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Dec. Term, 1846.

Humiston and others v. Anderson's Administrators

IN BANK. that and other purposes. This is the way all records must be made up. The thing to be recorded must precede its being recorded.

As to the fact, that some of the money due from the State to the original contractors was retained, at the instance of McCadden, by the public officers and constituted a bar to a recovery, the Court were not called upon to charge respecting that matter. And the presumption is, if it did constitute a bar, that the fact was found in favor of McCadden, as he recovered a verdict and judgment. But I do not perceive any thing in the objection. McCadden could have but one satisfaction, and the fact that he attempted to secure the payment of his debt, can constitute no bar to a judgment on the original demand.

The fact that McCadden may have said, from time to time, that he did not expect his pay any faster than the defendants received it from the State, amounts to no defence. It cannot be construed into a contract not to sue. If so, it is without consideration, and not binding. There is no error apparent upon the record.

Judgment Affirmed.

LAWRENCE S. HUMISTON AND OTHERS vs. JOHN ANDER-
SON'S ADMINISTRATORS.

It is error in the Common Pleas to dismiss an appeal from a Justice of the Peace, for the reason that his transcript does not state the form of action, or that he has omitted to send up a bill of particulars.

THIS is a WRIT OF ERROR directed to the Supreme Court for the County of TRUMBULL.

The facts of the case are contained in a very voluminous record, but may be stated in few words, thus:

On the 17th June, 1844, the plaintiff and defendants entered an amicable action before a justice of the peace in the town

Humiston and others v. Anderson's Administrators.

Dec. Term,

1846.

ship of Bazetta. The defendants in error filed their bill of IN BANK. particulars, claiming one hundred dollars, and, by consent of parties, the cause was continued, and finally tried and judgment rendered for plaintiff, July 1, 1844, for $17 and costs of suit. On the 3d day of July, 1844, the plaintiff entered bail for appeal, and, on the 8th day of said July, took his transcript and filed it in the Court of Common Pleas, which commenced its session six days before-on the 2d day of July.

At the succeeding term of October, and on the 10th day of the term, an entry was made in the journals of the Common Pleas in these words: "On motion to the Court by Mr. Tut'tle, counsel for the appellee, it is ordered that the appeal taken in this case be quashed, for the the reason that the transcript ' of the proceedings of the justice, filed in this case, does in no 'manner set forth the cause of the plaintiff's action nor the 'nature or the items of the plaintiff's demand, and that no bill ' of particulars and no statement of the nature or items of the 'plaintiff's claim has been filed in this Court; whereupon, it is 'considered that the appellee recover of the plaintiff his cost ' to be taxed, and that this cause be remanded to the justice, to 'be proceeded in as if no appeal had been taken."

At the next succeeding term, a motion was make to reinstate the proceedings, which was refused, and a bill of exceptions was taken, from which, with the transcript and journal entry, the above facts appear, and, also, that the bill of particulars had been filed with the transcript, but, being in the form of an instrument upon which other payments were due, the plaintiff had taken it from the files, and that the plaintiff or his counsel had no knowledge of Mr. Tuttle's motion or the order of Court till he offered to file his declaration within rules, after the close of the October term, 1844.

Errors were assigned, and, upon the circuit, the Supreme Court reversed the decision of the Common Pleas and reinstated the appeal; to reverse which decision, this writ is prosecuted.

IN BANK.

Dec. Term, 1846.

Humiston and others v. Anderson's Administrators.

Mc Connell & Tuttle, for Plaintiffs in Error.

M. & C. G. Sutliff, for Defendants in Error.

BIRCHARD, J. There is really but one question in this case, and that is decisive of its merits. Although more have been argued with great industry, we shall notice but one, not solely for want of time, but because, also, their determination either way will not affect the decision. Was the appeal dismissed rightfully? The facts stated in the journal entry, as the ground of the dismissal, are two

First: Neglect, by the Justice, to state the form of action and nature of the claim.

Second: Neglect to send up the bill of particulars.

