text:
    McDermott vs. Cable et al.
    Where a plea sets up a contract for the sale of land without averring that it was in parol, the presumption is that it was in writing.
    A plea of failure of consideration, setting up that the consideration of the note sued on, was a contract for the sale of land, and that the vendors were unable to make title to the land, is defective unless it make profert of the contract; and allege ’ whether a deed for the lands was executed by the vendors.

      Appeal from Drew Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Harrison, for appellant.
    If any right or title was claimed under the contract, the objection that.there was no profert of it, might be good; but the plea sets up none. It merely denies the plaintiff’s right to recover on the note, because of a failure of the consideration and the contract is alleged as one of the facts arid circumstances showing how, or in what manner it had failed, and the legal effect is the same, whether it was in parol or in writing. This cause is different from that of Duncan et al. vs. Clements, 17 Ark. 27&, where a want of title was not alleged, or an Inability to make title, but that the conveyance should be made before payment of the purchase money. The failure of consideration of the note, then, and not the agreement to convey the land 'being the bar pleaded, no proferí of the agreement was necessary. Gould’s PI. ch. 8, secs. 32, 38, 39, 40; Ch. PL 365.
    Garland dr Randolph, for the appellee.
    The plea does not deny the fact that the plaintiff’s intestate and Rudd'made the defendant a deed for the land; it only denies that they “ conveyed” it to him, which might be true, and yet the “ warranty deed” have been executed.
    But there is a fatal objection to the plea pointed out by the second ground of the demurrer. It is not alleged whether the agreement for the purchase of the land was, or was not, in writing; the statute of frauds requires, and will presume it was in writing, and such being the fact, the plea ought to have made proferí of it. Duncan vs. Clements, 17 Ark. 279.
   Mr. Justice Compton

delivered the opinion of the court.

This was an action of assumpsit, brought by Mrs. Cable, as administratrix of the estate of Westley L. Maulding, deceased, on a promissory note for $300, payable to her intestate.

The defendant pleaded non-assumpsit, to w’hich issue was joined; and also a special plea of total failure of consideration, in which it was averred, that the note sued on was executed for the residue of the purchase money for a certain tract of land which the defendant had contracted to purchase from the plaintiff’s”intestate and one Alexander Rudd, who agreed and were to convey the land to the defendant by deed, with covenants of warranty, immediately, and for no other consideration; and the plea further averred, that Maulding and Rudd never conveyed the land to the defendant; and that neither at the time the note was executed, nor at any time afterward, had they, or either of them, any title to the land, and were not able to convey the same. To this plea the plaintiff demurred, assigning for causes of demurrer:

1st. “ It is not alleged that the contract for the’ purchase of the land was not in writing, and no profert of the same is made.
2d. It is not alleged whether Maulding and Rudd executed a deed of conveyance to the defendant.”

The court sustained the demurrer, found for the plaintiff on the issue joined to the plea of non-assumpsit, and rendered judgment accordingly; to reverse which, the defendant has appealed to this court, and assigns for error the decision of the court in sustaining the plaintiff’s demurrer.

We think the demurrer was well taken. The contract set up in the plea is not alleged to be in parol; and being such, as by the statute of frauds, is required to be in writing, the presumption is that it is so; and being in writing, it should have been pleaded with profert, under the provisions of our statute, in order that the court, in the exercise of- its appropriate function —the construction of a written contract — might determine whether the contract furnished the defence claimed under it. Duncan vs. Clements, 17 Ark. 279.

It is insisted, however, that because the plea alleges the inability of the vendors to make title, it is distinguishable from that in Duncan vs. Clements, supra, which alleged the failure merely of the vendor to make, or offer to make a deed before suit brought. We cannot perceive how this distinction dispenses with the necessity of profert. For instance: Suppose it had appeared on oyer, in the case now before us, that by the terms of the contract between the parties, the vendors were to make a quit-claim deed only, would their inability to make a. valid title have been a failure of consideration? Certainly not. And without profert, how could the court know., in making up the issues upon the pleadings, whether the contract was as we have put it for illustration, or whether it was as alleged in the plea? But the plea is also defective upon another ground. It is not distinctly alleged — as it should have been — whether or not a deed to the land was executed by the vendors; because, if a deed was so executed and accepted by the defendant, then, though no title passed, the defendant could not avail himself of the plea of total failure of consideration, unless there had been an eviction, or its equivalent. Grace vs. McDaniel, 15 Ark. 487; Lewis vs. Davis, 15 Ark. 235. All that is alleged might be'true, though a deed was executed. The language of the plea, in this particular, is, especially in the connection in which it is employed, equivocal and insufficient.

Let the judgment be affirmed.


source: Caselaw Access Project

author: Mr. Justice Compton

license: Public Domain

text:
    Smith vs. Howard et al.
    It is error to refuse to permit a defective replevin bond to be amended.

      Appeal from Desha Circuit Court.

    Hon. John C. Murray-, Circuit Judge.
    Garland & Randolph, for appellant.
   Mr. Justice Compton

delivered the opinion of the court.

The court below dismissed the plaintiff’s action — which was replevin — on the ground that no penalty was inserted in the replevin bond, executed by the plaintiff to the sheriff as a prerequisite to the service of the writ; and rendered judgment" against the plaintiff for the value of the property replevied, with damages for the detention thereof. Pending the motion to dismiss, the plaintiff offered to amend by the insertion of a penalty, or the execution of a new bond; but the court refused to allow 1he amendment, and, in refusing, erred.

The practice of allowing amendments like this is well established in New York, under a statute similar in its provisions to our own. The propriety and convenience of such a practice are obvious. Hawley vs. Bates, 19 Wend. 632.

The judgment must be reversed, and the cause remanded, with instructions to the court below to permit the proposed amendment, and to proceed with the trial of the case on its merits.


text:
    Rawlings vs. Paty et al., adms.
    In a petition in debt, under the statute, by an administrator, it is unnecessary to make profert of the letters of administration.

      Error to Desha Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Garland & Randolph, for the plaintiff.
    An ordinary action of assumpsit or debt could not have been maintained without making proferí of the letters of administration (18 Ark. 243). And no reason is perceived why the same necessity does not exist, in this form of action, for the plaintiffs to show their right to sue in the capacity of administrators.
   Mr. Justice Compton

delivered the opinion of the Court.

To a petition in debt brought by the administrator and admini-. stratrix of David Lewis, deceased, the defendant demurred upon the ground that in the petition the plaintiffs made no profert of their letters of administration.

None was necessary. The proceeding by petition in debt is purely a statutory remedy. The statute prescribes the form of the petition, and then provides that every suit commenced in accordance with the form prescribed, shall be prosecuted to final judgment and execution, in the same manner as if it had been commenced in the ordinary form. Gould's Dig., chap. 130. In this case, the form prescribed was followed, not only substantially, but literally.

Let the judgment be affirmed with costs. '


text:
    Webber vs. Pankey.
    A sale of a horse, with the understanding that the purchaser was to pay for it when he should receive his money for his wages, which would be due at Christmas, and that he could not pay for the horse until his employer paid him; Held, to be a sale on credit until Christmas, and not dependent upon the employer’s paying the purchaser his wages.

      Appeal from Pernj Cicuit Court.

    I-Ion. John J. Clendenin, Circuit Judge.
    Hollowell, for the appellant.
    That the payment for the horse did not depend upon Stout’s paying the defendant for his services as overseer, see Hilliard on Sales, p. 13G, sec. 4; Dana vs. Mason, 4 Verm. 368.
    Jordan, for appellee.
   Mr. Justice Compton

delivered the opinion of the Court.

This suit was commenced before a justice of the peace, in July, 1850, by Webber against Pankey, to recover the price oí a horse, which the former had sold to the latter.

At the trial in the Circuit Court, the plaintiff introduced the defendant as a witness, who stated that a short time before Christmas, in the year 1858, he purchased a horse of Webber, for which he agreed to pay eighty-five dollars; that, being at that time the overseer of William Stout, he told Webber the only way he had to pay for the horse was out of the money he should get from Stout as wages for his services as such overseer, which, according to the custom of the country, would be due at the approaching Christmas, and which he expected to receive about the 1st Januarj’’, 1859; that he could not pay for the horse until Stout paid him; and that he purchased the horse with the understanding that he was to pay for it when he received his money from Stout. It was also in evidence that the defendant had not received the money from Stout, at the time Webber sued him.

On motion of the defendant, the circuit judge charged the jury, in substance, that if they believed from the evidence that the horse was sold to the defendant to be paid for when Stout paid him for his services as overseer, and that Stout had not paid him at the time the suit was commenced, they should find for the defendant. The jury so found, and judgment was rendered accordingly.

Whether the suit was prematurely brought, is the question presented, and its decision involves a construction of the contract between the parties. Taking the whole statement of the defendant together, as he made it, the legal meaning of the contract is, that the horse was sold on credit until Christmas, 1858, and not until the defendant received payment from Stout; Or, in other words, the accrual of the plaintiff’s right of action did not depend upon Stout’s paying the defendant, which was a contingency that might never happen. Mr. Hilliard, in his work on Sales, at page 178, section 4, lays down the rule to be that “ where a certain time of credit is fixed, though in connection with other acts or events relating to the vendee, the vendor ipay bring an action at the expiration of the time, whether such acts have been done,' or such events have happened, or not;” citing Dana vs. Mason, 4 Verm. 368; in which the terms of the contract were essentially similar to those in the case before the court. They were as follows: the defendant having contracted to perform a job of work for a third person by a specified time, for which he was to receive-payment when the work was done, applies to the plaintiff to purchase goods of him, stating his contradi with such third person, and desiring the plaintiff to wait for payment until the job should be completed, and payment made; to which request the plaintiff assented. At the expiration of the time when the work was to be finished, the plaintiff brought suit for the price of the goods, though the work had neither been completed nor paid for. Held that the action was maintainable. The court said: “ How are we to understand this contract? Was the plaintiff to lose his goods, if the defendant did not complete his job, or receive his pay therefor, according to his contract with the building committee? The plaintiff’s cause of action for the goods, which he sold and delivered to the defendant, did not depend on such a contingency; but it was the understanding that the defendant would do his job and receive his pay,” at the time specified, “ and would then pay the plaintiff for his goods.”

