
    NASHVILLE:
    JANUARY TERM, 1825.
    Nicholas Wilson vs. John Smith, T.
    A declaration charging that J. and B. made a lease to N. is not supported by proof that W. and B. made a lease to N. and that J. and W. were partners, unless there he an’averment that J. and W. were partners, and as such made the lease, or that J. made it in the name and on behalf of the partnership.
    A tenant is not permitted to acquire a title during his tenancy, and oppose the same to the title of his landlord, nor to set up any outstanding title, until he delivers possession, 
    
    In any case where the law is not clear, and may have been mistaken, that alone is a reason why there should be a new trial.
    The entry of the landlord upon the premises leased, does not discharge the tenant from the payment of the rent, unless he was expelled and evicted from the possession. Such an entry makes the landlord a trespasser, liable to the tenant for damages in an action of trespass.
    A tenancy continues so long as the tenant holds over, and the tenancy is not put an end to by the legal ceremony appointed for that purpose.
    The acts of Congress of 1804, 1807 and 1811, inflicting penalties for intrusions upon the public lands of the United States, do not prohibit a claimant from taking the possession, surveying, or marking the same, in or^er t0 maintain his title.
    A circuit judge, if required, cannot decline charging the jury upon a question oflaw material for the jury to understand, in order to form a correct opinion upon the point before them.
    If a declaration set forth a contract to pay rent for the use of the premises, without stating a condition, and the evidence show that the contract to pay was on condition the plaintiff had title, no recovery can he had against the defendant upon such declaration.
    Upon the transfer of the sovereignty of Louisiana to the United States, the latter acquired a right to the territory, subject to such anterior rights as the former government of Spain had conceded to individuals, and subject to their claims in the same manner, and to the same extent, in all respects, as the government of Spain was subjected.
    It was competent for Spain, through her governor general, to make concessions of land to individuals exempted from the regulations in ordinary cases, such as settlements, surveys, &c. and authorize them to make a superficial survey, and such concessions are binding upon the United States, under the treaty for Louisiana, and vest the interest in those lands 'in such persons, or their assigns.
    A concession having been once made by the proper authority, exempted from the conditions of ordinary cases, cannot by a subsequent agent have conditions imposed upon it.
    The authority of the governor general of the Louisiana territory, to make concessions of land exempted from the conditions in ordinary cases, will be presumed until the contrary is shown.
    The United States may reserve the lead mines in the Louisiana territory, but liable to the drawbacks and disadvantages attached to them in the hands of Spain, at the time of the concession made by her.
    The acts of Congress do not impose a forfeiture upon claimants of land in Louisiana, for doing any of the prohibited acts therein mentioned, until their claims are decided upon; and if their claims should never be decided upon, they are entitled to all the privileges of owners forever.
    A claim of land in Louisiana, under the Spanish government, complete on the first of August 1803, needs no confirmation by Congress; if incom-píete, it authorizes the claimant to hold possession, and to make leases and entries upon the land, until declared void'by some court having jurisdiction of the land.
    Congress can decree no claim to land acquired under the Spanish gor-ernment in Louisiana, void; it may withhold confirmation, hut the title can be declared void only by some court of competent jurisdiction.
    The concession of land made by the Spanish government to St. Yraii. of the Mine Shiboleth in Missouri, is not subject to the forfeitures imposed under the act of Congress of 1807.
    To entitle a deposition to be read, it must appear from the certificate or caption, and not otherwise, that the commissioner is not of counsel, interested or connected, &c. and that the deposition was written by the commissioner or the witness himself. A cross examination by the defendant proves only that he had notice of the time and place.
    When it is shown that an original deed has been lost, and it appear from the certificate to the copy that it is taken from the recorder’s books, and there is no evidence to show that there is any other office for the registration of deeds but that of the recorder from whose books such copy was taken, the presumption is that the copy taken in the book is a correct one from the original, and that it was'recorded upon sufficient testimony, and such copy will be proper evidence to go to a jury in proof of title.
    Partners, though not sued, are not competent witnesses for a co-partner who is sued, unless released; but when released they are competent .witnesses for such defendant.
    The statement of a witness that his impression of a transaction at the time it occurred was that it took place in a particular way, is competent testimony for the consideration of a jury.
    A tenant who has leased a lead mine, with liberty to smelt ore, is entitled to use so much timber as may be necessary for that purpose.
    If a tenant who has leased a lead mine, with liberty to smelt ore, uso mora timber than is necessary for that purpose, it cannot be recovered by the landlord in an action upon the contract for the rent, though it may in a separate suit for the waste.
    If it clearly appear from calculations that can be made from the testimony, that improper testimony which was permitted to go the jury had no influence upon their verdict, the judgment will not be reversed for the admission of the testimony. 
    
    This was an action on the case, brought in the Davidson Circuit Court, commenced in April, 1814.
    
