text:
    FORTNER versus FLANNAGAN and DRIVER. SAME versus SAME.
    QUESTIONS IN THIS CASE.

      Justification by an officer, in trespass against him fór taking goods.

      As to irrelevant charges reguested of a Court.

      1. In trespass against a party and an officer, for illegally taking the goods of the plaintiff; the officer, (no objection appearing to be made against the legality of the execution,) may justify alone on the process under which he has acted.
    2. Where, in such cese, under the plea of justification, filed by both the party and the officer, instructions were asked, generally, of the court, which, if given, would have operated in- ' juriously to the officer~it was held, that the instructions should have been sought in reference to the particular party, to whom applicable; and, not being so requested, were irrelevant; and the Gourt was not bound to respond to them.
    This was an action of trespass, in Madison Circuit Court, prosecuted by the plaintiff in error, against the defendants, for illegally taking into their possession a horse of the plaintiff-
    The defendants plead, jointly, not guilty, and justification. The justification relied on was, that the taking had been had under an execution, issued from the office of one of the justices’ Courts of that county, and directed to Flannagan, (one of the defendants,) as a constable; and, in which Driver was the plaintiff, and Fortner the defendant.
    < After the rendition of the judgments, before the justice .of the peace, against Fortner, upon one of which the execution issued, an appeal was granted him, and he signed blank bonds, with one Anyon as his surety, which were left with the justice to be filled. The justice, being persuaded that Anyon was not solvent, refused to.send up the appeal; and, in consequence, the execution was levied.

    The position was sought to be established, by Fort-ner, in this action, that the consent of the justice, to grant the appeal, upon the security of Anyon’s bond; was conclusive, and the taking of the property, af-terwards, by the constable, a trespass, both in the officer and the party; and the Court was asked to charge, accordingly: but the Court held, and so charged, that the execution was a sufficient justification to the officer: and verdict and judgment were entered for the defendants; and a writ of error taken here.
    ' The cause being decided on one point alone, renders it unnecessary to .present a more full history, in this statement.
    Argued by Craighead, for the plaintiff in error,, and by Thornton and McChng, for the defendants.
   Saffold, C. J.

The action was trespass, vi et ar-mis, brought by Fortner, against the present defendants, for .taking and carrying away the plaintiff’s horse. The defendants pleaded, in short, not guilty, and justification — to which the plaintiff, in like manner, joined issue. A trial was had, in which a verdict and judgment were rendered for the defendants.

The matters insisted upon, as erroneous, by Fort-ner, arise out of a bill of exceptions, taken on the. trial — the material parts of which are the following: Flannagan, as constable, sold the horse at public sale. under an execution, in favor of Driver, against the plaintiff, Fortner — Driver being present at the sale, and refusing to take, in satisfaction, bank notes, but requiring specie. The horse, worth sixty-five dob lars, was sold for about thirty.

The defendants gave in evidence, as their justification, a judgment rendered by Bracken, a justice of the peace, in ■ favor of Driver, against Fortner, for forty-niri,e dollars, debt, &c.; and an alias execution, issued thereon; which latter had been received by Flannagan, for collection, and by him levied on the horse.

The plaintiff then proved, by the magistrate, that on the next day after the judgment was rendered, he produced, before the 'magistrate, one Anyon, as his surety, and claimed an appeal from the said judgment and others, rendered between the same parties, at the same time; that the justice accepted Anyon, as security, in all the cases; was proceeding to draw appeal bonds, in the other cases, when it was agreed between the justice and Fortner, that the latter, and Anyon, as his security, should place their signitures and scrolls to blanks, to be filled up, afterwards, by the justice: that this course was taken in respect to this judgment and others — the blanks, with their signatures and scrolls, being left with the justice.

The magistrate further deposed, that on receiving the blanks, he granted appeals, in this and all the other cases; but that, on the same day, he had previously issued executions, in consequence of Driver’s affidavit, then made before him — that after allowing the appeal, and before Fortner and his security retired he had granted to Fortner, a written order, under his hand and seal official, directed to Flannagan, informing him, the appeals had been taken, and commanding him to deliver up the property levied on. Objection being made, by the defendants, to the admissibility of this order, as evidence, when offered by the plaintiff, the Court excluded it from; the jury.

The magistrate also stated, that after granting the appeals, the blank bonds were filled up by him, pursuant to the verbal understanding — [at what precise time, was not stated] — that, after Fortner and his surety had left, on the information of respectable persons, he, (the magistrate,) became dissatisfied with the sufficiency of Anyon, as surety; in consequence of which, on the same day, he issued a written notice to the officer, requiring him to summon Fortner to appear before him forthwith, to give' other security — -which notice appears to have been produced as evidence, with the officer’s return theréon : but, which .the clerk states, is not on file in his o'ffice. The plaintiff objected to this summons, as evidence; and, on its admission, excepted.

It also appears, that on the day of granting the appeal, the magistrate informed Driver and Flanna-gan thereof: that, on the third day thereafter, he informed said Driver, the plaintiff, that the surety was insufficient, and he should not send up the appeal: that, on the last day of the five allowed for appealing, Fortner tendered another person, as surety, whom he also refused, considering him insufficient; and that,' for want of other and sufficient security for the. appeal, the magistrate issued the alias fi. fa. on which the levy and sale were made.

This being all the evidence material to be noticed, the Court, thereupon, charged the jury, that, as it did not appear, that the blank bonds were filled up before the magistrate discovered the insufficiency of the surety, it was unnecessary to decide, whether or not the one in question was sufficient, as an appeal bond : that the magistrate was the judge of the sufficiency of the surety; and, if he discovered the insufficiency, before' he filled up the bond, it was law-forhim to require other and sufficient security; and, if not given, to renew or re-issué execution: that, even if the appeal had been regularly granted, the execution was a justification to the constable,' it not being competent for him to decide upon the validity of the appeal: that if the appeal had been regular, and Fortner aggrieved by the course taken by the magistrate, it was incumbent on him to assert his appeal by mandamus, or other proper process, and his remedy for damagos was against the magistrate— to all which the plaintiff ^excepted.