According to the view we have taken, the instruction given the jury was erroneous. It being the province of the court to declare the legal meaning of a contract, the jury should have been told that the language, or terms of the contract, as stated by the defendant himself, meant, in contemplation of law, that the purchase money for the horse should be due and payable at Christmas, in 1858.

Let the judgment be reversed., and the cause remanded for further proceedings.


text:
    Mayson, ad. vs. Edington, ad.
    On the trial of a cause de novo in the Circuit Court, the partie's may introduce other evidence than that contained in the bill of exceptions (Sullivan, ad. vs. Veadman, ante.)

    Where there is a conflict of testimony, the court will not disturb the verdict of the jury, or the finding of the court below.

      Appeal from, Desha Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Garland & Randolph, for appellant.
   Mr. Justice Compton

delivered the opinion of the Court.

This was a proceeding in the Probate Court for allowance and classification of a claim — being a physician’s bill for professional services — against the estate of Gerge C. Britt, deceased. On appeal to the Circuit Court'a trial de novo was had, and judgment rendered against the estate of Britt for $360 50, from which the administrator has appealed to this court.

For a reversal of the judgment two objections are relied on by the appellant: 1st. That on the trial de novo, the Circuit Court' permitted evidence other than that contained in the record of the proceedings in the Probate Court, to be introduced; and 2d. That the finding of the circuit judge,"who tried the cause, sitting as a jury, was not warranted by the evidence. That there is nothing in the first objection, see Sullivan, adm’r vs. Deadman, decided at the present term. Nor is the second objection well taken. True, there is some conflict in the evidence as to whether the professional services were rendered gratis, and as to whether the charges were exorbitant; but then there is nothing better settled by the decisions of this court than that the verdict of the jury, or the finding of the court, in such cases, will not be disturbed here-.

The judgment is affirmed.


author: Mr, Justice Fairchild

text:
    Ferguson et al. vs. McCain.
    A plea that tlie consideration of the note sued on was an improvement on, and right to land, represented as swamp land belonging to the State, the owner of which improvement would be entitled to a pre-eruption; and that the land was not swamp land, is not good as a ploa of failure of consideration.

      Appeal from Pulaski Circuit Court.

    Hon. John J. Clendenin Circuit Judge.
    Bertrand, for the appellants.
    Williams & Martin,'for appellee.
   Mr, Justice Fairchild

delivered the opinion of the Court.

McCain brought an action upon two bonds against Ferguson and another person. As a defense to one of the bonds, Fergu-' son pleaded that it was given in consideration of the settlement and improvement of McCain, upon the north-east quarter of section twenty-three, in township three, north of range fourteen west, and for his right to the land; that McCain represented to Ferguson that the land was swamp land belonging to the State, by which McCain, or any owner of his settlement or improvement, would be entitled to a pre-emption of the land, upon making the proper proof under the laws of the State, whereby Ferguson was induced to purchase the settlement and improvement; that the land was not swamp land, but railroad land, being included in the grant of lands for constructing'the Cairo and Fulton railroad.

Although the plea avers that the consideration for the bond was McCain’s right to the land, as well as his settlement and improvement thereon, it also shows that McCain had no title to the land, that his only interest was the privilege of becoming its owner by purchase from the State. All that was sold to Ferguson was McCain’s improvement. The plea does not show but that Ferguson obtained, and keeps possession of all that he bought, although he may be disappointed in his expectation of acquiring title to the land by purchase from the State. If McCain had known that the land was railroad land, and had falsely represented it to be swamp land, and had thereby induced Ferguson to buy it, the plea vrould have presented another case. No fraudulent representation of McCain is alleged; for all we know by the plea, he believed 1 he land on which he had settled was swamp land. Whether it was so or not, -was a matter about which Ferguson might have had as correct information as McCain. The means of knowledge were accessible to both, or to one as much as the other.

The plea is not good as a plea of failure of the consideration of the bond in the first count of the declaration, and the circuit court rightly sustained the demurrer of McCain, quashed the plea and rendered judgment against Ferguson and his co-defendant for the amount of the bond.


author: Mr. Justice Fairchild

text:
    Jones vs. Jones
    A deed, purporting on its face to be a conveyance of property, could not be made a mortgage in this case, because the evidence did not establish such a conclusion.
    Where notes are barred by the statute of limitations, the payment of money as'security for the debtor, cannot revive them.
    A note which has not been delivered, and which is in the hands of the maker, cannot be presumed to represent an existing debt.
    In a proceeding to settle a partnership concern, it is not proper to take into consideration an account between the parties for clearing and building upon their joint lands, and rents received therefor — the account in such case should be settled in a proceeding for partition.
    The settlement of an unliquidated partnership transaction should not involve with it mero personal demands: but if, on ascertaining a balance, it appears that the other party had an existing demand for moneys paid, to an equal or greater amount, it is not equitable to render a decree for such balance.

      Appeal from Sevier Circuit Gout t in Chancery.

    Hon. Len B. Green, Circuit Judge.
    Gallagher and Knight, for the appellant.
    Garland & Randolph, contra.
   Mr. Justice Fairchild

delivered the opinion of the court.

With the most of the matters with which this case is loaded, we need have no concern. The deed brought into the record, as exhibit A, No. 1, of the bill, was to protect the plaintiff; Orlando S..Jones, against loss from standing as security for the defendant, John T. Jones, and may be dismissed with the remark, that the bill only claims that the plaintiff paid fourteen hundred dollars as such security; and this amount paid in. Arkansas paper is provided for in the decree herein rendered.

What the other deed, that marked exhibit D, No. 1 of the bill, was for is not explained on its face, as anything but^a simple conveyance of the property therein mentioned; and the court below did right in not holding it as a mortgage to secure the two bonds of the defendant to the plaintiff of 10th September, 1838j and of the 25th October, 1839, because thfe evidence did not establish such a conclusion. No reason has been given to us, which we think good, why the statute of limitations should not be applicable to these obligations. The fact of the plaintiff having, in 1845, paid to the Real Estate Bank a sum of money for the defendant, did not revive actions already barred against the defendant on other and distinct matters of indebtedness, and the settlement of an unliquidated partnership transaction should not involve with it mere personal demands.

Nor is it shown that the four thousand dollar note mentioned in the bill stands in the place of the two bonds referred to, or that it represented an existing debt, but the contrary is implied by the statement of the bill that it was not delivered to the plaintiff, and is shown by its production before the master by the defendant.

The allegations in the bill of improving the lands owned by the plaintiff and the defendant, by clearing and building upon them, and of rents received by the plaintiff, are not proper to be taken into consideration, either to be enforced as mutual demands, or as an element in the partnership transaction in farming. If the plaintiff has put improvements on the land owned by himself and the defendant, without the consent of the latter, he may look for a recompense .in a proceeding for partition, so as to have the improved portion assigned to him, or to have a compensation for his improvements in that proceeding. Drennen vs. Walker, 21 Ark. 557.

The partnership transactions of parties present a proper subject of enquiry for a court of equity, and to ascertain the correctness of the decree rendered, we have directed the clerk of this court, as a special master, to state an account upon the principles herein indicated. His statement coincides with that of the master in chancery in the court below, with two exceptions. He allows to the plaintiff wages as overseer, when none was employed, which entitles him to credit in the account of seven hundred and sixty-four and a half dollars, and charges the defendant with eight hundred dollars, the hire for the negroes of Eewis Jones, under the stipulations of the contract of partnership, instead of computing that hire as part of the expenses of the partnership. The explanations of the account will be found in the report of the master on file. By that report the defendant is entitled, from the partnership proceeds in the hands of the plaintiff, to five hundred and seventy-five dollars, but it is not equitable to require the plaintiff to pay this when he had a demand existing against thefdefendant for the money paid to the Real Estate Bank, as the defendant’s security. That amount slightly overbalances what was due to the defendant, and will be allowed so far as to extinguish the claim of the defendant against the plaintiff, but no farther, as we do not wish to make an individual demand the foundation for a decree.

That part of the decree of the court below which relates to the deeds or mortgages mentioned in the pleadings is affirmed, the decree against the plaintiff for a sum of money is reversed. No decree for money is to be rendered against either party. Each party will pay one-half of the costs in the court below, and in this court- — these costs to include the allowances to the masters in each court.


author: Mr. Chief Justice English

text:
    McClintock ad. vs. Lary et al.
    In a suit by the owners of a boat, the certificate of enrollment in the name of the plaintiffs, and the statement of the clerk that he always considered the plaintiffs to be the owners, is sufficient evidence, in the absence of any oppposing proof, of ownership.
    Where the owners of a boat make a contract for freight, there is an implied contract that the boat is sea-worthy; and in an action for breaking such contract, it is incumbent on the plaintiffs to prove that at the time when the contract was to be performed, the boat was still sea-worthy and capable of performing it.
    The testimony of a witness, that upon an injury to a boat, whereby she was compelled to throw overboard a part of her cargo, her open policy of insurance became void, without proof of any peculiar knowledge on his part, or that such was the established commercial custom, or that he was competent to prove such custom if established, held to be properly excluded in an action by the boat to recover damages for breaking a contract of affreightment.
    Where the question of damages is fairly left to the jury, this court will not set aside the verdiet for excessive damages unless there be good ground shown.

      Appeal from Lafayette Circuit Court.

