Hayes . Flowers.

De Soto county, to recover damages for a breach of the following agreement as set out in the declaration, to wit, "The said plaintiff and defendant were to work and crop together on the same farm, in the year 1847, on the following terms and conditions, to wit, the defendant was to furnish the ground, horses, gear, ploughs, &c., and the said plaintiff was to work upon said farm and in said crop himself as a hand, and out of the proceeds of said crop, raised as aforesaid, the said plaintiff and defendant were to severally take and have as follows, to wit, the plaintiff was to have one sixth part of all the cotton, corn fodder, &c., and the defendant the remainder." The declaration then states that the plaintiff performed the contract as fully on his part as the defendant would permit him; that he worked and labored two or three months, when defendant dismissed him, and refused to permit said defendant to perform his part of the contract. The declaration was demurred to, and demurrer overruled by the court. The main cause of demurrer is, that the contract shows a copartnership, and that the action for a breach thereof cannot be sustained at law.

This position is untenable, conceding that there was a copartnership. An action may be sustained by one copartner, at law, to recover damages for a breach of the articles or terms of the contract. 8 Mass. 464; 4 Bibb, 418; Gow on Partnership, 70, 71.

Judgment affirmed.

JOSEPH HAYES US. WILLIAM H. FLOWERS.

It is necessary to aver, to constitute a good plea of bankruptcy, that the claim sued on was one provable under the bankrupt law, and that the defendant had been discharged by the judgment of the proper court, and had received a certificate of such discharge.

The law makes the discharge and certificate the bar to the action, and that which constitutes the bar must be pleaded.

Hayes v. Flowers.

The certificate is not pleaded; and the judgment should have been respondeat

ouster.

In error from the circuit court of Smith county; Hon. John Watts, judge.

The points in this case are, as to the sufficiency of the plea of bankruptcy, and the propriety of the kind of judgment rendered in the court below. Both these points are sufficiently stated in the opinion of the court.

Yerger and Anderson, for appellant.

There is error in this record: 1. The court sustained the demurrer to the plea of bankruptcy upon the 2d and 4th causes assigned, but rendered no judgment of respondeat ouster or other judgment, but proceeded to try the issue on the other pleas. The act of the legislature requires judgment of re

spondeat ouster in such case.

2. The plea was good. White v. Howard, 3 M'Lean, 291; Downer v. Chamberlain, 6 Washburn, 414.

3. A plea of bankruptcy need not aver the debt sued on was provable under the commission, or in other words that it was a fiduciary debt. This is matter for a replication. M'Cabe v. Corney, 2 Sand. Ch. R. 314; Rowan v. Holcomb, 16 Ohio, 463.

J. F. Foute, for appellee.

The only question is upon the sufficiency of the plea of bankruptcy. The defendant in the court below took leave to amend this plea three times, thus confessing the demurrer twice, the court sustaining it to the last amended plea. The court below certainly did right to sustain the demurrer. The plea is uncertain, vague, and insufficient. See Atkinson v. Fortinberry, 7 S. & M. 302. Also Price v. Bray, 1 N. Jersey R. 13; Coates v. Simmons, 4 Barb. Sup. Ct. 403; Kirby v. Garrison, 1 N. Jersey R. 179; and Downer v. Chamberlain, 21 Verm. R. 6 Washburn, 414; Seaman v. Stoughton, 3 Barb. Ch. R. 344.

A trial upon the other issues was had, and judgment for plaintiff in the court below. There is no evidence set out, and only the question as to the plea of bankruptcy.

Hayes v. Flowers.

The record shows in the case the confession of demurrer three times, and demurrer sustained to third amended plea. Upon every principle of pleading, the judgment of the court on the demurrer should not have been respondeat ouster, but final.

Mr. Justice FISHER delivered the opinion of the court.

This is a writ of error to a judgment of the circuit court of Smith county.