      The writ was against Wilson only. A declaration was filed at the return term. The first count was on an m-debitatus assumpsit for thirteen thousand dollars: second count, for a like sum laid out and expended. Plea, non-assumpsit.
    In 1815, on 'cause shown, leave was given the plaintiff, Smith, to file an amended declaration: whereupon he declared, that the said Nicholas, in consideration that a certain James J. Wilkerson and-Bryan, who had before that time leased of the said John the Mine Shibo-leth, would permit the said Nicholas to use, occupy and enjoy the same, and smelt lead ore thereat, he, the said Nicholas, undertook, and faithfully promised the said John, for the privilege aforesaid, the sum of three dollars, for every thousand weight of ore smelted by the said Nicholas at said mine, payable at said mine in lead at five cents per pound, when thereto requested. Averment, that said Nicholas took possession of said mine, and used, occupied and enjoyed the same, and smelted thereat the quantity of six millions of pounds of lead ore. Nevertheless, &c.
    And whereas the said Nicholas was indebted to the said John Smith in one other sum of fifteen thousand dollars, for the use and occupation of a certain Mine Shiboleth, and the privilege of smelting ore thereat, which he before that time had enjoyed at the request of said Nicholas, and being so indebted in consideration thereof, promised, &c.
    And whereas at Nashville, &c. the said Nicholas was indebted to said John, for a large quantity of lead sold and delivered, quantum valebant, with averment that it was worth other fifteen thousand dollars, . which he has not paid.
    And whereas said John had permitted said Nicholas t'o occupy and enjoy Mine Shiboleth, and thereat to smelt ore, at the request of said Nicholas, promised to pay said John so much money as the use and occupation was. reasonably worth, whenever- he should he requested; aver-roent of the amount such use and occupation was worth. Breach assigned in common form. Plea, nonassumpsit and issue.
    At the trial, a number of exceptions were taken, which will be noticed in the order they stand upon the record.
    Exception was taken to the reading the deposition of T. .W. Love, and nine others. They had been taken under a rule of the Davidson circuit court, which provides that the notice to be given shall be the same as in the court of Equity for Mero district. The deposition to be taken by some Judge, Justice of the Superior Court, or Mayor of a city or town, or two Justices of the Peace, none of whom shall be interested in the event of the ’ cause; and the deposition shall be wholly in the handwriting of the person to whom the dedimus is directed, or in the handwriting of the deponent.
    Neither caption or certificate showed that the depositions had been taken down in the handwriting of either of the Justices, or of the witness; nor was it expressed, whether or no said Justices were of kin to, or of counsel for, either the plaintiff or defendant. The defendant had attended to the taking of part of the depositions; and the court ruled that it was not necessary for the Justices to certify the deposition to be in his handwriting, or to do otherwise than as above; because, the court would presume this from the appearance of the handwriting by inspection, the signature of the Justice, and body of the deposition being the same hand, as it appeared to him. It was admitted, that the evidence in the depositions was material: so the court overruled the objection, and the question was reserved.
    Smith,' the plaintiff below, then offered in evidence the copy of a deed from St. Vrain and wife to himself. The copy had been taken from the books of the commissioners of land claims in Saint Louis. This board had been created by an act of Congress of-.
    The affidavit of Smith, the plaintiff, was offered, proving that the original Had been put into the hands of his attorney in suits pending in Missouri, and that he had made inquiry and search for them where he expected they could be found, but could not recover the possession of the original.
    The copy was objected to on the ground that it was the copy of a copy, not being certified from an office authorized to take probate and register such instruments: but the court admitted the paper to go to the jury; which point was also saved.
    Also a copy of the concession from Carondelet to Vrain, in these words:
    “Sir: James Cerao Delassus de St. Yrain, formerly an officer of the royal French Marine, with all due respect, has the honor to make known to you, that being obliged to emigrate to the United States, by circumstances unhappily too well known, having lost his fortune and his situation, he has followed his family to St. Genevieve, and has associated himself to their lot, which your generous bounty and protection has been careful to ameliorate. The petitioner, during this interval, has had the good fortune to render himself useful to the government that has received him, by using all his efforts to show his zeal, his activity, and his devotedness, against a party of French, who dared to menace the Spanish possessions. The knowledge of mineralogy possessed by the petitioner, has induced his father to make over to him the contract which he had formed with the government for the supply of a certain quantity of lead. With a view the more easily to fulfil the conditions entered into by his father with the Intendant, to satisfy the government, and to place himself in circumstances which shall ensure to him, at a future day, an honorable existence, the petitioner asks you to grant, in full property, to him and to his heirs, ten thousand superficial arpents of land, with the special permission to locate itin separate pieces upon different mines, of whatever nature they maybe, salines, mill seats, and any other place that shall appear suitable to his interest; without, however, obliging him to make a settlement, which, at the present moment, he could not do with success, seeing that the execution of his different works requires great expense, and that the objects cannot be effected, except in places remote from population and exposed to the insults of the Indians. These are favors which the petitioner ventures to hope from your generous bounty and from your justice. St. Genevieve, 16th November, 1795. - Jacques de St. Vrain. To the baron de Carondelet, knight of Malta, brigadier of the armies of the king, governor general, vice patron of Louisiana and West Florida, and inspector of the troops of the same.
    New Orleans, 10th February, 1796.
    Granted.
    The Baron de Carondelet.
    Recorded in book No. 3, pages 28 and 29, of Feb. 28, 1806. Antoine Soulard,
    Surveyor General of Louisiana.”
    The loss of the original was proved by Reuben Smith.
    To the reading parts of the depositions objection was made and overruled, and the point reserved, to wit: Where it was asked awitness, “Mr. Wood, to your knowledge, did Mr. Dodge agree to pay me rent the same that Bryan was to pay?” Answer: “That was my impression at that time.” And, to another question, “Were not rules posted up by Mr. Wilkerson under the authority he held under me?” (Smith.) Answer: “I conceive they were.”
    Question by Smith: “Do you know of Wilkerson and Bryan being in partnership, who made the discovery at Shiboleth, and were they to pay me rent, and what rent?”
    Answer: “Mr. Bryan told me they were in partnership, and that he was entitled to one half of the discovery; and Joseph Bryan told me they were to smelt the min-eraj under Col. Smith, and pay him three dollars per one thousand pounds, in lead at five cents per pound.
