Volume 6 — Florida Reports

It appears from the record, that Frederick R. Cotten, on the second day of January, 1844, purchased from James D., and William Tradewell their plantation and slaves, and other property in Leon County, and took from them a conveyance with general warranty. Three of the slaves purchased, viz : Alfred, Lewis and James, had been on the seventh day of April, 1840, mortgaged to the Southern Life Insurance and Trust Company, to secure the sum of $4200.

<p>For a statement of the facts, reference is made to the opinion of the Court.</p>

Appe.al from the Circuit Court of Columbia County, Hon. J. J. Finley presiding. This was an action of assumpsit instituted by appellants by attachment.

<p>1. The doctrine that a “ personal action once in suspense by the act of the party entitled to it, is always extinguished,”—questioned.</p> <p>2. If an executor or administrator receive assets of the estate, sufficient to satisfy his debt due from the the testator or intestate, this, at common law, operates an extinguishment of his demand.</p> <p>3. But the provision of the Statute, which takes away the right of retainer in eases of insolvency, so far modifies this doctrine as to confino its operation exclusively to solvent estates.</p> <p>4. When a defendant sets up as a bar to the action that the plaintiff in the character of executor had received assets sufficient to satisfy his debt, it is neither necessary nor proper, that the plea should allege, that the estate was solvent ; but if an insolvency is relied upon to bring the case within the operation of the Statute, the fact should be distinctly averred in the replication by way of avoidance.</p> <p>5. It is the first essential of good pleading, that it be characterized by certainty, and this quality is especially requisite in the replication.</p>

<p>Motion for a rehearing made in behalf of appellees.— The opinion of the Court states the facts in connection with the filing of the petition.</p>

The appellant was indicted and convicted for playing at .a certain game at cards.

<p>1. The endorsee of an over-due promissory note takes it as against the maker, with all the equities arising out of the note transaction itself, but not subject to a set off in respect to a debt due from the endorser to the maker of the note, arising out of collateral matters.</p> <p>3. This doctrine rests upon the law merchant which forms a part of the common law. The Statute of set off does not apply to it.</p>

<p>1. An agent is a competent witness to prove his own authority if it be by parol-</p> <p>2. He stands in the character of a disinterested and indifferent witness between the parties in all ordinary cases.</p> <p>3. If the plaintiff recovers on his agency when in fact he was not agent, but had assumed an agency which could only be established by his own evidence, he would be answerable to the defendant; and if he assumed the character of agent without being authorized, and in such character imposed on the plaintiff he would be responsible to him.</p> <p>4. Agents are witnesses, and in many cases they are so ex necessitate, even where they may be interested.</p> <p>5. The exception being founded upon considerations of public necessity and convenience, it cannot be extended to cases where the witness is called to testify, to matters out of the usual and ordinary course of business.</p> <p>6. Where the agent has a direct interest in the event of a suit relating to a con* tract made by him independently of his acts as agent, he is not a competent witness for his principal in regard to such contract.</p> <p>7. Notwithstanding th e prima facia appearance of an interest on the part of the witness on the face of the record, yet his evidence ought not to be rejected without examining him on his voir dire as to his situation, or adducing other proof to show that fact.</p> <p>8. As a general rule the vendor of goods having possession and selling them as his own, is held bound in law to warrant the title, and therefore, he is generally not a competent witness for the vendee in support of the title.</p> <p>9. But it does not follow that the vendor of goods is necessarily interested or bound to warrant the title. He may not have been in the possession of the goods when he sold them, or he may have sold them without recourse ; or he may have a release from the purchaser.</p> <p>10. The disqualifying interest must be some certain, legal and immediate interest however minute, either in the event of the suit or in the record, as an instrument of evidence, in support of his own claims in a subsequent action.</p> <p>11. The mode of proving the interest of a witness, is cither by his own examination or by evidence aliunde.</p> <p>12. When the objection to the competency of the witness arises from his own examination, he may be further interrogated to facts tending to remove the objection, though the testimony might on other grounds be inadmissible.</p>