The plaintiff then moved the Court to instruct the jury, that, if they believed the facts to be as above stated, the plaintiff was entitled to recover, on the ground, that, after the magistrate had granted the appeal, he had no further power over the case; that the execution was void, and those acting under it, trespassers. But this instruction, the Court refused to give, otherwise, than as qualified by the instructions as above stated — to which, also, the plaintiff excepted.

The Circuit Court is charged to have erred-—

1st. In excluding from the jury, the order of the magistrate, to the constable, for the restoration of the property.
2dly. In permitting to be read, as evidence, the summons to Fortner, to give other security.
3dly. In giving the instrustions to the jury, as stated, and refusing to instruct otherwise, as re~ quested.

I decline a separate consideration of either of the two first assignments, as above stated, or any other points presented by the record, except the third assignment. The necessary consideration of this, and. the remarks which I .shall incidentally use, in relation to it, will supersede the necessity of any further examination of either of the others.

It is to be observed, that no objection is made to the form or substance of the execution, on which the levy and sale of the property were made: it appeared fair and legal on its face. It was from an officer, .competent to issue such an one, and for a sum within his jurisdiction.

Neither, in reference to any evidence offered by the plaintiff, or any objected to by him, when offered by the defendants, was any motion or proposition made by the plaintiff, to separate, or in any way distinguish the liability of the two defendants in the action. The benefitof the same evidence and the same instructions, was claimed, as against them both — notwithstanding Driver appeared, from the evidence, to be plaintiff in the judgment and execution, and Flannagan, the ministerial officer, charged with the execution of the process..

I take the principle to be well established, that in trespass, against two or more defendants, one may be convicted and damages assessed against him, and another may be acquitted: that, consequently, evidence may be introduced against one, which, is altogether inadmissible against the other: that a charge to the jury may be proper and necessary, in relation to one, which would be inapplicable and erroneous, in reference to, another: and that, in such cases, the party offering the evidence or ashing such instructions, must .shape his proposition with the necessary discrimination between the defendants. If the judge cannot respond affirmatively to the motion as made, he is not bound to answer it in a modified form, but, is at liberty to refuse it, until modified by the party.

Then, should it appear, on further examination, that the'execution in this case was, alone, a sufficient justification to Flannagan, the constable, whether it was issued on any subsisting judgment or not, (as was the opinion of the Circuit judge,) it necessarily -results, that, all the proof relied upon, and the instructions requested by the plaintiff below, were irrelevant in respect to the former. That, the instructions, as requested, if given generally, against both defendants,, would have tended to the injury of Flaniiagan, and have been erroneous.

In the examination of this case, the fact, that the pleas and issue are in short, creates some embarrassment, in as much as one of the defendants was .the plaintiff in the execution, and the other only the con-, stable, who served it. The rule in such cases, is to treat such pleas as if formal and perfect, for the object imported by their title. Then, the plea of justification in this ease, must be considered as if drawn out with the” proper averments, and those only which are necessary to the defence of each defendant. If the law be, that the «ame facts were nót necessary for the justification of both, the defendants must be considered as having pleaded, severally, such only as were necessary to the justification of each.

We must, iq this view pf the case, consider the justification of Driver, he being the plaintiff in the execution, as averring the facts, that he had, at the time of the seizure of the property, a subsisting judgment against the present plaintiff; and that the execution legally issued thereon — the defence of Flannagan, the constable, as resting alone on the ground that he held an execution, purporting to be legal, and from a competent 'officer.

The authorities recognise this difference i.n the. justification of the party and the officer. It is held, “ that if an officer plead separately, under a writ of fi. fa. or other process, he need not state the judgment, on which the writ was founded; but, if he join in the plea with the plaintiff in the former action, and the judgment be not stated, the plea will be bad as to both the defendants, unless the plaintiff in the former suit, justify merely in aid of the officer. But this rule does not apply, where the objection to the plea is merely an account of surplussage.

case of Barker vs. Brahan et al. the Court of C. B. said, they were all of opinion, that trespass, vi et armis, would lie against an attorney and his client, who had caused an arrest by color of a capias ad satisfaciendum, against an administratrix, when it had not been suggested, or been made to appear, that she had been guilty of any devastavit, which alone could have rendered such process legal. They considered persons standing in such relation to the proceedings, responsible for the existence of a judgment, on which execution could legally issue. But they remarked, at the same time, that a “ sheriff, or his officers, or any, acting under his or their authority, might justify themselves, by pleading the writ only, because that was sufficient for their ^excuse, although, there was no judgment or record, to warrant' such writ.” The same principle was recognised in Baker & Knapp vs. Miller.

Thus, it appears, that the order of restitution of fered in evidence and rejected, was inadmissible, at least against the officer: that the instructions, as requested, would have been erroneous, in reference to him: and, that the charge, as given, when applied to both defendants, extended their liability as far. as the law permits. Whether Driver alone, was subject to a conviction 'under any or all the evidence offered or received, was not made a. question. The Court expressed no opinion on .this point, nor was any requested. The Court is only bound to decide questions, in the manner and’ form in which presented.

Another view might be taken of the case, which would perhaps lead to the same result — it is, that the execution in this case, has never been superseded or set aside, or the judgment in any way vacated, by the order or judgment of any tribunal.

- The appeal appears ultimately to have been disallowed by the magistrate. Whether,.by reason of the acts and declarations of the magistrate, it could have been sustained, as an appeal, or, whether he was au-thorised, within the five days, in the exercise of his discretion, and on his own responsibility, to reverse his earlier determination, for the cause assigned, and deny the appeal, unless other security, which he deemed sufficient, were given, are questions worthy of consideration. But, that the Court was authoris-ed to determine them incidentally, in the action of trespass, for the supposed tort, without any prior adjudication, vacating the judgment or superseding the execution, I am, by no means, prepared to say. In as much, however, as an -examination of this principle is unnecessary to the present decision, I decline it.

