Payne v. Martin , 1 Stew. 407 ( 1828 )

JUDGE SAFFOLD

delivered the opinion of the Court.

This was. a complaint of an unlawful detainer on which the defendant in error, who was the original plaintiff, obtained a verdict and judgement before the magistrate for the premises in dispute. The plaintiff in error obtained on said judgement two successive certiorates to the Circuit Court, both of which were on motion of the adverse party dismissed. The question as to the legallity o< the first dismissal must be considered as having been waived from (Re circumstance of the party having sued out the second certiorari, and attempted further to litigate the merits on the new writ.

jt jg assjg-necj for error among other causes, that the Circuit Court dismissed the second certiorari, for the want of a sufficient bond to prosecute the same, and awarded a.procedendo to the justice.

This motion was made at the second term of the Circuit Court after the return of the certiorari; a bond had been given, such it is presumed as was required by the clerk, the fiat of the Judge not having prescribed the form, but directed bond and security to be given as required by law. The law has not in such cases prescribed the form or substance of the bond, or expressly directed that any should be required. It has howevei, been the long established practice of our Courts, to require bond and security as a condition on which the certiorari is to issue, whenever from the nature of the controversy, it is necessary in the opinion of the Judge, to the security of the adverse party, and the statute ^a has recognized the validity of such bonds, as well as those given on appeals from judgements of magistrates, by providing that in either case, in the event of affirmance, judgement shall be entered against the security as well as the principal.

But by former decisions of this Court, with which wc entertain no dissatisfaction, it is held in cases where bonds with security are required, if the party fail or refuse to give any, advantage may be taken thereof at any time before trial; but where bond has been given, if it be found defective or insufficient, as the fault is presumed to be with the officer taking it, exceptions can only be taken at the return term, and then the party shall be at liberty, if. he choose, to 'give a new bond in the appellate court» Here, inasmuch as no exceptions were taken at the first term, there is conceived to have been error in dismissing the certiorari at the subsequent term, on the ground of insufficiency of the bond.

Inasmuch as the judgement of the Circuit Court for the error aforesaid must be reversed, it becomes necessary to inquire what judgement should have been rendered in the Court below on the record before it, and for this Court now to render the same.

It is also assigned for error that the original complaint is vague and uncertain as to the title or kind of estate held by the complainant. The complaint charges that Martin held the premises for a term of years, and that Payne was tenant thereof for the year 1823, and continued to hold over. To which, on the general issue, the jury found the defendant guilty. The statute requires that the complainant shall specify his estate in the pre? mises. This compliant is conceived to have been rather indefinite in this respect, but it admits of no other interpretation, than a vague or imperfect description of a tenancy held by Martin for a term of years, by him let to Payne for one year, and by the latter held over. This was a good possessory title defectively described, and though-a verdict cannot cure a defective title, it has the effect to aid and cure a defective description of a good title, and such is the case in the present'instance.

Further assignments embrace the exceptions that the justice rejected evidence, that the land had been relinquished to the government; that no notice to the defendant below to quit the premises was in evidence ; that the jury were not sufficiently sworn, and that the verdict is insufficient.

To all these it is conceived a sufficient answer, that the right of property was not in contest; that relinquishment to the .United States would not deprive the former occupant of the right to possession against his lessee, who might hold over. Notice to quit must be presumed to have been proven, as it is matter of evidence, and. the contrary is not shewn. To determine the sufficiency and credibility' of evidence is the province of the jury. The justice was not required by law to record and certify all the evidence, but only the admission of such as was objected to, and the- rejection of evidence offered, with the reasons of such admission or rejection. ^a

The verdict finds the defendant guilty generally, which must be intended as charged, of an unlawful detainer, on which the magistrate gave judgement, as in case of forcible and unlawful detainer. The addition of forcible in the judgement, was unauthorized by the complaint or verdict; it could in no respect vary tbe legal effect of the conviction, and must therefore be rejected as surplusage.

Hence, it results that the judgement of the justice should have been affirmed in the Circuit Court, and the law demands of this Court the same judgement. But it cannot be admitted that the judgement of dismissal was proper and legal, and that its deficiency is in the form only. The party was entitled to a bearing on the merits as presented by the record; this was refused him in the Circuit Court, and a dismissal entered, which left the conviction to rest alone on the judgement of the justice.

Note. See Minor’s Ala- Rep. 98, 131, ante 26, 36.

The unanimous opinion of this Court is, that the judgement of the Circuit Court be reversed ; that the judgement of the justice he affirmed, and that the same be certified to the Circuit Court, in order that a ntvr proceden-do may be by that Court awarded to the magistrate, and that the plaintiff in error be allowed his costs in this Court,

Judgement reversed and rendered.

a Laws Aia. 518,

a Laws Ala. 373#