    Question by Smith: “Mr. Wood you have been long acquainted at Mine Shiboleth since the commencement of the digging, and was the land yours, what do you think would be a reasonable compensation for the destruction of timber and cabins, exclusive of rent, committed by Messrs. Dodge, Wilson and Craighead, and those working under them?” Answer: “As to the amount of damage, I could not ascertain exactly; it has been very considerable: if it was my land, and as it was at first, I would not have the timber cut for three thousand dollars, and mines on it.”
    Question asked one of the witnesses of Smith, objected to as above: “You was one of the clerks to the firm, and acquainted with the books; if any payments came within your knowledge, name them; you state you think the company sustained injury to the amount of between fifteen hundred and two thousand dollars; in this estimate of yours you must calculate they were entitled to the smelting; but if mine, and they were the intruders, what do you suppose was the damage I sustained?” Answer: “I did business for the company; in the estimate I made of the loss I supposed the company had sustained, it was supposing there had been no interference, and that the company of Dodge, Wilson and Craighead had received all the mineral. If Col. Smith was entitled to the mine, and Dodge, Wilson and Craighead trespassers, and the tract of land his, damages must have been considerable, taking into consideration the profit on smelting, or tax on minerals, say six or seven thousand dollars.” Objection overruled, and point reserved.
    Other objections of a like nature were taken at the trial, which it is not material here to notice.
    The substance of the evidence appeared to be, that Smith, the plaintiff, prior to the discovery of this mine, which was in 181.1, occupied diggings within half a mile; his brother Reuben Smith with some hands were in pos-1 session.
    Walter Wilkerson, and one-Bryan, in search of lead mineral, discovered the Mine Shiboleth; and having made the discovery, claimed the right of working the mine, according to a custom that prevailed in that country. They knew of the claim of Smith to the land immediately adjacent to this discovery. James J. Wilkerson saw Smith, and told him of the discovery. Smith told him to take possession of the mine for him, Smith. Walter Wilkerson never saw Smith, nor did he recognise any arrangement made by James J. Wilkerson with Smith, as binding on him. Walter Wilkerson sold his interest in the discovery to Wilson, the defendant, and one Craighead, for four thousand dollars. Walter Wilkerson, whose deposition was taken by consent, testifies that he did not consider Wilson and Craighead entering into possession as sub-tenants to Smith. W. Wilkerson considered that if Smith’s title proved a good one, that he would pay what was common. When he saw his brother after he had been with Smith, his brother wished him to recognize his, Smith’s, title; but he answered, the discovery was his; that he would not hold under Smith, for he had doubts about his title; he would first visit St. Louis; that the Mr. Perrys had told him it was public land.
    Bryan sold to Dodge for two thousand dollars. Dodge, Wilson and Craighead worked the mine together, or, as it is frequently expressed in the evidence, in partnership.
    There is much evidence in the record going to show, that Dodge, Wilson and Craighead recognized the claim of Smith; had agreed to pay him at the rate of three dollars per one thousand pounds of ore, in lead; that they had used the advertisements of Smith which expressed the rules to be observed for working his mines, and by that means had kept off intruders; that one of them had said they held under Smith; had told the rent they were to pay. They procured from the agent of the United States a lease of these mines, and had said it was not intended to be used to defeat Smith of his rent. When they were sued concerning the mine, Smith joined with them in the defence, and employed an attorney. Smith had applied to them for lead, and they agreed on a time when it would be furnished; but at the time, they refused to deliver lead. Craighead, one of the partners in the transaction, being released by Dodge and Wilson, was called as a witness by the defendant Wilson. The competency of the witness was objected to; but the court determined that he was a competent witness, to which exception was taken. He testified, that, together with Wilson, they had purchased from Walter Wilkerson; that, by the terms of the contract, they were not bound to pay rent to Smith, or to any other person, for Mine Shiboleth; that they gave four thousand dollars for the right of discovery. Wilkerson was not bound to give any protection. There was a custom in the country, of right of smelting in him who made a discovery. At the time of purchase, John Smith T. the plaintiff, set up a claim to the adjoining mine as agent for Reuben Smith, and afterwards claimed it in his own right under the grant to St. Vrain. Wilkerson had told witness, that he did not intend to pay Smith any rent unless he established his right to the mine: this Wilkerson repeated to Smith afterwards, and Smith replied he would take care in future to whom he leased his mines. A few days after the purchase from Wilkerson, hearing that Bates was agent for the United States to lease mines, Dodge went to Bates, who resides in St. Louis, and finding no record of the St. Vrain claim on the books of the recorder of land claims, he did lease said mines from the United States for one year. Afterwards another lease was had for another year.
    The witness had not seen Smith at the time of the purchase from Wilkerson and Bryan. Some weeks after, Smith returned from Prarie du Chien. Falling in with witness, asked him what he intended doing concerning the rent. Witness answered, that they had found government offering to lease the mine, disregarding his claim, and promising protection: that they had taken a lease from government, intending however to pay him rent if he had “a just title” to the land, and would do so if he established it; but if his claim was not a good one, he, Smith, could not expect rent. Smith replied, certainly he would not, unless he had a right to the mine.
    About three or four weeks after, although he had established no title, he demanded rent; which being refused, he commenced building furnaces, sued many of the miners who sold mineral to Dodge, Wilson and Craighead, and did all in his power to injure them. This was in 1811. The company applied to Bates, the United States agent, for protection, but none was afforded. Suit was brought on the leases held by the United States, but no recovery was had; it being the opinion of the court that Bates hacl not sufficient authority to lease. Witness, and, as far as he knows or believes, Dodge or Wilson, never did make any- promise to pay Smith rent, except on condition of his establishing his title.
    Smith and this company were sued by Austin on Ranault’s claim, supposed to include Shiboleth and the place where Smith tvas working. Wilson employed Robertson, an attorney, to defend the suit; Terry, a voluntary agent for Smith, employed the same attorney fov Smith. Smith drew on the company for $100, which was paid, and charged to Smith; but does not know if it was to satisfy the fee to Robertson. The company defended for themselves. Smith has had possession of the mine since 1812.