The other objections mentioned, are considered quite decisive of the case, and fatal to the action.— We are of opinion the judgment must be affirmed.

In the other case, between the same parties, for a similar cause of action, under like circumstances, the views which have been advanced in the foregoing, are equally decisive, and fatal to the plaintiff’s right ;of recovery. Without reiterating either the facts or reasons, it is sufficient, to say the judgment must be affirmed.

Hopkins, J., not sitting, in this case.

      1 chit. Pl. 597-2 East 263, 270—3 ib. 132 142-2nd Bing. 523-3 Term R. 377

      3 Wilson 376

       6 Johns. Rep.195


source: Caselaw Access Project

author: Hopkins, J.

license: Public Domain

text:
    GILBERT et al. versus LANE.
    QUESTION IN THIS CASE.

      Discontinuance as to parties, not served with process.

    1. Where the leading process in á cause against several defen- . dants, did not appear to have been executed upon all; and all appeared, from the record, lo have appeared by counsel; it was held, that judgment against all, was not error.
    This was a suit, by summons and petition in Morgan County Court; and was brought by Lane, in that Court, to réeover of the plaintiffs in error, the amount due on a bond.
    The process seemed, by the returns, to have been' executed, on part only of the defendants; but the minutes showed the general entry, that all had appeared by counsel: and, that a judgment, under that appearance, had'-been entered for the plaintiff.
    A writ of error was taken on this judgment; and it was insisted, that it was erroneous, because no discontinuance had been had against such of the defendants as had not been served.
    Argued by Peck, for the plaintiffs in error, and by Parsons, for the defendant.
   Hopkins, J.

This is a petition and summons, at the suit of Lane, upon a bond' for the payment of money, against all the plaintiffs in error.-

The summons was executed upon one of them, by the sheriff, served on another, by C. Whitney, who makes his return of the fact, not in the name of the sheriff, but in his own name, as deputy sheriff; and, without stating .who the sheriff was. His return shows, also, that the other obligor was not found.— Without a discontinuance against-either of the defendants in the petition, a judgment was rendered, at the first trial term, against them all.

At the last term of this Court, a suggestion 'Was made, for the defendant in error, .that the' record was incomplete: and the Court awarded a writ of certio-rari to the clerk of the County Court of Morgan County, in which the record is. In his return to the writ he states, that on the margin of the entry of the judgment in this cause, upon the minutes of the County Court, were the following names and letters: “Isaac Lane vs. William J. Gilbert, Matthias Maxey, Willis Griffin.” The entry of the judgment states, as it appears both in the first transcript and the last, that the plaintiff came-by his attorney, R. Chapman, and the defendants, by their attorney, D. Fisher;,and that the defendants said nothing in bar of the action. In the return of the clerk, to the writ which issued from this Court, he states that the names, which have been mentioned, are upon the margin of the entry of the judgment on the minutes of the Court. These minutes are signed by the judge of the Court, and when signed constitute records of the Court.— The first transcript of the record omitted the names, which the return of the clerk shows were upon the margin of the entry of the judgment.

If there had been no appearance in the cause for the defendant, upon whom there was no service ofprocess, or for the one. upon whom it was serv- . ed by C. _ Whitney, the judgment would be erroneous on either ground. But, the names of all the defendants being on the margin of the entry, and the statement, in the entry, that the defendants appeared by their attorney, show clearly, that the three defendants all appeared in the suit. They did, voluntarily, what it was the object of the process to compel them to do.

If the attorney was not authorised to appear for some of them, the remedy of those from whom he had ‘ no authority, is against him: but we cannot question the record, which shows he appeared as attorney for all of them.

The judgment is affirmed.


author: Hitchcock, J.

text:
    PATTISON versus MOORE.
    QUESTION IN THIS CASE.

      As to the acts of an agent — how far binding on the principal.

    1. Where one, having sold cotton, agreed that part thereof, when it arrived at the port to which shipped, should be reweighed by his agents, and, if found deficient in quantity or quality, should be changed for other cotton of the vendor, in the agents’ possession, so as to supply the deficiency; and it was impossible to supply the deficiency by cotton of the quality sold; and it was necessary to make it up by inferior cotton — it was held, in an action brought to recover the difference of price between the cotton agreed to be sold and that actually delivered—
    1st. That the agents of the vendor, acting in good faith, had a right to supply the deficiency in quantity, by the selection of the quality in their possession.
    2dly. That the vendor was bound by the act of the agent, and liable for the difference between the value of the cotton sold, and that delivered
    3dly. That the agents of the vendor had a right to call a broker to their assistance, in ascertaining the value oí the cotton supplied.
    This action was assumpsit, in Madison Circuit Court, and was there commenced and prosecuted, by Pattison, against Moore.
    The plaintiff declared on a contract, under which the defendant had sold to Pattison, one hundred and fifty thousand, nine hundred and thirty-nine pounds of baled cotton, amounting, at ten cents per pound, to fifteen thousand and ninety-three dollars and ninety cents. A part of this, to wit, ninety-three bales, not situated so as to he examined by Pattison, as to quality and quantity, Moore sold, delivered and warranted the same to Pattison, as prime cotton, and weighing thirty-four thousand seven hundred and ninety-pounds. He agreed, that if 'there was a deficit in either respect, Messrs Lockhart & Anett, of New Orleans, should supply such deficit, by changing and taking from sill Moore’s cotton, in New Orleans, enough for that purpose; and that they should cause the same to be re-baled, to shipping order, at Moore’s expense’.
    On the 27th August, 1829, said ninety-three bales were found, by Lockhart & Anett, to be greatly deficient, in both quality and quantity. They made such selections from all Moore’s cotton, as they could, but were unable to supply said deficiencies; but found a loss, according to the then selling prices, at New Orleans, of four hundred and sixty-one dollars and sixty-seven cents. Pattison was also compelled to pay Lockhart & Anett, for changing, rebaling, &e., two hundred and thirty-eight dollars and thirty-three cents — both sums amounting to seven hundred dollars. ,
    Second count, for money had and received to the plaintiff’s use.
    First, a bill of lading was read to the jury, without objection, for thirty-four bales, on the face of which, Moore warranted them to be prime cotton: if not, Lockhart & Anett to select and exchange, from all Moore’s cotton; and to re-weigh, so as to supply all deficiencies, to complete ropes, &c. — repaired all at Moore’s charge.
    Next, another bill of lading was read, without objection, for forty-three bales, thirty-four of which were sold under a like warranty, as above: forty, of the forty-three, to be re-weighed — the remaining three not to be re-weighed.
    Next was a statement drawn up and signed by both the parties, of the 24th April, 1829, setting out the number of bales, their weight, &c., as being a full account of all the cotton sold by Moore to Pat- ' tison. It then recited, that ninety-three bales of the .amount were to be re-weighed and changed for other, if not prime cotton, as warranted.
    All the above testimony was excluded by the Court, on the ground that it was variant from the first count in the declaration, and inadmissible under the second count.
    By the depositions of Lockhart, Anett and Hosey, it was proved, that Lockhart went in person, and procured the aid of Hosey, an experienced broker, of the city, to aid him, in making the examination, exchange, &c., and that Anett sanctioned and approved what was done.- They all showed that the cotton warranted, was deficient in quality and quantity; and that Moore had no prime cotton there, to supply the deficits: that, after exchanging, &c. the cotton was less valuable than prime, according to the then prices at New Orleans, by four hundred and sixty-one dollars and sixty-seven cents.
    The Court excluded all those depositions, on the ground, that when a firm is authorised to do an act, all the members of the firm must join in person, to do the act; and that the acts of one or more, in such case, are unauthorised, &c. ■
    Argued by Craighead, for’the plaintiff in error, and by Robinson and Parsons, for the defendants.
   Hitchcock, J.

