not au--thorised. to show title, acquired subsequent to the time of bringing the suit. Which objection was overruled.
    To prove the amount of damages, the plaintiff introduced several witnesses, who testified, that “the lands and premises would perhaps rent for, from twelve, fifteen, twenty, twenty-five or thirty dollars, per annum, if any person wished to rent the same.” On the cross examination of this witness, the defendant proposed the following question, viz : “What is the value of the lands and premises sued for by the plaintiff.” — Which question was, on objection, not permitted to be answered, it being considered by the Court, irrelevant.
    On the cross examination of plaintiff’s witnesses, the defendant, in mitigation of damages, also propounded the following questions, viz: “Is not the situation of the premises sued for, by the plaintiff, such, that no one would rent them?” “Is not the situation of the premises such, as to be wholly useless to any one?” Which the Coürt would not allow to be answered.
    To all which decisions of the Court, the defendant excepted, and sued out a writ of error to this Court.

      ChiIto?i for the plaintiffs in error, — Peck, contra.
   COLLIER, J.

The defendant in error recovered a judgment, in an action of trespass, to try titles on the plea of “not guilty,” against the plaintiff, in the Circuit Court of Shelby, adjudging to him, the right to the possession of a certain tract of land, lying in that country, with damages for its occupancy by the plaintiff. .

On the trial, the plaintiff in error, objected to the admissibility of the duplicate receipt of the receiver of public monies, at the land office in Tuscaloosa, though it was in due form, and the genuineness of the hand writing, and the fact of the individual subscribing himself as receiver, having long acted in that character, shewn by proof.

The plaintiff, further objected to the introduction of the patent, which had issued upon defendant’s purchase, on the ground, that it bore date after the action was brought, though the purchase was made, and the receipt dated, previous to its commencement Both of which objections were overruled by the Court, and the papers read to the jury.

To shew the amount of damages which the jury should assess, the defendant in error, examined several witness, who stated that the premises in controversy, would perhaps, rent “at from twelve, fifteen, twenty, twenty-five or thirty-dollars, per an-num, if any person wanted to rent the same.”— Upon cross examination, the plaintiff in error propounded to the witnesses, the following question: “What is the value of the land and premises sued for by the plaintiff?” Which on objection, was excluded as irrelevant.

Again, with a view to mitigate the damages, the plaintiff in error, asked of the defendant’s witnesses, upon cross examination, these questions:

1. “Is not the situation of the premises sued for by the plaintiff, such that no one would rent them?’

Second. — “Is. not the situation of the premises such, as to be wholly useless to any one'?”

Both of which questions being objected to, were suppressed by the Court. All of which decisions of the Circuit Court were excepted to, and have been brought up for revision, by writ of error.

1. In regard to the first exception, there was no necessity for proving the appointment of the receiver. He is an officer of the United States, deriving his office from the joint agency of the President and the Senate, and the Court being supposed conversant of the public acts of the government, must judicially recognise him.

2. It is difficult to conceive what purpose was to be subserved, by the introduction of the patent as evidence, inasmuch as it was issued after the commencement of the action. The duplicate receipt furnished sufficient evidence of title, to have authorized a recovery, while the patent, because of the lateness of its date, could only have been used as proof to that point, in a suit, subsequently brought. Yet we think, that there was no error in its admission, — the purpose for which it was used being wholly immaterial, “to shew a chain of title in the plaintiff.” It was not necessary for defendant to have shewn a perfect title, he might have recovered upon his inchoate legal title. (2 Porter R. 441.) But there can certainly be no objection to shewing the state of such title, when the suit was commenced, and then proving that it has been consummated by an act of confirmation, subsequently done. Such is the case at bar. And where the inchoate title is attacked by proof, if may be important to shew, that it has been perfected and this, though in the particular action, the proof of perfect title, would not warrant a verdict.

3. The third exception, we think, is not well taken. A direct answer to the question, “What is the value of the land and premises sued for by .the plaintiff,” would not enable the jury to admeasure the damages they should award. In this country, it is not ascertained, what proportion the yearly occupancy of land, bears to the fee-simple estate; the Court therefore properly rejected the question as irrelevant.

4. In respect to an examination in chief, it may be remarked, that it is not permissible to examine as to the opinions or conclusions of the witness, for these are to be made by the jury; unless where the opinion is an inference of skill and judgment. But the legal course, is to ask such questions as may elicit facts, from which the jury, by an exercise of judgment, may draw their own conclusions. (3 Starkie, Ev. 1736, 1 Ed.)

The object of a cross examination, being the ascertainment of truth, the form of the question is rarely objectionable. The witness not being supposed to be over prompt to serve the interest of the party, against whom he is offered, — in advancement of the end, the inquiry is allowed to be direct and pointed. Yet we are aware of no principle which authorises illegal evidence, to be brought out on cross examination.

In the case of Jackson vs Son, (2 Caines R. 178,) it was adjudged that a party against whom a witness was offered, could not introduce, through him, any proof which would, not have been legal, had the witness been originally produced on his behalf. (3 Dane’s Ab. 540.)

If illegal evidence were allowable on cross examination, instead of promoting truth, it would rather suppress it, — instead of aiding the jury in their deliberations, it would rather interpose obstacles, — instead of enlightening, it would serve to obscure.

The questions stated in the last exception, called for the opinions of the witnesses, and not the facts on which their opinions were founded. They were not required to state the situation of the land, character of the soil, improvements, &c. that the jury might have determined, whether they would be likely to find a tenant, and on lyhat terms. They are then illegal, and were properly suppressed by the Circuit Court. '

The judgment is affirmed.

HOPKINS, C. J. not sitting.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    DUREN and WALKER VS PARSONS.

      Of enforcing a co-partnership in the purchase oflands) in Chancery.