    Hon. Leu B. Green, Circuit Judge.
    Gallagher and Knight, for the appellant.
    The court clearly erred in refusing to permit the defendant to prove that if, after the accident, the cotton had been shipped, by the established custom, it would be at the risk of the shipper, and could not be covered by insurance, either by the open policy of the boat, or by any other policy. “ The custom of the place is to be observed,’' (6 Co. 60.) and the“proof of the established custom would have released the defendant from all clairft for damages. The sea-worthiness'of the boat of a carrier is implied in the undertaking of a carrier by water, and it is also a necessary condition to the attaching of any insurance to the cargo.. 1 Phil, on Ins. secs. 734, 975 695. The right to be in position'to effect an insurance, if the shipper desire it, is a part of the contract implied on the part of the carrier, and which only by express agreement is modified or superseded. 1 Phil, on Ins. sec. 698; 1 Greenl. Ev. secs. 4, 5, 6; Gibson vs. Stephens, 8 How. (JO. S.) 384.
    The damages were excessive in allowing the whole amount of the freight, without taking into consideration the time and expenses saved to the boat.
    As the plaintiffs sue as owners upon a contract not made with them, the allegation of ownership is a material averment without proof of which they cannot recover. Carmichael vs. Trustees, etc., 3 How. (Miss. R.) 84. The enrollment was made by Lary, for himself and Chambers, and is no proof of ownership, being nothing more than their own declaration. 1 Greenl. on Ev. sec. 494; Lyon vs. Orleans co., 7 Lou., R. (N. S.\ 678.
    Gaeland & Raudolph, for appellees.
    As the boat was sea-worthy and in a suitable condition to perform the contract, and actually offered to perform it at the proper time, she was in no default, though she might have been, previously, and after the making of the contract,' disabled and unseaworthy. The defendant’s intestate having violated his contract without fault on the part of the plaintiffs was liable to damages. 2 Parsons on Con. 492; 20 Barb. (N. Y.) 509; 13 Texas, 532.
    When a boat has received an injury from accident, and is afterwards repaired, and rendered as seaworthy as before, her capacity and right to carry goods, etc., covered by open policies remains as before the accident. The. question is, was the boat seaworthy when the policy attached; and if she was not, did she become so during the voyage and before the breach? If so, the liability of the insurers under the policy is fixed. Par. Mer. L. 424, 429; 11 Pick. 226; 10 Mass, 192.
    It is clearly proven that the plaintiffs owned the boat, that the contract was made and broken by the appellant’s intestate, as stated in the declaration, and that the appellees sustained damages to the full amount found by the verdict.
   Mr. Chief Justice English

delivered the opinion of the court.

In the spring of the year, 1856, the steam-boat R. M. Jones, was running in the Orleans and upper Red river trade. About the 12th of March, on her up trip, she stopped at a landing called Conway, in Lafayette county, where Thomas R. McClintock, a Red river planter, had 200 bales of cotton ready for shipment, and made a contract with his agent, which he afterwards approved, to carry the cotton to New Orleans, on her down trip, at §4 50 per bale; and her clerk made a memorandum of the contract in a book kept for such purposes. After the contract was made, she went up the river to her point of destination, and returned to Conway in good time, and applied for McClintock’s cotton, but was informed that he had shipped it upon another boat which had offered to take it at a less price per bale than she had agreed to carry it for.

Afterwards her owners, John M. Lary and William H. Chambers, brought assumpsit against McClintock,' in the Lafayette Circuit Court, for breach of the contract of affreightment. Rending the suit, the defendant departed this life, and the cause was revived against James R. McClintock, his administrator.

The case was tried upon the general issue, verdict and judgment in favor of the plaintiffs for $900 damages, and a motion for a new trial overruled.

1. It is insisted for the defendant, who appealed from the judgment, that the plaintiffs failed to prove upon the trial that they were the owners of the boat.

She was registered in the names of the plaintiffs as her owners, before the proper officer, at the port of New Orleans, under the laws of the United States, on the 17th of August, 1854, as proven by the certificate of enrollment, which was read in evidence without objection. •

Edward Groves, who was on board as her clerk, at the time the contract sued on was made, also deposed, in general terms, that he always considered the plaintiffs to be her owners.

In the absence of any opposing proof, her certificate of enrolment, and the statement of her clerk were sufficient evidence that the plaintiffs were the owners of the boat.

2. An attempt was made upon the trial to discharge McClintock from liability upon the contract, on the ground that the boat, on her down trip, before she reached Conway, was disabled by a snag, and consequently not in a condition to perform her part of the contract, although McClintoek had, before her return to his landing, in violation of his agreement, shipped his cotton upon another boat, without knowledge of the accident which happened to the R. M. Jones, and perhaps before it occurred.

There was an implied undértaking on the part of the owners of the boat, at the time the contract was made, that she was river worthy, and had sufficient men, officers, stores, etc., etc., to enable her to perform her part of the agreement. Smith’s Merc. L. 381, and note. And it was doubtless incumbent on the plaintiffs to prove that at the time the boat applied at McClintock’s for his cotton, she was still river worthy, and capable of performing the contract.

Cooper deposed that he was steamboat hull inspector and general river agent for the board of underwriters of New Orleans, and in his capacity as such, examined the R. M. Jones, on the 22d of February, 1856, found her perfectly river worthy, and issued to her a certificate that her cargo would be covered by open policies of insurance. That cargo certificates lasted for twelve months; and that if, in the meantime, a boat was injured, or otherwise needed repairs, the underwriters ordered her into dock to be repaired, which was not necessary during that year with the R. M. Jones.

McCormick, the carpenter of the boat, deposed that she was river worthy at the time she applied at McClintock’s landing for his cotton, in pursuance of the contract, and reached New Orleans safely, and in due time.

John Waggoner, a witness for the defendant, testified that on her way down Red river, she struck a snag, about twenty-five or thirty miles above McClintock’s landing, which knocked off an entire plank about two feet below her guard and about half way between her bow and “ midship.” That a large quantity of cotton was thrown into the river from her injured side, which caused her to creen over upon her opposite side, and prevented the water from rushing in at the hole made by the snag; and she was repaired by putting on a new plank, and then went on down the river, picking up the cotton bales which'had been thrown overboard.

We are of the opinion that a temporary injury thus received by the boat, which, was immediately repaired, and did not permanently disable her, or render it necessary to go into dock to be repaired, before she was capable of complying with her contract to carry down, with usual safety, McClintock’s cotton, did not discharge him from liability for violating his part of the agreement; and that the court below did not err in refusing to instruct the jury to the contrary, as moved by the counsel for the defence. See 1 Phillips on Insurance sec. 734, 975.

3. The defendant introduced a witness by the name of William A. McKnight, by whom he offered to prove, as stated by the bill of exceptions, that so soon as the R. M. Jones had received an accident or injury, whereby she was compelled to throw overboard her cargo, or a portion thereof, in order to save herself, her cargo certificate became void, to the extent that she could receive no more cargo or freight — that if she did, her open policies of insurance would not cover the same — that any freight that she might take could not be insured under or by virtue of her open policies of insurance.”

Which, upon the objections of the plaintiffs was ruled out by the court, and this was made one of the grounds of the motion for a new trial. Where the witness resided, what his occupa' tion was, or what experience or knowledge he had about the matter, which the defendant offered to prove by him, is not shown, nor did the defendant propose to show that what he offered to prove by the witness was an established commercial custom or usage, such as would govern the rights of the parties to the suit — or that the witness was competent to prove such custom if it was established.' The court did not err in excluding the testimony of the witness in the form in wffiich it was offered. 2 Greenl Ev. sec. 252.

4. It is also insisted for appellant that the damages assessed by the jury were excessive.

It was proven upon the trial that before the R. M. Jones reached McClintock’s landing, on her down trip, she was offered as much as four or five hundred bales of cotton at f!5 per bale, which she declined to take in consequence of her engagement to carry his cotton; and that because of her failure to get his cotton, she had to go to New Orleans without a full load. And the clerk of the boat expressly stated that the loss, sustained by the boat in consequence of her not getting McClintock’s 200 bales, was equal to 1^900, the amount of freight which she was to have been paid for taking the cotton down.

The question of damages was fairly left to the jury’', by the instructions of the court, and there is no good ground for us to set aside their verdict.

The judgment must be affirmed.

Mr. Justice Compton absent, and during the remainder of the term.


text:
    Perkins vs. Clemm.
    A stake-holder of money bet upon a race, may recover it by action against a person with whom he has deposited it, though the wager may be illegal and void as between the parties betting.

      Error to Crawford Circuit Court.
    Hon. J. M. WilsoN, Circuit Judge.
    Walker & Green, for the plaintiff in error.
    We maintain:
    1. A wager on a turf race is illegal and void. The statute makes all wagers void, and 'gives to all losers, except those on turf races, a remedy for the recovery of what they lose, leaving the parties to a wager on a turf race precisely in the same situation the parties to illegal wagers stood at common law. And in this view of the statute we are sustained by the construction of the statute of Charles 2, c. 7 in Shiililo vs. Theed, 7 Bingham, 406, or 20 Eng. Com. L. Rep. 181.
    In South Carolina, New Hampshire, Connecticut and Pennsylvania, all wagers are held unlawfnl on their clear immoral tendency. Laval vs. Mijers, 1 Bailey's Rep. 486; Rice vs. Gist, 1 Strobhart's Rep. 82; 3 IV. Ramp. 152; 6 lb. 104; 16 S. <§• R-147; 3 Penn. 468; 15 Conn. 28; and in England it was formerly held that the courts would not try actions upon them. (Walk-house vs. Duvaut, 1 W. Black. 19.) And it is now held to be discretionary with a judge, at Nisi Prius, whether he will or will not try them. Robinson vs. Meaurs, 6 D. fyR. 26; Thornton vs. Thackray, 2 Y. Sf I. 1561; 1 Car. <§- P. 613; 3 Car. ¿f P. 375; ID. $ R. 130.