The declaration charges, in' this case, that Moore sold"to Pattison, one hundred and fifty thousand nine hundred and thirty-nine pounds of prime cotton, at ten cents per pound, to be delivered at N. Orleans, to Lockhart & Anett, commission merchants, in that city, who were the agents of both parties. That ninety-three bales of said cotton, amounting to thirty-four thousand seven hundred and' ninety-five pounds were to be re-weighed, in New Orleans, and examined by Lockhart & Anett, and if found to be deficient in quantity or quality, were to be changed, and other prime cotton taken from other lots of Moore’s cotton, then in Lockhart & Anett’s hands, to make up, in quantity and quality, the amount of the ninety-three bales. That the ninety-three, bales were greatly deficient, in quantity and quality.— That Lockhart & Anett did change and take from Moore’s other cotton, all the prime cotton there was in their possession. That they were unable to make up the ninety-three bales, in quality and quantity ; but that there was a deficit of four hundred and sixty-one dollars and sixty-seven cents, in value: and, that the cost of changing, &c., .was two,hundred and thirty-eight dollars and thirty-three cents, making seven hundred dollars. Moore having been paid for the cotton, at ten cents, and the costs of changing, &c., having.been agreed to be paid by him, this suit was brought to recover that sum.

In support of this claim, proof was offered, as follows : An áccount current, signed by the parties, of the amount of cotton, to wit, six lots, on separate flat boats, bought by Pattison of Moore, at the foot of which is a memorandum, signed by the parties, to the following effect, to wit: “ The three last lots are to be re-weighed, viz, ninety-three bales — the difference allowed, if any; and, also, said ninety-three bales may be changed for others, if not prime, as warranted., '

Two bills of lading were produced — one for thirty-four, and the other for thirty bales, on the back of which, signed by Moore, were instructions to Lock-hart & Anétt, stating that “ the within cotton was bought by Pattison of Moore, and warranted' prime cotton — if not so, Messrs Lockhart & Anett will' please select that number, from all Mr. Moore’s cotton, and charge them to Alexander Pattison: they( are, also, to be re-weighed, at Moore’s charge.” •

By the testimony of Lockhart & Anett, and one Hosey, a cotton. broker, it appeared that those two lots, (nothing being said about the other twenty-nine, to make up the ninety-three,) amounting to sixty-four, were examined, and found deficient in quality, by one and a half cents per pound, below prime cotton. That Lockhart & Anett examined all the cotton in their hands, belonging to Moore, out of which sixty-four bales of the best quality there was, were selected, which proved of inferior quality to prime, by one and a half cents per pound — only sixteen bales of the sixty-four being retained, the residue be i'ng made' up of other cotton belonging to Moore.

The account current, and the indorsement on the bills of lading, were all dated the 24th April, 1829, and they were all offered together; and the plaintiff moved thq Court, to instruct the jury, that from them they might infer, that Lockhart & Anett were au-thorised to change the whole ninety-three bales.— This instruction the Court refused; but, on' the motion of the defendant’s counsel, instructed the jury, that it was the duty of the Court to determine the intention of the parties; and that, from the evidence offered, it was not the intention of Moore, to allow Dockhart &o Anett to change more than the sixty-four bales; and that they must, therefore disregard, and reject as evidence, the bills of lading, the indorse-ments, and the account. The jury found for the defendant. ' .

• It is insisted, for the defendant in error, that the evidence was properly rejected, on the ground of variance between the declaration and the proof. That, by the declaration, prime cotton could only be substituted for that sent down : and that, in as much as the proof shews, that other cotton, not prime, was substituted; and the proof of the contract not stating expressly, that none but prime cotton could be substituted, the allegation and thé proof doj not correspond. That if the proof does warrant the ground, that only prime cotton could be substituted', then the agents have not complied with'the contract — as they should either have substituted prime cotton, or, if that was not to be had, should have declared the amount of the deficit in quality, on the sixty-four bales that were sent; and not have substituted others, and then declared the amount of the deficit, on them.