<p>1. A debtor in insolvent circumstances may, before lien attaches, lawfully prefer one creditor, or set of creditors to another.</p> <p>2. A-sale, assignment or other conveyance, is not necessarily fraudulent, because it may operate to the prejudice of a particular creditor.</p> <p>3. A deed made with the purpose or intent to hinder, delay or defraud creditors, is binding as between the parties 5 but as to creditors it is deemed to have no lawful existence.</p> <p>4. In equity, the general maxim of pari delicto, &e., does not always prevail; circumstances of the particular case, often form exceptions, and where it is necessary, relief will be granted.</p> <p>5. In an assignment to a trustee who accepts the trust, and enters upon the duties thereof for the use of certain creditors, the legal estate passes and vests in the trustee, and chancery will compel the execution of the trust for the benefit of the said creditors, though they be not at the time assenting, and parties to the conveyance.</p> <p>6. In a deed of trust, wherein after specifying certain slaves by name, and also enumerating other personal property, and then adding- a general clause, viz : “ and all his personal effects of every name, nature and description,'1'' &e. Held to embrace things ejusdem generis, with those which had been mentioned before, and to convey for the purposes of the trust, any other slaves, which then belonged to the grantor and not before specified by name, and especially where the res gestee favors that construction, but not to pass real estate, or equity of redemption in land.</p> <p>7. It is essential to the conveyance of real estate that there be some description of the land.</p> <p>8. In a deed of assignment to a trustee conveying “ all the future cotton crops made on said plantation,” an estate is conveyed commensurate with the trust; and although it docs not pass the equity of redemption in said land yet it is a fiduciary license, lease or conveyance thereof, and of all that was necessary to the management of the plantation and appropriation of said crops for the objects and purposes of said trust.</p> <p>9. A deed of assignment is to be construed by the res gestae, and thus Courts are permitted to look to the circumstances and motives which led to its execution, and the objects to be accomplished.</p> <p>10. In all oases where a purchase has been made by a trustee, on his own account, of the estate of his cestui que trust, although sold at public auction it is in the option of the cestui que trust to set aside the sale, whether bona fide made or not, and particularly where there are inequitable features in the transaction.</p> <p>11. A trustee is bound not to do anything which can place him in a position inconsistent with the interests of the trust, or which have, a.tendency to interifere.with his duty in discharging it.</p>

Nelson Hawley filed Ms bill in the Court below, alleging that he and Henry Allen having contracted with the Government of the United States for the transportation of the mail between Apalachicola and Chattahoochee for four years, from the first of July, 1847, entered into articles of agreement for the purchase of a Steamboat to be used as well in said service as in the transportation of freight and passengers, of which agreement, the following is a copy, viz: STATE OF…

<p>1. In case of a mortgage to secure notes payable at different periods the note which first falls due has the prior right to be satisfied out of the mortgaged property, unless there is some peculiar equity attached to the notes of subsequent date, and so as to the other notes.</p> <p>2. In case of sale by a prior incumbrancer, the subsequent incumbrancer can only complain by showing fraud in the sale, or that the property was more than sufficient to pay both debts, and that something remains for his benefit</p>

Farish Carter filed his bill in the Court below, alleging that on the 13th day of October, 1839, one Warren Jordan, of the State of Georgia, executed a deed of mortgage, covering certain lands in said State, and seventy-nine slaves, to the Georgia Railroad and Banking Company, to secure to said Company the payment of certain notes given by said Jordan.

Writ of Error to the Circuit Court for Duval County. ■This was an action of assumpsit instituted against the plaintiff in Error, to recover the amount of divers assessments upon the shares owned by plaintiff in Error in the capital stock of the said company. The first five counts of the declaration are based upon a promise to subscribe for stock, made anterior to the incorporation of the Company.

This is an application for amandamus to the Judge of the Circuit Court of the Eastern Circuit, for Putnam County* to hear and adjudicate an appeal taken from a Justice’s Court to the Circuit Court, To the rule to show cause why a mandamus should not issue, Hon. W. A. Forward, Judge of the Eastern Circuit ma.de the following answer: Ex Parte Henry Henderson, on motion for Rule to show cause why Mandamus should notissue.

<p>Writ of Error to a Judgment of Duval County Circuit Dourt.</p>

<p>1. The act of 1845 (Thompson’s Digest 50-51) which restricts the jurisdiction ■of the Supreme Court to the entertainment of “ causes brought by appeal or writ of Error from the several Circuit Courts, when the matter in controversy exceeds in amount or value fifty dollars” is compatible with theprovisions of the Constitution, and that Court is not authorized to take or exercise jurisdiction of a cause, in which the matter in controversy is below that limit.</p> <p>■¿^The case of Curry vs. Marvin (2 Florida Reports 411) referred to and approved.</p> <p>2. The several acts of the General Assembly granting an appeal from the judgment of a Justice of the Peace, to the Circuit Court (Thomp. Dig. 54, par. 7, and 364, Seo. 1 par. 1,) do not contravene any provision of the Constitution and are imperative upon the Courts.</p> <p>?>. Where the Judge of a Circuit Court shall refuse to entertain jurisdiction of an appeal taken from a Justice’s Court, a writ of Mandamus, issuing from the Supreme Court, is the appropriate process to compel the exercise of that jurisdiction.</p>