    1. A complainant in Chancery, on a bill, filed for the object of establishing an agreement, for the purchase of lauds, in co-partnership, can have no relief, where the allegations of the bill do not correspond with the proofs.-
    2. Chancery will dismiss a bill, filed to render defendants accountable for the proceeds of a sale of lands, alleged to have been purchased in co-partnership, where the terms, of a written agreement forsuch purchase, hadnever been complied with by the complainant; where it is impossible to carry such agreement into effect, and where, whatever rights a complainant had under it, had been merged in a new agreement, which he refused to sign, and with the terms of which,- complainant had failed, altogether to comply-
    8. As where one filed a bill, charging that a written agreement had been entered into between himself and others, for the purchase of lands in co-partnership; and that the. defendants had refused to perform their pait of the agreement, but had combined with others, strangers to the first contract, to commit a fraud upon his rights, by entering into, and actually effecting an agreement for the purchase of the said lands: — and it appeared from the answers and proofs, that the first agreement had not been, and in fact, could not be, consummated, and tpat the complainant, had neglected to comply with his part of it, and that com-, plainant had assented to the second agreement,,, and was considered a party to it, but refused to sign the writing entered into between the parties, on the ground, that as an officer of government, he could not consistently do so: and it further appeared, that the complainant had the privilege of becoming a party to this second agreement, but failed to furnish his quota of the funds, and in fact, finally abandoned the concern. It was holden — that while from the agreement set forth in the bill, the case was of that character, which would not authorise a Court of Chancery to dismiss it, for want of Equity, — yet upon the merits of the cause, the complianant was entitled to no relief; and the bill should be dismissed.
    This was the case of a bill in Chancery, determined in the Circuit Court of Talladega county, and filed by Benjamin S. Parsons. The purpose of the bill was to render the defendants to it, accountable to the complainant, for an aliquot part of the proceeds of a sale of certain town lots, in the town of Tal-ladega, in the original purchase of which, from an Indian reservee, complainant claimed to be a co-partner.
    This bill stated, that by the last treaty made between the United States and the Creek tribe of Indians, east of the Mississippi, one Joseph Bruner, a colored man, became entitled to a half section or three hundred and twenty acres of land, and was the fee simple owner of the same, which in conformity with the treaty, was selected by him at the old Talladega battle-ground, in the county of Tal-ladega, on which half section, the seat of justice for the county of Talladega washy the proper authorities subsequently located, and which location was made after the interest of complainant as set forth in the bill was secured. That the said half section or reservation, was known on the survey of the government of the United States, as the south half of section twenty-nine, to,wnship eighteen, range five, east: That on the first day of Novem-her, one thousand eight hundred and thirty-two, after the title had vested in Bruner, under the treaty, a joint purchase was intended and agreed upon, from Bruner, by William Walker,. Jesse Duren, and the complainant, in pursuance of which on the same day, Duren in his own name, but acting for himself' Walker and complainant, jointly and equally,-made an agreement, for the purchase of the reservation with Bruner, by which agreement Bruner promised Duren to convey, or cause to be conveyed to him, in fee simple, the said reservation, in consideration of which, Duren undertook in his own name, [but for the joint benefit of himself, Walker and complainant,] to pay Bruner two thousand five hundred dollars, of which sum Duren then paid Bruner nine hundred dollars and a horse: — That on the same day, and before the contract was ehtered into between Dux-en and Bru-ner, but in contemplation of it, and having an ' immediate reference to it, at the instance of Walker, Duren and complainant, acting under their agreement to purchase the reservation jointly, — Bruner by his deed, or power of attorney, of the same date authorized Walker to convey the reserve to Duren in fee, which power of attorney was delivered by Bruner to Walker.
    That after that transaction, also, on the same day Walker in view of the whole arrangement, and for the purpose of binding Bruner to Duren, for the joint benefit as aforesaid, did, under the power of attorney, execute and deliver to Duren, a bond, for the .execution of a fee simple title deed of the reservation, to Duren, which bond, complainant alleged, to be yet in the possession of Du-ren, unless it had since been destroyed, without the consent or knowledge of complainant: — After the execution and delivery of the bond, Walker, Du-ren and the complainant, entered into a written agreement with each other, which was in the words following;
    “We the undersigned having agreed with each other, to become connected in the purchase of a reservation of land which is allowed to Joseph Bruner, by a treaty with the Creek tribe of Indians and the United States; we having further .agreed to have the same selection of land located at the old Talladega battle ground, and then to lay off a town, in the sale and proceeds of which, we are all to be equal, in purchase and in profits, at some other suitable time, we are to enter into a new and more proper contract. Given under our hands, this first day of November, eighteen hundred and thirty-two.
    [Signed] wiilliam walker.
    JESSE DÜREN,
    P. S. PARSONS.”
    This last mentioned agreement, complainant alleged, was by consent of parties retained for safe keeping, and for the mutual benefit of the signers, by Walker, who had still possession of it. Complainant prayed that it might be taken as an exhibit, and Walker ordered to produce it.
    Th.e bill further stated, that on the same day, in pursuance of the agreement, Walker and complainant, separately, made and delivered, their notes of hand, respectively, to Duren, for the payment to him, of their respective and equal portion of the purchase money, [as Duren was liable in his own name, to Bruner,] which notes complainant thought, were yet in the hands of Duren. At the time of the delivery of these notes, it was expected by Walker, Duren and complainant, that money belonging to complainant, to an amount, greater than complainant’s note to Duren, called for, would shortly be paid, by an agent of the government of the United States, in behalf of complainant, to Walker : It was also, at the same time, verbally agreed, that Duren, whenever he might require payment of the note of complainant, might apply to Walker for the money, if he chose to do so, and that he never had so applied: That early in the year, eighteen hundred and thirty-three, money to a greater amount than the note of complainant called for, came into the hands of Walker, and remained there, until September of the same year. In the last mentioned month and year, complainant went to Montgomery, to get money to pay the note, and on his way called at the residence of Duren, and informed him of the object of his visit to Montgomery, and that on his return, he would call and pay the note. On his return, Duren was absent, and his wife was unable to find the note, which was the reason, payment was not at that time made. Complainant alleged that he was always ready and willing to perform his part of the agreement, and well hoped that Walker, Duren and Bruner, were likewise so disposed.
    The bill charged, that Walker, Duren and certain other persons, vis: William EL Moore, David Con-nor, Sampson Lane, and Bevereaux I. Lane, well knowing the interest of complainant, combined, &c. and without the consent of complainant, either made a new contract with Bruner, or tinder a modification of the old one, confederated to purchase the reservation, and had excluded complainant from any benefit in the same, and by means of their fraudulent purchase, had procured a patent from the.government of the United States, for the reservation. The bill also alleged, that after the complainant’s interest was acquired, the seat of justice of Talladega county, was established on the same reserve, and that a town had been laid off on the same, by the confederate,?, since which period, they had -transferred some interest, or pretended interest in the reserve, to certain other persons, viz: To Milton T. M’Guire,H. II. Wyehe, James M, M’Cann, James A. Givens and William B. Lovell, who were really, or pretended to be, commissioners of.the town, but who, before the origin of their pretended interest, were well acquainted with the interest of complainant: That the confederates and commissioners had made sale of some of the lots in the town, and were preparing to sell many more, from a participation in the benefit of which, they carefully excluded complainant.
    The bill prayed for a writ of supoena, and a full developement of all the matters and things stated, from each of the persons named; an account of sales, &c. and that they might account to complain-* ant for his fair proportion of the proceeds, and that the just interest of complainantin the reserve, might be vested in him by a decree of the Court.
    The separate answer of William Walker, stated, — ■ That the matters recited in the bill, in relation to the grant to Bruner, under the treaty, and the subsequent location of the grant at the old Talladega battle ground, were correctly set forth :' Complainant Duren and respondent, did enter into co-partnership, for the purposes stated, and respondent thought the articles set forth in the bill, were substantially correct: Respondent was not in possession of the articles, but believed they were in possession of Duren. After the formation of the co-partnership, the co-partners prevailed upon Bruner, to give to respondent, the power of attorney, adverted to in the bill, a copy of which was appended to the answer, and to which complainant was a subscribing witness. Afterwards, the bond was executed by Bruner, conditioned to make titles, in fee simple to Duren, and in the contract, complainant and respondent, -were to be interested. But when some of the co-partners attended before the agent of the United States, to procure a ratification of the contract, they were informed that no certificate would be made, and no approval of the contract allowed, as another company had offered four thousand dollars for the reservation. Respondent did not know whether complainant was at the time advised of this occurrence and difficulty, but it was fatal to the hopes of the co-partners, — was deemed altogether insuperable,--put an end to the contract with ihe Bruner, and was, with the consent of all the parties, in tefes ted, deliberately yielded, and totally abandoned.
    The answer farther stated, that after the abandonment as aforesaid, an agreement was entered into between Duren, Conner, the two Lanes, Moore and respondent, by which they contracted to buy the land, if selected for a county site, and bound themselves to each other, to be answerable for the profits and loss of the purchase. This contract was entered into with the knowledge of complainant, who agreed to become a party, and to be bound by its provisions; but declined signing the articles of agreement, because lie was an officer of the government of the United States, which would not permit him to speculate in Indian lands, — otherwise he appeared perfectly satified, and made no opposition. During the time, in which it was uncertain, whether the county site would be located on the battle-, ground, respondent said, he was in formed, complainant failed to comply with the terms of the agreement, and finally stated that he was unable to do so; though respondent always considered him a party. Complainant, never by word'or deed, induced respondent to believe, that he thought the first contract was not abandoned, or that he was not a party to the last. Complainant himself, voluntarily released his interest in the first contract. Respondent would not have taken the course he did, if complainant had ever doubted the abandonment of the first contract and agreement, and had not agreed to become a party to the second. *
    Respondent relied upon the abandonment as an answer to the equity of the bill — proposed his answer as a general demurrer, and prayed to be dismissed With costs.
    The answer of Jesse Duren, admitted all that was stated, in the bill, concerning the land and its location; except that it denied that Bruner was the fee simple owner of the land, at the time specified in the bill. About the first of October, eighteen hundred and thirty-two, respondent visited Bruner, for the purpose of contracting with him for the land, and in the contract then proposed by him, Connor, the two Lanes, Walker and respondent, were to be interested. Respondent found complainant at Walker’s, where Bruner then lived, and the articles, as set forth in the bill, were at that time signed, as respondent thought, — respondent acting for the Lanes and Connor, as well as for himself. That respondent was acting for the Lanes and Connor, as well as for himself, was well known to complainant, and perfectly understood by him. About the same time, the contract was made with Bruner, and respondent agreed to give him two thousand five hundred dollars, as set forth in the bill, and paid him down, nine hundred dollars, and a horse valued at seventy-five dollars:— and complainant and Walker, gave respondent their notes, payable to respondent, as stated, which were lost.
    The answer further .stated, that respondent applied to Walker for the payment of the note, given by complainant, out of the funds, which as the bill stated were to come into the hands of Walker, from an agent of the government of the United States,. but could get nothing: Respondent was told, complainant had himself, drawn all the funds. The answer admitted that complainant, once called at the house of respondent, stating that he was on his way to Montgomery, where he expected to receive money, but denied that any thing was said of paying the note, and respondent doubted whether complainant called at the house of respondent, on his way home.
    About the twentieth of December, eighteen hundred and thirty-two, Connor, Walker, the Lanes, Moore, complainant and respondent, met at the Talladega battle ground, and respondent gave to the parties, a succinct history of the contract with Bruner. Moore was admitted to an interest, and complainant expressed himself well satisfied. A written agreement was entered into and signed, by all the parties, except complainant, who agreed to be bound by its provisions, but declined signing at the time, because he was an officer of the United States government, which would not tolerate him in speculating in Indian lands. Complainant however, agreed to .sign the articles as soon as his public duties were closed. Respondent believed complainant was not able to comply with the articles. He did not propose doing so, as long as it remained uncertain whether the county site would be located on the reserve.
    The government of the United States required, that the full value of the land should be paid to the vendor, in presence of an agent, and respondent believed a company had offered Bruner, four thou.sand dollars for the reserve, which rendered it' impossible to complete the contract at first entered into with Bruner. Respondent, believing the original partnership to be fully ended, and having heard nothing from complainant, touching his willingness or ability to take a share at the increased price, proceeded to make other arrangements. A new contract was made with Bruner, in which Walker, Moore, Connor, the two Lanes, and respondent, were purchasers and co-partners, — and the patent had been obtained in their names.
    The answer denied that the last contract was made with a view of defrauding complainant, or injuring him. Respondent verily believed the first contract was rendered void by the regulations of the government, and knew of no interest complain - ant had in the land, at the time the contract was made, which was approved by the United States’ agent. Respondent, so far from being disposed to exclude complainant, declared, that if complainant had attended to the business, had been willing to take an interest in the last contract, and had been willing to advance his share of the price of the land, respondent would have raised no objection to his being interested, but since the last contract, respondent had invariably denied that complainant had any interest, either in the contract or the land.
    Respondent proposed his answer as a general demurrer to the bill, and prayed to be dismissed with costs. At the Fall term of the Court, eighteen hundred and thirty-four, on motion to dismiss the bill generally, the same was dismissed, as to all the defendants, except Duren and Walker.

