Cameron vs. Moore and wife.

No. 50.-BENJ. H. CAMERON, plaintiff in error, vs. J. H. MOORE and wife, defendants.

[1] When the occupancy of the premises of the plaintiff is admitted by the defendant, as also the plaintiff's title to them, and there is no agreement as to the price of rent to be paid, the demand which the plaintiff holds against the defendant is a claim existing in account, and is within the provision of the Act of 1847. In a complaint for its recovery, the form prescribed by the 4th section of the Act of 1847, is sufficient, and the plaintiff may prove the value of the rent under it.

[2] The forms prescribed by the Act of 1847, are not amendable, except so far as to make them conform to the form laid down in the Act.

Complaint, in Troup Superior Court. Tried before Judge HILL, May Term, 1851.

This was an action of complaint, the declaration being in the form prescribed for action on account by the Act of 1847.*

On the trial, the facts as agreed upon by the parties, were that the defendant did use and occupy the house for which rent was claimed, and for the time alleged; and that it was the house of plaintiff, but that there was no agreement as to what amount of rent the defendant should pay, and that plaintiff expected and relied on proving that the rent was reasonably worth fifty dollars per annum, as charged in the account.

Counsel for defendant moved to dismiss the case, on the ground that the action could not be maintained, under the form prescribed by the Act of 1847, and that there must be averments of reasonable value, as required by the rules of English

*The following is the section of the Act of 1847, under which the action is brought.

SECTION IV. The form of an action on an account may be as follows, to wit:

County. S

The petition of (A B)

to your petitioner

To the

Court for said County.

sheweth that (C D) of said County, is indebted dollars, on an account, as will fully appear by reference to a bill of particulars hereto annexed, which account the said (CD) neglects to pay: Wherefore your petitioner prays process may issue requiring the said (Č D) to be and appear at the next held for said County, to answer your petitioner's complaint.

Court, to be

Cameron a Moore and wife.

pleading. The Court sustained the motion, and plaintiff excepted; and at the same time moved to amend the declaration by inserting in the present form, the averments as required, and secondly, to add a quantum va'ebant count.

The Court refused the motion, on the ground that the declarations under the form prescribed by the Act of 1817, were not amendable, and counsel for plaintiff excepted.

B. H. HILL, for plaintiff in error.

PRYOR, for defendant in error.

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

[1.] It is clear that the Act of 1847 makes a writ or complaint, in the form which it prescribes, a sufficient writ, in all cases within its provisions. The Legislature, beyond question, intended to dispense with the Common Law pleadings, and the pleadings which have grown up under our own Statute, and to say that in the cases enumerated, the form embodied in the Act should be a good declaration. Whether they have wisely so enacted, is not the question; the only question, these things being so, in this case, is this, to wit: is this case within the provisions of the Act of 1847? It is, as appears by the facts agreed upon, an action or complaint (I know not how to designate it) for the recovery of rent, when no note was given for the amount of the rent, and no agreement entered into as to the amount which the rentor was to pay. The pleader has adopted the form which the Act of 1817 prescribes for the recovery of money due on account, appending to that form a bill of particulars. The occupancy of the premises being admitted, and also the title to them in the plaintiff, without any agreement as to price to be paid, the demand which the landlord holds against the tenant, is a claim existing in account, and is therefore within the 4th section of the Act of 1847, and the plaintiff can prove it, by the will of the Legislature, as fully as he would be able to do, if the declaration contained all the counts known to the VOL X 47

Favor vs. Stokes.

law of pleadings. Holding this, we hold that the Court erred in dismissing the suit.

[2.] No amendment, in this view of the matter, was necessary; and if it was, we hold that these legislative forms are not amendable, except so far as to make them conform to the form laid down in the Statute.

Let the judgment be reversed.

No. 51.-HENRY FAVOR, plaintiff in error, vs. RICHARD T. STOKES, defendant.

[1.] The plaintiff in execution may dismiss his levy on the appeal, notwithstanding he has confessed judgment against himself on the first trial

Claim, in Troup Superior Court. Decided by Judge HILL, May Term, 1851.