<p>1. The Supreme Court has no authority to entertain an appeal from a judgment rendered in a Justice’s Court.</p>

<p>1. The Supreme Court has ^authority to entertain an Appeal, coming up directly from a Justice’s Court.</p>

<p>I. Under the latitude, given in the proviso, to the second section of the fifth article of the Constitution, the Supreme has no authority to issue writs of certiorari, to any of the inferior jurisdictions : but to obtain its action upon the same, it must be clearly shown, that the case presented is such a one as requires the interposition of tiie Court, in order that justice may be done.</p>

[The reporter has not been furnished with a copy of the record, from which to extract the evidence given in to the Jury, and must, therefore, refer to the opinion as furnishing all the facts he is enabled to give.]

<p>1. Applications to set aside proceedings for mere irregularity, should be made as early as possible.</p> <p>2. If the style of process is “The State of Florida,” it is sufficient.</p> <p>3. Upon the death of the testator or intestate, if any injury is after-wards done to his goods and chattels, the Executor or Administrator may bring an action for damages for the tort, and under the circumstances, he has his option either to sue in his representative capacity, and declare as Executor or Administrator, or to bring the action in his own name, and in his individual character.</p> <p>4. When such a suit is brought by an Executor or Administrator, in his individual character, it is not necessary that there should be a bond binding the estate.</p> <p>5. Whether such a bond is necessary where an Executor or Administrator sues in such a case, in his representative character as Executor or Administrator. Quere1</p> <p>6. In a suit by an Executor or Administrator, in his representative character, he must describe himself and make his claim as Administrator or Executor only; describing himself Ex ecutor or Administrator is mere descriptio persones.</p> <p>7. The statute declares that the plaintiff in replevin, or some other competent person in his behalf, shall execute the bond with good and sufficient security; it is not contemplated by the latter provision that the persons signing the bond shall bind any body but themselves.</p> <p>8. Whether, therefore, an Executor or Administrator can, even in such an action as this, by proceeding as such Executor or Administrator, and executing a bond as such, bind the Estate.— Quere ?</p> <p>9. It is not necessary that the bond, in an action of replevin, should contain a description of the property, but the affidavit must describe it.</p> <p>10. The value of the property as stated in the declaration, is not the criterion of the value ot the property; it is the estimated 'value (by the Clerk, whose duty it is to approve the bond,) at the time the bond is given, and the plaintiff, by stating in his declaration a higher value, cannot invalidate the bond.</p> <p>11. If the Clerk in approving the bond add to his name the word Clerk only, it is sufficient if the other proceedings which occured at the same time as the making of the affidavit, or the issuing of the writ, show of what Court he was Clerk, and that it is the same into which the writ is returnable.</p> <p>12. Statutory bonds will, in general, be sustained as voluntary bonds, good at common law, although they may not be taken pursuant to the statute, unless the statute has expressly declared them void, or they have been obtained by fraud, or by coercion or oppersion, colore officii.</p> <p>13. The Court may order a pluries writ, in an action of replevin uhder our statute, or the plaintiff may (in n proper case) cause one to be issued without an older of the Court.</p> <p>14. By. suing out an alias writ, the plaintiff waives (for the time being, at least,) his right under the statute to declare in trover or trespass.</p>

<p>i. When in an action for use and occupation, the lot, square, town and county where the premises are situated, are set out in the declaration; Held first: that this was a matter of discription and must be proved as laid ; Second: that it was unnecessary to have alleged any location of the premises ; Third: that if it had appeared to have been the intention of the plaintiff to have made the averment of the place where the premises were situated, refer to the venue, or if it was doubtful, whether the design was to make the averment matter of discription or matter of venue, it would be considered as venue, in order to prevent a failure of recovery, because of the unnecessary averment, but when there is no- such doubt, the averment must be considered as matter of description and must be proved as laid.</p> <p>4. All averments in a declaration which need not be made, or proved when made, may be stricken out or disregarded in the proof, except when they touch the identity of that which is necessary to be proved. When they go to fix the adentity, they become matters of description and must be proved as laid.</p>

