Brady vs. Davis.

The plaintiff in error, by his counsel, moved for a discharge on two grounds

1st. Because it appeared that the prosecution was not in accordance with that portion of the Statute prescribing the method of proceeding in such cases-there being no affidavit as required by such Statute.

2d. Because neither the crime of which the prisoner was accused, nor the time and place when and where such crime was committed, were plainly and clearly set forth in either the warrant of arrest or the mittimus, and the arrest and imprisonment of the prisoner was illegal.

The Court overruled the motion, and ordered the prisoner to be recommitted, on failure to give bond and security, in the penalty of $400

To which decision, counsel for the defendant excepted, and assigned error.

HILL, for plaintiff in error.

STEPHENS, for defendant.

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

It does not appear, as claimed by counsel for the plaintiff in error, that the prosecution, in this case, was instituted under the Act of 1824. If it did, it would be still a matter of doubt, whether a person is not liable to presentment for the offence created by that Act. It is not worth while, however, to discuss that question, because the Act of 1845 creates the offence with which the plaintiff in error is charged, to wit: peddling without a liThat Act makes such peddling a misdemeanor, and prescribes no form of procedure. The Grand Jury may, therefore, present for that offence. The first ground of error is not sustainable. Acts of 1845, page 36.

cense.

Nor do we think the second ground well founded. The objection to the warrant is, that it does not plainly and clearly set forth the offence, and the time and place when and where it was

Brady vs. Davis.

committed. The same objection is made to the mittimus. This was a bench warrant, issued by the Circuit Judge. It is founded on a special presentment of the Grand Jury of Troup County. It recites that the plaintiff in error was presented at the May Term, 1850, for the offence of a misdemeanor. The mittimus recites the same facts following the warrant.

[1.] A warrant issued before indictment must specify the of fence charged the authority under which it issues—the person who is to execute it, and the person to be arrested. 1 Russell on Crimes, 618. And it is necessary that the mittimus or warrant of commitment set forth the particular species of crime alleged against a party with convenient certainty. This, for several reasons, but chiefly, that if the party be brought up for discharge or bail on habeas corpus, the Court may be enabled to judge whether or not he be guilty of the offence charged. 11 Stra. 304, 318. 2 Wils. 158. Cro. Jac. 81, '2, Hawk. b. 2, c. 16, §16. 1 Hale, 584. 2 Ibid, 122. 2 Inst. 52. 14 East. 70, '2, '3. 1 Chitty's Cr. Law, 90. Our own Statute requires that the offence, and time and place of committing it, shall be plainly and clearly set forth in the warrant of commitment. Prince, 616. Such is the law as to warrants before indictment.

[2.] But these warrants are after presentment or indictment; they stand upon different ground. If the accused, after indictment, is in Court or in custody, as soon as convenience admits, he is arraigned and put upon his trial; if not, process must issue to bring him into Court. It is so called, because it proceeds or issues forth, in order to bring the defendant into Court to answer, and signifies the writs or judicial means by which he is brought in; and that proceeding, which, before indictment, is called a warrant, is, after the indictment found, called process. Its object is simply to bring the accused into Court, and when so brought in, he is retained by bail or commitment. Every Court which, by law, can hear and determine offences, can issue process to bring the accused in to answer. At Common Law, in cases of misdemeanors, the bench warrant could issue to bring the accused in during the assizes, and after the sessions, upon the appli

Brady vs. Davis.