    The court charged the jury, c‘that the proof must fit some of the counts in the plaintiff’s declaration, or he cannot recover. As to the first, which is for money had and received, they must be satisfied from the evidence, that the defendant had received money of the plaintiff, or received property of the plaintiff which he had turned mto money, before they could find a verdict for plaintiff . J , .c , on it. As to the second count, it there was no evidence of money paid, laid out and expended by the plaintiff for the defendant at his request, they should find for defendant on that count. As to the third count, that if they believed it was Walter Wilkerson and Bryan that leased the mine to defendant, and not James J. Wilkerson and Bryan, the court inclined to the opinion that this would be such a variance from the statement in that count of the declaration, that plaintiff could not recover thereon, though the rest of it should be proved, unless the jury believed from the evidence that James J. Wilkerson and Walter Wilkerson were partners in that transaction. That the jury ought particularly to examine whether the evidence fitted and proved the statements set forth in the fourth, fifth and sixth counts; if it did, they should find for the plaintiff; if not, for the defendant, on those counts. That the defendant in his defence, had relied strongly on two grounds; first, that though a contract of lease of the Mine Shiboleth, between the plaintiff and Bryan and Wilkerson, or between the plaintiff and Dodge, Wilson arid Craighead, were made, yet that lease or contract would be absolutely void, because it would be a contract about a matter prohibited under a penalty by acts of Congress of 1804 and 1807: that St. Vrain’s concession, under whom Smith claimed, was void under the rules of Morales and laws of Louisana, and belonged to the United States: that if Smith took possession of the mine contrary to the acts of Congress of 1804 and 1807, or any other act prohibiting him under a penalty from taking such possession, then the lease made, by him to the defendant, or any contract about said mine and rents and profits, would be void, and the plaintiff could not recover for a breach thereof; but if Smith, claiming by virtue of , a concession made by the Baron de Carondelet to St. Vrain, registered according to the act of Congress, and conveyed to himself by deed from St. Train, afterwards in 1811, took possession of the mine, there being no final decision of his claim made by Congress, such taking possession is not prohibited by the act of Congress of 1811, or by any other act, and a lease thereof made by him to Wilkerson and Bryan, or to the defendant, would not on that account be void: that the St. Vrain concession may seem to come within the letter of the rules of Morales, requiring a survey and grant in a limited time, yet it is not within the meaning; the greater part of the concessions were conditional, depending on certain improvements to be made and services to be performed by the claimant; he wished to see speedily where they had and where they had not been performed, that the land where the conditions had not been performed might be sold for the benefit of the Spanish treasury; but St. Vrain’s concession was absolute. The act of Congress of 1804, intended to prohibit trespassers and intruders, who had no claim, from taking possession of land belonging to the United States in Louisiana, but was not intended to affect those having Spanish titles, whether complete or incomplete, whose rights were protected by the treaty of Paris. In this act they are not named. The act of 1805 directs them to have their claims registered. The act of 1807 prohibits them from taking possession, under the penalty of forfeiting their titles: but this does not operate until a final decision on the claim registered shall have taken place; and the marshal is directed not to turn off any who may have their claims registered within a limited time.
    Secondly: The defendant insists he was not the tenant of the plaintiff, nor bound to pay him rent, or ever agreed to do so; and if he ever did, it was conditional, provided the plaintiff had a good title. That on this point the jury must judge for themselves from the evidence. That if the plaintiff was in possession, and rented the miné to Bryan and Wilkerson, and Wilkerson sold and gave his interest to the defendant and Craighead, and Bryan sold to Dodge, and Dodge, Wilson and Craghead entered into partnership, they must be considered as tenants under Smith, and liable to him for the rent, even though no special agreement to that effect was made with Bryan and Wilkerson at the time their interest was purchased. That if Smith was not in .possession at the time Bryan and Wilkerson discovered the mine, though they would not be bound by any promise they might make to hold under him, yet if they did actually take possession for, and claim to hold under him, by previous agreement with him, then their possession would be his possession; and any agreement to pay him rent would be obligatory upon them, and the result in all respects would be the same as if he had been in actual possession when they made the discovery. That if Dodge, Wilson and Craighead were tenants under Smith, they could not get clear of paying rent to Smith by purchasing abetter title than Smith’s, until they delivered up the possession which they obtained under him; and then they might take an adverse pos-sesssion, and be protected by their better title: it is, therefore, unnecessary to say any thing of the effect of the lease obtained from the United States, That if Bryan and-Wilkerson did not receive possession from the plaintiff, nor take possession for him and under his claim, but when they made the discovery of the mine took possession thereof for themselves, or as trespassers, then neither they, nor Dodge, Wilson, or Craighead, nor the defendant, who purchased their interest in the discovery, could be made liable to Smith in this kind of action, even though he had the best title possible for the land; even though they might have stated that they expected to have to pay the owner, of the land for the use the}' had made of it; and that if Smith, claiming bona fide under St. Yrain’s concession, as above set forth, took possession of Mine Shiboleth, and leased to the defendant, the defendant would be bound to pay the rent if he occupied the mine, though there should he a better title for the land in ? another.
    Tho court were requested to charge the jury, whether Smith, under the St. Vrain concession, could rightfully take possession of any mine or land not surveyed or located under it, before the treaty of Paris, of 1S11. But the court refused to charge the jury further than as above.
    The court were also requested to charge the jury, that if from the testimony they believed Wilkerson and Bryan, and Dodge, Wilson and Craighead, agreed to hold tinder Smith, and pay rent only in case he, Smith, had the best title to the Mine SHIBOLETH, then they shouldfind for the defendant, in case Smith had not the better title. But the court refused to charge further than as above.
    The jury returned a verdict for the plaintiff of $14,900, and cost. A new trial was moved for, but refused by the court. Exception was taken to the charge of the court, and a writ of error taken to this court.
    This cause was argued at a former term by Mr. Ben-ion, of Missouri, for the defendant in error; and at this term by Wm. L. Brown, O. B. Hayes, and Jno. Bell, for the plaintiff in error, and Grundy, Balch, and Washington, for the defendant in error.
    