      2. That no action lies at common law upon an illegal wager, or upon a contract incident or subsidiary to it.
    “ A contract growing out of an illegal transaction, or which is connected therewith, cannot be enforced.” Milne vs. Iiubtr, 8 McLean 212; Woolen vs. Miller, 7 S. <§• M. 380; Simpson vs. Bloss, 7 Taunt, or Eng. .Com. Law Hep. 89; Adams vs. Rowan, 3 S. Sp M.; Brown's Legal Maxims 350; 25 Term. 184; 15 Wend. 412.
    Where a contract grows immediately out of, and is connected ■with, an illegal or criminal act, a court of justice will not lend its aid to enforce it; and if the contract be connected only in part with the illegal transaction, and growing immediately out of it, though it be in fact a new contract, it is equally tainted with it. Toler vs. Armstrong, 4 Wash. C. C. 297; 11 Wheat. 258. Bclding vs. Pitkin, 2 Caines Rep. 147.
    3. That plaintiff is not, under any possible view of the law and the facts of the case, entitled to maintain .the action.
    The Supreme Court of New York, in Vischer vs. Yates, 11 John. 23, held that where there was a complete execution of the contract, and payment to the winner, the money staked on a void wager could not subsequently be recovered; but that when there was a notice before payment, the stakeholder was liable in an action brought by the owner of the money. This doctrine, however, was disaffirmed by the Court of Errors^ who held that no action could be sustained, where a wager was invalid, to recover the money deposited with a stakeholder, EVEN ALTHOUGH BROUGHT AFTER NOTICE AND BEFORE PAYMENT TO THE winner. Yates vs. Foot, 12 Johns. 1. And so the law has stood ever since in that State. Me Keen vs. Gaherty, 3 Ward 495; 1 Denio 557.
    Stillwell & Woodruff, for defendant.
   Mr. Chief Justice English

delivered the opinion of the Court.

South, on the one side, and Garret, Barker and Hilburn, on the other, made a bet of $500 a side on a turf race, and the $1,000, so made up and bet upon the race, were placed in the hands of Clemm, as stakeholder. Clemm deposited the money with Perkins, but whether before or after the race is not shown nor does it appear which side won on the race. After the race was run, Clemm demanded the money of Perkins, who admitted that it had been deposited with him by Clemm, and that it was still in his possession, but refused to deliver it up, whereupon Clemm brought suit against him for the money, obtained judgment, and he appealed.

It is insisted for Perkins, that the wager on the horse race was illegal and void, and that the transaction between Clemm and him was incident or subsidiary to the wager, and likewise illegal and void, and that therefore no action could be maintained upon it by Clemm.

By the first section of our statute, in relation to wagers, (Gould's Dig. ch. 78,) a person losing money or property at any game, bet or wager whatever, may recover it by action against the winner.

By the second section, the heirs, executors, etc., or creditors of the loser, are given the same remedy against the winner.

By the third section, nothing in the two preceding sections is to be so construed as to enable any person to recover back money or property lost on a turf race.

By the fourth section, all contracts based upon a gaming consideration are void.

The counsel for appellant insists that the third section is no qualification of the fourth, which, for the purposes of this case, may be conceded, without deciding the question.

Assuming that a wager upon a turf race is illegal and void, and that incident and subsidiary contracts are likewise void, does it follow that the contract between Clemm and Perkins was of that character?

Clemm was a mere stakeholder, and not a party to the race or betting, and the depositing of the money, held by him, in the hands of Perkins, was an independent transaction, in no way connected with the wager, or in furtherance of it.

It is held, by the great current of authorities that the loser of money upon an illegal wager may recover it of a stakeholder at any time before he pays it over to the winner, and that it does not lie in his mouth to say that the wager is illegal, and keep the money. 2 Parsons on Contracts 138; Chitty on Contracts 542; Evarts vs. Georgia, 18 Vernet 15; McKee vs. Manice, 11 Cushing 358; Hutchings & Co. vs. Slilwell, 18 B. Mon. 776; Alford vs. Burke, 21 Geo. 40; Conklin vs. Conway, 18 Penn. St. R. 329; Bates vs. Lancaster, 10 Humph. 134; Ivey vs. Phifer, 11 Ala. 535,

In Visher vs. Yates, 11 John R. 28, Judge Kent, in a well considered and able opinion, maintained the same doctrine, but he was overruled by a divided senate, in Yates vs. Foot, 12 John 11, where it was held that a party to a wager, who puts money in the. hands of a stakeholder, may recover the money $f him before the transpiring of the event on which the wager is to be détermined, but not afterwards. In Like vs. Thompson, 9 Barbour 316, it was admitted that Yates vs. Foot was contrary to the English decisions, though it had been followed in New York.

If the stakeholder cannot resist the recovery of the money of him on the ground that the wager was illegal and void, it seems to us to follow, with more force, that a person’.with whom the stakeholder deposits the money, and who is still further removed from the illegal transaction, cannot be heard to say that he will not surrender the money to the stakeholder, but will keep it because the contract between them is subsidiary to the wager.

Whether the losers of the money in this -case will be prevented from recovering it from the stakeholder under the 3d section of the statute, or whether the stakeholder will be bound to pay it over to the winner, we need not decide, as the parties are not before us, nor the question necessarily raised. It is sufficient to decide in this case that Clemm was entitled, upon the evidence introduced, to recover the money of his immediate bailee. It was proven upon the trial that Hilburn, one of the parlies to the wager, and who put part of the money in the hands of Clemm, had demanded the whole ot the money of Perkins before this suit was commenced — but it does not appear that he had any claim to the whole sum staked upon the race, and such demand by him was no excuse for Perkins to withhold the money from Clemm.

There was also an attempt to show that Perkins had loaned White a part of the money which he staked upon the race, and it is insisted that Perkins had the right to retain the money so loaned by him to White; but the proof of the loan is too unsatisfactory to make it necessary to decide any legal question growing out of it.

The judgment, being right upon the whole record, must be affirmed, and the parties to the wager must be left to settle the ■ matter between themselves and the stakeholder.


author: Mr. Chief Justice ENGLISH

text:
    Taylor et al. vs. State use Clayton ad.
    In an action upon a penal bond, if the breach shows a good cause of action, defectively stated in form, but not deficient in substance, it is sufficient, after plea, on error.
    In actions upon penal bonds, the judgment should be for the penalty of the bond, with a further judgment that the plaintiff have execution for the damages assessed.

      Appeal from Desha Circuit Court.

    Hon. John C. Murray, Circuit Judge.

      Garland & Bandolph, for tbe appellants.
    ITarding, contra.
   Mr. Chief Justice ENGLISH

delivered the opinion of the court.

This was an action of debt upon the bond of George E. Mayson, the original administrator of John W. Secress, deceased.

There were three breaches of the condition of the bond assigned in the declaration. The defendants demurred to the declaration, and the demurrer was sustained as to the first and second breaches, and overruled as to the third.

The substance of the third breach is, that after the execution of the bond sued on, and grant of letters to Mayson,- there came to his hands, as administrator of Secress, a large amount of assets, etc., which he afterwards died in possession of. That after his death, his administrator filed in the probate court a settlement account of his administration upon the estate of Secress, showing a balance of assets in his hands of $3,006 21, which account was duly confirmed by the probate court, and the balance against him ordered to be paid to Clayton, as administrator de bonis non of Secress, which had not been paid over, etc.

The defendants, after their demurrer to the third breach was overruled, pleaded thereto nul tiel record of the order of the probate court alleged in the breach.

An issue to the plea was submitted to the court, and finding and judgment in favor of plaintiff for the sum shown to be due from Mayson by the record of the settlement in the probate court, etc.

The defendants reserved no question upon the trial; but appealed, and insist, 1st, that the third breach was bad in substance; and 2d, that the judgment was informal.

1. By failing to rest upon their demurrer, and pleading over to the breach, it is conceded that formal objections to the breach were waived. But it is insisted that the breach is fatally defective, on error, in this, that it does not aver that the amount found due from Mayson to the estate of Secress, and ’ ordered by the probate court to be paid over to Ms successor in tlie administration, remained in tbe hands of Mayson as assets of his intestate, etc.

It is sufficient to say of this objection that it is not well founded in fact. The breach shows a good cause of action, defectively stated in form, perhaps, but not so deficient in substance as to be bad, after plea, on error.

2. The objection to the form of the judgment is well taken.

The court, instead of entering judgment for the penalty of the bond, with a further judgment that the plaintiff have execution for the damages assessed, as prescribed by the statute, (Gould’s Dig. ch. 127, sec. 8, 27,) rendered a judgment merely for the amount of damages found to be due the plaintiff.

It is true that it is not perceived that any substantial injury would be suffered by the appellants from the form in which the judgment was entered, but it is perhaps safest not to sanction a departure from the mode of entering such judgments prescribed by the statute.

For this cause the judgment must be reversed, and the cause remanded with instructions to the court below to enter the judgment as directed by the statute.


text:
    Rightor vs. Gray.
    Where a guardian presents his account for settlement, and after being examined the Probate Court refuses to confirm it, this is not such final action and judgment as to prevent the court, at a subsequent term, from again examining the account and then affirming it.
    It is the duty of the Probate Court, on the presentation of a guardian's account for settlement, after the public notice required by law, to examine it, and cause any errors in it to be corrected, whether exceptions be filed to it or not.
    An order of the Probate Court requiring a second guardian to pay to the first an amount found to be due him on the settlement and confirmation of his account against the ward, without notice to, or the voluntary appearance of, the second guardian, is an irregularity, for which such order will be quashed.
    To submit a cause, by consent, upon the transcript of the record presented with a petition for a certiorari, instead of causing the writ to be issued and atranscript of the record to be returned therewith, is an irregular practice, but perhaps, the writ having been ordered and the issuance and return waived by the parties, the court acquired jurisdiction of the subject matter.

      Appeal from, Phillips Circuit Cowri.

    Hon. Maee W. AiexaNdeb, Circuit Judge.
    PiKE & Son, for tbe appellant.
    The writ of certiorari was not issued and returned. No consent of parties could dispense with the writ itself, without which there was no proceeding. But if the case were really in court, and it had power and jurisdiction to examine the order of allowance of Rightor’s account, and the order of payment, it is surely clear that those orders were not void.
    The Probate Court had, in October, 1855, declined or refused (for both terms are used as synonymous) to confirm Rightor’s account as filed. No exceptions had been filed to it, or ever were filed to it. It does not appear that publication had been

      made of it, as required by law, prior to October term, 1855 ; but that bad been done prior to February, 1859.
    The court might well refuse or decline to confirm the account for want of publication.
    The duty of the court was, if the account was regularly before it for consideration, to examine it, to correct it if necessary or if justice required it, and having ascertained what was its true state, so to decide.
    A refusal to confirm, is not, in terms or effect, a rejection or a judgment in bar.
    . As the terms of the order of 1855 do not necessarily import a final judgment in bar against the account, neither the new guardian nor this court has the right to insist on its being so taken and interpreted. To quash a judgment on certiorari it must be NECESSARILY coram non judice.

