JANUARY 1830, ed by an agent. The declaration then, by shewing on its face a discontinuance against one of the defendants, in effect shewed that the entire action was discontinued. Saffold et al. murrer was therefore well sustained. Thompson V. The de Judgment affirmed. JUDGES SAFFOLD and CRENSHAW not sitting. DUNHAM V. CARTER and CARROLL. 1. The County Court has no jurisdiction by certiorari or appeal, in cases of forcible entry and detainer. 2. In cases of forcible entry brought up by certiorari, the trial must be on errors assigned in the record. J. DUNHAM, on a complaint for a forcible entry and unlawful detainer, recovered judgment before a justice of the peace of Wilcox county, against A. Carter and A. Carroll. The defendants, by certiorari, carried the cause into the County Court. In the County Court, Dunham moved to dismiss the suit, and strike the case from the docket, for want of jurisdiction in the Court. This motion was overruled by the Court; he then filed a plea to the jurisdiction, insisting that the Circuit only had jurisdiction of the cause; to which plea there was a demurrer, and which demurrer the Court sustained. After this, he moved the Court for judgment of affirmance for want of an assignment of errors. This motion the Court also overruled; and directed that he should file a statement, so that an issue might be made up and tried by a jury, which Dunham refused, and on motion of Carter and Carrol, the Court nonsuited Dunham, for the want of a declaration or statement, and rendered judgment for the defendants for costs, from which Dunham appealed to this Court; and he now assigne those proceedings of the County Court for error. GORDON and H. G. PERRY, for the appellant. SHORTRIDGE, for the appellees. By JUDGE CRENSHAW. If the County Court had jurisdiction, it was certainly erroneous to nonsuit the plaintiff for want of a declaration, because it has been set Dunham roll. a Vide McDo tled by at least two adjudications of this Court, that the JANUARY 1830% proceedings in a case of forcible entry and detainer, when certified to an appellate Court, are to be received as a record; that errors must be assigned,.and the trial had on the Carter & Car. record alone. But the main inquiry is, had the County Court any jurisdiction over the subject matter of litigation? By the act of 1805, it is provided that the proceedings in forcible entry and detainer may be removed to the Circuit Court, by writ of certiorari, and in no other manner. If this act alone is to govern, it is then clear that the Circuit Court is the only appellate tribunal which could entertain jurisdiction of the case. 66 But in the written argument, which I find among the papers, it is said that a clause of the act of 1807, gave the County Court jurisdiction of all actions of a civil nature, wherein the value of the matter in controversy shall not exceed $1000, excepting real actions, actions of ejectment, and trespass quare clausum fregit." To this it may be conclusively answered that the clause of the act alluded to, gives the County Court, in the cases there enumerated, original and not appellate jurisdiction, and consequently has no bearing on the question before us. It is also alleged, that jurisdiction may be inferred from the act of 1812; but it must be recollected that the section of the act referred to, does not enlarge, but manifestly restrains the jurisdiction of the County Court, and therefore confers no new authority, nor gives it any appellate power, which it could not exercise before the passage of the act. It was also insisted on, that from the act of 1822, which gives to the Judges of the County Court concurrent power with the Judges of the Circuit Court, to grant writs of certiorari and supersedeas, it was fairly inferable that the County Court had jurisdiction. By the section of the act relied on, the Legislature did not intend to give appellate jurisdiction over any case, of which, independent of this section, it did not already possess it; but only intended to prescribe a new mode of proceeding, or rather to clothe the County Court with authority to grant writs of certiorari; and which before the act, it seems the Court did not possess. To consider the subject in any light, I think it would be a wrong interpretation of the sense and spirit of these acts, to suppose that by all or either of them, the Legislature intended, among other things, to give the County Court appellate jurisdiction in cases of forcible entry and detainer. nald v. Gayle Minor's Ala. Rep. 98. and Ward v. Lew is. 1 Stew. Rep. 26 JANUARY 1830. Dunham For these reasons, the Court are unanimous in opinion, that the County Court erred, in refusing to dismiss for want of jurisdiction, and in nonsuiting the plaintiff for Carter & Car want of a declaration. The judgment is therefore reversed, and a writ of procedendo awarded to the justice. Judgment reversed. roll. a Littell's se lected cases. 198-99-200. 1 Mason's R. 93. MUNN V. POPE. 1. Under the general issue, in assumpsit, any evidence tending to increase or diminish the value of the article sold, is proper evidence, so as to ascertain its true value. 