cation of the prosecutor, the clerk was bound to grant a certificate of the indictment having been found, upon which any Judge of the King's Bench, or Justice of the Peace of the County, would grant a warrant. By Statute of 48 Geo. III. the power to issue the warrant is extended to all offences under the grade of treason and felony. Our Superior Courts, having jurisdiction to hear and determine in criminal cases, upon Common Law principles, and by statute, may, after indictment, issue the process called a bench warrant, to bring the defendant into Court. 1 Chitty, 276, 280. The warrant, in this instance, and the mittimus, do not recite that an indictment has been found; but that does not vary the principles which apply to this case. They recite that the Grand Jury did, at the term of the Court designated, find a special presentment against the plaintiff in error, for a misdemeanor. This presentment differs from an indictment only, in its being, in the first instance, taken by the Grand Jury. It is in the nature of instructions for the indictment, and when delivered into Court, it is the duty of the State's officer to make out an indictment thereon, to which, without further inquiry by the Grand Jury, the accused must answer. 1 Chitty's C. L. 134. It is equivalent to an indictment for the purpose of bringing the accused into Court. The law presumes that the State's officer has done his duty, and that the indictment has followed the presentment. The process is based, in all such cases, upon the presentment. That must be as full as the indictment itself, for the defendant cannot be indicted but according to the presentment. By the presentment, as by the finding of a true bill in other cases, the defendant is already found, probably, guilty. Now, the presentment being in Court, upon that, the Court, cognizant of its own records and files, can issue the process to bring the accused to trial. Considering, then, the ground upon which, and the object for which it issues, it is alone necessary that the process should recite the presentment and the crime generally. The specifications as to time and place, and the description of the offence, is in the presentment and indictment; or if not, the defendant cannot be convicted. And if the defendant

Jackson vs. Gray and another.

is committed, the warrant of commitment need only follow the bench warrant.

Let the judgment be affirmed.

No. 18.-HENRY JACKSON, plaintiff in error, vs. BENJAMIN H. GRAY and another, defendants.

[I.] Where G obtained the legal title to land, as security for the money advanced by him to R, the vendor, for J, the vendee, promising to re-convey the same to J, on the repayment of the sum so advanced, with 20 per cent. interest, but fraudulently sold the land to another, who bought with notice: Held, that under such circumstances, a Court of Equity would adjudge the defendants trustees for the party defrauded, and decree a specific performance of the contract, or pecuniary compensation for the property.

In Equity. Decided by Judge STARK, May Term, 1850, of Houston Superior Court.

This was a bill filed to compel specific performance.

The bill alleges that the complainant, Henry Jackson, was the owner, in fee simple, of lot of land No. 165, in the 5th district of Houston County; that in the year 1843, Alger, as Constable, levied on said lot of land, by virtue of fi. fas. issued from a Justice's Court-there being personal property in the possession of complainant, more than sufficient to have satisfied said fi. fas. In the month of May, 1843, the land was sold at public outcry, by the Sheriff of Houston County, when Charles H. Rice was the highest bidder, and the same was knocked off to him. Rice took no titles from the Sheriff, and allowed the complainant to remain in possession of the land, under a parol contract to the effect, that if, in three weeks from the time the land was sold by the Sheriff, complainant would pay to Rice the sum of $450, Rice was to relinquish all claim to the same to the complainant.

Jackson vs. Gray and another.

The bill charges, that complainant applied to Benjamin H. Gray, who was at the time a money lender, and proposed to him to advance the money to Rice, as a loan to complainant, who should remain in possession of the land, while Gray was to take titles to the land from the Sheriff, as security for the money so advanced, which were to be re-conveyed to complainant, provided complainant paid to Gray $480 by the 1st day of January, 1844.

The bill alleged, that Rice abated fifty dollars from the original amount proposed to be taken for the benefit of complainant; that the contract with Gray, owing to the confidence reposed in him by complainant, was not reduced to writing; that Gray procured a deed to be executed to him from the Sheriff, without any condition, and failed to give to complainant any defeasance or counter deed-all with a view to defrauding complainant.

The bill charges that within the time specified, to wit: on the 1st day of December, 1843, complainant tendered or offered to pay to Gray the sum of four hundred dollars, with interest thereon, at and after the rate of 20 per cent. per annum, which he refused to receive.

The bill charges, that on the 10th day of October, 1843, while complainant was still in possession of said land, by virtue of his contract with Gray, the latter sold said land to Isaac Alger, for the sum of seven hundred dollars-the said Alger purchasing with a full knowledge of the agreement existing between complainant and Gray.

Complainant offered, in his bill, to pay to Gray the amount of money agreed to be paid him for the land, and charged confederacy between Gray and Alger, to defraud him out of the land.

To this bill, an amendment was subsequently filed, which alleged that although Rice, on the day of Sheriff's sale, was the highest bidder, yet no money was ever paid by him, in compliance with such bid, and that no note or memorandum was ever made of the sale or bid.

By their answer, the defendants admitted the purchase, by Rice, of the land, at Sheriff's sale, but denied any knowledge of