      The testimony taken subsequently, stated the following to be the facts of the cause:
    The witness, William H. Moore, stated that he owned one sixth of the last contract, and knew nothing of the first. He took Bruner to the office of the certifying agent, for the purpose of procuring from him a certificate, which he refused to grant, alleging that it was not one of the contracts, falling within the time of the treaty, and requiring the President’s approval.
    Afterwards, orders were received stating, that this land could only be sold as other reservations, upon which Duren was dispatched for Bruner, who refused to comply with his contract, stating that he could get, four thousand dollars for the land. The price was given, and the contract certified to Duren, Connor, the Lanes, Walker and the witness. Witness understood from complainant, that in the two thousand, five hundred dollar contract, he, the complainant, was to be jointly interested, with the other co-partners. The contract with Bruner, remained incomplete, for several months, but after the law passed, authorising the selection of the county site, the company met, with the exception of complainant. Witness was requested to write to complainant, which he did. Complainant had refused to sign the articles, because he was an officer of the United States, and would be obnoxious to censure, and had paid nothing towards the purchase.
    In the letter witness wrote to complainant, he desired him to come down and pay his proportion, by a certain day, viz: before the election, or he would not be considered a member. In reply to the letter, complainant stated, that it was uncertain if he came down, whether he would be able to pay his part of the purchase money. If he did not come, he desired witness to act for him and do as he pleased: — To take the share himself or make any other disposition of it. Complainant came down after the time prescribed in the letter of witness had expired, and then told witness he could not raise more than forty dollars, and gave witness a power of attorney to complete his engagement, and take his share. This the company refused to permit, and after four or five days the power of attorney was revoked. This was several months before the purchase from Bruner was completed. Before the last contract was certified, complainant claimed an interest in the two thousand five hundred dollar contract.

      David Connor, a witness for the complainant, stated, that Duren and himself made the purchase from Bruner at two thousand five hundred dollars. Moore, Duren, the Lanes, Walker and complainant were equally interested. After the other company offered four thousand dollars, and the certifying agent refused to certify the first contract, the company agreed to give four thousand dollars, as exertions were making to have the county site, located on it. The complainant refused to sign the articles, on account of his being an officer, &c. but witness understood he was to have an interest, if he would pay his proportionable part. Witness understood that complainant was aware of the purchase, and that in order to avail himself of any benefit, he must advance a portion of the purchase money. He made no advance, nor did he come forward to close his interest. Complainant could have had an interest, if he had complied with the terms of the contract, before the selection of the county site.

      Lhibbard A. Wyche, a witness for complainant, who was one of the commissioners for the county of Talladega, appointed by authority of the act of the Legislature, approved, December eighteenth, eighteen hundred and thirty-three, stated, — that John H. Hooker, Esq. was employed to make calculations of the amount of sales of lots in the town of Talladega, and that according to those calculations, the amount of the sale of the lots, and fractional lots, which lie in the bounds of the half section, bought of Bruner, was nineteen thousand, two hundred and twenty-four dollars, forty-four cents and eight mills, which calculation, witness supposed to be correct.
    Witness was one of the attorneys for defendants, and knew nothing further which he felt at liberty to disclose.

      Leonard Tarrant, a witness for complainant,— was certifying agent for the United States, and stated that, according to the custom of the office, the whole amount was paid to Bruner, at the time of the sale, and before the certificate was granted; but that Bruner was informed, he might return at anytime, to the vendees, any amount he had previously received from them, in part payment.
    The depositions having been returned into Court, the cause came on for final hearing, at a subsequent term, when the Chancellor below, in his decree pronounced upon the merits, said:
    1. He thought the first material question was, — ■ whether complainant ever was a co-partner in the purchase of the'reserve from Bruner. It seemed to the Court, that the fact of his being a co-partner, was sufficiently evinced by the original transaction and contract formed between complainant, Burén and Walker, and that complainant had, by no act, forfeited or relinquished his interest, or consented to a rescission: What was said by the respondents, Burén and Walker, of an abandonment of the contract on the part of complainant, being affirmative matter on their part, the Court thought, ought to be supported by evidence. If complainant was by the other co-partners viewed as having abandoned and relinquished the contract, — it was manifest' that complainant himself never contemplated such a step, nor would it answer to permit their judgment in this instance to control his rights.
    2 If complainant was in reality a co-paftner in the purchase, and has by no act of his own, forfeited his claim to be so considered, what interest is he entitled to7 Four thousand dollars had been paid, for the reservation, and the Court thought that complainant, by his conduct, had ratified or approved of, the introduction of the new members, into the co-partnership, and if that was the case, his claim could not be permitted to extend to more than one seventh of the purchase, and consequently one seventh part of the proceeds of the purchase.
    3. The lands had passed out of the hands of the company, into those of innocent purchasers, and the complainant could have no relief against them, nor did he ask it. The lands had been made the subject of merchandize, and as such must be accounted for. The lots, according to the evidence, had sold for nineteen thousand, two hundred and twenty-two dollars, and it might be presumed, upon this statement of the transaction, the Court could now make a final decree/ but when it was considered, that expenses had been doubtless incurred, interest accrued, and probable losses sustained, it was manifest that further information of those details was wanted, to enable the Court to order an equitable and final adjustment. The case was therefore referred to the Blaster, with definite instructions, to collect the facts, and prepare a report to be presented at the next term of the Court, ascertaining the precise amount which would he due to complainant, after those things which ought to be deducted, estimating his claim at one seventh of the nett proceeds of the sales of the land.
    4. The Court acknowledged some embarrassment arising from the attitude of the case, in being able to make up its opinion, as to the persons from whom complainant was entitled to recover. A demurrer had been sustained, the authority of which the Court felt no disposition to impugn, which left but two of the original defendants before the Court. The Court was however, compelled to act upon the materials left, and therefore decreed that the defendants, Jesse Duren and William Walker, pay such sum to complainant, as the report of the Master based upon the principles of this decree, will authorise.