<p>1. Where a' plea is required to be verified by an affidavit, the failure to append the affidavit, is not a ground of demurrer. The subj eet can be taken advantage of, only by motion to the Court to set aside the plea, or to sign judgment as for want of a plea.</p> <p>2. The twenty-fourth section of the act of November 23d, 1828, (Thomp. Dig. 331,) is restricted to pleas alleging a want of consideration, and does not apply where the allegation is a failure of consideration.</p> <p>3. And even where the want of consideration is pleaded, the only effect of that section is to change the burthen of proof. The defendant may still plead a want of consideration, without verifying' his plea by an affidavit; but in such case, he takes upon himself the onus probandi, as he formerly did at common law.</p>

<p>Appeal from a decree of the Circuit Court for Hillsborough County,</p>

<p>1. A promissory note, payable to A. B. or order, must be endued by .the payee to enable the holder (other than the payee) to sue upon it inAis own name.</p> <p>2. A declaration upon such a note by a holder, other than the payee, is defective in substance if it does not allege that the note was endorsed.</p> <p>3. A demurrer opens _all the pleadings, and the Court should give judgment against the party who committed the first error (in substance) in pleading.</p> <p>4. It is error for the Court to give a judgment by default, as for want of a plea when there is a good plea in the case upon which issue has been joined.</p> <p>5. When the plaintiff declares in assumpsit on a promissory note, he cannot properly be permitted to give in evidence, a sealed instrument as the foundation of his action.</p> <p>6. The copy of the cause of action required by the statute to be annexed to the declaration, is no part of the declaration and cannot be reached by demurrer,</p>

This was an action of debt brought by the appellee on a sealed note. The appellants who were defendants below pleaded first, non est factum, and second “that no consideration passed to said defendants whereon they could be charged by the said supposed writing obligatory,” concluding to the County. To the second an affidavit of its truth was attached. Upon the first plea issue was joined and to the second, plaintiff demurred, alleging the following as causes of demurrer. 1.

<p>Appeal from an order of the Circuit Court for Jackson County, sitting in Chancery. The opinion of the Court embraces substantially all the facts of the case, to which, reference is made.</p>

<p>Appeal from Escambia Circuit Court. The opinion of the Court contains a full statement of the facts of this case, to which reference is made,</p>

This is an action of Trover commenced by the appellant at the Spring Term of said Court, A. D. 1854, against W. W. McCollum for the conversion of a horse. The County Commissioners of Walton County, in 1853, appointed J. W. Williams and James W. Moots, of said county, Bridge and Road Commissioners for road district No. 1., in said county, in which district the said John L. McKinnon resided.

Bobe, the appellee, filed his bill in the Court below, against Rosanna Shemo and Richard Maiben, as her Trustee, and Joseph Shomo husband of said Rosanna, to perpetually enjoin a judgment obtained by said Trustee in Escambia Circuit Court. The judgment sought to be enjoined, was for the value of certain negroes, previously purchased by Bobe from Shomo and his wife, but which were claimed to belong to said Maiben, as Trustee of said Rosanna Shomo.

The bill in this case was filed by Elizabeth S. L. Jones,, as Trustee,. &c., under the marriage settlement hereinafter set (forth, ánd Mary M. E. Harrison, wife of Robert Harririson,.

This is an action of ejectment for the recovery of a lot of ground in the city of Jacksonville, known on the map of said city as lot No. 6.

<p>1. Unless the testimony in the case is brought before the Supreme Court by .a bill of exceptions, it cannot regard it. *</p> <p>2. The bill of exceptions is given by the statute of Westm., 13 Ed. I., Chap. 3J.</p> <p>3. It ought to be upon some point of law arising upon the facts.</p> <p>4. It is not to draw the whole matter-into examination again; it is only foE-a . «ingle point, and the truth of it can never be doubted after it is sealed.</p> <p>5. When .there-is no bill of exceptions to show on what ground the Court deoided, it will be presumed that it decided correctly.</p> <p>6. Every fair, intendment is to be made in support of the judgment below.</p> <p>!?. -The office of a bill of exceptions is to give the facts on which the Court decided,-and it-should give -all the facts bearing upon .the decision.</p> <p>S. On overruling a demurrer, if the demurrant resorts to ulterior pleadings on the same point, the demurrer is waived.</p> <p>9. The rule that allowed a party who offered no evidence the closing argument, . has been repeated.</p> <p>10. As has also the rule which allowed a default for want of a plea, &c., to be entered in vacation.</p>

Writ of Error to a judgment of the Circuit Court for Jefferson county. This was an action of trespass instituted by the defendant in error against the plaintiff in error and others for entering the house and premises of the plaintiff, alleged to be in Jefferson county in this State, and expelling him and his family therefrom, and throwing his furniture out of doors, &c. Process was served on plaintiff in error only, who appeared and filed three' pleas.