    And, as the Probate Court had no right to r&jeeb the account, but was bound to take it up, examine it, correct it, if it required correcting, and settle it, this court has no right to conclude that it mea/rvb to do what it could not legally do, when language used by it does not necessarily require such a conclusion.
   Mr. Chief Justice English

delivered the opinion of the court.

’William E. Eightor had been, prior to January, 1855, the guardian, in Phillips county, of the infant heirs of Henry Yerby, deceased. On the 22d of January, he filed in the Probate Court of that county his settlement account, as such guardian, of receipts and disbursements on account of his wards, from May, 1853, to January, 1855, claiming a balance due himself of $648 40. This account is endorsed as follows:

“The within settlement examined, and continued until next term for confirmation. January term, 1855. A. G. Underwood, judge.”
“ On examination of the within settlement, I decline confirming it. October term, 1855. A. G. Underwood, judge.”

And, at the October term, 1855, on the 12th of December, 1855, the following order was made of record:

The settlement account oí William E. Eightor, as guardian of H. Yerby’s heirs, which was filed at the January term of this court, and continued until the present term for confirmation, was this day presented to the court, which being examined the court doth refuse to confirm the same.”

. On the 5th of February, 1859, the Probate Court again took up the account, and made the following order:

“ The settlement account of William E. Eightor, as 'guardian of the heirs of ITenry Yerby, deceased, which was filed at the January term of the court, 1855, and continued until the present term (was taken up), and it appearing to the satisfaction of the court, from the affidavit of Q. K. Underwood, publisher of the Southern Shield, a newspaper published weekly in the city of Helena, county of Phillips, State of Arkansas, that due and legal notice of the filing of said settlement account had been given by publication in said newspaper, for the number of times, and within the time prescribed by law; and there being no exceptions filed to said settlement account, the same is confirmed, and ordered to be spread upon the record.”

On the 26th of January, 1860, on motion of Eightor, the Probate Court made an order requiring Peyton E. Gray, his successor in the guardianship, to pay over to him the balance found due him of $618 40.

On the 5th of March, 1860, Gray presented a petition to the judge of the Circuit Court, setting out the facts above stated, exhibiting a transcript of the record of the proceedings of the Probate Court in the matter, insisting that the order of the court of 12th December, 1855, refusing to confirm the account, was a final judgment, that the power of the court over the subject was then exhausted, and that the subsequent orders were null and void, and praying for a writ of c&t'tiora/ri, etc., etc.

The circuit judge, = at chambers, endorsed on the petition an order to the clerk of the Probate Court to transcribe and certify the record of the proceedings therein to the Circuit Court; and an order to the clerk of the Circuit Court to issue a sci. fa. to Bightor, and a provisional supersedeas.

The sCi. fa. was issued, and served on Bightor, but no writ of certiorari was issued.

At the ensuing term of the Circuit Court, the parties appeared, and by consent the transcript accompanying the petition was made the return of the clerk on writ of certiorari, and the cause was submitted to the court; and the court quashed the judgment ot the Probate Court of 5th February, 1859, perpetually superseded the order of 26th January, 1860, and adjudged the costs against Bightor, and he appealed.

The circuit judge should have ordered the clerk of the Circuit Court to issue a writ of certiorari, and the' clerk of the Probate Court should have returned with the writ, directed to, and served upon him, a transcript of the proceedings in the Probate Court, etc. Then the matter would have been, regularly before the Circuit Court for adjudication. The parties, however, waived the writ and return, and submitted the matter to the court, for adjudication, upon the transcript exhibited with the petition for certiorari, and, though this was an irregular practice, the court, perhaps, acquired jurisdiction of the subject matter thereby.

Por what' reason the Probate Court declined or refused to confirm the settlement account of Bightor, on the 12th December, 1855, is not shown. Nor does it appear whether publication of the filing cf the account for settlement had been made, as required by the statute.

The refusal of the court to confirm the account at that time, was no final disposition of the account. Its jurisdiction of the subject matter was not then exhausted.

It was the duty of the probate judge to take up the account, after the public notice required by law, and examine it, whether exceptions were made to it or not, it being his peculiar province to protect the estates of orphan minors from waste, and if he found no errors or unjust charges upon its face, to confirm it, and if there were apparent errors, it was his duty to cause them to be corrected, and the account to be restated, and then confirmed. See Digest, chapter 81, section 35; Ib., chapter 4, sections 130, 131, 132.

The refusal of the judge to confirm the account, merely left it open and unsettled — left the guardianship of Eightor in an unsettled condition. There was nothing definite in the action of the judge for him to except to, and nothing final for him to appeal from. Had the judge Refused finally to act further in the matter, he might have been compelled by mandamus.

We think the matter was still under his control, and within his jurisdiction, when the order of 5th February, 1859, was made, confirming the account, and ordering it to be spread upon the record.

The judgment of the Circuit Court must be. reversed, and the cause remanded, with instructions to the court to affirm the 'order of the Probate Court of 5th February, 1859, confirming the account.

But it appearing that the order of 26th January, 1860, requiring Gray, the successor of Rightor, to pay over to him the balance found due him, was made without any notice to Gray, and without his voluntary appearance in the Probate Court, the Circuit Court must be further instructed to quash that order for irregularity, and remand the cause to the Probate Court for further proceedings. (See act of 17th February, 1859, Pamphlet Acts, p. 172.

On the remanding of the cause to the Probate Court, Gray must be considered as in court.


author: Mr. Justice Haieohild

text:
    Atchley vs. Reeves.
    Agreement that A, in his own name, should locate a land warrant belonging to S., and convey to him one-half of the land; which was done ; the land warrant being afterwards rejected, A entered the land with money, and applied to R, the executor of S, who had died, for .one-half of the cost, which was paid. R then demanded a conveyance of one-half of the land to himself, which being refused, he sued A for the money: Held, that the one-half of the land so located and conveyed to S. belonged to his estate; that the payment by R was as the executor of S, to be settled in his administration, and that he could not recover back the money from A.

      Appeal from Salme Circuit Coivri.

    Hon. John'J. CleNDBNIN, Circuit Judge.
    Hollowell, for tbe appellant.
    Appellee was acting in a fiduciary capacity in paying half tbe estimated cost of re-entry, and even bad appellant executed a deed to bim, equity would have enforced tbe trust to tbe benefit of Sawyer’s beirs. 3 Wen. 368; 5 J. C. B. 409; 3 Berna 265.
    On tbe subsequent purchase by Atcbley, after tbe entry with the land warrant bad been canceled, bis deed to Sawyer in bis life-time would have enured to the benefit of Sawyer’s estate. 15 Ark. Y3; 5 II. 693.
    We maintain that the money was paid by Reeves in Ms fiduciary capacity; whether tbe money actually used was bis individual or trust funds, it makes no difference whatever. 1 Mon. 251; 6 J. J. Marsh. 38Y; 5 Dcma 464.
    Williams & HartiN, for tbe appellee.
   Mr. Justice Haieohild

delivered the opinion of the Court.

During the life of Sawyer, an agreement was made between him and Atchley, that the latter should take a land warrant belonging to Sawyer, pay him twenty dollars, locate the warrant on land in Atchley’s name, and convey to Sawyer one-half thereof. Atchley performed the agreement on his part, by paying Sawyer the twenty dollars, locating the warrant, and making a deed to Sawyer of one-half the land located, and Sawyer died. The land warrant was rejected at the General land office; Atchley returned it to Eeeves, who had become the executor of Sawyer, and entered the land with his own money. He then called' upon Eeeves to pay him one-half of the entrance money, and expenses incurred in entering the land, with which request Eeeves complied by paying Atchley twenty-nine dollars and ten cents. Afterwards, Eeeves demanded a deed to one-half of the land, to be made to himself, which Atchley refused, unless Eeeves would procure the cancellation of the deed from Atchley to Sawyer, which was not done, and Eeeves sued Atchley to recover back from him, the twenty-nine dollars and ten cents. He failed in his suit before the.justice of the peace, but succeeded in the Circuit Court, to which he appealed; whereupon, Atchley moved for a new trial, and upon its being refused, appealed to this court.

Besides the foregoing statement, the bill of exceptions shows that Sawyer’s estate was held liable for the twenty dollars which Atchley had paid on the returned land warrant, and that one witness testified, that Atchley, in reply to Eeeves’s demand for the money to be refunded, promised to pay it with interest.

This promise, if made, Atchley was not obliged tó perform, for he had entered the whole tract of land of which he had conveyed half to Sawyer, and that deed operated to pass the interest that. Atchley derived from his entry, and he was entitled to be paid out of Sawyer’s estate one-half of what it cost him to enter the land, or to have his deed to Sawyer canceled. Eeeves could not cancel the deed, and if Atchley had conveyed the land to Reeves, he would have been assisting to commit a breach of trust against Sawyer’s estate, for the land conveyed by Atchley belonged to the estate, and Beeves had no right on advancing the money to Atchley, to take the conveyance to himself.

Atchley received the money from Beeves on a sufficient, on a valuable and meritorious consideration; although Beeves paid him the money, without any expression that he did it as the executor of Sawyer, Atchley received it as coming to him in payment of land he conveyed to Sawyer, and Beeves and the heirs of Sawyer might well be expected to settle between them the equities concerning the money and the land, if it was Beeves’ own money that was advanced to Atchley.

The right judgment was made in the justice’s court. There was no evidence to sustain the finding of the Circuit Court, and for that reason, the motion for a new trial should, have been granted —not having been done, the judgment of the Circuit Court is reversed, and a new trial must be awarded.


author: Mr. Justice Fairohild

text:
    Pack vs. The State.
    Where parties voluntarily enter into a recognizance before a person acting as justice of the peace, they will not be permitted, on a scire facias on the recognizance, to deny, by plea, his right to execute the office of justice of the peace.
    To a scire facias on a recognizance to appear at .the next term of the Circuit Court to answer to the state upon an indictment for an assault and battery, etc., and not depart from the court without leave thereof, a plea denying the existence of

      any indictment for assault and battery, either when the recognizance was made or when the plea was filed, is no defence — unless the principal appeared when called, his recognizance was forfeited.
    Instead of being a defence to a scire facias on a forfeited recognizance, the fact that the principal, instead of being indicted for an assault and battery, for which offence he was recognized to appear, was indicted for murder, it is a stronger reason why his securities should have him before the court until discharged by tho direct order of the court.