      At the next term of the Circuit Court, the Master presented his report, by which, after being fully informed, of all the matters submitted to him by the Court, and making the necessary estimates and deductions, he found that upon the principles of adjustment contained in the decree of the Court, which were authoritatively proposed to him, as the basis of his proceeding, the complainant’s share of the nett proceeds of the sale of the lots would be two thousand and six dollars and thirty-eight cents, and the report not being excepted to by either party: It was thereupon adjudged and decreed, the complainant recover of defendants, Duren and Walker, the sum of two thousand and six dollars, and thirty-eight cents, and the costs of suit.
    The case was argued before this Court, by Peck & Clark for thé plaintiff in error, and Crabb and Chilton, contra.
   GOLDTHWAITE, J.

The respondents, Duren and Walker, against whom the bill was retained, and a decree rendered, insist, that as to them also, it should have been dismissed • for want of equity.

There is nothing in the statement of the case, as made by the complainant’s bill, which induces the Court to arrive at this conclusion. It does not appear, that fraud, imposition or undue advantage, were practised or attempted to be practised on anyone, nor is the contract, as set out and stated to have been entered into, between the complainant and respondents, of such a character, that a Court of Equity can, according to established rules, refuse to take cognizance of it. There was, therefore, no error in refusing to dismiss the bill for want of Equity, as against these respondents.

It is further insisted, that on the final hearing, a decree should have been pronounced, dismissing the bill, oh the merits of the cause; and of this opinion is this Court.

The contract which was made between the complainant and respondents, was, according to complainant’s own shewing, entered into in reference to the agreement, which had before been entered into with Bruner, for the purchase of his right, to a reservation of a half section of land, and for which the sum of twenty-five hundred dollars was to be paid. The contract so far as the action of Bruner could give it validity, was complete, and he had received from Duren, in part payment, nine hundred dollars and a horse. Walker and the complainant, had each given their notes to Duren, for their proportion of that sum, and the complainant had designated a fund, out of which payment was to be made.

These circumstances, stated by the complainant, are conclusive to shew, that the written agreement set out in the bill, however ambiguous in terms, was intended by all the parties, to act on the lands which they then supposed they had purchased the right to, and it had no reference to any future agreement to be concluded between them and Bruner, Nor does the complainant mention in his bill, that he was a party to any contract, or agreement, other than the one before stated. The answers of both respondents, admit, distinctly and explicitly, the agreement charged by the complainant, but insist, that in consequence of difficulties which were interposed by the agent of the United States, who refused to certify the contract under the provisions of the treaty of eighteen hundred and thirty-two, it was abandoned; and, (as stated by Walker,) with the full knowledge and assent of the complainant, and a new one entered into, by which it was agreed to pay Bruner, four thousand dollars; and four other persons were admitted as partners. To this new agreement, the complainant was a party, but refused to sign his name to, or become bound by written articles, alleging as a reason, that from peculiar circumstances, he did not wish to have the reputation of speculating in Indian lands; but a condition was annexed to his joining the parties in. this new contract with Bruner, which was, that he should signify his assent, and pay his share of the purchase money, by a certain time. It is also al-ledged, that he entirely abandoned the contract, and never paid any thing towards the sum paid to Bruner.

These statements in the answer are fully supported by the evidence of the witnesses, Moore and Conner, who were also parties to the second contract. If the second contract with Bruner, was made, as it is proved to have been made, and the complainant became a party thereto, although his interest might now remain, and had never been, abandoned by him, yet on the well known rule so often recognised and enforced by repeated decisions of this Court, he could have no relief, because his allegations do not correspond with the proof. (Morgan vs Crabb, 3 Porter, 470. Goodwin vs Lyon, 4 Porter, 297.)

But the case need not be placed on this foundation, though sufficiently firm.. All interest in the second contract, was forfeited by him, by reason of his not complying with the terms, on which he was alone to be permitted to participate in it. The evidence is also strong and persuasive, to shew, that he reluctantly relinquished and abandoned all interest under the contract, .for he wrote to Moore, that it was uncertain, if he could meet the other parties at a place appointed, or, if he came, whether he could pay the money. He did not come to the meeting, and afterwards told the witness, that he could raise no more than forty dollars, and gave him a power of attorney to conclude his engagements with the company, and to take his share.— This the others refused to permit, and the power of attorney was shortly afterwards revoked.

The respondents seem always before the final selection of the land, as the site for the Court house of Talladega “county, to have been willing to recognise the complainant as a partner: provided, he would sign the agreement entered into and signed by the others, and pay his proportion of the purchase money; this he has never done, nor does the evidence in the case establish a readinss, willingness or ability so to do.

In any view which can be taken of this cause, we think that on the final hearing, the bill should have been dismissed, and for this error the decree of the Circuit Court is reversed, and here rendered, dismissing the said bill with costs.

HQPKIN8, C. J, not sitting.


author: GOLDTHWAITE, J,

text:
    THE STATE OF ALABAMA VS BELL.

      Of questions on the abatement of nuisances.

    1. Where, by the terms of a private statute, a privilege was granted to certain persons to erect mills upon a river, which privilege, in a certain event, was subject to revocation, — and the Judge of the County Court was vested with power, on the happening of a contingency, to abate the mills, as a nuisance, it was held, — that such statute did not divest the Circuit Court of its ordinary jurisdiction, in the abatement of the nuisance, by indictment.
    2. Though it seems, that one might not be found guilty of a nuisance, in the erection or continuance of the mills, if erected in strict conformity with the provisions of the statute, — until the privilege granted under the act had been revoked in the manner pointed out in the statute.
    3. But this being a matter resting on the evidence, this Court, in the absence of a question raised on the point, would presume, a jury had been satisfied, that a'defendant, against .whom a verdict in such a case, had been rendered, had not complied with the terms on which the privilege was granted, or had continued the nuisance,"after it had become unlawful, or that the inquisition, abating the nuisance, had been made.
    4. Copies of maps of original surveys, might be legal evidence to establish circumstances, going to show, that a stream was navigable.
    5. And where copies of maps, were admitted as evidence in a cause, the record of which, described them, as copies proved by a witness, to have been compared with the original