<p>Tliis is an appeal from an interlocutory order of the Circuit Court, for Jefferson County, dissolving the injunction granted in this cause. The allegations of fact presented by the Bill and answer are fully set forth in the opinion of the Court.</p>

This is an appeal from a decree of the Circuit Court of Leon County. . The complainants filed their bill claiming certain slaves under a deed made in 1819 by Benj. G. Thornton conveying certain land and negroes in trust to Wesley Adams for the benefit of the wife of Benj.

Writ of Error to the Circuit Court of the Western Circuit for Santa Rosa County. The facts of the case are contained in the opinion of the Court to which reference is made.

chancery. Complainants filed their bill, alleging that some time in March, 1845, Joseph W. Lea, dec’d, borrowed of Bichard Yan Brunt, senior, the father of defendant, two hundred and fifty dollars, for which he gave his promissory note payable to Bichard Yan Brunt, Sr., one day after date, and at the same time gave a bill of sale for a certain slave named Maria as a security for said note, and for no other purpose; that Joseph W. Lea, the intestate, retained the possession…

<p>1. The law of the place where a contract is made is, generally speaking, the law by which the contract is to be expounded, but it is, nevertheless, the right of this government to prescribe rules and regulations for the protection and enjoyment of all property which shall be brought within its territorial jurisdiction.</p> <p>2. The 3rd Section of the Act of 1823, with reference to fraudulent conveyances, (Thomp. Dig., 21T, c. 11, § 1,) requires, that where the possession of personal property is in one person and the use in another, in order to protect it against liability for the debts or contracts of the person in possession, the deed by which it is held must be recorded within five years. Whether or not this section is applicable to contracts made out of this State. Quere ?</p>

Jbe, the Appellant was indicted for administeringto a female slave named Rebecca, white arsenic or poison. The prisoner pleaded not guilty, and on the trial, the woman, Rebecca was examined on tbe part of the State who .testified that whilst she was cooking breakfast at a fire out of doors at which prisoner was also cooking, he, the prisoner handed her a small breakfast plate containing some beef haslet which he had been cooking and asked her to oat some.

Appellants filed their bill for an injunction to restrain the County Commissioners of Leon County from levying and collecting a tax imposed by them to meet an instalment of stock subscribed by the County in the Pensacola and Georgia Bailroad Company. On presenting the bill, an injunction was granted, which however, was dissolved on the coming in of the answer, and the bill was dismised.

Writ of error to Franklin Circuit Court. This was an action of assumpsit instituted on a book account. On the trial of the case, the plaintiff offered in evidence the book of entries containing the account sued on, to which the defendant by his counsel objected.

<p>1. When an indictment has upon it the usual indorsement of the title of the ease together with a comprehensive designation of the offence charged, this court will, in view of the practice which is-known to- prevail in the circuit courts, in regard to matters of this kind, view such indorsement as the aet of the prosecuting officer, whose duty it is to prepare the bilk; and the words of “ A true bill,” which is the aet of the Grand Jury, will be taken to refer to the offence . as charged in the body of the indiolment, and not to that designated in the indorsement. '</p> <p>2. Such indorsement of the prosecuting officer, is to be received only as a memorandum for the convenience of reference, and to distinguish the the paper from others of a similar character. It constitutes no part ot the indictment—it imparts no vitality, nor does it give any validity to the instrument.</p> <p>3. The Grand Jury have the right to qualify and limit their fluding to any es. tent they may deem pr'-per,under the ciicumstances and facts which may be developed in the investigation of the case; but Buch qualification or limitation must not be presume d. The finding must be taken to be general and referable solely to the offence as chargtd in the body of the indictment, unless it can be reasonably inferred from the collocation of the words, that such qualification-' oí limitation were intended to be made.</p> <p>4. It will not he permitted to distort the finding of the Jury, by fbicibly connecting the words of the finding with the incomplete description of the of. fence, to be found in the usual indorsement of the prosecuting attorney.</p> <p>5. Every portion of the Record that comes up from the Circuit Court is entitled to equal credit: and if implicit credence is to be given to that portion which sets out the finding of the Jury, as recorded in the minutes of the Court, the same degree of credence is to be given to that portion Which connects the finding with, and makes it applicable to the particular bill of indictment set out in the Record. Such an identity between the record of the finding and the particular bill of indictment, to which it is made to apply, as will leave no room for mistake 01 doubt, is all that is necessary.</p> <p>6. The degree of strictness spoken of in the books as applicable to criminal jurisprudence, i» sueh as is conformable to rational principles, and not such as is calculated to defeat the ends of the law.</p> <p>*?. The ease of Holten vs. The State, (2 Fla. Rep,, 4/16,) referred to and com.', mented upon.</p>

