Brow v. Hatton.

be enabled, through the aid of the intestate, to comply with the request from the Treasury Department. It ap pears that Mr. T. H. Blount had preceded the defendant in the office of collector of the port of Washington, and in the list, furnished him by the intestate, were several omissions of bonds and judgments. This list was em bodied in his report, we presume, to the office. With a view to supply this deficiency and to ascertain if there were any further omissions, the requisition was made upon the defendant by the Department. The plaintiff's intestate, Mr. Brown, is distinctly apprised of these facts, and is informed, that nothing is needed but a list of the bonds and judgments, &c., not for the purpose of enabling the defendant to comply with his duty to the public, for the Act of 1791 required him only to make a due return of the bonds in his office, and the case shows, that the bonds in suit in the District Court never had been in his office since his appointment, but had been put in suit by his predecessor. The information sought to be obtained by the defendant was of no personal interest to him, any further, than, as a faithful public servant, he was bound to aid the Department in ascertaining what was due from its debtors. In all his letters, he informs Mr. Brown for whom the information is needed and why. The bonds are described as belonging to the office at Washington, and the letters are signed by the defendant as collector. There is not in any part of the written evidence the slightest proof that the defendant intended to make himself personally responsible, and that responsibility must be explicitly undertaken. Hite v. Goodman, 1 Dev. & Bat. Eq. 365. Gidly v. Palmerston, 2 Bro. & Bing 275. The plaintiff contends, that the records were made out by him, not for the Government, but for the defendant, to enable him to execute his official duty, and relies upon the language, used by the defendant, expressive of his fears, that he would suffer in consequence of the plaintiff's

Brown v. Hatton.

neglect in complying with his request. We do not so read the letters. The defendant, in each of his communi cations, appears to guard against any idea, that the work was for his benefit. On the contrary, in each application, he states, it is made to enable him to comply with a request from the Department, and that the application is rendered necessary by the plaintiff's intestate's own neg. lect, as he had been informed, in not making out a perfect list for Mr. Blount. As to his fears of being injured by Mr. Brown's delay, it might arise to him in several ways without embracing the idea, that the list was necessary to him. We are of opinion, that the work was done at the instance, and for the use, of the General Gov. ernment, and to it the plaintiff must look for remuneration, the defendant not having made himself responsible, either by contract or fraud.

The plaintiff further contends, that his Honor erred in not leaving the construction of the letters to the jury, as a matter of fact to be found by them. The letters were produced in evidence by the plaintiff to show the defen. dant's liability, as containing the contract, under which the services were rendered. The contract then was in writing, and the intention of the parties is to be ascer tained from it. This is admitted by the defendant's ar gument; he does not pretend, that, if left to the jury, they could have looked out of the letters. If so, then it was a pure matter of construction to be placed upon a written instrument, containing in itself every thing necessary to its being properly understood. We think his Honor committed no error in the instruction he gave the jury-it was a question of law, and not of fact. The case now before us is not as strong as that of Dameron v. Irwin & others, 8 Ire. 421, and the whole defence here is covered by it.

PER CURIAM.

Judgment affirmed.

JAMES FLINN vs. TIMOTHY ANDERS.

A count for a forcible entry may be joined with a count for an assault and battery.

The law permits to each tenant in common a peaceable entry upon every portion of the land held in common, but it does not justify any actual force applied to the person of his co-tenant.

Appeal from the Superior Court of Law of Bladen County, at the Spring Term 1849, his Honor Judge CALDWELL presiding.

The defendant and one Meredith were tenants in common of the tract of land, where the trespass was com mitted. The plaintiff was in possession of a part of the land, as the tenant of Meredith. While so in possession, the defendant, together with others, who were aiding and assisting him, entered the house, in which the plaintiff lived, and forcibly turned him out. In doing so, they committed an assault upon his person. The declaration contained two counts; the first, for a trespass to the plaintiff's close; the second, for the trespass to his person. The jury were instructed, that the plaintiff was not entitled to a verdict on the first count, and that they could give no damages, except such as arose to the plaintiff, because of the personal injury to him.

The jury found a verdict for the plaintiff on the second count, and from the judgment upon it, the defendant appealed to the Supreme Court.

Strange and D. Reid, for the plaintiff.

W. H. Haywood and W. Winslow, for the defendant.

NASH, J. It is unnecessary for us to express an opinion as to the correctness of the charge upon the first count.

Meredith v. Anders.

The defendant, the appellant, does not complain of it and it forms no part of his bill of exceptions.

We cannot well perceive where the error in law lies in the charge upon the second count. There can be no doubt, that the two counts can be joined; and there is as little doubt, that one tenant in common of land may commit an assault and battery upon the person of his cotenant. While the law permits to each tenant in common a peaceable entry upon every portion of the land held in common, it does not justify any actual force ap plied to the person of his co tenant. The case states, that the defendant did commit an assault and battery upon the person of the plaintiff.

PER CURIAM.

Judgment affirmed.

DEN ON DEMISE OF JAMES MEREDITHI vs. TIMOTHY ANDERS.

A testatrix devised as follows: "For the love and affection, which I have fo J. M., and to enable him to take care of my two old negroes, B. and R., who I wish to remain where I now live and support themselves, I giv and bequeath the land whereon I now live," &c. Held, that J. M. took a valid legal estate in the land, notwithstanding the objection made, that J. M. was to take and hold the land in trust for the negro slaves.

Appeal from the Superior Court of Law of Bladen County, at the Fall Term 1848, his Honor Judge PEARSON presiding.

Meredith v. Anders.

The lessor of the plaintiff claims under the will of Elizabeth Locke. The testatrix devised as follows: "For the love and affection which I have for James Meredith, and to enable him to take care of my two old negroes, Ben and Rachel, who, I wish to remain where I now live and support themselves, I give and bequeath the land whereon I now live, with all and singular the improvements, containing two hundred acres," &c. "Should the said Meredith find it necessary for his own convenience and the good of the neighborhood to remove said negroes to his own house, I wish him to do so." The counsel for the defendant moved the Court to instruct the jury, that the devise was not to the lessor of the plaintiff, but to the two old negroes, or in trust for them, and was therefore inoperative and void. The Court declined to give the instructions prayed for, but charged, that the land was devised to the lessor of the plaintiff, and not to the two negroes, nor in trust for them.

The jury returned a verdict for the plaintiff, and, judgment being rendered, the defendant appealed to this Court.

D. Reid, for the plaintiff.

Strange, W. H. Haywood and Warren Winslow, for the defendant.

NASH, J. The only question presented to this Court is, as to the devise of the two hundred acres. The construction put upon it by the presiding Judge in the Court below was correct. The land is, by the will of Elizabeth Locke, given to the lessor of the plaintiff, and the cause assigned, to wit, her love and affection for him, and to enable him to take care of the old negroes. But it is insisted by the defendant, that, if this be so, it is a devise to him in trust for the two old negroes, and it is consequently void and inoperative. Be this as it may, the question cannot