      
      
         See Marley vs. Rodgers, ante, 217.
    
    
      
      Note. — This and the succeeding cases at Nashville, Knoxville,' Jackson, and Reynoldsburg, decided at different terms, would have been heretofore published if the opinions could have been sooner procured.
      Reporter.
    
   Hatwood, J.

delivered the opinion of himself, and Williams and Peck, Judges,

The two first counts of this declaration may at once be laid out of the case, being not supported by evidence, as it is admitted on all hands. The third count, the one upon which the jury have found their verdict, is supposed also by the counsel on one side not to be supported by evidence, and to be one in respect of which the court gave to the jury a wrong direction in point of law. The error is taken to be, that in stating to them, that if Walter Wilkerson and James J. Wilkerson were partners, that then a lease made by Walter Wilkerson and Bryan, supports the description of a lease made by James Joseph Wilkerson and Bryan to the defendant. They believed no doubt that the partnership existed. Was this a wrong direction? and if so, what is the legal consequence? It may be true that Walter Wilkerson might by this contract bind his partner, James Joseph Wilkerson; and at the same time, it may not be true that the contract was made by James Joseph Wilkerson. A, B and C are partners. A signs a note in the name of the firm, B, C and Co. and the plaintiff states the note to be signed by A, B, C and Co. This is not true, though it will be in-dispon b!y true that A, B and C are all bound. 7 Johnson, 463. In such case, it would be the duty of the court to nonsuit the plaintiff, and to make him set forth the fact as it really is, before he should be permitted to recover. Every contract sued upon should he described with distinguishing features, that it may he compared with the same contract if hereafter sued upon, and described by the same rule. Let the rule in one instance be disregarded, and it might soon be in many others; or for want of exactness in the description, a formal recovery for the same cause could not be pleaded in bar to a second, or other subsequent action. This inconvenience and injustice is obviated, by requiring a minute description of the contract, with the circumstances which characterize and identify it, and evidence precisely corresponding with it. Another useful end attained by this precision is, that the defendant is apprized of the precise evidence intended to be produced against him. But if something may be proved which is not staled, and of the intention to produce which, therefore, he cannot be notified, of course he cannot be prepared to repel it, even though it be not true. In the case of the note signed with the name of the firm by a partner, had the fact been stated that all were char-g«d, because one who was a partner signed the name of the firm, the defendant might have gotten evidence to disprove the existence of the partnership, and to show that the specified contract had been in some way discharged. Therefore it was, that the liability of A, B and Co. could not be proved by the unspecified fact of a partnership. So here the evidence of the partnership might make Wilkerson liable, yet it ought not in justice to be proved by the un-alleged fact of a partnership between Walter Wilkerson and James J. Wilkerson. Though had the fact been alleged, the evidence would have been both relevant and effectual. Chi tty’s Pleadings, 224, 304, and the numerous authorities there referred to. The evidence varied from the description of the contract specified, and was not the less so, though a partnership existed between Walter Wilkerson. The charge of the court was erroneous. What is the legal consequence of the error? At the common law it would be a reversal of judgment. By the act of 1809 the judgment is not to be reversed but for some cause af-fjeting the merits; that is, if the plaintiff be entitled to recover for the cause of action staled in the declaration, or the evidence produced to establish it. When the inquiry is made, whether a judgment can be affirmed merely because the evidence shows it to be intrinsically right, without reference to the pleadings, the proper answer seems to bo in the negative. For if the evidence prove damages in trespass, waste, or nuisance, to the amount of the judgment rendered in assumpsit, it would be right and just, that the plaintiff should have the money abstracted from all other considerations but the simple merits of the plaintiff. But in reference to the mode by which he had obtained the judgment, it would be improper and unjust, because the rules of law which were framed to pre* vent surprize arid imposition upon him, had been disregarded, and by means thereof it had become uncertain whether a just result had been deduced from the irregu-Jar investigation which had been employed to produce it. In reference to the example of confirming such a judgment, the disregard of rules invented for the security of the suitors, would he similar, and the security diminished from time to time by a repetition of instances, till nothing would be left but the discretion of the judge. Another and another judge may give similar charges, going a little and a little further, till finally nothing will be regarded but the innate justice of the judgment, determined by such evidence as appeared on the trial. And ultimately all such judgments, however unfounded upon the action as stated in the commencement, and however unconnected with it, would be affirmed. Admitting that a judgment is reversable, because not founded upon the action proper for the evidence that produced it, is it not then as necessary that the evidence should fit the count, as that it should fit the action? It is so, or otherwise the evidence which fitted an action on the case for a wrong, would be good evidence by which to get damages in assumpsit. If such evidence is not admissible in assumpsit, because not legally suited to it, so neither if there be two counts in as-sumpsit, and the evidence suit one of them only and not the other, could it be applied to the count it did not suit, any more than it could he to the action it did not suit; and if not applicable to one of the counts which it did not fit, so neither could it be applied to either, when it did not fit either, but some other not stated in the declaration. The merits of the cause, then, spoken of in the act of 1S09, are merits not only per se, and independent of all extraneous considerations, but also in reference to the steps by which the plaintiff acceded to its acquisition. It ought not to stand if acquired by other than the regular ones, adopted into the legal system to protect both parties against surprise and unfairness. This judgment, therefore, so far as it stands upon the foundation of the third count, cannot be supported. The jury have found the issues severally in favor of the plaintiff, and have assessed damages accordingly. They are assessed upon this count as well as the others. The jury have not been instructed to disregard it, but have been left at liberty to proceed on it in case of their belief of a partnership between Walter Wilkerson and James Joseph Wilkerson. We are obliged to see from this finding, that they have gone upon it. Weighing the merits of the judgment with reference to the aptness and sufficiency of the evidence, we think that the judgment must be reversed for the misdirection of the judge. 4 Term, 753; 1 Bos. and Pull. 339.

