Opinion of Thayer, J., dissenting.

should only warrant and defend against claims he had created-in other words, against his own act done or suffered, whereby the title conveyed might be jeopardized. He had purchased from Chapman the lot in question, but acquired no title except actual possession and the conditional covenant of Lownsdale before mentioned, and Lownsdale never acquired any title to said lot from the United States except one-fifth interest.

In this condition of affairs, the appellants made the deed of December, 1860, to Goodnough, in which they bound themselves concerning the title by the covenant contained therein. If it had been intended by the parties that appellants should be bound to defend Goodnough, his heirs and assigns generally, and against every one, why did they not have a general covenant to that effect inserted in said deed? It appears very plain to me that the parties to that deed only intended to pass to Goodnough, his heirs and assigns, the unincumbered title, interest or right which Risley had acquired from Chapman, and undoubtedly a party might be bound by personal obligation not to buy any outstanding claim against property. But I do not believe that is the effect of this covenant, or was so intended by the parties. If I am correct in this, then the appellant can assert the claim to the fifth interest in said lot which he purchased from Lownsdale without violating the terms of the covenant in question, and the deed to Goodnough cannot in any event operate as an estoppel. The general theory upon which the law of estoppel by deed is applied, is to prevent circuity of action, and I believe this to be the true doctrine.

Senator Tracy, in the case of Jackson v. Waldron (13 Wend. 208), says: "That the best, most rational, and only general principle which can be extracted from the numerous and contradictory decisions upon the subject is, that in order for a matter to operate as an estoppel in a deed, it should be such matter, and so alleged, that if untrue, the party alleging it would be liable in some form of action, either in law or equity, to respond in damages to the party injured for a covenant broken, or for a deceit and fraud." This view, to my mind, is a very satisfactory test.

I am

Opinion of Thayer, J., dissenting.

aware, however, that it has been attempted recently to place the rule on different grounds-to place it upon the basis of giving effect to the intentions of the parties as expressed in the deed, and I would have no objection to its application in such cases, provided such intentions were clearly expressed; but to speculate as to what the parties to a deed intended to convey in the absence of averment, recital or covenant, would be uncertain indeed. In the case under consideration, there would be a breach of the covenant in question, had Lownsdale made the claim to the fifth interest, instead of transferring it to the appellant, and I cannot think it is any such breach for the appellant to acquire it and assert a claim thereto. This is so, at all events, if the construction I place upon the covenant is correct. The deed could not, therefore, operate as an estoppel upon the principle of avoiding circuity of action, and if claimed upon the other ground, it is necessary to establish that the parties to the deed intended to convey this after-acquired interest, and that such intention is expressed in the deed. Viewing the transaction by the light of surrounding circumstances, as shown by the pleadings in the case, and considering the various parts of the deed when taken together, I do not think such intention is shown. The question is by no means free from doubt, but I think the doubt arises more from the peculiar, and I might say awkward, language employed in the deed, than from any embarrassment in construing covenants of this character. A covenant against a grantor has had a long and well-established signification, and I am not aware that the Courts have attempted to construe said covenant as meaning anything more than I have indicated; that is, that the grantor and his heirs will defend against his past acts. The parties to this deed have chosen that kind of covenant, and I do not think its effect should be extended unless the language is unmistakable, and, as I have before remarked, it could not have been the intention of the parties that the grantor undertook merely to disqualify himself and his heirs from asserting an outstanding title, leaving all other persons free to do so. When the appellant procured title from Lowns

Points decided.

dale of the fifth part of the lot in question, he succeeded to all the rights of Lownsdale respecting it, and if Lownsdale or his grantor had the legal right to demand this interest, why should not the appellant be permitted to do so?

For the foregoing reasons the decree of the Court below should be reversed.

H. K. HANNAH, DISTRICT ATTORNEY OF THE FIRST JUDICIAL DISTRICT, RESPONDENT, v. GILES WELLS, JR., JOHN W. WELLS, WM. SONGER AND GILES WELLS, SR., APPELLANTS.

AUTHORITY OF THE DISTRICT ATTORNEY TO SUE IN HIS OWN NAME.-The District Attorney is authorized by statute to sue as plaintiff in a civil action brought on an undertaking given as bail in a criminal case. COMPLAINT IN AN UNDERTAKING.--In a civil action on an undertaking in the nature of bail for defendant's appearance in a criminal case, the complaint should show that the prisoner was charged with a crime, and it is not sufficient to state that he was charged with "shooting and killing" another.