      maps, this Court refused to hear a suggestion, that the copies, were made from copies.
    6. One indicted for a nuisance, cannot defend against the legality of a conviction, by alleging, that he only acted as the agent or overseer of another.
    7. Thus, one indicted for a nuisance, in the erection of mills, cannot interpose a bar against the legality of a conviction for the offence, by alleging, that the mills are the property of another, residing in a different State, for whom defen-dent is acting as agent.
    ¡8. But it seems, such matter might well be urged to a jury, as a circumstance, in mitigation of a discretionary penalty or fine.
    On points reserved from the Circuit Court of Sumter county.
    The record in this case showed, that at the October term, eighteen hundred and thirty-six, of the Circuit Court of Sumter, an indictment was found by the grand jurors of that county, against Robert Bell, in the following terms.
    “The grand jurors of the State of Alabama, elected, sworn and charged to enquire for the body of the county of Sumter, in said State, upon their oaths present, that the river Sucarnochee, — that is to say, a certain part of the said river, lying and being in the county of Sumter aforesaid, is, and from the time whereof the memory of man is not to the contrary, hath been an ancient river and public highway, free to the citizens of the Stale of Alabama, and of the United States, with their .ships, barges, lighters, boats and other vessels, to navigate, sail, row, pass and repass and labor, at their will and pleasure, without any impediment or obstruction whatsoever. And the jurors aforesaid, upon their oaths aforesaid, do further present, that Robert Bell, on the first day of August, in the year of our Lord, one thousand, eight hundred and thirty-sis, and from that day, until the day of the finding of this indictment, with force and arms, in the county of Sumter aforesaid, a certain mill-dam, for the purpose of collecting, withholding, and retaining the water flowing down the said river Sucarno-chee, before that time, made, erected, and constructed across said river, Sucarnochee, of logs, timber, stone and earth, near the town of Livingston, in said county of Sumter, by certain persons, to the jurors unknown, unlawfully, wilfully, and unjuri-ously did continue, and still doth dontinue, so erected and constructed, across the said river Sucar-nochee, and public highway, as aforesaid, by means whereof, the navigation and free passage of, in, through, a long, and upon, the said river, Sucarno-chee, and public highway, on the day and year, and on the said other days and times, hath been, and still is greatly straitened, obstructed and confined, to wit, in the county of Sumter, aforesaid, so that the citizens of the said State of Alabama, and of the United States, navigating, sailing, rowing, passing, repassing, and laboring with their ships, barges, lighters, boats, and other vessels, in, through, along and upon the said river Sucarnochee, and public highway, there, on the same day and year aforesaid, and on the said other days and times, could not, nor yet can go, navigate, sail, row, pass, repass and labor, with their ships, barges, lighters, boats, and other vessels, upon and about their lawful and necessary affairs and occasions, in, through, along, and upon the said river, and public highway, there, in so free and uninterrupted a manner, as of right, they ought, and before have been used and accustomed to do; to the great damage and common nuisance of all the citizens of the State of Alabama, and of the United States, navigating, sailing, rowing, passing, repassing and laboring with their ships, barges, lighters, boats and other vessels, in, through, along, and upon the said river, Sucarnochee, and public highway, there, to the great obstruction of the trade and navigation of, and upon the said river, contrary to the statute in such case, made and providing, to the evil example of others in the like case offending, and against the peace and dignity of the State of Alabama.
    “And the jurors aforesaid, upon their oaths aforesaid, do further present, that the river Sucarnochee, that is to say a certain part of said river, lying and being in the county of Sumter aforesaid, is, and from the time whereof the memory of man is not to the contrary, hath been an ancient, common and public highway, free to the citizens of the State of Alabama, and of the United States, with their keel boats and other water crafts, to navigate, sail, row, pass, repass and labor, at their will and pleasure, without any impediment or obstruction, whatsoever. And the jurors aforesaid, upon their oaths aforesaid, do further present, that Robert Bell, late of said county of Sumter,' aforesaid, laborer, on the first day of August, in the year of our Lord, one thousand eight hundred and thirty-six, and on divers other days and times, between that day and the day of the finding of this indictment, with force and arms, in the county aforesaid, unlawfully and injuriously, a certain mill-dam, for the purpose of arresting, withholding, and retaining the water flowing down the said river Sucar-nochee, before that time, built, erected and constructed, in and across the said river, with timber, stone and earth, in section four, township eighteen, range two, west, in said county of Sumter, by persons to the jurors aforesaid, unknown, unlawfully and injuriously, did continue, and yet doth continue, without opening in the dam across said river, a good and sufficient lock to admit the passage of keel boats and other water craft, of the width of fourteen feet, for the admission and passage of such boats and .other water craft, as may be desired to navigate said river Sucarnochee; by means whereof, the navigation and free passage of, in, through, along and upon the said river Sucaimochee and public highway, on the day and year aforesaid, and on the said other days and times, hath been and still is, greatly straitened, obstructed and confined, to-wit, in the county of Sumter, aforesaid, so that the citizens of the State of Alabama, and of the United States, navigating, sailing and rowing, passing, re-passing, laboring and rowing with their keel boats and other water craft, in, through, along, and upon the said river and public highway there, on the same day and year aforesaid, andón the said other days and times, could not, nor yet can go, navigate, sail, row, pass, repass, and labor with their keel boats, and other water craft, upon and about their lawful and necessary affairs and occasions, in, through, along and upon, the said river and public highway there, in so free and uninterrupted a manner, as of right they ought, to the great damage and common nuisance of all the citizens of the State of Alabama, and of the United States, navigating in, through, along and upon, said river and public highway there, to the great obstruction of the trade and navigation of the said public highway, contrary to the form of the statute, in such case made and provided, to the evil example of all others in the like case offending, and against the peace and dignity of the State of Alabama.
    “And the jurors aforesaid, upon their oaths aforesaid, do further present, that the river Sucarnochee, that is to say, a certain part of said river, lying and being in the county of Sumter, aforesaid, is, and from the time whereof the memory of man is not to the contrary, hath been an ancient common and public highway, free to the citizens of the State of Alabama, and of the United States, with their keel boats and other water craft, to navigate, Sail, row, pass, repass and labor, at their will ab cl-pleasure, without any impediment or obstruction whatsoever. And the jurors aforesaid, upon their oaths aforesaid, do further present, that Robert Bell, late of the county of Sumter aforesaid, laborer, on the first day of August, in the year of our Lord, one thousand, eight hundred and thirty-six, and on divers other days and times, between that day and the day of the finding of this indictment, with force and arms, in the- county aforesaid, unlawfully, wil-fully and injuriously, a certain mill dam, for the purpose of arresting, withholding, and retaining the Water flowing down the said river Sucarnochee, before that time built, erected, and constructed, in and across the said river, with timber, stone, and earth, in section four, township eighteen, range two, west, in said county of Sumter, unlawfully and injuriously did continue, and yet doth continue, without opening, in the dam across said river, a good and sufficient lock to admit the passage of keel boats and other water craft, of the width of fourteen feet, for the admission and passage of such-boats and other water craft, as may descend to navigate said river Sucarnochee, by means whereof, the navigation and free passage of, in, through, along and upon the said river Sucarnochee, and public highway, on the day and year aforesaid, and on the said other days and times, hath been, and still is, greatly straitened, obstructed, and confined, to wit, in the county of Sumter, aforesaid, so that the citizens of the State of Alabama, and of the United States, navigating, sailing and rowing, passing and repassing, laboring and rowing, with their keel boats and other water craft, in, through, along and upon the said river, and public highway there, on the same clay and year aforesaid, and on the said other days and times, could not, nor yet can go, navigate, sail; row, pass, repass and labor, with their keel boats and other water craft, upon and about their lawful and necessary affairs and occasions, in, through, along and upon the said river and public highway there, in so free and uninterrupted a manner, as of right they ought, to the great damage and common nuisance of all the citizens of the State of Alabama, and of the United States, navigating, in, through, along and upon the said river, and public highway there, to the great obstruction of the trade and navigation of the said public highway, contrary to the form of the statute, in such case made and provided, to the evil example of all others, in the like case offending, and against the peace and dignity of the State of Alabama.
    “And the jurors aforesaid, upon their oaths aforesaid, do further present, that Robert Bell, late of said county of Sumter, laborer, on the first day Of August, in the year of our Lord one thousand eight hundred and thirty-six, with force and arms, in the county aforesaid, and at divers other days and times, between the said first day of .August, and the day of the finding of this indictment, with force and arms, a certain mill-dam, for the purpose of collecting, withholding, and retaining the water flowing down the said river Suearnochee, in said county of Sumter, before that time made, erected, and constructed across the said river Suearnochee, of logs, timber, stone, and earth, near the town of Livingston, in said county of Sumter, and near divers streets in said-town of Livingston, being public highways, and near unto the dwelling-houses of divers of the good citizens of the State of Alabama, there situate and being, unlawfully, wilfully, and injuriously did continue, and still doth continue, by reason of which said premises, divers noisome, offensive and unwholesome smells, stenches, miasmas, during the time aforesaid, were from thence emitted and issued, so that the air then and there was, and yet is greatly filled and impregnated with the said smells, stenches, and miasmas, and was and is rendered and become, and was and is corrupted, offensive, uncomfortable, and unwholesome, to the great damage and common nuisance, of all the good citizens of the State of Alabama, there inhabiting, being, and residing, and going, returning, and passing through the said streets and highways, and to the evil example of all others in the like case offending, and against the peace and dignity of the State of Alabama.”
    A motion to quash this indictment being overruled, the defendant plead not guilty; whereupon a jury was impannelled, who found him guilty, as charged in the indictment, &c.
    In the progress of the trial, the following points arising, they were, by the Court below, referred here, as novel and difficult.
    First — “ The defendant moved the Court to quash the indictment, on the ground, that the Court could not take cognizance — that the jurisdiction was vested in the County Court by an act of the Legislature, — having control of the river Sucarnochee.”
    Secondly, — “The copies of maps were adduced as evidence, to prove, that the river Sucarnochee, was a navigable stream, it appearing on the copies of said maps, that the sectional lines did not cross said river, and that the copies were proved by a witness, who had compared said copies with the original maps of survey.”-
    Thirdly, — “That the defendant Bell, was not the owner of the land on which the dam was erected, hut that one Rhodes, a citizen of North Carolina, was the owner, and that said Bel], was in the possession of said property as agent or overseer, and therefore could not he presented for the supposed offence.”
    The Court decided that the present defendant, could not justify a violation of the penal laws of the land, under the order of his employer.
    The case was argued here by Crabb for the defendant, Bell, and by the Attorney General, on the part of the State.