The fourth and fifth counts, for a quantum meruit and quantum valebant, came next into view. It may not be amiss to observe, that if there be any special agreement, whether that stated in the declaration or not, there cannot be a recovery upon these general counts, unless such special agreement were exactly conformed to them. For example, if the evidence shows that the defendant made a special request to be permitted to occupy, and was permitted by the plaintiff, and then proved a promise to pay as much as the plaintiff deserved to have, such evidence would support these counts, but evidence of a particular price agreed on would destroy them. 1 Term Rep. 735; 4 Esp. 213. The fifth count is for lead ore sold, &c. and is not relied on, and may be laid out of the case. Whether this cause shall be remanded to the circuit court, to be proceeded in de novo, and to the end that such amendments will be permitted by the court as will bring forward the merits, depends considerably upon the question whether by the rules of law the plaintiff be entitled to recover in some form upon the evidence which he has offered. This leads to the enquiry whether the plaintiff be entitled in law to recover or not, upon counts properly adapted to his case. If the common law upon the subject be the standard of decision in Missouri, as it is here, the question can be immediately settled. If it be not, there should be a new trial, to the end that the law of Missouri may be correctly ascertained through the proper medium. Takiiig the common law to be in use there, and the defendant to have come into possession under the plaintiff, Smith, and to have promised a certain reward, unconditionally, as some of the evidence states, and as may be the fact, then the plaintiff ought to recover against him; because, one who has come in under another as his landlord, by an express contract, and has occupied under him, cannot be allowed to prove, that the title is not in his landlord, but in some other. He has undertaken to preserve the possession of the landlord, and to redeliver if, and he cannot do otherwise, without the violation of his plighted faith, and without destroying that confidence in promises which is the solid foundation of contracts and of the consequent accommodations flowing from them, which so much contribute to the comforts of mankind. Who would entrust another with the possession of a tenancy, if the tenant could at pleasure transfer the possession to the adversary of his landlord, by payment of rent to him, or by taking a lease from him, or by other act re-cognising the stranger as his landlord? In a moment, as it were, all tenancies would be at an end, and those who had no houses or lands of their own, would not be received upon the lands or into the houses of others. Who would be a landlord, if his tenant had a right by law to change his possession, and to force him through the devious windings of a lawsuit, travelling from court to court, and subjected to all the casualties incident to its various stages? The poor would be driven, if such were the law, to live in dens and caverns, for fear of the ruin he might bring upon his unprotected landlord. For these reasons it is, that the law will not suffer a tenant to dispute the title of his landlord, whenever he has by an express contract recognised him as such. Smith, therefore, would be entitled to recover on such evidence as is in this record, if the jury should believe it. 1 Term, 387; 5 Term, 4; 4 Term, 682; 4 Haywood, 207. If a different law on this subiect prevail in Missouri, that may be shown on a new trial: at present we are not mlormed of it, and cannot be governed by it. The laws of Missouri, before it became a part of the Union, should be proved as facts from the best sources, such as eminent jurists, and other legal characters who have had opportunities to become experienced' in them, as well as by the public documents of the country. The same evidence in regard to the construction and- practice upon the written laws, made since the acquisition of the country by the United States, might be very proper and useful. 'With such helps, upon a new trial, if this court now labors under a misapprehension of the law upon any point, the cause might be correctly decided, and with as much satisfaction as other cases. In any case whore the law is not clear, and may have been mistaken, that alone is a reason why there should be another investigation, and a better opportunity given to collect the necessary information, which will enable the court to pronounce satisfactorily and with judgment upon the rights of all the parties concerned. 1 Bur. Reports, 293-4-5.

This right of the plaintiff to recover, however, is supposed to be totally subverted by his entry upon the premises. Such interference, unless the tenant be wholly evicted and expelled from the possession, is not a discharge from payment of the stipulated compensation; but makes the enterer upon his possession a trespasser liable to make satisfaction for the damages in the appropriate action. The relation of tenant continues so long as the tenant holds over, and the tenancy is not put an end to by the legal ceremony appointed for that purpose. The tenant came in first for a year, and is continued from year to year. It is supposed to be overturned likewise by acts of Congress of 1804, 1S07 and 1811, inflicting larking the ¿0 mu-hi. which may be legally done by way of asserting and maintaining title by such as claim it. It could not be the meaning of Congress to prohibit claimants from doing them, as these are the means appointed by law for the vindication of title. Congress could not mean to punish a man for asserting his title in a legal way, but only to punish those who, without any claim, intruded upon the public domains. If it be required of a circuit Judge to charge upon a matter of law material for the jury to understand, in order to form a correct opinion upon the point before them, he cannot decline giving it, and must give a legal and a right opinion. One of the errors assigned in this case, is, that the Judge, though requested, would not charge what the law was,'in case the jury believed that the express contract made by the defendant was a conditional one, to pay the plaintiff if he had title: to which the Judge replied, “He would not charge except as above,” referring to that part of the charge where he speaks of the title, and says it was a good one. The assignment of error for want of a charge, or refusing to charge, is not founded in fact. Very probably upon this charge the verdict was given; and if so, it was wrong; for he ought to have told the jury, that there being no count which fitted the evidence, that it could have no effect in favor of the plaintiff, he having not stated a conditional contract in his declaration, and having not claimed any benefit under it; and that as it superseded and disproved all the other counts, that they ought, if they believed this evidence, to find for the defendant. Why state the title to be good, unless to show aright to recover according to the conditional evidence? The charge ought to have been, pay no attention to {this evidence, and make no inquiry concerning the title. It is very possible, if not even probable, that the conditional evidence, and the charge in favor of the title, were combined by the jury, and that the verdict was given without reflecting that there was no count which it supported. And if the charge may have misled the jury, the judgment ought not to stand. In case of a new trial in the Circuit Court, upon new counts added, one of which shall state a conditional contract, to pay the sum specified if Smith had title, and in case the evidence to that effect shall be believed by the jury, then it will be proper to go into the title, and to consider whether the sentiments of Judge Stuart, expressed upon the trial of this cause, were proper.

