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Compton vs. Cassada.

though his son had told him that such a partnership did exist. The letters were lost while in his possession, or that of his wife, for safe keeping.

The complainant also put in evidence a quit-claim deed from John Jones to himself for this lot of land, dated 20th October, 1850.

1. On this evidence the jury rendered a decree for the complainant, and Compton moved for a new trial, on the ground, amongst others, that the finding was against the evidence and the weight of the evidence. The Court overruled the motion, and that is the only question brought here for review. Was the verdict against the evidence? We are clear that it was. The legal title to the lot was, as shown by the plat and grant dated in 1846, which was before the jury as evidence, in the defendant, Pleasant M. Compton, and nothing was shown to legally take that title, legal or equitable, out of him. There is no evidence to show title in Jones, or an interest even. It is true that the Chastains testify that Compton said that Jones had an interest in the lot, but titles to land can not be created by mere verbal declarations of this character without overturning the statute of frauds.

2. If it be said that Jones had authority to sell, the reply is, that he did not sell the lot as that of Compton's, nor so convey; nor did he sell and convey the lot as Compton's agent, but he sold and conveyed the land as his own. A sale so made by one, although he might have power to sell for another, passes nothing but the title of himself, and not that of his principal. Had he attempted to convey as Compten's agent, his authority must have been shown, or better proven than it was, and that he had pursued his instructions.

3. The letters of Compton to Jones, as testified to by Samuel Jones, if such letters ever existed in fact, amount only to a limited authority to sell, and the witness's recollection of the contents was too imperfect, and the evidence itself too uncertain, to form a basis for a title to land, so as to authorize the Court to act upon it, although the instructions might have been observed.

We think that the Court should have sustained the motion

Kendrix vs. Kellogg.

for a new trial, on the ground that the verdict was against the evidence. The complainant was not entitled to a decree on the case made.

We agree with the Court in refusing to charge as requested, there being no evidence to authorize it.

4. The motion for a continuance was properly refused. A party must not be delayed in a trial by the change of counsel or the neglect of the other party to attend to his cause. Let the judgment be reversed.

WILLIAM HENDRIX, plaintiff in error, vs. HENRY C. KEL-
LOGG, administrator, etc., defendant in error.

32 435 115 690 115 834

32 435

A petition for writ of certiorari is a suit in the sense of the 23d section of 121 152 the Statute of Limitations of 6th March, 1856, and in case the same be dismissed, discontinued, or non-suited, the plaintiff may renew his application within six months from such dismissal, discontinuance, or non-suit.

Certiorari, from Dawson Superior Court. Judge RICE, at the August Term, 1860.

Decided by

The question presented by the record in this case arises out of the following state of facts, to-wit:

On the 21st of March, 1857, William Hendrix obtained a judgment, in the Justice's Court of the 1022d district, G. M., of Dawson county, against A. M. Jackson, maker, and Andrew E. Bond, endorser. From this judgment a fi. fa. issued and was duly returned nulla bona, as to Jackson. On the 28th of May, 1857, the fi. fa. was levied on a horse colt as the property of Bond. Bond filed an affidavit of illegality to the fi. fa. on the grounds:

1st. That he was indorser for Jackson.

2d. Because the plaintiff had promised to take out a ca. sa. against Jackson, and had failed to do so.

It appeared upon the trial, that Hendrix had promised to ca. sa. Jackson, and had failed to do so, and that after such

Kendrix vs. Kellogg.

failure, Bond had solicited indulgence on the judgment, and offered to pay ten per cent. for such indulgence. The The presiding Justices called on one James T. Barrett to decide the case for them, and Barrett told them to sustain the illegality, on the ground that the plaintiff had promised to take out a ca. sa. for Jackson, and had not done so, and the presiding Justices did sustain the illegality on that ground.

The plaintiff filed his petition for certiorari excepting to the judgment of said Justices on the grounds:

1st. that there was no consideration for the promise, made by Hendrix, to press a ca. sa. against Jackson, and that the same did not discharge Bond, the indorser.

2d. Because Bond treated the promise as a nullity, by asking indulgence and offering to pay ten per cent. for the


3d. Because the case was decided by James T. Barrett, a mere citizen, clothed with no judicial authority whatever.

