Amos Howes v. . Ephraim Mauney

PeaRSON, 0. J.

The instant Judge Cloud entered the 12th District, he was the Judge of that District. At the "same instant, Judge Cannon, was Judge of the' 8th District; and it was his duty to have left home, in reasonable time, (by communication with Judge Cloud) to reach the 8th, at the time Judge Cloud reached the 12th District. The circuit of the 12th District, begins a month sooner, than the circuit of District 8th, and the circuit of District 8 does not end, until a month after the end of District 12. So, it was the duty of Judge Cloud, to remain in District 12, until within a reasonable time, he could reach District 8, about the time that Judge Cannon re-entered District 12.

This construction is necessary, to avoid the absurdity of having.two Judges in one District, at the same time, and no Judge in the other. When Judges choose to exchange Districts, tliey submit to the maxim “privatum incommodum, bono publico pensaturl Broom! legal maxims 6.

Every Judge shall reside in his District. The Judges may exchange Districts, (not circuits) with consent of the Govern- or. Constitution, Art. 4, see. 14;

A literal construction, would require an absolute exchange of Districts, and here the Governor is required to sanction tbe exchange. A liberal construction, will allow an exchange of circuits,, that is, an exchange of Districts, for one circuit ; but to justify this construction, “the ends must bo made to meet,” and the absurdity of having two J udges in District 12, at the beginning, and no Judge in District 0, tor one month, and of having two Judges in District 8, at tbe end;'and no Judge in District 12, for one month, must be avoided. Qualified in this manner, an exchange of circuits may be made, and the legal consequences will be, as above stated, tin, Judge Gannon, in our case, was Judge of the 8th District, when he made the order.

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How this case will present itself at the hearing, tor final action, we cannot anticipate; it is enough now to see, there is reasonable ground, to support the averment, that- the vendors, (the defendants,) are not able to make a good title, under the title derived from Roberts. This puts the defendants up-the,-original title, before tbe deed to Smith — at whose death, the Gold Hill Mining Company, had not an equitaule estate, or trust estate, subject to execution ; but a right of action in equity, to have the deed reformed ; or to treat it as evidence in writing, within the statute of frauds, of a contract to convey land, upon the payment of the purchase money. This equity belongs to tbe Gold Hill Mining Company, We are not able to see, on affidavits, where the title is; we are satisfied, that the improvements put on the land, make it ample security, for the debt claimed.

Judgment below reversed.

Tbe defendants will be enjoined from exercising this power of sale, but the plaintiff must pay into the office of the clerk, tbe net monthly proceeds, of the operations of tha “Ore Dressing Co., to keep down the interest, or ns it may be, to extinguish a part of the principal of the debt, which constitutes the original purchase money. This mutter is confused by the pleadings — how did the Gold Mining Go., pass off, 'and the Ore Dressing Go., take its place \

The injunction will be continued, with leave for the defendants to apply for a receiver, in order to have the net monthly proceeds oí the mine applied to keep down interest, &c.

As the matter is heard, on affidavits, we, of course, do not touch upon the merits. Ws only say, the matter as it now appüíirs, is not “mere sham,” but is something hi to be considered of. Should the defendants bo allowed to sell the premises, that would put an end to the matter, this wo are unwilling to do, upon affidavits.