The Spanish regulations made in 1797, by Governor Gayosa, and those by Morales in 1799, evince the usages and customs which prevailed before those periods; and in the year 1796, when the concession of that year was made to St. Vrain, by the Baron de Carondelet, the then Governor-General of Louisiana, lands were distributed into three ordinary classes, and also into some extraordinary ones. Lands in the ordinary classes, were those sold, those conceded, and those distributed. Those conceded, were to be followed by orders or decrees of survey, measurement and demarcation, with delivery of possession; after which followed a title, issued by public authority. Possession was divested out of the King by the concession; and rights were claimed, or supposed, according to popular opinion, to be perfect, after the decree of survey and possession taken, though the title were never applied for; and concessions were made upon condition of settling and clearing the land. After the concession obtained, it was usual to make conveyances, and for the officers of government to receive acknowledgments of them, and to authenticate. All these disorders were repressed, and forbidden for the future, and concessions were to be followed by orders of survey, copies of which were to be annexed to the title; the concession itself being recorded in one book, the order and certificate of survey in another, and the title in a third. The extraordinary cases mentioned in the regulations, the latter seem not to havé governed. Formal titles made by the Spanish governors after the cession of Louisiana by France to Spain are confirmed; what these were, is not evident; but they were imperfect titles which needed confirmation, otherwise they would not have been confirmed as they were. The concession of St. Vrain seems not to be embraced by the regulations for ordinary cases, made in 1799. In it, the condition of settlement is dispensed with, because of exposure to the Indians; and of course, all that was to precede a settlement, and to follow, was dispensed with: the decree of survey; the survey itself, measurement and marking of boundaries, within the limits assigned for ordinary cases; the delivery of possession; the clearing of a part of the land; and continuing three years in possession. These were not confined within limits. How could they be done immediately upon the lands occupied by the Indians, or which were in their vicinity? But still, at some future time, the title was to be perfected. In the mean time, the holder of the concession was entitled to the possession, which either he might take, or it might be delivered to him by a public officer. If such was the nature and effect of the concession in question, however it plight differ from the ordinary course of proceeding, it could not be revoked or divested of any immunity or privilege useful to the holder. How could a subsequent agent of the Crown, impose conditions upon the concession, from which, before, it was exempted by an authority equal to the end? The presumption is, and it must stand till the contrary be shown, that the concession and the exemptions were made by competent authority. The Governor General would not have made them without. The regulations of 1799 were adapted to the sales and settlement of the land which the government wished to dispose of, not to cases which affected the mines, which probably belonged to the Royal Domains that were reserved from individual appropriation. Why make known, by a survey and settlement, which of these were included in grants of individual appropriation? In other cases it was proper, that the unappropriated residue should appear, in order to be seen by those inclined to purchase, but was of no use or benefit, where, by the law of the country, no one was allowed to purchase any part of the residue, however well it might be distinguished; and it was of course immaterial to the government and to the people, whether such residue were made known or not. Taking the present concession to be an incipient title, which gave to the holder and his assignee the right to identify, and to possess the objects upon which it operated, according to the terms expressed on its face, and discharged from the conditions annexed to ordinary concessions, the United States engaged by the treaty of 31st August, 1803, to protect the inhabitants in their rights of property. And even without this express stipulation, they would have been bound to do so by the maxim received amongst civilized nations, that a change of sovereignty makes no alteration in the rights of individuals. Upon the transfer of the sovereignty of Louisiana to the United States, the latter acquired a right to the territory, subject to such anterior right as the former government of Spain had conceded to individuals, and subject to their claims, in the same manner, and to the same extent, in all respects, as the government of Spain was subjected. If this latter government was bound to esteem valid the privileges and exemptions which were annexed to the concession of 1796, made to St. Yrain, and comprehended in it, the United States were bound likewise to esteem them valid, and could not detract from them any more than the government of Spain could. Say that the concession was unreasonable; yet was not Spain under great obligations to make a bountiful provision for him? He had adhered to the cause which Spain espoused; had been driven from his country for his adhesion; had been deprived of his honors and his fortune; had sought an asylum in the American provinces of Spain; and had there proved, on a trying emergency, bis devotedness to her cause, against his own countrymen, for being her enemies. If it still seem unreasonable, the government of Spain had power to make it, and was the best judge of the duties she had to perform, and the lengths to which she would go, under the influence of generous impressions in his favor. If it vary from ordinary concessions, that variance the government could lawfully establish. If productive of inconvenience from its exuberant liberality, the government which made it could best determine whether it suited her obligations or her circumstances. The United States are subject to all the inconveniences which naturally spring from the conceded privileges, and must take the territory with them as a part of its appendages. The United States may reserve to themselves the lead mines of the country, but liable to the drawbacks and disadvantages attached to them in the hands of Spain, at the time of the concession made by her. Possibly, these ideas may not be the correct ones; and if so, they may be shown to be so by such testimony as is before adverted to in the present opinion.

It is next to be seen in what light this claim has appeared to Congress, and what has been done by the United States to affect the title derived under the concession made to St. Vrain-.