A writ of certiorari issued on the 14th of January, 1858. The certiorari was pending in Court until the six months allowed by law for taking the same had expired, and at the August Term, 1858, the certiorari was dismissed for a defect in the affidavit, and because it was not made conformably to the Act of 22d December, 1857.

The plaintiff filed another certiorari on the 6th July, 1859, within six months from the dismissal of the former.

When this second certiorari came up for a hearing, the defendant's counsel moved to dismiss the same on the ground. that it was not sued out within six months after the decision was complained of, and that a second certiorari could not be brought after the first was dismissed, and that 33d section of the Act of Limitations of the 6th March, 1856, did not apply to writs of certiorari.

The presiding Judge sustained the motion, and that decision is the error alleged.

BELL, (by Lester,) for plaintiff in error.

S. C. JOHNSON, (by Sims,) contra.

Hendrix vs. Kellogg.

By the Court.-LYON, J., delivering the opinion.

The plaintiff had filed his petition, for a writ of certiorari to the judgment of a Justice's Court, within six months from the rendering of that judgment, which was dismissed on motion of counsel for the defendant, for some informality in the suing out the application.. While the application was pending in the Superior Court, the six months in which the writ was limited to be brought or allowed by statute, expired. And this second petition or application was brought within six months from the time the former was dismissed. The Court dismissed this second application on the ground that it was barred by the Statute of Limitations, to which the plaintiff excepted, and the case comes before us for the review of that judgment.

The only question-made or argued is, whether the petition or application for certiorari is a suit in the sense of that term, as used in 23d section of the Statute of Limitations of 6th March, 1856, pam. Acts, p. 237. "That when any suits shall be commenced within the time limited by this Act, and the same shall be discontinued, dismissed, or the plaintiff non-suited or judgment be arrested, and during the pendency of such suit the time, within which such suit is to be brought by the provisions of this act, shall expire. It shall be lawful to renew said suit at any time within six months after such termination of the case, but this right shall only extend to one renewal." If certioraris are suits, then the plaintiff was entitled to renew his application and the judgment of the Court below, dismissing it, erroneous. We hold that it was. A suit is defined "to be an action or process for the recovery of a right or claim; a legal application to a Court for justice; the prosecution of a right before any tribunal." And indeed what else is a certiorari, but a process, an action, or a prosecution by petition to the Court for the recovery of a right, without which the right is gone? It is a suit in the literal sense of the term, and to that we are disposed to confine ourselves in the construction of this statute, as all Courts are bound, or ought to

Shands & Co., vs. Howell & Co.

be, in the construction of Statute of Limitations-a strict, literal construction-no more and no less than the statute by its letter declares. There is no hardship in this rule, and if there was, we could not help it. If parties desire a speedy hearing, and not a mere avoidance of a legal demand, they should not press a captious and unmeaning objection to the dismissal of the action when it is once before the Court. Let the judgment be reversed.

A. SHANDS & Co., plaintiffs in error, vs. A. HOWELL & Co., defendants in error.

1. This case was founded on a judgment rendered in the State of California. Two statutes of that State were introduced, one approved 10th April, 1850, the other approved 22d April, 1850: Held, that the case was governed by the latter Act, and that the former had no appli cation to the case.

Debt on foreign judgment, in Lumpkin Superior Court, and decision by Judge GEORGE D. RICE, at July Term, 1860.

This case came before the Court upon the following state of facts:

On the 8th of March, 1852, A. Shands & Co. filed a complaint against A. Howell & Co., before S. L. Crane, a justice of the peace, in Greenwood township, Eldorado county, and State of California, for the recovery of a mining claim, and damages. The defendants were served with process, and on the 13th of March, 1852, both parties appeared with their counsel. Upon motion of counsel for defendants, the hearing of the case was postponed until the 22d of March, 1852. At the call of the defendants, a jury was summoned and impanneled, who, after hearing the case, returned a "verdict against the defendants, in damages, to the amount of $375 00, and that plaintiffs have restitution of their claim."

Upon this verdict, the Justice of the Peace rendered the following judgment, to-wit:

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