2. If a party agrees to receive property in payment, it may be proven as payment under the general issue, to the extent of its value or stipulated price. THIS was an action of assumpsit tried in Madison Circuit Court, in which Matthias Munn was plaintiff, and Benjamin S. Pope, was defendant. The action was brought to recover the price of a cotton gin sold and delivered, &c. the pleas were non-assumpsit, payment and set off. On the trial, the plaintiff, under the common counts, proved the delivery of a forty-seven saw cotton gin to the defendant, and that the usual price of gins was four dollars per saw. The defendant proved that the plaintiff agreed to deliver him a first rate gin, and to receive in part payment his old cotton gin, and that he had delivered it to him, and had paid him forty-four dollars for the balance. He also introduced several witnesses to shew that the gin delivered by the plaintiff was not first rate, but was very inferior, and also that soon after the gin was received, that he was compelled to pay another workman $25, for necessary work to put it in proper repair. To the introduction of this evidence the plaintiff objected, but the objection was overruled, and the evidence was permitted to go to the jury; to which the plaintiff excepted. There was a verdict for the defendant, and judgment thereupon. The admission of this evidence is assigned for error. BRANDON and URQUHART, for the plaintiff in error." THORNTON & PEETE, for the defendant. Munn By JUDGE PERRY. It is contended that the judg- JANUARY 1839. ment should be reversed, 1st. Because the Court below permitted the defendant to prove the bad quality of the gin; 2d. Because the Court below permitted the defendant to prove repairs done to the gin; and 3dly. Because the Court permitted the defendant to prove that the old gin was taken in part payment for the new one. As to the first ground taken by the plaintiff in error, 1 hold it to be a well settled rule of law, that where a party seeks to recover the value of an article sold, all testimony is admissible on either side, which tends to prove or ascertain its true value. The plaintiff was therefore bound to shew what the value of the gin was; this he did, by proving that the usual value of gins per saw was four dollars. This testimony would have authorized a recovery for that amount, had the defendant acquiesced. But as the value of the gin was the matter in dispute, it was competent for him to shew by proof that the gin was of less value than that fixed as the usual price of first rate cotton gins. The testimony was therefore properly received. The second point taken by the plaintiff is involved in the first, inasmuch as it was necessary to the usefulness of the gin to have it repaired, it was lessened in value, as proved by the plaintiff, to the extent of the repairs made, The third question presents the inquiry, if, under the general issue, any thing else besides money, can be a payment? I hold it to be an incontrovertable principle, that whatever a party agrees to receive in payment of a debt, will be considered as such, and can be given in evidence under the general issue. The plaintiff, then, by his agreement, promised to take the defendant's old gin in part payment for his new one; so far as the value of the old gin could be ascertained, it was a good payment for so much. The Court are unanimous in the opinion that the Court did not err in admitting the defendant's testimony. Judgment affirmed. V. Pope. JANUARY 1830. WEAKLEY V. BRAHAN and Arwood. 1. A party cannot maintain an action for money paid and expended for another's use, by proof that he satisfied a judgment against him without his request or consent. 2. Semble, That after the dissolution of a co-partnership, one partner cannot, by his sole request to a third person to pay a firm debt, give such person a right to maintain an action for money had and received against the firm. 3. It seems, however, that where a judgment is paid without the request of the defendant, and the plaintiff takes a transfer of the judgment; that he may prosecute an action on the judgment for his use, and that the payment and transfer will not be considered such a satisfaction as to prevent a recovery. ROBERT WEAKLEY brought an action of assumpsit against Brahan and Atwood as co-partners, in Madison Circuit Court, to recover the amount of two judgments against them in the State of Tennessee, which he alleged he paid at their request, amounting to $2,144 80. The declaration was on an indebitatus assumpsit for money paid, laid out and expended, money lent and advanced, &c. The defendant, Atwood, pleaded the general issue. Brahan did not appear. The plaintiff moved for judgment by default against Brahan, which was overruled. On the trial, which was at the May term, 1828; the plaintiff proved that two judgments had been rendered in the Circuit Court of Davidson county, Tennessee, against Brahan and Atwood, amounting as above; that proceedings were in progress against the bail of the defendants, and that he, Weakley, applied to the attorney for E. Rawlins, to whom the judgments were due, and expressed his willingness to satisfy them for Brahan and Atwood, having been, as he stated at the time, solicited by them or one of them, probably Brahan, to do so. The attorney of Rawlins agreed to receive, and did receive in October, 1824, the full payment of the judgments, in notes of hand on other persons, payable to Weakley, which he indorsed over, and which were all duly paid. On each of the records there appeared a receipt and transfer by the plaintiff's attorney, as follows: "Robert Weakley having paid the amount of this judgment, it is hereby transferred to him without any recourse, H. Crabb." It was proved that Brahan was the son-in-law of the plaintiff, Weakley. No proof appears on the record to shew that there was any request by the defendants, or either of them, to pay the |