So far as the proof of the contract, that prime cotton was to be substituted if it should be found that the cotton delivered was of inferior quality, I think there is no variance. Prime cotton was sold, and the account and the indorsements both state, that if not found to be prime, it was to be changed — and the necessary inference is, that it was to be changed for prime cotton.

Have Lockhart & Anett, then', so far departed from their authority as to discharge the defendant?— They were the mutual agents of the parties, to carry the contract, which was executory, into effect- — ■ Moore’s complaint is, that they substituted inferior cotton for that which was sent, which they had no right to do.

If Moore had fiirnished them with other cotton of prime quality, and they had failed to substitute it, ’ he might have had cause of complaint; but, is he not estopped from urging this complaint, until he ’shall have shown that he had enabled his agents to comply with the contract ?

It is to be remarked, that in this part of the transaction, Lockhart & Anett acted as the agents exclusively of Moore; and that, had Pattison been in ■ New Orleans, in person, Moore would have been bound by this act, as much as if he had done it himself; unless he could establish fraud, on the part of Lockhart & Anett.

The cotton they did deliver, was of equal value with that sent down; and, as prime cotton was not furnished by Moore, is he not liable for the difference, as assessed by his agents?

If Moore can object to this execution of the contract, so can Pattison — for he was no more bound to receive substituted cotton, of inferior quality, than Moore was to deliver it: yet, I apprehend, that if Pattison had sued for the value óf the sixty-four bales, on this ground, Moore could have safely insisted upon holding him to this act of Lockhart & Anett.

This case stands in a peculiar situation. Lock-hart & Anett being the agents óf botli parties, Patti-son and Moore must be considered as poteatiallj present; and neither can complain'of what was done, unless' actual injustice can be shewn to have taken place. '

The testimony of Lockhart & Anett, and of Ho-sey, the broker, shows that Anett did not personally attend to the examination of the cotton; but that it was done by Lockhart and Hosey, with the assent of Anett. ' This was objected to, and the Court was ¡requested to instruct the jury, that if they found, that by the agreement, it had been permitted to Lock-hart & Annett, as a firm to make the examination and selection; yet,’the act of one of the firm, recognised by both its members, as the act of the firm, if the act itself was in pursuance of the agreement, would be sufficient : which instruction the Court refused to give.

On this point of the case, we think that it was the duty of Lockhart & Anett to transact the business of the agency, as such business was usually transacted by commission merchants; that, as such, they had a right to call to their aid the judgment of their cotton broker, and to take his opinion. They were not arbitrators to settle a dispute, but agents to execute a contract, their acts are open to examination by either party; and if injustice can be shewn, the party injured would be relieved : but this not being pretended, we think the instruction should have been given.

As to the instructions which the Court gave, relative to the twenty-nine bales, the balance of the ninety-three, upon which the whole testimony was rejected, my own opinion is, that it was erroneous. I think it should have been left to the jury, to de'termine, from the evidencie, what was Moore’s intention, in relation to this part of the case. In this particular the Chief Justice does not concur; but, as we do not deem it material, in the view in which we consider the case, we do not reverse the case on that point.

The declaration charges, that the whole ninety-three bales were to be of prime cotton; and that, if found to be inferior to prime, it was to be changed. This the proof fully establishes; and the breach assigned, is broad enough to cover the proof: and, in actions of assumpsit upon parol contracts, when no written instrument is attempted to be set out, it is sufficient, if the proof substantially supports the allegations.

Though the allegation is, that the ninety-three bales were to be examined, and, if necessary, changed by Lockhart & Anett, and the proof is, that sixty-four were to be, this does not negative the fact stated. —Other proof, if necessary, may exist, to cover the whole ninety three bales: and, as a deficit is only cláimed upon the sixty-four, we see nothing to object to, on that account.

We are, therefore, of the opinion that the testimony was improperly-rejected, and that the judgment must be reversed and the cause remanded.

Hopkins, J., not sitting.


text:
    CARROLL versus PATHKILLER.
    QUESTIONS IN THIS CASE.

      Whether a cleric, after certifying a record, can prove it incomplete.

      The competency of an administrator to carry into effect a will, found after letters granted.

      As to the construction of the act of 1823, on the sub jectof the testimony of Indians, &c.

      Proof of the interest of a witness in the event of a ■ suit.

      Proof of ‘a will by an Indian, as between Indians.

      As to forcible acts in detinue; can they effect title? 'Damages in the action of detinue.

    1. A transcript of a record of tlie Orphans’ Court, properly authenticated, cannot be rejected as evidence, on the testimony of the clerk of that court, that such transcript is incomplete.
    2. Where an order of the Orphans’ Court directed an administrator to carry -a will into effect, (found after the grant of letters,) — it was held, that a transcript of such order was admissible in evidence; it not appearing that any executor was appointed by the will; and the order remaining unreversed.
    8. That class of persons embraced by the act of 1823, are, in civil suits, capable of being witnesses, only for and against persons of the same class: and are incompetent witnesses, in any case whatever, where a white person is a party.
    4. A will properly admitted to probáte, cannot be rejected as evidence in a suit between an Indian and white man; merely be- ■ cause the will had been proved, by the testimony of an Indian , witness — it appearing, that at the time the will was proved, all who were entitled to objections against the will, were Indians.