The defendant below pleaded that he had been, by the judgment of the district court of the United States, held at Jackson, in this State, discharged from the note sued on. To this plea the plaintiff filed a demurrer, which was sustained by the court.

The act of Congress of the 19th of August, 1841, (Laws of U. S. vol. 5, p. 444,) says, that "such discharge and certificate, when duly granted, shall in all courts of justice be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are provable under this act, and shall and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever, and the same shall be conclusive evidence of itself in favor of such bankrupt, unless the same shall be impeached for fraud,” &c.

To constitute a good plea in bankruptcy it is necessary to aver, that the claim sued on was one provable under said act, that the defendant had been discharged by the judgment of the proper court, and had received a certificate of such discharge.

The law makes the discharge and certificate the bar to the action. That which constitutes the bar must be pleaded. The certificate is not pleaded in this instance, and, therefore, the plea is defective.

The court, however, erred in not rendering judgment of respondeat ouster, and for this error the judgment must be reversed.

Judgment reversed, and judgment respondeat ouster rendered.

Work v. Mallory; Williams et al. v. Ingram et al.

GEORGE WORK vs. JOHNSON MALLORY; LEWIS WILLIAMS et al. vs. INGRAM and READ.

A party who files a record and prosecutes an appeal or writ of error in this court, and the case is dismissed for want of jurisdiction, is liable to be taxed with the cost of the suit.

The cost of the transcript of a record, charged in the inferior court, should be taxed in this court as a part of the cost of the suit.

THIS was a motion made to tax the plaintiff in error with the cost of the suit, upon the writ of error being dismissed for want of jurisdiction, and also to require, that the clerk of this court should tax the cost of making out the transcript in the inferior court, in the bill of cost in this court.

Adams and Dixon, for the motion.

Work, contra.

Per Curiam. These cases present these questions: first, whether, when a case is dismissed in this court for want of jurisdiction, the party who filed the record and prosecuted the writ of error or appeal is liable to be taxed with the costs of the suit? We have fully considered this question, and respond in the affirmative.

The second question is, whether the costs of the transcript of the record, charged in the inferior court, should be taxed in this court as a part of the costs of the suit? When the acts of 10th February, 1844, (Hutch. Code, 486,) and the act of March 2d, 1833, (Hutch. Code, 932,) are taken in conjunction, we think that it may be properly ruled, that the costs of such transcript should be taxed in the bill of costs in this court.

Griffing et al. v. Pintard.

FRANCIS GRIFFING et al. vs. JOHN M. PINTARD.

The power of a tax collector to sell land in any case is special, and limited by the end to be accomplished; and that is, to coerce the delinquent to pay the taxes which have been assessed against him.

For this purpose, the power to sell the property of the delinquent is given to the tax collector, and only exists so long as the party is in default to the government.

When the taxes have been paid by any person, the power of sale no longer

exists.

The doctrine of subrogation does not apply in cases of the rights and remedies of the State against delinquent tax payers.

Ox appeal from the southern district chancery court at Natchez; Hon. James M. Smiley, vice-chancellor.

The opinion of the court contains a sufficient statement of the facts of the case.

J. T. McMurran, for appellants.

In equity, as at law, the complainant must recover on the strength of his own title, and not on the weakness of the defendant's. Before the complainant has any claim on the defendant, or on property in his peaceable possession, (with or without title,) he must show affirmatively, that he has the claim. "It is not only necessary that the substance of the case made by each party should be proved, but it must be substantially the same case as that which he has stated on the record." If authorities be wanting in support of these positions, I refer the court to one directly in point. Antones et al. v. Trustees of Church of Holy Conception, &c., 9 Port. (Ala.) R. 527, 536, 537; 2 Dan. Ch. Prac. 1000, &c.

Did he acquire a title by his tax purchase? The mode in which the sale was conducted was regular; an eighth of a section, or eighty acres first offered, and so in conformity with the decision of this court, in the case of Hodge v. Wilson, 12 S. & M. 498. Counsel complain, that it was not put up in