      The judgment in this case, was given at January term, 1837.

       The Reporter has thought it advisable in order to more fully elucidate’ the peculiarities of this case, to insert a copy of the private statute above referred to.
      “AN ACT
      “To authorize Richard and Stephen Yarborough to erect a saw and grist mill on the Sucarnochee River, in Sumter county.
      “Section 1. Be it enacted by the Senate and House of Representatives of the State of Alabama in General Assembly convened, That Richard and Stephen Yarborough be, and they are hereby authorized to erect a saw aud grist mill in section four, township eighteen, range two, west, on the Sucarnochee river, in the county of Sumter.
      “Sec. 2. And be it further enacted, That the said Richard and Stephen Yarborough shall open in the. dam cross said river, a good and sufficient lock to admit the passage of keel boats and other water craft, which said lock shall be the width of fourteen feet or more, if required, for the admission and passage of such boats and other water craft as may be desired to navigate said river.
      “Sec. 3. And be it further enacted, That if the said Richard and Stephen Yarborough should fail or refuse to erect such lock or locks and other necessary conveniences for the passage of boats and other water craft as aforesaid, the said mill shall be deemed a nuisance and therefore removed as such.
      “Sec. 4. And be it further enacted, That if the erection of said mill, as aforesaid, should flood or injure any land or lands not belonging to the said Richard and Stephen Y arborough, the said Yarboroughs shall pay all such damages as any person or persons may sustain, by the erection of said mill, and if any person or persons should be injured by said mill, they shall in all respects have such damages assessed as now required bylaw, and if the said Richard and Stephen Yarborough should fail or refuse to pay all such damages as may be legally assessed, the owner or owners of such flooded or injured land or lands shall immediately, after such refusal on the part of the Yarboroughs, have said mill removed as a private nuisance.
      “Sec. 5. And be it further enacted, That if it shall be ascertained that the health of the people of the town of Livingston shall be materially injured or endangered by the erection of the mill hereby authorized, that then and in that case the power and authority herein given to construct such mill, shall be subject to revocation, arid the judge of the county court ot Sumter county, shall have power, and it shall be his duty, upon the application, in writing, of any three citizens of said town, to cause a jury to he impannelled and sworn to en-quire and determine whether or not, in their opinion, the erection of said mill does materially injure or endanger the health of the inhabitants of said town of Livingston, and if such jury, upon enquiry into the facts, shall find that in their opinion the health of the people of said town has been, or is likely to be materially injured by the erection of such mill, it shall be the duty of said judge, upon the finding that such jury, to cause the dam of said mill to bo abated asa nuisance: Provided, the owner of such mill shall have at least ten days previous notice in writing of such intended application.”

   GOLDTHWAITE, J,

On the trial of this case in the Circuit Court of Sumter county, several questions were reserved by the presiding Judge, for the consideration of this Court, which will be examined in the order they are placed in the record.

First, — It is insisted that the Circuit Court of Sumter, has no jurisdiction of the particular offence; because the Judge of the County Court, is author-ised by the terms of a private act of the Legislature to remove the nuisance complained of. The act referred to by its first section, “authorises Richard and Stephen Yarborough to erect a saw and grist mill, on section four, township eighteen, range two, west, on the Sucarnochee river, in the county of Sumter,”

The.second section, enacts, “that the said Yarbo-roughs, shall open in the dam across said river, a good and sufficient lock, to admit the passage of keel boats and other water era ft, which lock shall be of the width of fourteen feet or more, if required, for the admission and passage of such boats and other water craft, as may be desired to navigate said river.”

The third section, enacts, “that if the said Yar-boroughs shall fail or refuse to erect such lock or locks, and other necessary conveniences, for the passage of boats and other water craft, as aforesaid, the said mill shall be deemed a nuisance and therefore removed as such.”

The fourth section provides for the manner of ascertaining any private injury, which may be sustained, and points out a mode, by which damages for the same, may be assessed. And .the fifth and last section, enacts, “that if it shall be ascertained that the health of the people of the town of Livingston, shall'be materially injured or endangered, by the erection of the mill hereby authorised, that then and in that case, the power and authority, herein given to construct such mill, shall be subject to revocation, and "the Judge of the County Court of Sumter county, shall have power, and it shall be his duty, upon the application, in writing, of any three citizens of said town, to cause á jury, to be impan-naled and sworn, to inquire and determine, whether or not, in their opinion, the erection of said mill does materially injure or endanger the health of the inhabitants of said town of Livingston,.and if such jury, upon enquiry into the facts, shall find that, in their opinion, the health of the people of said town, has been, or is likely to be, materially injured by the erection of such mill, it shall be the' duty of said Judge, upon the finding of such jui’y, to cause the dam of said mill, to be abated as a nuisance; provided, the owner of such millj shall have at least ten days previous notice, in writing, of such intended application.”

It cannot be contended, that any provision of the «act recited, expressly takes away the jurisdiction of the Circuit Court, which must otherwise be exercised over this, as well as over other criminal offen-ces, by virtue of the powers conferred by the sixth section of the fifth article of our Constitution; but it is urged that such is the implication arising from the third- and fifth sections.

On looking into the third, it will be found not to touch this question; as it seems to provide, that the dam shall be deemed a nuisance, unless a lock of a particular description is left for the passage of boats, &c. This section does not, by implication,- divest any tribunal, of jurisdiction, but leaves that to be exercised in such manner as previously was designated by law. The third count of the indictment is framed with technical accuracy, to present the very question, which arises on the construction of this section. If the Yarboroughs had proceeded in every other respect according to the act, and no injury, public or private, had ensued — the omission to provide the means, for the public to pass through the dam, would, of itself, be a nuisance, which should be abated.

The fifth section, when examined, will be found to give no aid to the position assumed. It neither confers, or assumes to confer, any criminal jurisdiction. It simply provides the mode, by which the privilege granted by the first section, shall be determined to be at an end; and for the resumption, by the State, of all its rights, of which one, not the least important, is to abate the existing nuisance.

The right to abate a public nuisance, is said to be common to every citizen of a community, because all may be injured by it; and if the law has made it the duty of a named officer, to abate such a nuisance, when ascertained in a particular manner, — no inference ought thence to be drawn, that it was the intention of the law, to abolish all other modes of abatement. Such a construction, -would, in all cases, insure the escape from justice of the individual erecting or continuing the nuisance. If the position contended for, be correct, no one would be responsible, either civilly or criminally, for, any nuisance, which grew out of the erection of this mill. The act certainly prescribes no punishment for the offender, and he might laugh to scorn, all attempts to reach him criminally, through any jurisdiction vested in the County Court.

It may be true, by the grant of the privilege in the first section, and the restraints which are imposed on the resumption of it, by the fifth, that an individual might not be guilty of an offence in erecting or continuing the mill, until the time, when the privilege should, be revoked, in the manner pointed out by the section, last refered to.— This was a matter, resting on the evidence in the cause, and if the inquisition had not been made, the defendant might have been entitled to his acquittal; but no question has been raised on this point, and we must presume the jury were satisfied with the evidence, submitted to them, that the defendant had contiuued the nuisance, as stated in the fourth count of the indictment, after it had become unlawful, or that the inquisition, mentioned and provided for in the fifth section, had been made.

The next, and perhaps the only difficult, question, arises on the statement of the Court below, “that the copies of maps were adducd as evidence to prove that the river Sucarnoehee, was a navigable stream, it appearing on the copies of said maps, that the sectional lines did not cross said river, and that the copies were proved by a witness, who had compared said copies with the original maps of survey.”

We have been, and still-are, at a loss to perceive, how this description of proof was deemed necessary to be resorted to, as the fact could perhaps have been more satisfactorily established, if it existed, in almost any other way, but the point was not the sufficiency, but the legality of this species of evidence, to ascertain the fact, then in issue. To make a navigable stream, three circumstances must concur.

First — The stream must have sufficient width.

Second — Sufficient depth, and

Third — A freedom from insurmountable obstructions.

The Court must intend, that the copies of the maps, introduced in evidence, were the public surveys made in pursuance of law. These maps, if accurate, must necessarily shew the width of any stream, when the section lines do not cross the river, and on which fractional sections are, (in consequence of the lines not crossing,) obliged to be made. These fractional sections are always made on nayigable streams, though we do not understand the fact to be otherwise, on many streams which, are not navigable.