This was an action on the case instituted to recover the value of a negro slave alledged to have been drowned in the service of the appellants through the'negligence'or improper conduct of their agent. The appellants pleaded not guilty in the court below, and an issue being submitted on the plea, a verdict and judgment were rendered in favor of the appellee, who was the plaintiff below.

<p>1. The iien of a judgment at law attaches to and binds tbeu-eal estate of the defendant therein, acquired subsequent to the rendition thereof.</p> <p>2. There is no rule of law or principle of equity which prevents a first mortgagee from-purchasing the morgaged property when sold at sheriff’s sale under a judgment prior to the mortgage; and, in such -ease, he takes absolute title.</p> <p>3. When a surplus remains after the satisfaction of a prior execution under which property mortgaged has been sold, equity will regard the fund as substituted for the laud, and pursue and distribute the same amongst subsequent mortgagees according to their priorities.</p> <p>4. The court will not consider the validity of a bargain and sale of real estate between parties who make no objection to the. transfer, at the instance of another, whose rights are not affected thereby.</p>

The appellees instituted a suit against the appellant in a Justices’ Court of Duval county. On the 15th day of February,. 1855, judgment was rendered against the appellant, and an appeal being taken to the Circuit Court, he filed his appeal bond as required by law on the 20th day of the same month. There is nothing in the record to show when the Justices’ Court, in which the judgment was rendered, adjourned.

<p>Where a clerk had failed to enter judgment on an order of court to that eifect at one term, it is proper to have it done thereafter at the nest term.</p>

<p>Appeal from Hillsborough Circuit Court. Bor the facts of the case, reference is made to the opinion of the Court.</p>

<p>1, Prom the terms of the statute providing for the commencement of suits in the courts of common law, it is clearly deducible that the debt or damages sued for, as set forth in the praecipe, ought to be inserted in the summons ad respondendum; but the omission by the clerk to do so does not render the summons void.</p> <p>% Where an amendment in the original process is allowable, the Supreme Court, upon error brought, will give lo the party entitled thereto the same benefit of the amendment as though it bad been actually made. ,</p> <p>3. A defect or irregularity which is apparent upon the face of the original writ or summons, (if the same is not carried into the declaration) is not the subject ' of plea in abatement. It can be taken advantage of only by motion to quash. Only matters extrinsic or dehors the writ or summons can be so pleaded.</p>

Johnson, the appellee, instituted an action of covenant against the appellant in the court below, on an agreement in writing between the parties, dated 18th January, 1853, which agreement is fully set forth in the opinion of the court. The declaration alleges that Hooker, the defend' ant, did not perform his covenants in the several respects set forth in the agreement, and that he did not furnish seed, corn, &c., as he therein agreed.

<p>1. Until the condition of a mortgage be broken and the same be actually foreclosed, the mortgagor and all claiming under him may maintain an ejectment to recover the possession of the mortgaged premises.</p> <p>2. Where the land of one individual is sold by the Tax-Collector to pay the taxes due upon that particular tract, together with the taxes due upon other lands belonging to another individual, the sale is invalid, and the deed from the Tax-Collector conveys no title.</p>

<p>1. The failure to join a defendant as joint contractor or partner is only pleadable in abatement, and cannot be taken advantage of as matter of variance at the trial.</p> <p>2. When an account is presented to a party, according to the recollection of a ■witness, for over three hundred dollars, which defendant ¡¡promised to pay, the jury should be instructed to find to the extent of the sum admitted.</p>

This is an application for a mandamus to the Circuit Court of the Western circuit. The facts fully appear in the opinion of the court.

<p>Appeal from the Circuit Court of the Western Circuit.</p> <p>For the facts of the case, see the opinion of the court.</p>