      6,A part/ objecting to the introduction .of a witness, has a right to show that'he has an interest in the event of the suit; and the rejection of testimony to that end, is error.
    6. And this, notwithstanding that the witness, (after such rejection,) on his voire dire, disclaims interest.
    7. That a party forcibly took property out of the possession of the plaintiff, cannot affect his right to recover the property, in an action of detinue.
    8. in detinue, damages to the extent of the value of the hire of a slave, are recoverable from the time of the demand.
    This action was detinue, in St. Clair Circuit Court, and was brought by the defendant in error, a Cherokee Indian,-for the recovery of a slave. The defendant in the action went to trial, on the general issue, and an understanding, that any matter should be given in evidence, amounting to-a special plea in bar; and a verdict and judgment were rendered-for the plaintiff.
    A bill of exceptions was taken, in the progress of the trial, which disclosed the following facts,to wit:. That-the plaintiff, on her part, produced; in evidence, a transcript, duly certified, as full and complete, of a record from the Orphans’ Court of St. Clair County, showing sundry orders of that Court, in relation to the..estate of Peggy Pathkiller, as administered by one Patrick; by which it was disclosed, that said administrator had filed his vouchers, and obtained his release from' said administration : and further, that an order had been passed, directing the said administrator to carry into effect, a will of the said Peggy, which had been produced since the grant of letters to Patrick.
    To the reading of this transcript as testimony, the defendant objected; and he offered to prove, by the clerk of the Orphans’ Court, that there were other orders, in relation to that administration, of file, in the office of said Court: which objection, the Court overruled; and the testimony was permitted tobe read, and that of the celrk excluded.
    The plaintiff then offered in evidence, a writing, purporting to be the last will and testament of Peggy Path killer, to which John Ridge was the subscribing witness; and which contained .a certificate of the clerk of the Orphans’ Court, that the will had been regularly admitted to probate. Bj\ this will, it was shown that the slave, the subject of controversy, had been bequeathed to the plaintiff in the action.
    The defendant objected to the evidence of the will,- and,- to sustain his objection, proposed showing that Ridge, on whose testimony the will had-been admitted to probate, was a Cherokee Indian of the whole blood : but the Court rejected this evidence also.
    - It was proved that the slave, .to recover whom this action was brought, had been forcibly taken out of the plaintiff’s possession, by the defendant; and in reference to that fact, the Court charged, that if the plaintiff had possession, and the title was in another, yet if the defendant took with force out of plaintiff’s possession, she was entitled to a recovery.
    The defendant proposed proving, by the evidence of sundry Cherokee' Indians, that'the slave belonged 'to the estate of one Canoe D rugger, a native Cherokee Indian, on whose estate the defendant had administer-' ed, and who was the son' of Pathkiller, the king, the husband of Peggy ; and the Court rejected such proof.
    The plaintiff then offered one Childress as a witness, to establish the value of the slave; but who was objected to on the ground of interest: and the ^ defendant desired to submit proof to that effect: but the Court rejected this latter proof; and the' witness after being sworn on his voire dire, gave testimony.
    The Court charged the jury., that hire from the time of the demand, was the proper criterion of da» mages.
    Exceptions and writ of error to this Court.

      Mr. Parsons for 'the plaintiff in error,, and Mr» Me Clung for the defendant.

       Aikin’s Digest 453, $9.

   Hopkins, J.

This was an action of detinue for a slave, in which the defendant in error, who is a Cherokee Indian, was the plaintiff. The plea of the defendant, who is a white man, was the' general issue, with leave, given by an agreement between the parties, to offer any matter as evidence, which would constitute a good special plea in bar. The verdict was in favor of the plaintiff in the action, and a pro-* per judgment was rendered upon it.

The plaintiff claimed the slave, as a bequest, made to her, in the will of her mother, who was also a Cherokee Indian. A part of the proof offered by her, and which the Court 'admitted, is a- transcript of a record of the Orphans’ Court of St. Clair County, which shows that Court made a final settlement of the accounts of one George W. Patrick, the administrator of thejmother of the plaintiff, after due notice of the time when the settlement would be made, had been given to the heirs of the mother.

The transcript also contains an order,yvhich states that the will of the mother had been produced, after' the grant of letters of administration, upon' her estate; and directs the administrator to carry the will into effect.

The certificate of the clerk of the Court states, .that the transcript is a full, true and complete copy of all orders and decrees made by the Court, touching- the settlement and distribution of the estate of the mother.

^ It was proved, that in the same month, in which the last order of the Court was made, the administrator delivered the slave to the plaintiff. Against the objection,of the defendant in the action the transcript was admitted by the Court, as evidence. The defendant offered to prove by the Clerk of the Orphans Court, that there were other orders relating to the administration, of record in that Court, and asked leave for the clerk to amend the transcript, so as To state in it what the other orders were. To the admission ofjthe transcript as evidence — the rejection, of the testimony of the clerk, and the denial of the leave to amend the transcript, the defendant excepted.

That the evidence of the clerk was incompetent, is a proposition'too clear to need illustration; and we think it plain, that the right of the plaintiff to the proof which the transcript afforded, could not be affected by the offer «of the defendant to show that it was incomplete, and to have its deficiencies supplied by the clerk. The proof which was offered of its imperfection, was incompetent; and without evidence that it was defective, no amendment was necessary. If the transcript were incomplete, a full one might have been .obtained by the defendant, authenticated as this is.

The transcript was admissible evidence, because ■it d.oSs not appear that an executor was appointed by the will, and the order of the Orphans’ Court, which is unreversed, directed the administrator to carry the will into effect; and is entitled to the effect of making him administrator, with the will annexed. The administrator acted in obedience to the order; and the effect of it would not. be different, if an executor had been appointed by the will, who did not obtain letters testamentary.

It is shown, by the exceptions which the defendant took to the opinions of the Court, that'the will of the mother of the plaintiff, in which the bequest of the slave was made to her, was admitted as evidence, upon the certificate of the clerk of the County Court of the proper County, that it had been admitted to probate in that Court. That one John Ridge was the only subscribing witness to the will; and that the Court rejected the evidence which the defendant offered, to show that Ridge was a Cherokee Indian.

The defendant, to show his claim to the slave, proved, that before he took the slave from the possession of the plaintiff he had obtained a grant of letters of administration upon the estate of one Canoe Dragger, a Cherokee Indian, and a son of the husband of the testatrix, who survived her husband; and offered, also, to prove, by witnesses, who were Cherokee Indians, that the slave belonged to his intestate, at the time of his death, and had been in his possession long before; but the Court rejected their, testimony.