      AjypecH from, Salmo Ci/rouit Court.

    Hon. JohN J. ClendeNIN, Circuit Judge.
    WatKINS & Gallagher, for the appellant.
    It may seem like trifling with the majesty of the law, for the state, charging an accused with the crime of murder, to seek to hold him amenable for an assault and battery involved in the commission of that crime. Nevertheless such a question is here presented. It is submitted that murder is a crime of such a grade that all leaser offences that may enter into its commission, are merged and lost in it. The cases decided by this court bearing upon the question are, MeBride vs. The State, 2 Tkg. 374; Carmeron vs. The State, 13 Ark., 714; Strawn vs. The State, 14 Ark., 549; Childs vs. The State, 15 Ark. 204; Sweeden vs. The Statej 19 Ark., 205; Quest vs. The State, ib. 406.
   Mr. Justice Fairohild

delivered the opinion of the Court.

On the 16th of March, 1858, a scire facias issued from the office of the clerk of the Circuit Court of Saline county, reciting that Nathan S. Pack, as principal, and Josiah Brooks and Thomas Pack, as his securities, on the 29th of July, 1857, before John A. P. Bingham, a justice of the peace of the county of Saline, acknowledged themselves to be indebted to the State of Arkansas, in the sum of five hundred dollars, conditioned that Nathan S. Pack should appear before the Saline Circuit Court on the first day of its October term, 1857, to answer to the state Upon an indictment for an assault and battery upon E. F. Cheeks, and not depart from the court without leave thereof. That Nathan S. Pack failed to comply with the condition of the recognizance in not appearing to answer the charge, when he' was called therefor, by the court, on the 21st day of October, 1857, during the October term of said Circuit Court for that year, for which his recognizance was forfeited. The sci/re facias also contained the usual clause of summons against the securities, to appear and show cause why final judgment should not be entered against them on the recognizance.

For defence, they pleaded that John A. P. Bingham was not a justice of the peace, acting and duly commissioned as alleged in the writ.

The defendants had voluntarily appeared before Bingham, and entered into a recognizance, and.had thereby acknowledged him to be a justice of the peace. This must be so considered, for the sows facias charges it, and the plea, in only denying that Bingham was a justice of the peace, admits that notwithstanding this, they entered into the recognizance before him as such justice of the peace, as the sci/refacias shows him to have been at this date. See Gildersleeve vs. The People, 10 Barb. 40; The People vs. Kane, 4 Denio, 545.

The right of Bingham to execute the office of a justice of the peace cannot be enquired into in the collateral way proposed by the plea, in a controversy between the state and the defendants to the scire facias. Wilcox vs. Smith, 5 Wend. 234; The People vs. Cook, 14 Barb. 288.

In making up the grand juries the town of Canaan was entitled to choose but six, but did choose a seventh grand juror, and by him the complaint was preferred, to answer which the recognizance in suit was given. Por this, on trial, the recognizance was claimed- to be void, but the Supreme Court held that the grand juror’s right of office could not be tried in that proceeding; Douglass vs. Wickwere, 19 Conn. 489.

The demurrer to this plea was properly sustained.

The second plea of the defendants denied the existence of any indictment for assault and battery of R. P. Cheeks, either when the recognizance was made, or when the plea was filed.

The fact presented by the plea is no defence to the recognizance. It is immaterial whether there was any indictment against Nathan S. Pack, at the time the defendants to the scire facias assumed their obligation to the state, whether any was found at the term of the Circuit Court to which he was recognized to appear, or whether any was found at all. The appearance of Pack, before the court, his waiting upon the court until the court itself should gire him leave to depart, were, the conditions of the recognizance, and the fact averred in the plea is no discharge of these conditions. The defendants to the sci/re, facias were his jailors; while in their custody he was as much subject to the call of the court as if confined within prison walls; and the securities had no more right to excuse his attendance upon court, on account of no indictment existing, or being preferred against him, than the jailor of -the county would have to release from confinement, without an order of court, one committed to jail to await the action of the grand jury, because he might suppose, or had been informed that no bjll had been preferred. The plea rests upon the idea that, as there was no indictment of assault and battery against Nathan S. Pack, there was nothing for him to answer to, and that it was useless for him to appear before the court. That might be, but of this the court was to judge. He was in law as much obliged tojperform the condition of the recognizance without, as with an indictment against him. Champlain vs. The People, 2 Const. 83; State vs. Stout, 6 Holst. 139.

The recognizors are not concerned in the question of there being an indictment against their principal, or in his guilt or innocence of any charge. If there should be no indictment, it might be a good reason for the court to order his discharge, or if he were innocent, or could make a good legal defence to an indictment, that might procure his acquittal and consequent .discharge, but these and kindred reasons are no cause for the absence of the principal, are no .defence to his securities for not compelling his attendance. State vs. Stout, 6 Halst. 133; Archer vs. The Commonwealth, 10 Gratt. 633.

The condition of the recognizance, as set forth in the scire facias, was not only to appear and answer to the charge specified, but not to depart from the court without leave thereof. The meaning of that clause is to detain the party to answer charges that may be made against him, other than the particular one mentioned in the recognizance. The law contemplates that the particular charge may not be sustained; that it may not be the one that he will be called to defend, but that out of the transaction some other charge may spring up for which his presence will be needed ,• or that for some good reason he ought to be subject to the action of the court, upon other grounds than the main specification; and hence this precautionary clause is inserted. Barb. Crim. Law 582; The People vs. Stager, 10 Wend. 435; The State vs. Cooper, 2 Black, p. 227.

This is in agreement with previous decisions of this court, in which it has been held that the Circuit Court would not be compelled to accept of the appearance of an absent principal in a recognizance, and the payment of his fine to be assessed on trial, tendered by his surety ; Warren vs. The State, 19 Ark. 214; and that the intermission of a court did not discharge a defendant from appearing at a subsequent court. Gentry vs. The State., 22 Ark. 544.

This case is doubtless an extension of the principle of those cases, and is not dependent upon them, but it is well supported by authority, and by a rational interpretation of the recognizance. The second plea was not therefore a bar to the action, as the court below held.

The defendants to the scire facias pleaded thirdly, that the grand jury, at the term to which Nathan'S. Pack was bound by the recognizance to appear before the court, presented an indictment against him for the murder of the person upon whom, in the recognizance, he is recited to have committed an assault and battery, and that the alleged murder and assault and battery relate to the same transaction, and that the charge of murder is still pending.

The allegations of the plea are the very strongest argument that could be urged for the enforcement of the recognizance, and show the good sense of the law in holding that a recognizance cannot be discharged in any other way but by the direct order of the court. If the securities of Nathan S. Pack had brought his body before the court, as they were bound to do, the court would have held him to answer to the indictment for murder, and in that way the charge of assault and battery would have been merged in the higher crime.

But because the securities of Pack have, by their own default, permitted a person charged with the crime of murder to escape trial, they ought not to be permitted to say that the pendency of an aggravated charge should exonerate them from doing what they engaged to do.

It may often happen that an injury committed upon the person of another turns out to be more serious than was apprehended at the time of the examination by the committing magistrate; and if that which may seem to be an assault, by lapse of time, becomes murder, it is no reason why the recognizance, entered into ■ftpon the supposition of the commission of the lesser offence, should not be fulfilled by the securities, in surrendering the body of the principal, nor is it any reason why, upon their failure to do so, the law should not enforce the recognizance in the only way it can, compel the payment of the money that is acknowledged to be the consequence of such failure.

The judgment of the Circuit Court in sustaining a demurrer to all of the pleas is affirmed.


text:
    Sanders vs. Ward.
    After the dissolution of a partnership, the maker of a note, upon which the firm name was endorsed, paid to one of the late partners the amount of the note, for which he executed an instalment in writing, in the firm name, acknowledging the receipt of the money, and promising to apply it to the payment of the note: he did not so apply it, but applied it to the payment of other debts of the firm: Held, that the other partner was not liable for the money so received and misapplied— was totally unaffected by the instrument so executed.

      Appeal from Pulaski Cicuit Court.

    Hon. John J. Clendenin, Circuit Judge.
    Garland & Randolph,, for appellant.
    Admitting that the partnership had been dissolved, Parker, as a member of the late, firm, hada right to collect the amount of the note from the appellant. Story on Part. sec. 328. And the fact that he misapplied the amount received would not affect the validity of the payment made to him by the appellant. Major vs. Hawks, 12, 111. Rep. 298. And as the money was in fact applied to the payment of the debts of the firm of M. Parker & Co., for which the appellee was liable, there can scarcely be a doubt of the right of action in this case.
    Williams & Marts, for the appellee.
    After the dissolution of a partnership one of the partners had not a right to execute a note in the name of the firm so as to bind the other partner even for á pre-existing debt of the firm without special authority. Burr vs. Williams, 20 Ark. 171. To bind the retiring partner at all, the transaction must be within the scope of the partnership business. Story on Part, sec. 334,page 505.
   Mr. Justice Fairchild

delivered the opinion of the court.

Prior to August 1857, the defendant, Ward, and Parker, were engaged as partners in the carriage business in Memphis, but about the 22d of that month, the partnership was dissolved by the withdrawal of Ward from the partnership. He advertised the dissolution of the firm, did not thereafter go about the shop, soon left Memphis for Little Rock in pursuit of a location for business, and established himself in the latter place. Parker continued business at the old stand of M. Parker & Co., which w.as the style of the old firm, but under another name, and in another association.