This view of the case would indicate that the surveys might be legal evidence to establish the width of a river, which is one of the facts from which its capability for navigation, might be legally inferred, and being thus legal in its character, its sufficiency was matter of consideration alone for the jury.

But it is urged that the copies which were introduced, were not the copies from the original maps, but from the land office maps, in the office of the register. To this we can only answer, and refer to the record, which states them to be copies, proved by a witness, to have been compared with the original maps. To intend otherwise, would be to violate all rule, and however the fact may be, we must determine from the record.

That sworn copies are admissible in evidence., has already been decided by this Court. (Hamner vs Eddins, 3 Stewart 192.)

The only remaining question is, whether the defendant is not entitled to be discharged from the indictment, as he is shewn to have possession of the premises, which are alleged to be a nuisance, not in his own right or by virtue of any claim, but merely as the overseer or agent of another,

The duty which every individual owes to the State, of which he is a citizen, and the community, of which he is a member, is certainly paramount to any obligation,' imposed on him by his voluntary service and obedience to another. To permit an agent or servant to excuse himself for an infraction of the criminal laws of the State, because of his agency or servitude, is a principle which can have no authority, from reason, for its support. Human laws must necessarily attach immediately on those, who do, or omit the act; and although the director, instigator, aider and abettor, can in most cases be also reached by the same law, the actual offender can in no case avoid the consequences of his unlawful act or omission.

The fact which is now attempted to be introduced, as a legal bar to this indictment, might well be urged, as a circumstance to mitigate or reduce a fine or other punishment, when discretionary; and would no doubt receive sufficient attention from a jury, the only proper tribunal, to judge of the effect to be given to such an excuse.

The Court are. unable to discover any error in the action of the Court below, on the questions referred to us, and the judgment rendered must be affirmed.


text:
    WARD and THOMPSON VS HERNDON.

      As to the admissibility of hearsay evidence to shew the notoriety of,a fact already proved to exist.

      As to the cases in which evidence of good character is admissible.

    1. It is no departure from the rules of evidence, to prove the notoriety, in the neighborhood, of a fact, already proved to exist, to lay the foundation for an inference, that defendants were cognizant of that fapt.
    2. Thus, where defendants represented to plaintiff, an insolvent person, as being good for his contract, hearsay was held admissible to prove the notoriety of the insolvency in the neighborhood, and establish a presumption that defendants knew it, when they represented him otherwise.
    3. Concerning the sufficiency of such evidence to establish fraud or deceit. — Qpare.
    4. Evidence of good character, is not admissible to repel the imputation of fraud, in civil proceedings: aliter, where character is directly put in issue, or on the trial of an of-fence against the State, involving moral turpitude, or on an indictment for breach of the peace.
    In error to the Circuit Court of Greene.
    In this case, the plaintiffs in error, had been sued and declared against in the Circuit Court of Greene, for representing a person notoriously insolvent, to defendant in error, “as perfectly good for his contracts.” By means of which representation, defendant in error was induced to credit him in sundry sums of money, for goods, wares and merchandise, which were due and unpaid, and which defendant was likely wholly to lose. The case was brought up on a bill of exceptions to the charge of the Court below, all of which will appear sufficiently in the opinion pronounced in this Court.
   COLLIER, J.

The defendants in error declared against the plaintiffs in the Circuit Court of Greene, for falsely, fraudulently and deceitfully representing one Mungo D. Simpson, to be solvent and worthy of credit, under the influence of which representation, the plaintiffs sold to him goods, wares and merchandise, to a large amount. The cause was tried on the plea of “not guilty.”

On the trial, a letter of the plaintiffs, was read to the jury, in which they represent to the defendant, Simpson as “an industrious, sober citizen of Greene, and perfectly good for his contracts,” and oblige themselves to see defendant paid, for at least thirty dollars worth of leather, should he credit Simpson to that extent, for that article. It was proved, that Simpson was insolvent: witnesses were then examined, who proved, that he “was generally reputed to be insolvent in the neighborhood in which he and the defendants, (plaintiffs in error,) lived.” To the introduction of which testimony, the defendants’ counsel objected, which objection was overruled by the Court, and the evidence permitted to go to the jury; to which the defendants excepted.” This was the only proof to shew that the plaintiffs in error, knew that Simpson was insolvent, at the time their letter was written. They then offered evidence to prove their “general, good cha.-racier for honesty,” which being objected to, was not allowed. Whereupon the plaintiffs in error excepted, and here assign for error the several matters presented by the bill of exceptions.

Before examining the several decisions of the Circuit Court, we must settle what questions are reserved. The first point of exception relates alone to the admissibility of the evidence of general reputation touching Simpson’s insolvency. The reading of the letter and the proof of actual insolvency, seems not to have been objected to. The second exception, is to the refusal to permit the plaintiffs in error, to prove their general character for hones ty, &c.

1. In respect to the first point, it may be remarked, that the evidence of the reputation of Simpson’s insolvency, was not introduced to shew that he was insolvent; that fact, the bill of exceptions states, had been already shewn, by unexceptionable proof. But it must be understood to have been offered, as it professes, to lay a ground for the jury to presume, that the plaintiffs were aware of Simpson’s insolvency, inasmuch as the fact had a general notoriety in their neighborhood. In this view, the testimony, in our judgment, is free from objection, and is an entire different thing, from the proof of a fact, susceptible of being shewn by evidence, of a character more precise and definite.— The admission of hearsay evidence, may be considered, as somewhat of an anomaly in the general rules of testimony, and is indeed allowed but in few cases, which are held to form exceptions in themselves. Without pretending to determine, whether insolvency may be proved by reputation* we think it clear that if the fact be shewn, the notoriety of its existence may be thus proved, without any departure from the rules of evidence.

Whenever it becomes necessary to trace the notice of a fact to any one, it is not in general, necessary, to do this by direct and positive proof, but it is competent to shew such a state of circumstances, as negative the absence of notice. And as no man is presumed to be so much of a recluse, as not to know what is generally known and talked of, in his neighborhood, — where positive, proof cannot be had of such knowledge, it is competent to prove a circumstance, from which it is inferrible.

The bill of exceptions, does not present to us the sufficiency of the evidence, to shew a fraud and deceit, in the representation of the plaintiffs, but merely its admissibility. This question might have been reserved, had an instruction been asked for in the Circuit Court, on that point, and given adversely to the plaintiffs; but nothing of the kind seems to have been required of that Court, and if it was required, it is waived by the failure to except.

2. The second exception supposes, that wherever fraud is imputed to a party, it is competent to repel the imputation, by proof of the good character of him, whose integrity is thus arraigned.— Such, in our opinion.is not the Jaw. On' the trial of an offence against the State, involving moral turpitude, a defendant may shew that he sustains a-fair character. So, on an indictment for a breach of the peace, the defendant may shew that he is a man of peaceable and orderly habits. But in civil proceedings, unless the character of a party be directly put in issue, by the proceeding itself, evidence of his general character is not admissible. (7 Conn. R. 119. Swift’s Ev. 140. 2 Starkie Ev. 366. 1 Phil. Ev. 139. 5 Serg. & Rawle 352.)

In the case of Anderson’s exrs. vs Long and others, (10 Serg. & Rawle, 55.) it was decided, that the accusation of a fraud in a civil proceeding, did not put the defendant’s character in issue:— That, “putting character in issue,” is a technical expression, and confined to certain actions, from the notice of which, the character of the parties or some of them, is of particular importance.”— Such are the actions' for criminal conversation, slander, &c.

These decisions are unopposed by any adjudicated case, so far as our research extends, save that of Ruan vs Perry, (3 Caine’s R. 121) in which the Supreme Court of New York held, that in an action, charging the defendant with fraud, from mere circumstances, he may give evidence of his general good character. This is a solitary case, unsustain-ed by authority, and however satisfactory such evidence might be, in leading the mind to a conclusion, we do not feel authorised to allow its admission, against such a weight of authority.

But such evidence is objectionable, as extending too largely the scope of the examination. A large majority of cases, impute to the defendant, the want of a proper sense of justice; and if in a case, such as the one at bar, it be allowable to defeat a recovery by evidence of good character, why not in other cases, permit a defendant to prove that his opinions and practice, indicate conscientiousness in all his dealings.

The bill of exceptions does not bring to our view, any tangible error.