The first furnished no pretext for quashing the appeal. No magistrate's proceedings are void for a defect of this description. If it were held sufficient to avoid his judgment, on certiorari, very few justice's judgments would be worth any thing. Superior courts have never required technicality at the hands of Justices of the Peace, and were they to attempt it, the thing would be found impracticable. Those officers are not, in general, professional men, who are familiar with legal technicalities and the subtle niceties which distinguish the different forms of common law actions; and the public welfare does not require that they should attempt to live up to nice rules, which, in their courts, would subserve no great good, and in which they are not supposed to be well versed.

The other ground of dismissal was as bad as the first. The statute directs magistrates to send up the bill of particulars with their transcripts. Suppose he had neglected to do so, as the Court found, (incorrectly, it seems.) This fault should not have lost to the plaintiffs the right to appeal, which they had perfected. It did not appear to the Court that the plaintiffs were even in default. Had it so appeared, all that could have been done with propriety, would have been to direct them to become nonsuit.

King v. Beck.

1846.

An objection has been urged to our taking any notice of any IN BANK. matters except what transpired on the motion to reinstate the Dec. Term, proceedings. To this it is sufficient to observe, that the record before us purports to be a record, and all of the record, of the entire proceedings had in this cause, before the Court of Common Pleas. The Supreme Court, under the general assignment of errors, were therefore bound to inquire whether any error had occurred, which appeared on the face of the record, and they found the one we have noticed.

Judgment Affirmed.

WILLIAM AND FLORA KING vs. BECK, Administrator of
Christian King.

THE SAME VS. THE SAME.

but 10504-10

10518
1140510

A devise of realty to one and his heirs, to be used by the devisee for life, with remainder over to a third person, will not vest the fee in the devisee, under the rule in Shelley's case, if such construction would defeat the manifest intentions of the

testator.

The words heir or heirs, in a will, if such was the clear intent of the testator, may be construed child or children, and they will take as purchasers.

A similar devise of personalty, if such be the clear intent of the testator, will vest such personalty, after the determination of the life estate, in the child or children, as purchasers.

THESE cases were reserved in FAIRFIELD County.

abolished Shalley's rale

in 1840?

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They are bills of review, filed to review decrees rendered at (aces

the December term, 1843, of the Court in

Bank, in two cases, to wit: William and Flora King v. Beck, Adm'r of Christian King, and Beck, Adm'r of Christian King, v. William and Flora King. The first was a bill in chancery, to compel the administrator to convey certain bank stock, standing in their names. The second was a petition, by the administrator

King v. Beck.

IN BANK. of Christian King, to sell lands. Both depended upon the conDec. Term, struction and effect of a clause in William King's will, which reads as follows:

1846.

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If it so please God, that at the time of my decease, I should 'die without any lawful heir or heirs, born in wedlock, in such 'case I will and bequeath all the property I may be possessed ' of before my decease, to my brother Christian, without any "reservation, to be used by him while he lives; and, if it so 'please God, that, at the time of brother Christian's decease, ' he should be possessed of a legal heir or heirs, born in wed'lock, I then will and bequeath all and every kind of property 'which might be considered mine, in my lifetime, and of which 'the said Christian may be seized at the time of his decease, to such heir or heirs, and no other. But should I myself die, ' without lawful heirs, and also my brother Christian die without heirs born lawfully, as above stated, I then will what may 'be considered my share, after my brother's decease, and not before, to my two sisters' children, Ish and Cassel, in equal 'dividends or shares, and not to be used by any of them until they come to the age allowed by law."

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The testator died, possessed of both real and personal property. Christian King survived the testator, and died, leaving heirs of his body. The sister of the testator had children living, both at the death of the testator and at the death of Christian King.

The Court, in substance decreed, in the one case, that Christian King, under the will, took the personal property absolutely to himself, and in the other, that he took a fee in the land; and hence that both the personal and real property devised by the will, was subject to the payment of the debts of Christian King. In this respect, it is claimed, the Court erred, and to reverse those decrees these bills of review are brought.

T. Ewing, for Complainants in Review.

H. Stanbery, (Attorney General,) and P. Van Trump, for Defendants.

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