M. Parker & Co., had endorsed a note of Sanders, the plaintiff, to Hunt, which was payable in the Union Bank, and to provide for the payment of the note, Sanders, on the 20th of October, 1857, handed to Parker the sum mentioned in the note, but as it was not in bankable funds, Sanders gave Parker the privilege of using the money, and paying the note after the delay that would attend its legal collection, which Parker and Sanders seemed to understand would be eight months. To witness the receipt of the money, Parker executed and delivered to Sanders the writing, as follows:

“ Received of Theo. Sanders, one hundred and ten dol. which I am to apply to the payment of a note against sd. Sanders, Parker & Co., payable in the Union Bank, the 20th inst., this 2d Oct. 1857.
M. PARKER fy Co.”

On this writing, this suit in the Pulaski Circuit Court was brought against Ward. He denied the execution of the writing under oath, and upon the trial It was proved to have been executed, as has been stated, by Parker, and was proved by his testimony. ■ .

Parker deposed that the partnership so far as concerned the business of M. Parker & Co., in the shop matters, and business pertaining to the carriage department, was dissolved in August 1857, but that, in all other matters, he considered the co-partnership existing; and this existence must refer to the date of the receipt. Hat Parker did not disclose to what other matters and business than that pertaining to the shop and to the carriage department, the partnership extended, neither did he give any information about the terms of the dissolution. He of course, knew all about these facts, and to have cleared his conscience in giving the whole truth, as he must have been sworn to do, his attention should have been directed to the facts which would have tested the correctness of his considering that the partnership in a restricted business extendéd to other unenumerated matters, and after Ward had left the business; or, without any direction, he should have given his testimony upon the matters that Ward proved as facts by his witnesses. This proof was that Parker, by the terms of the dissolution, was to pay all the liabilities of M. Parker & Co., and that the partnership business of M. Parker & Co., did not extend to any thing but the carriage business, and that it was fully dissolved in August 1857.

On this state of facts there is no proof and no presumption against Ward, that he ever was liable on the endorsement of the note of Sanders to Hunt, that note being given for house rent, and not being presumed to be within the scope of carriage business to endorse paper for the accommodation of hirers of bouses. But aside from this, Parker had no right, after the dissolution of the firm of M. Parker & Co., to bind Ward by any new contract, though it had been made to settle the business, or provide for the debts of the firm. Ward would not have been liable to this action, though Parker had borrowed, or had received the money expressed in the receipt to pay the debts of M. Parker & Co.

Sanders was not a dealer with M. Parker & Co., and was bound to take notice of the dissolution of the firm; he had no claim to personal notice of the fact. In every aspect of this case, Ward stands unaffected by Parker’s execution of the writing, upon which this suit is brought. Burr vs. Williams, 20 Ark. 186. Sanders was not a creditor of the firm while it was in existence. Parker could not make him so by signing the receipt with the name of the firm. Parker’s application of the money to the payment of a debt of M. Parker & Go., in the circuitous mode detailed by him, did not make Ward liable'to Sanders.

The only legitimate point of the case is thus disposed of, and to affirm the judgment of the Circuit Court, which we do, it is needless to trace the meanderings of the suit through the labyrinth of replications, rejoinders, demurrers tu them, and legal propositions to the court, that seem to refer to the subject of Ward’s responsibility to Sanders.


author: Hon. Thomas Joussoit, Special Judge,

text:
    Burr et al. vs. Williams.
    Where it is in proof that the defendants had purchased of the plaintiff a quantify of corn to be delivered at a future day on the bank of the river, and that the plaintiff had so delivered it in good condition, and informed the defendants thereof, the corn is then at the risk of the defendants, and being injured by the rise of the water, the loss is theirs.
    Whore a, contract is made for the sale and delivery of corn to be put in sacks, and the sacks are obtained by the vendor of the vendee, without any proof that the sacks were to be furnished by the vendee, the legal presumption is that the vendor was to find the sacks, and the verdict of the jury for the amount due upon the com without allowing the vendee for the price of the sacks will be set aside,

      Upon an agreement to sell and deliver corn, and no price agreed upon, tlie law fixes the price at the market value of the corn at the time of its delivery; and if, in such case, there is an understanding that the vendor shall measure the corn, or if the vendee receive and exercise acts of ownership over it, there is no need of measuring it to constitute a delivery.
    Where a plaintiff sets out and relies upon a special contract, he is bound to prove it in order to enable him to recover upon such contract.
    Where the proof, as to quantity, is that the plaintiff delivered from 1,000 to 1,500 bushels, the jury are at liberty to fix the quantity any where between the two sums stated.

      Appeal from Independence Circuit Court.

    Hon. William C. Bevens, Circuit Judge.
    Anderson, for the appellants.
    laid in the decide If the plaintiff had fully proved his case, as ration, he was only entitled to recover the balance due for the corn after deducting the set-off proved by the defendants. But when we look at plaintiff’s evidence, we are left in doubt whether there was any contract between plaintiff and defendants for the sale of any corn. Proof of easual admissions or remarks made to persons not interested in the subject matter, is evidence of the lowest grade, as they are made without due care and very liable to be misunderstood or forgotten, so as entirely to change the effect of the remark. 1 Greenleaf on Ev., sec. 200. f
    There is no evidence of the contract, as set up in the first three counts of the declaration. That defendants were to pay the price of thirty cents per bushel for the corn; that the corn was to be delivered in sacks, furnished by defendants to plaintiff, and that it was to be delivered by plaintiff and received by defendants on the bank of White river, in Independence county. ■ All of which facts must be established, to enable the plaintiff to recover on either of the special counts in the declaration, under the charge of the court, which was clearly the law. And a finding for the plaintiff for any amount on either the first, second, or third count, is without evidence, contrary to law, and in direct opposition to the charge of the court. 1 Chit. on Plead., 305; Snell, Stagg & Co. vs. Moses & Son, 1 Johns. Rep. 105; Stone vs. Knowlton, 3 Wend. 375.
    And tbe law clearly is, that on a general sale of goods, as on a sale of twelve hundred bushels of corn, or .twenty tons of bay, without specifying the particular article sold, there must be an actual delivery of the article sold to vest the property in the vendee, so as to be at his risk, or to extinguish the vendor’s lien and deprive him of his right of stopping in transitu. And when something remains to be done between buyer and seller, for the purpose of designating the particular article sold, or of ascertaining either the quantity or price, there is no delivery. Rapelye & Smith vs. Mackie, 6 Cow. 250; Outwater vs. Dodge & Green, 7 Cow. 85; Shindler vs. Houston, 1 Denio 48; Olyphant vs. Baker, 5 Denio 379; Ward vs. Shaw, 7 Wend. 405.
    The corn had been placed on the bank of the river in an unknown quantity, and neither Burr & Co., nor any one of the witnesses who placed the corn there knew the amount. It had never been weighed, counted, nor the quantity ascertained by any person, nor had Burr & Co.’s part been separated or distinguished from the rest.
    Burr & Co. could neither take the corn nor sustain an action of trover for it. 1 Chit, on Plead., 148.
    It then was clearly Robertson’s corn, and remained at his risk, and Burr & Co. are only liable for what they actually received, and for what it was worth at the time they received it. They were liable for nothing until they received the portion of the corn that they took, and at that time the remainder of the corn was damaged, and Burr & Co. were not bound to receive it. Their act was unquestionably a.receiving of the corn that was sound and a refusal of that that was damaged.
    Stillwell & Woodruff, for the appellee.
   Hon. Thomas Joussoit, Special Judge,

delivered the opinion of the Court.

This was an action of assumpsit brought by Robinson against Burr and Archer, as partners in trade, etc., in the Independence Circuit Court. At the September term, 1858, the cause was submitted to a jury upon the issues of non-assumpsit and set-off, and they returned a verdict in favor of the plaintiff for one hundred and ninety-five dollars damages, and costs. The defendants filed a motion for a new trial, which was granted .by the court. At the March term, 1860, the cause was again submitted to a jury, who also returned a verdict for the plaintiff, and assessed his damages at two hundred and thirty dollars and ten cents. The defendants again presented their motion for a new trial, which being refused by the court, they brought their appeal to this court. The declaration contains six separate counts. The first three are predicated upon a supposed special contract, and are substantially the same. They allege, in substance, that on the first day of November, 1855, the plaintiff agreed to deliver to the defendants twelve hundred bushels of good merchantable corn on the bank of White river, in Independence county, within a reasonable time; that the defendants were to furnish the sacks in which it was to be placed, and that upon its delivery they were to pay him thirty cents per bushel for the corn. He avers that, on the day and year aforesaid, he did shell and put into the defendants’ sacks, twelve hundred bushels of good merchantable corn, and placed the same on the bank of White river in rail pens, and covered the pens so as to protect the corn from the weather; and that on the day and year aforesaid, he advised the defendants of the fact, and then concludes with a denial that they had paid him the price stipulated, or any part thereof. The other three are the common counts, the first two charging that on the first day of May, 1856, the defendants were indebted to the plaintiff in the sum of three hundred and sixty dollars, for twelve hundred bushels of merchantable corn, before that time sold and delivered to them, and that being so indebted they promised to pay it when requested; and the third alleges that • on the day and year aforesaid the defendants were indebted to the plaintiff in a like sum of money for the same amount of corn before that time sold and delivered to the defendants, and that being so indebted they promised to pay him so much money as the corn was worth, etc. The objections urged against the verdict of the jury, and which are insisted upon here, are that they found against the instructions of the court, and against law and evidence. The first point that we will examine is, whether the court below erred in refusing to set aside the verdict as being contrary to the evidence.