CHARGE NEED NOT BE IN WRITING.-Where a defendant is brought before a committing magistrate on a charge of felony, it is not essential to the jurisdiction that the charge should be in writing.

Per McArthur, J., dissenting:

STATEMENT OF CRIME CHARGED IN AN UNDERTAKING ON ARREST.-It is not necessary, in order to create a liability against the sureties on an undertaking on arrest for crime, that the crime for which the person is admitted to bail should be set forth or described in the undertaking of bail with the same exactness that is required in an indictment or commitment. It is sufficient if the crime is referred to in general terms. IDEM. Every killing of a human being is presumed to be unlawful. The words "shooting and killing" describe a crime generally, and, in an undertaking, in a criminal proceeding, are a sufficient description of the crime charged to create a liability against the sureties thereon.

APPEAL from Jackson County.

The facts are stated in the opinion of the Court.

E. Steel, for Appellants.

J. H. Stinson and J. R. Neal, for Respondent.

Opinion of the Court-Upton, C. J.

By the Court, UPTON, C. J.:

This appeal is from a judgment of the Circuit Court overruling a demurrer to the complaint in an action on an undertaking as bail in a criminal case.

The demurrer specifies two points of objection, the first being that the State and not the District Attorney should have been plaintiff in the cause, and the other that it does not appear on the face of the complaint that the Court in which the undertaking was required had jurisdiction of the subject.

The action is brought in the name of H. K. Hannah, District Attorney of the First Judicial District, as plaintiff, and the appellants claim, in support of the first point, that the case is within the provision of 27 of the Civil Code, that "every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in ? 29." The appellants rely on the circumstance that 27 and the following sections specify certain exceptions, and they claim that the express mention of these exceptions excludes all others, and shows that the Legislature intended there should be no other exceptions than those there mentioned.

The respondent relies on 342 of the same Act, which provides that "fines and forfeitures may be recovered by an action at law in the name of the officer or person who by law is authorized to prosecute for them." The rule invoked by the appellant that express mention of specific exceptions raises an inference against all other similar exceptions, is an acknowledged rule of construction in all cases where it is applicable; but the present case is not within the rule. The respondent's right to appear as plaintiff is not based upon an inference, but upon a direct affirmative enactment, and the exceptions above referred to include "persons specially authorized by statute" among those who may sue, although not the real parties in interest.

Penal statutes frequently direct what disposition shall be made of fines recovered, and various statutes provide different modes of disposing of the money thus obtained. In some cases fines or forfeitures go to a particular municipal

Opinion of the Court-Upton, C. J.

corporation; in other cases, to a particular fund or object; and, in still other cases, the money recovered on a fine or forfeiture may be devoted to several different purposes; and it may be in some cases a matter requiring much consideration to determine who may be the real party in interest. Section 342 (Civil Code) simplifies the proceeding by permitting the action, in all these cases, to be brought in the name of the officer who is authorized to sue. It being expressly provided that actions of this class may be brought in the name of the officer, and the provision not being repugnant to the more general provision above referred to, the Court is of the opinion that the action is properly brought in the name of the officer.

On the second point, that, by the complaint, it does not appear that the Court, in which the undertaking was required, had jurisdiction, it is necessary to observe a distinction between a statement of the essential facts, and a statement of the evidence that will sustain or establish a cause of action. As the case is now presented, the Court is not called upon to determine whether the evidence mentioned in the complaint, and which the plaintiff claims the right to introduce, is sufficient to establish a cause of action.

The complaint alleges that on an examination had before a Justice of the Peace, Joseph Wells was held to answer the charge of "shooting and killing one James Dennis;" that these defendants entered into an undertaking for the appearance of the said Joseph Wells in the Circuit Court, etc., to answer the charge of shooting and killing one James Dennis, and that the said Joseph Wells afterwards made default.

The principal point made in this connection by the appellants is, that it is not shown by the complaint that Joseph Wells was charged with a crime; that it should be alleged that the examination was upon a charge of murder or manslaughter, or at least that the prisoner was charged with some crime known to the law, otherwise the Justice would have no jurisdiction, and the undertaking would be void.

The complaint also avers that the Grand Jury found an in