An execution in favor of Richard T. Stokes, against James C. Richardson, was levied upon a lot of land, which was claimed by Henry Favor. On the first trial, the plaintiff in execution confessed a judgment and entered an appeal. The appeal bond was made payable to the defendant in execution; when the cause came on to be tried upon the appeal, counsel for claimant moved to dismiss the appeal, whereupon counsel for the plaintiff in fi. fa. moved to dismiss the levy before any decision had been made and recorded on the previous motion. The Court permitted the levy to be dismissed, and an order was taken to that effect.

To which decision counsel for claimant excepted.

JNO. L. STEPHENS and WILKES, for plaintiff in error.

BULL & TERRELL, for defendant.

Kelseys & Halstead et al. vs. Wiley, Parish & Co.

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

[1] We see no error in the Court in allowing the plaintiff in execution to dismiss his levy on the appeal, notwithstanding he had confessed judgment against himself on the first trial. Attaway vs. Dyer and others, 8 Geo. R. 184, has been cited in behalf of the plaintiff in error; but instead of being in his favor, we think it an authority against him.

The language of this Court in that case was, that "usually the plaintiff may dismiss his writ whenever he chooses. He is the only party seeking a remedy; he alone asks the aid and action of the Court, and if he sees fit to retire from the case and the Court, it is all the defendant can ask." Why is it not all the claimant can ask in the present case? Judgment affirmed.

No. 52.-C. and G. H. KELSEY & HALSTEAD and others, plaintiffs in error, vs. L. M. WYLEY, PARISH & Co. defendants in

error.

[1] Where a fi. fa. had issued in pursuance of the judgment of a Court of general jurisdiction: Held, that such judgment could not be collaterally attacked by attacking the fi. fa.; but in order to get the fi. fa. out of the way of junior creditors, the attack must be directly made upon the judgment, by an issue tendered for that purpose, when the object is to impeach such judgment on the ground of fraud.

[2] In regard to the Courts of general jurisdiction, the rule is, that nothing shall be intended to be out of their jurisdiction, but that which specially appears to be so; and when such a Court has rendered a judgment in relation to any subject matter within its jurisdiction, the presumption is, that it had before it sufficient evidence to authorize it to award such judgment, and will be conclusive, as to the subject matter which it purports to decide, until reversed or impeached for fraud.

Kelseys & Halstead et al. vs. Wi'ey, Pari-h & Co.

Motion, in Houston Superior Court. STARK, April Term, 1851.

Decided by Judge

At the April Term, 1839, of Houston Superior Court, L. M. Wiley, Parish & Co. obtained judgment against T. & S. Williams, for the sum of $1793 96 cts. principal. Execution issued therefor, on the 18th day of May, 1839. The correct amount was inserted in the face of the execution, but on the back of it was for $753 96; the same entry was made on the execution docket. The only entry which appeared upon the execution, was a receipt in the handwriting of the late Judge Tracy, for $186 16 cts. but not signed by him, dated January 25th, 1850.

At the October Term, 1816, and on the 28th day of the month, an order was obtained, which recited, that it appeared to the Court, by the statement of the plaintiff's counsel and on inspection of the record, that the original fi. fa. had been issued by the Clerk, through mistake, for $753 96 cts. instead of $1753 96 cts. and ordering that the said fi. fa. so erroneously issued, be cancelled and annulled, and a new one for the correct amount be issued; and also directing the late Sheriff, George M. Duncan, to enter upon the new fi. fa. any levy or payment which may have been made upon the old one; and accordingly, upon said fi. fa. George M. Duncan made several entries, the last of which was made sometime about the 1st of January, 1850.

At the October Term, 1846, of said Court, a controversy arose as to the distribution of certain money arising from the sale of T. & S. Williams' property, between the plaintiffs in this fi. fa. and other judgment creditors of T. & S. Williams, when an issue of payment was made and tendered upon the fi. fa. of Wiley, Parish & Co. at the instance of C. & G. H. Kelsey & Halstead, which was at the April Term, 1847, withdrawn, and at said term, on motion of counsel, the fi. fa. of Wiley, Parish & Co. was set aside, on the ground that it was dormant, and the money then in the hands of the Sheriff, ordered to be paid to the fi. fa. of C. & G. H. Kelsey & Halstead. To which decis