James Rutherford, a witness introduced by the plaintiff, testified that in the spring of 1856, the plaintiff hauled to the bank of White river, in independence county, a quantity of corn, which was shelled and sacked, and put into rail pens, and covered with boards. That the corn was put up so as to be protected from the weather, and placed on a high bank, where it could not have been reached except by a very high rise, but that it was wet by the high water in May, 1858, which injured all but the top layers, so as to be unfit for shipment. That the rise referred to was the highest he had ever known, and he had been living on that river ten years; that the corn was put up in good order, and was good merchantable corn, and, in his judgment, there were from 1,000 to 1,500 bushels. That Mr. Burr, of Burr & Co., had a conversation with him whilst the plaintiff was placing the corn upon the bank of the river, in which he told him that Burr & Co. had bought corn of the plaintiff, but that if he (the plaintiff) wished to sell it he could do so, and Burr & Co. would wait upon him twelve months for the amount they had advanced, or paid on it. That corn had then fallen to about twenty or twenty-five cents per bushel, but that in the fall and winter previous it had been worth thirty or thirty-five cents, that is, when shelled and sacked and delivered at a shipping point. He further stated that after the water had subsided, Mr. Archer, of Burr & Co., passed down the river in a steamboat, that he stopped at the pens, and chat by his directions the hands of the boat took off the top layers of the corn. That the corn remained in the pens four or five weeks, and that during the month of April the mail boats made several trips between Batesville and Napoleon, passing the corn, and that those boats were then shipping corn through to New Orleans, and that New Orleans was the general destination of corn shipped from the county that year.

Blankership, another witness, stated that in the winter or spring of 1856, he assisted the plaintiff in delivering corn; that from his judgment they put from 1,000 to 1,500 bushels in the pens on a high bank of the river, that the pens were well covered, the pens were well put up, and that it was good merchantable corn. That he was present when Mr. Archer, of Burr & Co., passed in a steamboat and had the pens uncovered and some sacks of the corn taken into the boat, that he asked him (the witness) to cover up the pens again, which he declined, and Mr. Archer went along leaving the pens uncovered.

Mr. Carpenter also testified that he saw the plaintiff putting corn in pens on the bank of White river, near Rutherford’s warehouse, in the spring of 1856, that he was himself putting a pen of corn there for Mr. Burr, that in his opinion there were from 1,000 to 1,500 bushels placed there by the plaintiff, and that it remained there some four or five weeks before the high rise in the river in May, 1856.

John C. Robinson, another witness for the plaintiff, testified that he helped his father to gather, shell and sack and place corn on the bank of White river in good covered rail pens, that the corn was good, and from 1,000 to 1,500 bushels. That after the corn was delivered on the bank of the river, his father sent him up to Batesville to Burr & Co. to notify them of its delivery, that he went to their store, and finding M. S. Sheppard in the counting-room, who was acting as their clerk, told him that the corn was ready for them; that Sheppard replied that in a few days a steamboat would be along and they would be down to take the corn, that he made a memorandum in a book of what he told him, and that it was four or five weeks before the freshet in May, 1856.

Walter B. Rutherford testified, that in the winter of 1856, he was in the counting-room of Burr & Co., and that Mr. Archer, of Burr & Co., asked him if the plaintiff was good for a contract for 1,200 bushels of corn that was to be sacked, and said, at the same time, that Burr & Co. had bought that quantity of the plaintiff, and paid on it one hundred and sixty dollars.

James Rutherford, a witness for the defendant, said that the cost of gunny bags, that held two bushels and a peck, during the fall of 1855 and winter of 1856, was about 21 cents, and that for such as held two and a half and three bushels, the price would be more in proportion. John G. Robinson, who also testified for the defendant, stated that his father got some eight hundred bushels of the corn in question from a Mr. Met-calf; and that Burr & Co. paid Metcalf one hundred and sixty five dollars for it, and that they paid it to him for the plaintiff, and at his request; and that to sack the corn, he, for his father, got two bales of sacks from Mr. Burr. Gunny bags, 250 in a bale — those in one bale holding about two-and-a-half bushel n and those in the other about three; that those sacks were useu in sacking the corn, and all but ¿bout 20 or 30 were so used by «the plaintiff. This is the substance of all the testimony in the case. The jury were clearly authorized to find that the plaintiffs delivered twelve hundred bushels of good merchantable corn on the bank of White river; that it was received by the defendants, and that the price or value of it was thirty cents per bushel. These -facts are well established as well by direct testimony, as of the overt acts of the defendants. The evidence is, that one of the firm enquired of a witness whether the defendants could comply with a contract to furnish [that quantity of corn, saying at the same time that they had purchased of him so much, and that after it had been delivered some four or five weeks upon the bank of the river, the same party took a part of the corn from the pen, into which it had been placed, and shipped it on a steamboat that was descending the river. The other member of the fil-m admitted that he had bought corn of the plaintiff, and that, if he desired to do so, he could sell it again, and that he would wait upon him twelve months for the amount he had advanced upon it. It is insisted for the defendants that the corn was not delivered and received by them, but that though placed upon the bank of the river, yet it was there at the risk of the plaintiff. We think that the jury was authorized to find the reverse to be true. The plaintiff, immediately upon the delivery of the corn on the bank of the river, caused the defendants to be notified of the fact through their clerk, who reported that a boat would be along soon and take it. The whole current of the testimony goes to show that the defendants were duly informed of the fact, and that nothing-remained to be done on the part of the plaintiff to constitute a full and effectual delivery. They not only paid him a considerable part of the purchase money, but they also admitted the purchase and exercised such acts of ownership as no one would have presumed to do, unless they had taken the exclusive control of the corn. But it is contended, that even admitting that the defendants received the corn, yet they were entitled to a deduction for the value of the sacks which were furnished by them. If the defendants wrere to furnish the sacks, that part of the contract is not supported by the proof. There is a total failure in the evidence upon that point, and consequently, the jury were not authorized to give the plaintiff a verdict for the value of all the corn, but it having been proved that he received the sacks from the defendants, and that without any showing that he was not to pr^ior them, the law would clearly entitle them to a deduction for their value. When the defendants made it appear that they had furnished the sacks to the plaintiff, the law raised an implied promise to pay them their value, and there is not a particle of evidence in the whole record tending to rebut that legal presumption. If there had been any evidence, although slight, in support of that allegation, we should not have felt disposed to disturb the verdict, but ■when there is an utter failure we have no discretion, and are bound to set it aside. It is obvious that the jury made no deduction whatever, but wholly disregarded the set-off set up by the defendants. The verdict first rendered was precisely the sum charged for the whole amount of the corn after deducting the payment which was proved to have been made; and the second, we presume, was for the same amount, with the addition of the interest that had accrued upon it. In this respect we think there vims error. The next question to be decided relates to the correctness of the verdict, as based upon the instructions of the oourt. The first instruction asked by the plaintiff, and given by the court, was, that if the jury should :pnd from the evidence that the plaintiff sold to'the defendant corn, to be sacked and delivered in good order, and that there was no price agreed upon to be paid for the same; that the law fixed the price at the market value of the corn at the time of its delivery, and that if thejr should find the corn to have been delivered according to the agreement, and that the defendants, or their agents, were duly notified of the delivery, then they must find for the plaintiff, on the 4th, 5th, 6th and 7th counts of the declaration, and assess the damages at the market value of said corn, considered with reference to the agreement and quantity actually delivered. This instruction is clear law so far as it goes, but is too narrow for the case made by the proof, and consequently is to that extent insufficient. It was calculated to mislead the jury, as it was wholly silent as to the matter set up as a set-off to the sum claimed. The second asked by the plaintiff, and given, is, thaf^f the jury should find from the evidence that there was an uncrerstanding, either expressed •or implied, between the plaintiff and defendants,.that the defendants should rely on the plaintiff to measure and put up the coni, and ascertain its quantity, then there would be no necessity for any further measurement in order to constitute a delivery; and the third and last is, that if the defendants, or either of them, received the corn under the contract, by exercising any act of ownership over it, that there would be no need of measuring the corn in order to constitute a delivery. Those two last instructions were strictly legal and based upon the evidence as already announced. The defendants then submitted eight instructions, all of which were given by the court. The first five all assert a doctrine which is familiar and unquestionable, and which is, that where the plaintiff sets out and relies upon a special contract, he is bound to prove it in order to enable him to recover upon such contract. These instructions relate exclusively to the first three counts in the declaration, each of which allege a special contract; and it will be readily conceded that the proof in such case must correspond with the allegation, and that if it fail to do so, the plaintiff cannot recover. The plaintiff virtually abandoned the first three counts, as he did not ask any instruction based upon them, but confined himself to the common counts, The sixth is, thatupon the 4th, 5th and 6th counts the plaintiffs could only recover for the amount of corn that was received by the defendants, and at a price that the corn was worth when it was taken or received by the defendants. This is unobjectionable, and it is well sustained by the evidence, as we have heretofore found it. The testimony is, that the plaintiff delivered from 1000 to 1500 bushels, from which the jury were certainly at liberty to fix the quantity anywhere between the two sums stated; and they were also authorized, from all the facts and circumstances, to say that the whole amount delivered was received by the defendants. The seventh directs the jury, that in case they should find the plaintiff indebted to the defendants, they shall give’ them credit for Ihe same and find accordingly, and in case the claim of. the defendants should exceed that of the plaintiff, they would return a verdict against him for that sum. This instruction was in accordance with legal principles, and fully commensurate with the case made by the proof. The eighth and last instruction asked by the defendants was, that if the jury should find from the testimony that so many bushels of corn were to be received by the defendants from the plaintiff, which w'as to be paid for by the bushel, they must find that the corn was counted, weighed, or shown in some way that the number of bushels was ascertained by the parties before they can find that the corn was delivered. This is broad, and will doubtless extend itself sufficiently to embrace the state of fact here presented. The number of bushels is t> be ascertained in some way before they can find a delivery. If the purchaser leave it to the seller to measure it,, and to deliver it in a specified place, when it is thus delivered, it most assuredly would not lie in the mouth of the former to say that the number of bushels had not been ascertained. The testimony in this case is silent as to who should measure the corn, but when it appears that a certain quantity was delivered, and that the defendants, by their acts and admissions, recognized it, we think it may be safely said that the quantity was ascertained. We conclude, therefore, that the testimony is sufficient to establi.-h a delivery of the whole amount of corn sacked and placed upon the bank of the river by the plaintiff; but inasmuch as there is no evidence whatever to support the allegations that the defendants were to furnish the sacks, the jury having failed to give- them any credit for their value, the judgment ought to be reversed and the cause remanded for a new trial. Let the judgment be reversed.

Mr. Justice Fairchild did not sit in this case.