The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1866-09-13
non. W l. nAKRIs. ASSOCIATE JUDGE,
DELIVERED TuE OPINION or rnE
COURT

ca TIE 18th September, lsau-Iu ruahlr IA
IS state oi Arkansas and other States. inclu,
. my this State. Ia reclaim the swamp laud
within their limits by lrvecs aud drains. Z
Il he log thrn .Constructed-the whole OF "a
swamp and overlooked lauds made uuli
( thereby for cultivation, which remained uI
e sold At the passage OF that act. were thcrcb
. granted 20 those states respectively, suhicc
d TO the disposal of the Legislatures thereof
, upon the express condition that the proceed
OF said lands, whether nom sale. or hy dirrc
= appropriation in kind. should be applied cN
: olnsNely, as far "a necessary to the puIpos,
of rcclaiming said lqnds, by means Of tn,
levceS aud drains as aforesaid. Sec act Il
f code p, GJs
BY the act of the Legislature of this State
passed on the 10th March, lS52, p. ~. thcs,
lands were granted, with partial exceptions
to the counties IN which they were situated
subject 20 the condition contained Ia the
/ original grant from the luited States.
liy the 2d section OF this act ot 1852. D. ~
It was made the duty of the boards of county
police IN the respective counties IN which
said lands are situated tu appoint q commits
sioner or commissioners, not to exceed three,
to he styled Commissioners of Swamp Lands,
Who should give bond payable to the state
of Mississippi, to br approved by the Judge
of probate ui such counties respectively,
Secretary of Statos office, conditioned for
the faithful application ot said lands, or the
proceeds of the sale of the same to the pur-
! poses for which they We're granted aud the
! safe keeping of all funds that might come
! Into their bands, arising from, or connected
with, the disposal of said swamp lnnds
The 3d section provided, That, after the
execution OF the bond aforesaid, the Sccrc-
tary of State on the application of said conn
missioner, should furnish them with the
statement of the number of acres of said
lands, IN their respective counties aud the
commissioners are 10y said act authorized to
sell the scrip for cash, or dispose of IL IN pny-
mout for labor ms a price not less than fifty
cents per acre, and 60 apply the said funds,
or direct the labor, 10 the reclamation of
said lands by levoeiug or draining thom, etc
by the 9th section of the act, p. 80, These
commissioners ar made capable Of sucinp
and heing sued In their capacity of Commits
sioncrs of Swamp Lands, in all matters per-
tanning To the duties devOlved on them hy
this act, os any contracts growing ont of the
same. And by the ith section Of the same
act the holder of said scrip was authorized
TO locate il on said lands, in the county
designated and patent was to issue
In the ease before Ms, the plaintiff pur- |
chased scrip for two hundred acres of land |
at nifty cents an acre, and claims to be the |
owner to the title thereto, undfr the aQtB 10 |
which we have referred, by location and |
compliance with the provisions of the act |
10th March, 1852
This action is brought 10y him against the
defendant, rs las swamp land comnissi-
oner." The declaration AYERS that defend.
ant was on tiIe day of December, 1851,
appointed by the Board OF Police of Rankin
county Swamp Land Commissioner" and
mr. had tn, Il 4 |
office, That plaintiff IN 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 aud by
virtue of the provisions of said nets. THAT
said land 30 owned 10y him il and was sus-
Of cultivation on the oath February,
1859, and that on that day he was entitled to
receive from defendant the sum of one hun.
dred dollars, being fifty cents per acre of the
money arising from % sale of said land That
defendant refused TO pay on demand made
10y him, and asks judgment against defend.
ant "a such commissioner for said sum- etc.
TO this dedication defendant demurrcd
The demurrer was sustained, with leave 10
amend; and the plnintin filed his amended
declaration against defendant as swamp
land commissioner, aud ayei1iug his appoint
ment by tho board Of police, rs Ia the
original declaration. But lac alleges that
defendant wiliully neglected aud refused to
execute the bond required by the statute,
and proceeded TO receive the scrip aud
money belonging 10 said fund, and ~ sell
'aid scrip, all amounting to the sum Of
s9l0O. The declaration further states that {
plaintiff Is the legal owner of said land az
stated in the original declaration that being
inch owner by purchase Of scrip from de-
endant, and payment Of fifty centsin money !
Icr acre therefor; and said defendant being Z
~ law, bound, ~ such commissioner, 10 ap- y
IrOpriate laid money to the ditcbng aud
Training said land for the benefit of plain q
III, did not do 80 but wholly refused, etc, d
'ut retained said money aud applied IL to h
Ils own use, by lOaning the same at ten per "a
ent per annum.
Plaintiff then AYERS that by defendants '
efusal TO perform his duty ia this respect
e was compelled 10 ditch and drain said u
and himself which be did, making IL sus-
eptible of cultivation Iwherefore an action
as accrued to him 10 have aud recover the y
nm Of one hundred dollars, with interest, al
rom the day the labor was completed lie ~
tates that by reason Of defendants failure Il,
0 execute the bond required by law, be is !,
Ompelled TO bring his snit on an account for VI
iJOr, filed as exhibit A 10 both the original h'
nd amended complaint u
10 this declaration the defendant also de p,
lurred and the demurrer was sustained aud I,
idgnent final rendered against the Plain "
III. IL
The ruling of the court ON the demurrer oi
, the original and amended declarations u
institute the errors complained OF here.
Testing these declarations by any known 81
les Of pleading whether statutory or at W
Immon law. II would be- perhaps difficult TO n,
etefiniDe either what form Of action the a,
leader intended Ia adopt, or what was the -
inse of action upon which be designed 10 JIG
ase bis right Of recovery. vi
In the conclusion Of the amended declare W.
ON the plcadeT says, that BY reason Of -
ie defendants failure 10 execute his bond -
, commissioner, plaintiff il compelled 10 ~
ring bis suit Oh an account for labor" filed III
exhibit A "a both the original aud amend A
complaints IN one Of the briefs filed for n.
laintiG Ia error, il Is said ly counsel speak. =,
II Of the demurrer 10 the amended desla- gu
zion, thot il may well be- regarded ~ friv- &C
0ns, "plaintif does not sue GA any special IA
intTact, but for a breach Of official duty, in =,
matter in which be has personal interest, ~.
u such breach i expressly charged VI
Whether the action is for work and labor DC
retaining plaintiffs swamp land or I
neither IL j. founded upOu the idea Of de- \.
ndaufs breach Of official dnfy. IN not caus- =.
2 plaintiffs land to De levied and drained. n
not paying plaintiff for doing IL himself on
not paying back 90 plaintiff a. biz share Of
the swamp land funds the wlIOle amount -,
paid for bis scrip. a. 10 mach money, be
a. entitled by law to have applied 10 the &c
vefIun ard DRAINAGE Of his r1Ffieufar land I NJ