■ The rejection of the last mentioned evidence makes it necessary to construe a statute of the State, which enacts, “ that all negroes, mulattoes, Indians, and all persons of mixed blood, descended from negro or Indian ancestors, to the third generation inclusive, though one ancestor of each generation, may have been a white person, whether bond or free, shall be taken and deemed to be incapable in law, to be witnesses in any case, whatsoever, except for and against each other.” The construction must either allow the persons described in the statute, to be witnesses in any, case, in which either party is one of such persons, or it must restrict their competency to cases, in which both.the parties are persons of the description com .tained in the act. The testimony of such persons, against a party vyho was white, would be a palpable violation of the act: and the injustice of permitting one who was white, to maintain his action or defence,- upon the evidence of such persons, against the other party, who was either an Indian, mulatto, negro, or of mixed blood, and had no right to snch testimony, could not be endured, and was not intended, we think, by the framers of the statute.

We are of opinion, they are capable only of being witnesses for persons of the classes mentioned ‘ in the statute, and against persons of the same classes; *and are incompetent witnesses in any case, in which a white person is a party. Such, we think, is the meaning of the act. /

When such persons are prosecuted for offences against the State, any one of either of the classes, would be a competent witness, under the statute.

In suits between individuals, the acts of both parties form the subject of investigation — and, to admit the testimony of such persons, either for or against the party, who was a white person, would violate the statute, which makes them capable of being witnesses, only when they are offered as such, for or against persons of the classes to which they belong. But in prosecutions bj the State, no inquiry into any act of the Stele is involved. The charge only against the person accused is to be examined.

Upon a charge of the State, against any such person of art offence, he has a right to the testimony of a person of either of the classes; and such evidence, against him, is competent. If it be in support of the charge, it does not relate to any act of the State; and, if it tend to disprove the accusation, it has no connection with any thing the State has done. — ■ Therefore, whether for or against the person accused, it is for him and against him only.

The Court properly rejected the evidence of the Indians. The suit was against the defendant, as an individual, and no judgment could be rendered against him, as an administrator. But, if the suit had „been against him, as administrator, the rule of evidence would not be different.

If the claims of his intestate can'be established by the testimony of Indians only, it is not impracticable to have an Indian representative, for whom they would be competent witnesses against Indians. It sometimes happens, that a claim belonging to the estate of a white person, who has died, can be proved -only by the administrator; and, in such a case, if the administrator do not restore his competency, by resigning his office, there is no other alternative than to lose the claim, should an action upon it be defended.

The will which was admitted as evidence, was proved by Ridge, an Indian, and, upon his evidence, admitted to probate, at a time when all persons, who had a right to object to the probate, were Indians. — ^ That ’the will was made, was properly proved at the time -for making that inquiry. That Ridge would not have been a competent witness, had he been produced upon the trial, against the defendant, has no more effect upon the question, than the incompetency of a white person, if one had proved the will, from a conviction of an infamous offence, between the probate and the trial, would have had.— The Court, therefore, did not err, in admitting the will, as evidence, or rejecting the Indians, as witnesses.

But the defendant objected to one of the plaintiff’s witnesses, and offered to prove, that he was interested in the event of the suit. The Court refused to hear the testimony, to show his interest, and permitted the witness to give evidence.

After the refusal of the Court to hear the defendant’s proof of the interest of the witness, he was sworn upon his voire dire, and stated that he had none in the event of the suit. The defendant had a right to prove, in the mode he proposed, the interest of the witness; and the Court erred, in denying it.

It was proved by the plaintiff, that the defendant forcibly took the possession of the slave from her;, and the Court instructed the jury, that if they believed, from the evidence, that the slave was taken from the plaintiff, by force, that she had a riglt ta recover the slave or its value — although the title to the slave, might be in the-defendant.

The owner of a chattel has a right to take it from the possession of another, if he can do so peaceably. Should he act fortíibly, in the exercise of his right of re-caption, he would transgress the law; and might, in the proper mode, be made .to suffer the-consequence: but it would not affect his right to the property, or entitle him from whom the possession had been thus taken, to recover what did not belong to him. There is error in the instruction.

The other instruction of the Court, that the plain- ’ tiff was entitled to recover, as damages, the value of the hire of the slave, from the time when she had demanded the possession, is correct.

For the errors which have been mentioned, the judgment is reversed and the cause remanded;

      4John.158


text:
    KING’S Adm’r versus WALTON.
    QUESTION IN THIS CASE.

      Whether the bond given by a claimant of property levied on under execution, can embrace real estate.

    1. A bond executed [before the act of 1828,] by the claimant of property, levied on under execution, and'embracing atrial of the right of property, both to real and personal estate, is' void, as a statutory bond.
    This was a proceeding in Madison Circuit Court,instituted by Walton, for the object of enforcing a judgment, on motion, against the administrator of King, on a bond executed by the intestate, as a claimant of property, levied on under execution. The levy was upon real and personal estate; and the bond was dated September, 1825. ' '
    ■ As the decision was rendered alone upon the fact, that the proceedings embraced a trial of the right of property in real and personal estate; and that the bond was intended to secure that end : none other' of the facts are selected from the record.

      Mr. Qraigheád for the plaintiff in error — and Mr.Thornton for the defendant. '
   Hitchcock, J.

This is a judgment upon a bond, given for a claim of, property taken in execution. The proceeding below, was by motion under the statute. The bond \fras given before the passage of the act of 1828, on that subject, and the judgment is for the amount of the whole judgment in the original suit, on the return of the sheriff, that a part of the property claimed, had not been delivered, one negro having died pending the claim, and two children, born of one of the negroes, also pending the claim, not being delivered, but withheld by the obligors.

On looking into the bond, we find that the levy embraced real estate, as well as personal, all of which was claimed, and the condition of the bond was for the delivery of the property, when the right to the property claimed, should be determined.

This bond, though purporting to be a statutory bond, embraces a trial of the right to real estate, which is not authorised by law. It is contended,, that so much of the condition as relates to the real estate, is surplussage, and should be disregarded; and that, in as much as the claim for the personal property was found against the claimant; and, as he has failed to deliver all that he received, and also' the increase pending the suit, the bond has become absolute — and that judgment was properly rendered for the whole judgment.