The judgment is consequently affirmed.

HOPKINS C. J. not sitting.


text:
    ISAACS, per proc. ami, VS BOYD, et al.

      Touching the competency of a father, as the natural guardian of his child, to release or compromise a suit prosecuted by him, on behalf of the infant.

      Concerning the authority and powers of a prochien ami, in dismissing the action.

      As to the plea puis darien continuance, the issue tendered in the same, and the pleadings subsequent thereto.

    1. A father, as the natural guardian of the person of his child, during infancy, has by virtue of his relation, no am thority to exercise any control over the estate of the minor,

      %. The only logo! authority, with which he can be invested, musí be derived from the competent authorities, and on giving the bond required by our statute; and thetefore, as She natural guardian of the child, he can neither release or compromise a suit, prosecuted by him, on behalf of the minor.
    5 A prochem am is cue, admitted by the Court, to prosecute for an infant, bcc;:u;,r,, otherwise, the infant, might be prejudiced by the refusal or neglect of his guardian.
    4. He is but a species of attorney, who may prosecute a right for an infant, but can do nothing to operate to its injury, and therefore cannot release or compromise a suit, prosecuted on behalf of a minor.

      5. If a plea, puis darien continuance, contain no legal matter of defence to the action, on which issue need be taken by plaintiff, and no issue is taken by the replication, and the replication is demurred to for want of issue joined, — judgment will be rendered for plaintiff, and the demurrer overruled, because it opens all the pleadings to examination, and because the plea tenders no legal defence.
    Error to the Circuit Court of Benton county.
    The plaintiff in this case sued out a writ in trespass, for an assault and battery, against Samuel Boyd, William Bragg and Joseph Bragg. The writ was served on Samuel Boyd and William Bragg, against whom, at the October term of the Circuit Court of Benton county, eighteen hundred and thirty-four, plaintiff declared. To the declaration, defendant, William Bragg, pleaded not guilty. At the April term of said Court, eighteen hundred and thirty-five, defendant Boyd, filed his plea, actio jion puis dañen continuance, as follows:
    “And now at this day, &c. comes the defendant, Boyd, &c. and says, that the said plaintiff ought not further to have or maintain her said action, because he says, that on the sixth day of April, eighteen hundred and thirty-five, from which day or time, this cause has been continued, the said plaintiff, at the time aforesaid, received, by her next friend, aforesaid, who was and is her father and natural guardian, and under whose care and protection, she was at the time last aforesaid, the sum of seventy-five dollars, in full compensation of all damages done by them, meaning and intending thereby, to discharge and dismiss, the said suit, against the said Boyd, and one Jacob R. Green, who is not in this suit, and this defendant avers, that the said sum of seventy-five dollars, was paid by him as aforesaid, and was received by said plaintiff, in full satisfaction of all damages, for which this suit was brought, and he makes profert of the receipt of said plaintiff, by her next friend, and brings the same into Court; all of which he is ready to verify, wherefore he prays judgment, if said plaintiff ought further to have or maintain her said action, &c.”
    To the plea, there was a replication,precludi non, as follows:
    “And the said plaintiff,'saith, she ought not to be barred from further having and maintaining her aforesaid action, thereof against the said defendant; because she says, that the said defendants,' or either of them, have not paid to her, or to her use, on the said sixth day of April, in the year eighteen hundred and thirty-five, or at any other day, before or since that day, said seventy-five dollars, or any other sum of money, nor did she ever receive that, or any other sum in satisfaction of the said trespass, &e. in manner and form, &c. and of this, she puts herself upon the country.”
    To this replication, there was a demurrer.
    At the October term, eighteen hundred and thirty-five, on motion of plaintiff, Elisha Isaacs, was dismissed as her next friend, and Samuel S. Hinton, appointed to prosecute the suit. Cause continued.
    At May term, eighteen hundred and thirty-six, judgment was rendered, sustaining the demurrer: To which plaintiff excepted.

      W. R. Baylor, for plaintiff in error.

      William P. Chilton, for defendants in error.
   GOLDTHWAITE, J.

To this action of trespass for an assault and battery, commenced by the plaintiff, who is a minor, and sues by her prochein ami, Boyd, one of the defendants interposed a plea, puis dañen continuance, stating in substance, that the plaintiff received by her prochien ami, who is her father and natural guardian, and under whose care and protection, she was at the time, the sum of seventy-five dollars, in full compensation of all damages done by the defendant, meaning and intending thereby to discharge and dismiss the said suit, against the defendant Boyd, — and the plea avers that said sum was paid by him, and was received by the plaintiff, in full satisfaction of all damages, for which the suit was brought. The plaintiff replied, denying that the defendants or either of them, had ever paid the said sum of money to her, or her use, or that she had received that, or any other sum, in satisfaction for the said trespass, concluding to the country. The defendants demurred to this replication, and judgment was rendered thereon, in favor of the defendants, who were discharged of the suit without day. ■

If the plea was intended to present the issue, of an accord and satisfaction, made with the plaintiff, without the intervention of her pjrochien ami, the replication may well be considered as a complete denial, as it alleges that no such satisfaction was ever paid to her, but if the plea is considered as tendering an issue of accord, and satisfaction with the prochien ami, then the replication is no sufficient answer, and if the plea be good in point of law, the demurrer was properly sustained to the replication; but if the plea presents no legal matter of defence, then judgment .should have been rendered in favor of the plaintiff, according to the well settled rule of pleading, that a demurrer opens all the pleadings to examination.—(Cummings vs Edmonson, page 145, of this vol. Cummings & Foster vs Gray.)

It is assumed by the plea, that a prochien ami, who is also the father and natural guardian of a minor, has authority to receive satisfaction for a personal injury done to his child.

No authorites have been produced, which lead directly to such a conclusion; but it is shewn by the case of Weed vs Ellis, (3 Caines’, 253,) that a guardian may submit the demand of his ward, for damages in an action of assault and battery, to arbitra^ tion, and hence, it is inferred that a similar authority should rest with the prochein ami, to whom the management of the suit is entrusted, the more especially, when the trust is conferred on the father.

The father, as the natural guardian of the person of his child, during infancy, has, by virtue of his relationship, no authority whatever, to exercise any control over the estate of the minor, nor can he receive and discharge the liability, to account for a legacy or distributive share, belonging to his child. (Genet vs Tallmage, 1 Johns. Ch. Rep. 3. Morrell vs Dickey, same 153. Williams vs Storrs, 6 do. 353.) The only legal authority with which he can be invested, must be derived from the competent authorities, andón giving the bond required by our statutes.

A parent is entitled to the services of his child, during minority, and whenever this right has been injuriously affected by personal injury, his right to maintain,, or discharge an action instituted by him, to recover damages, would be clear; but as the natural guardian of his child, he could neither release or compromise a suit, prosecuted on behalf of the minor.

The duties of a prochein ami, and his power, are comprised within a very narrow compass. — * He may prosecute a right for an infant, but he can do nothing which can operate to its injury. He can, it is true, dismiss a suit, because he is himself liable for the costs, though even this may well be questioned, when injury to the minor would be the result, A.prochein ami, is one, admitted by the Court, to prosecute for the infant, because otherwise, he might be prejudiced by the refusal or neglect of his guardian. (10 Petersdorff, 579, note.) He is in fact, but a species of attorney, who is permitted to act for the infant, so far as to conduct his suit, but he has certainly, not a more extensive authority, than an attorney at lavy, who cannot enter into a bond, or compromise the right of his client. (Holker vs Parker, 7 Cranch 496.) Indeed his authority does not extend so far, for he is not au-thorised to receive the amount which may be recovered by the infant, but the same should be paid over to a lawful guardian, alone, as it might otherwise be squandered, and the infant receive no benefit.

The trust of prochein ami, was first created by statute, (10 Petersdorff, 579,) though by long practice, it may now be considered, as one of the rights of an infant, and was intended to provide alone for tho,se cases, where the lawful guardian omitted to protect the rights and interests of his ward, or was unable or unwilling to commence a suit in his behalf. The origin of the trust goes far to shew the limited authority, coupled with it.

It was therefore error in the Circuit Court to sustain the demurrer to the replication, for which the judgment must be reversed, and the cause remanded.

The determination on this point, renders it unnecessary to examine the other questions presented by the assignment of errors.

HOPKINS, C. J. not sitting.