After endeavoring to prevent by an act of 1804, occupancies and occupant claims to pre-emption in future by illegal intrusions upon the public lands, which had been acquired to the United States by the treaty of 1803, Congress began to prepare in 1806, for the discharge of the obligations which had devolved upon them by the treaty and cession of 1803, and particularly for the satisfaction of claims existing at the date of the treaty: And next, to prepare to make disposition of the lands which should be left unexhausted, after the satisfaction of those claims. All claims by virtue of legal Spanish grants, completed before the 1st of October, 1800, were to be notified in writing to the Register appointed in pursuance of that act, and the grants and mesne conveyances were to be delivered to him; and in case of incomplete grants, were to be recorded in a book to be kept for the purpose. Commissioners appointed under this act, with the Recorder, were to hear and determine upon all matters relating to claims, and were to report to Congress upon all valid claims, and upon all rejected ones, with the evidence accompanying the same. They were to report on claims, which, though not sanctioned by the laws of Congress, ought, nevertheless, in the opinion of the commissioners, to be confirmed, in conformity with the Spanish laws, usages and customs of the Spanish government; and also to report upon claims neither supported by acts of Congress nor Spanish usages. Confirmed claims were to be surveyed and granted. Townships were laid off for sale, and in 1811 were offered for sale, with the exception of salt springs and lead mines, which were reserved for future disposal; and excepting also, till after the decision of Congress thereon, lands, the claim to which had been filed and presented to the Recorder of land titles, for the purpose of being investigated by the commissioners. Forfeitures of rights for settling on lands ceded to the United States, or for surveying, or causing them to be surveyed, or for marking boundaries or otherwise, until duly authorized, are excluded, with respect to rights, titles or claims in Louisiana, till after the report made by the commissioners, anduntila decision made by Congress on them. The effect is, to permit the claimants in Louisiana, until their claims be decided upon, to do all the prohibited acts, at least without forfeiture, and to have the privileges of owners forever, if those claims should never be decided on by Congress. There is no forfeiture on Smith for settling upon lands including the Mine Shibo- , , \ ° . , , leth, or lor causing the same to be occupied, possessed or settled, or for causing the same to be surveyed, being of the description of land mentioned in the proviso to a saving of the act of 1807, upon which Congress have not yet made any decision, and possibly never may. Congress have not declared this claim to be void; nor could they do so, except so far as to withhold confirmation from it. For independently of this circumstance, the title can only be declared void by a judicial determination, made by a court having jurisdiction over the land in question. A court in Tennessee can only notice it as incidental to a question properly before it, and because, without a decision of the previous question, the main one cannot be reached.

The acts of Congress neither could nor have intended to place this claim upon grounds less advantageous to the plaintiff, than he would have occupied had no act been passed by Congress. The claim stands with respect to all adverse titles, and without any view to the favorable interference of Congress, precisely as it did on the first of April, 1803. If then completed, it needs not the confirmation of Congress; if not complete, it yet entitles the complainant to possession, and of course to make leases and entries upon the lands. For this reason it is, that the forfeiture inflicted upon others by the act of 1807, for possessing, or selling, surveying or marking these lands, or for causing the same to be occupied, possessed or settled, is not inflicted upon claims of this description. Such is the result which seems to follow from the view of the premises which has been just taken, and would seem rather to accord with, than to impugn the opinion which the Judge of the Circuit Court gave upon this point.

We now come to objections of minor importance, and might save ourselves the trouble of speaking upon them, having grounds enough for sustaining the opinion we give; but upon a new trial, the same objections may be made, and may again come before us to be decided upon. It is proper to enquire, therefore, whether the depositions objected to were sufficiently proved to have been taken according to the rule of the court. It should appear by some means, that the commissioner sustained the character which the rule requires, that he was not interested, of counsel, &c. and that the deposition was in his handwriting, or in that of the witness. As soon as he appears to sustain the necessary character, the court will give credence to all he certifies, and if satisfied by a comparison of the signature with the body, that they are both in the same handwriting, will be convinced of the requisite fact, though it were better if expressly certified. But how is it to be known, that he is not interested, related, or of counsel, &c.? Hardly any one else can be able to speak of all these requisites; and if not otherwise sufficiently proved, it cannot be known but by his certificate. The only ground for presuming him qualified is, that otherwise he would not have taken the deposition. But he may have not known of the rule that disqualifies him. The fact, therefore, ought to be stated in the caption, or .in some other part of the deposition, if not otherwise proved by affirmative testimony, not only that he sustains the necessary character, but also the requisite qualifications, m not being subject to any of the disqualifications imposed by the rule. Cross-examination by the defendant, can only prove that he had notice of the time and place of taking the deposition, and nothing more.

As to the copy of the deed from St. Vrain and wife to Smith, taken from the recorder’s books, as it does not appear that there is any other office for the registration of such deeds, but only that of the recorder’s book from whence this copy was taken, and this book or copy from the original was taken under the care and superintendence of a public officer, of high and responsible character, the fa;r presumption is, that the copy in the book is a correct one; and the one taken from it is sworn to be a true copy from it. The loss of the original is proved, both hy the loser and the owner of the deed and bargainee, and therefore a sufficient ground is laid for the introduction of a copy. The original, it must be perceived, was verified by some sufficient authentication, otherwise the recorder would not have received and registered it as an evidence for the commissioners and himself to act upon. This leads to the conclusion, that the copy was well given in evidence on the trial before the Circuit Court.

With respect to the testimony of persons who were partners with the defendant, they being liable to contribute to him their share of the recovery against him, could not in that situation testify for him; but when discharged from that liability, and being not parties to this action, the only cause for their rejection is removed, and the evidence is properly receivable.

Concerning the impressions of the witness at the time of the transaction, when there was nothing to efface them, and when no new objects had been presented to weaken his recollections, is only another mode of saying he is perfectly satisfied of the fact. It is right and proper to refer it to the jury, to fix the meaning of the witness, and to decide whether he intended thus to represent his recollections, or whether he meant to intimate that the images which were then created had since faded away, and according to the meaning which they should adopt to govern themselves.

As to' the evidence concerning damages by waste of timber, so much as is necessary to be used for smelting, the defendant had a right to use for that purpose: being included in the liberty to smelt ore, satisfaction for it is included in the price of the ore. If there be a waste beyond what is necessary, that would be recoverable in another form of action. But in fact, it is ascertainable by calculations upon the evidence, what allowance was made for waste of timber; and though the evidence is not strictly proper, yet as it can be clearly shown that it did no harm, therefore there should not be a reversal for this irregularity.

Upon the whole, our opinion is, that this judgment ought to be reversed, and sent back to be proceeded on in the circuit court, which may permit the declaration to be amended, if it thinks proper, and the issues to be tried in conformity with the principles adopted in this present opinion of the Supreme Court.

Whyte, J. dissented.

Judgment' reversed. 
      
      
         Catron, J. did not sit in this causo.
     