We do not think so. This Court, in the case of Sewell vs. Franklin, and in other cases, has fully discussed, and settled the principles applicable to statutory bonds of this character; and has held, that they must strictly conform to the statute.

The sheriff had no right to take a bond for the trial of the right to real estate; and it would be great injustice to the security in this bond, to subject him' to the payment of this whole debt, when only a part of the condition upon which he stipulated to become liable, has been forfeited. — As a statutory bond, we cannot say that it shall stand good for a part, and be void for the residue. It may have been,.and undoubtedly was, that the principal reliance which the security had, in entering into this bond, was upon the land levied on.' As a statutory bond then, it cannot be sustained.

How far it can be relied on, as a common law bond, is not a question now before the Court.

The judgment must be reversed.

Hopkins, J., not sitting in this cause.

       2 Porter.


text:
    HOLLAND et al. versus THE STATE.
    QUESTIONS IN THIS CASE.

      Relative to the reference of novel and difficult qiies* tions.

      As to words in an indictment for flaying at cards.

    1. The.powev of referring novel questions of law to the Supreme Court, is discretionary with the Court below; and this Court will, in adjudicating such questions, look alone to the point referred.
    2. An indictment, under the act of 1828, for playing at cards, is sufficient, without settiug out that it was a game, with ■ cards.
    This was an indictment tried in Jackson Circuit Court, in which the defendants were convicted, un? der the act of 182S, on the subject of gaming.
    The indictment, charged, that the defeudantsy>fay-.ed at cards: and it was contended, that it was bad, in as much as it did not aver the playing at a game, with cards.
    On this point the case was referred, by the presiding judge,.to this Court; where Parsojis insisted, on the part of the defendants, upon three points: ■
    • First — The insufficiency of the indictment.
    Second — On opening the whole record, so as to take advantage of other points in the case, not referred.
    Third — On the right, in such a case, to a writ of error.

      The Attorney General, contra,

   Hopkins, J.

This was an indictment against the plaintiffs, for playing at cards, in a highway. The verdict of the jury was, that they were guilty. The reason assigned in support of a motion, which they made in arrest of judgment, was, that the indictment did not aver that they played at a game, with cards, but charged, only, that they played at cards.

Upon the hearing of the motion, the Circuit Court permitted the judgment, upon the verdict, to stand against them, and referred the question, which arose out of the motion, to this Court, as a novel and difficult one; but suspended the operation of the judgment, until the opinion of this Court; upon the point, could be obtained.

The counsel for the plaintiffs asserts, that,they are entitled to a writ of error upon the judgment; and though one was not sued out, he claims it as their right, upon the reference to present, for our consideration, any point of which we could take notice, upon an assignment of error, if the case had been, brought into this Court by a writ of error.

We shall determine nothing as to their'right to a writ of error in the case, because there is no such question; and we think our examination must be confined to the single point, which was referred.— The power of the Circuit Courts to refer questions to to this Court, is discretionary. If a reference shduld be asked by either party, and improperly refused, there would be no remedy. Such a reference may be' made without, as well as upon the request of either party.*

The reference contains no allegation of either party, that there is error in the record; but it implies tyie doubt of the Court, of the correctness of its decision upon the point referred: and, the sole object of it, is to have the question submitted, settled by this Court.

A writ of error makes the parties to a cause, brought by it into an appellate Court, parties to every question which, upon an assignment of errors, arises out out of the record; but a reference can make them parties here, to no other question than that submitted by it.

The statute which is relied upon to sustain the indictment in this case, makes the playing by any person at a game, with cards or dice, (in a highway and other places, specified in the act,) an offence, and subjects any person who may be convicted of it, upon an indictment, to a judgment for a fine of not less than twenty, nor exceeding fifty dollars.

The statute enacts, also, that in an indictment for the offence, it shall be sufficient to charge, that the person offending, did play at cards, (or dice, as the case may be,) in some of the places specified in the act, without stating what description of game, or without stating that money, or any other thing was bet upon the event of the game; and, upon making proof of the charge required by the statute, it shall be considered that the offence is made out, without proving what the game was, or is called-, or without proving that any thing was bet upon the event of such 'game. The charge in this indictment is such an one as the statute requires.

But, the counsel for the plaintiffs maintains, that because the statute makes the offence consist in play-jng at a -game, with cards, every word used in the act, to describe the offence must be employed in the indictment, to charge the" commission of it.

The framers of the statute must 'have intended the same thing by the words, in which the act requires the charge to be made, that they meant by the words used to describe the offence, or they would-¡not have enacted, that a charge and proof of playing at cards, should subject the accused person, to. a conviction of the. offence of playing at a game with cards. We think the meaning of- the words in which-the charge is made, and that of the words used in describing the offence, is the same. ' .

Before the statute, it was necessary to state, in the' indictment, the particular game with which the accused was charged with playing; and, if the evidence" did not show, that the particular game had been played, there could be no conviction. It was much more difficult to offer evidence of the particular game, than to prove that a game had been played, and many acquittals of the guilty were the consequences of the rule.

• Good policy required, that persons should be prohibited from playing at cards, in places where others -might witness, and be injured by their example.

As it would be difficult to prove what game was played, or that money was won and lost, the statute requires proof of niether. As there might be evidence to prove only that persons played at cards, and-that the witnesses supposed, but did not, know, they played some game, all the difficulties in bringing such offenders to punishment would not have been removed, unless- the statute had made a charge and proof of playing at cards, sufficient to authorise a conviction.

The statute applies only to the part of the indictment, in which the charge of the offence is made. All the other parís should be,'now, as the similar parts of such an indictment ought to have been, before the statute.

We are all of opinion, the judgment ought to be ^affirmed. • Let,the judgment of ibis Court be certL to'the. Circuit Court of Jackson County.