The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1866-09-05


proceeds of the sale of the same, TO the puT-
poses for which they We're granted, and the
safe keeping of all funds that might come
into their hands, arising from, or connected
with, the disposal of said swamp lands. /
The 3D. section provided, That, after the
execution of the bond aforesaid, the Seere- /
tary of State on the application of said COM
missioner, should furnish them with the
statement of the number of acres of SAID
lands, in their respective counties, ana the
commissioners are by said act authorized to
sell the scrip for cash,o dispose OF 1t IN pay
ment for labor, as price not less than n1ty
cents per acre, and to apply the SAID funds,
or direct the labor, to the reclamation OF
said lands by leveeing or draining them, etc
By the 9th section of the act, p. 53, These
commissioners are made capable OF suelng
and being sued IN their capacity OF CommlS-
sioners of Swamp Lands, in all matters per
tanning to the duties devOlved on them by
this act, or any contracts growing out OF the
same And by the 4th section Of the same
act, the holder of said scrip was authorized
TO locate it on said lands, in the county
designated and patent was to issue.
In the case before us, the plaintlh pur-
chased scrip for two hundred acres of land
at fifty cents an acre, and claims to be the
owner to the title thereto, under the acts to
which we have referred, by location and
compliance with the provisions of the act
IObu lCOS
This action is brought by him against the
defendant, as "as swamp land commlssl-
Oner" The declaration AYERS that defend
ant was on the day of December, 1857,
appointed by the Board of Police of Rankin
county Swamp Land Commissioner and
proceeded to perform the duties OF sad
office. That plaintiff is the legal owner of
| certain tracts or parcels of the swamp and
overlooked land, embraced in the act of Con-
gress, and the act of the State Legislature
referred to describing them), under and by
! virtue of the provisions of said acts. mat
said land so owned by him" is and was sus-
ceptable of cultivation on the oath February,
! 1859, and that on that day he was entitled 10
receive from defendant the sum OF one nun
dred dollars, being fifty cents per acre of the
| money arising from n sale of said land. That
defendant refused to pay on demand made
| by him, and asks Judgment against defend
ant as such commissioner for said sum, etc.
To this dedication defendant demurred.
The demurrer was sustained, with leave to
amend; and the plaintiff filed his amended
declaration against defendant as swamp
land commissioners, and averring his appoint
ment by the board of police, as in the
| original declaration. But he alleges that
defendant wilfully neglected and refused to
execute the bond required by the statute,
and proceeded to receive the scrip and
money belonging to said fund, and to sell
S2l00 The declaration further states that
plaintiff is the legal owner of said land, as
| stated in the original declaration that being
such owner by purchase Of scrip from de
PENDANT, and payment of fifty cents IN money
per acre therefor; and said defendant being
| BfotbhfTfatee said money to the ditching and
draining said land for the benefit of plain.
tiff did not do so but wholly refused, etc .
| but retained said money and applied 1T 10
biS 11za lVl OanlnO the at ten Del
cent. per annum.
Plaintiff then AYERS that by defendant
refusal to perform his duty in this respect
he was compelled to ditch and drain sale
land himself. which he did, making it sus
ceptible of cultivation Wherefore an action
has accrued to him to have and recover th'
sum of one hundred dollars, with interest
from the day the labor was completed. H'
states that by reason of defendants failure
to execute the bond required by law, he il
compelled to bring his suit on an account tO
labor, filed as exhibit A to both the origina
and amended complaint.
To this declaration the defendant also de
INJURED and the demurrer was sustained an'
Judgment final rendered against the Plain
tiff 8. = A
The ruling of the court on the demurre
to the original and amended declaration
constitute the errors complained of here.
Testing these declarations by any know
rules of pleading whether statutory or a
common law, it would be perhaps difficult t
determine either what form of action til
pleader intended to adopt, or what was tn
, cause of action upon which he designed t
base his right of recovery.
In the conclusion of the amended declare
ton the pleader says, "that by reason @
the defendants failure to execute his bon
as commissioner, plaintiff is compelled t
| bring his suit on an account for labor" file
/ loo A 10 hnfh tho iuin nj and amend
, ed complaints In one of the briefs filed to
Plaintiff in error, it is said by cbnnselspeaE
ing of the demurrer to the amended declS
, ration, thot it may well be regarded as fry
: Olous, plaintiff does not sue ON any specia
contract but for q breach of official duty, i
matter in which he has personal interes
and such breach is expressly charged"
Whether the action is for work and labO
in retaining plaintiffs swamp land c
{ whether it is founded upon the idea of d.
, PENDANTS breach of official duty, in not eau
ing plaintiffs land to be levied and drained
or not paying plaintiff for doing it himse
2 or not paying back to plaintiff as his shaI
of the swamp land funds, the whole amour
he paid for his scrip, as so much money, b
was entitled by law to have applied to til
D leveeIng and drainage of his particular Lane
e Gall of which views have more or less prom
nence in this declaration) in neither view
is it legally possible to maintain this actio
=, | upon the facts here appearing.
i The plaintiffs hope of recovery, seems {
: be based upon the idea that each purchase
of scrip locating his land and receiving It'll
, thereto under the act of 1852, acquired wit
the land the right to have the money paid b
him for the scrip expended towards reclaim
t ing his particular land, or paid TO him if b
o reclaimed il himself, and this seems to
the foundation of the breach of official duty
or the implied contract relied on for a recoV
cry here.
This is an entire misconception of til
? rights of the land owners as well as of til
: duty and obligation of the commissioner III
der this act 1t does not contemplate an al
: plication of the fund for special private az
vantage, but for the general good, of til
country, section or neighborhood in whic
| the land is situated 1t cOntemplates
system, established by the original ac
, granting the land to the State. Thi
, act of Congress was designed ito ell
7 able the State to construct neeessar
. levees and drains to reclaim the SWAMI
and overlooked lands therein" an
, | the grant is made upon that expires
| condition. The duty of the commissions
imposed by the act of the Legislature wa
public and general-not private or speeia
J | The defendant was not bound as alleged, I
, aupropriate the money received from plair
tiff, for the scrip, TO draining and ditchin
plaintiffs land for his benefit alone, an
without regard to the object intended b
J this original grant. Nor was he bound L
appropriate said fund to the payment O
, plaintiff, for any labor, which plaintiff vol
UNFAIRLY without defendants authority
: expended on hisow land.
J We do not question the correctness of tn
doctrine held in the case of Brown vs. Les
ter, 18th s. & NJ, page 394, and other case
cited to the same polnt-that pubic off1cer
are liable for omission or breaches of publ
! duty, involving private injary. They COZ
: Erectly state an old and familiar rule Blu
, in this case the declaration wholly fails b
present such 3 CASE The allegation of tn
, declaration relied ON, in the argument O
L -. -. a e