text:
    John Manuel against William G. Campbell.
    Eiíror to Pulaski Circuit Court.

    The rules for the construction of conditions in covenants, laid down by Sergeant Williams, in his note to Pordage vs. Cole, recognized and applied.
    Where, by articles of agreement between C. and M., C. covenanted, in consideration of the sum of money and other considerations after mentioned, to b^ild a saw-mill for M., and do all the work necessary to put it in full operation, without unnecessary delay, to the best of his knowledge, skill, and ability; and that he would not, during the time, absent himself, or do any work for any other person, without the consent of M.; and M. agreed to pay him $260 immediately on the completion of the work; the building of the mill is a condition precedent to the payment.
    The further covenants of M. to board C. during the work, to find and pay a hand to assist in framing and planking, and to find hands to assist in raising the mill, are concurrent and dependent covenants.
    The fact that a party remains in possession of a mill built for him on his own land, does not prove an acceptance of the work; for he could not divest himself of it, without surrendering a portion of his freehold.
    In an action by C. upon such covenant as is stated above, in which he charges M. with a refusal to board him, &c., he must show that, up to the time of such refusal, he had himself complied with every thing which on his part he 'had promised to do.
    Upon doing that,he could claim the stipulated price ; for M. being in such case in fault, would be compelled to conform to the covenant, and pay the price.
    In an action of covenant on such an instrument, in case it is ascertained that the work was not done in a workmanlike manner, or in the manner specified in the contract, C. can recover nothing for the actual or reasonable value of his labor. He must recover on the covenant, or not at all.
    The, parties have made the contract the law by which they are to be governed, and have fixed the criterion of damages «to which C. is entitled; and a jury cannot annul the contract, by giving damages commensurate with the labor.
    This is not so in the cases where contracts have been enlarged, changed, or rescinded, by mutual consent, or where extra work has been done, in which cases the party may claim a reasonable compensation, or a ipiantum meruit, in assumpsit.
    Where a mechanic contracts to do work to the best of his knowledge, skill, and ability, the obligation is imposed on him to do it in a workmanlike manner. Tho offer to do the work, pre-supposes the capacity.
    Every award should be so plainly expressed, that there may be no uncertainty in what manner and when tho parties may put it into execution, but that they may certainly know what it is they arc to do. An uncertain award is useless.
    Campbell complained of Manuel, in covenant. The conditions of the covenant sued on, as set out in the declaration, were, that Campbell agreed that he would, as soon as could reasonably he done, frame and build for Manuel a saw-mill, with all the apparatus and machinery necessary and requisite to the full operation of said saw-mill, near the dwelling-house of Manuel; and would well and truly do and perform all the work of said mill, requisite to putting the same in full operation, without unnecessary delay, and to the best of his knowledge, skill, and ability; that he would not, during the time of building said mill, at any time, absent himself from building th.e same, or do any-other work for any other person or persons in his trade, without the consent of Manuel. And Manuel covenanted to pay Campbell two hundred and sixty dollars in money, immediately on the completion of the mill; to board him during the time of his employment; to feed and pay one band to assist in framing and planking the mill, and to find hands to assist in raising it.
    The declaration then alleged that Campbell had performed and kept every portion of the covenant on his part; and assigned as breaches, that Manuel did not feed and pay a hand to assist in framing and planking the mill, or find hands to assist in raising it, although Campbell commenced and continued to frame and build the mill specially as stated in the covenant, until he was hindered and obstructed by Manuel, who refused to permit him to complete it, refused to board him, and to find hands, &c.; that Campbell did not absent himself, or work for any other person, without the consent of Manuel, but was always ready, and offered to perform all his covenants; that Manuel has failed to pay the sum of ‡260 agreed on, or the penal sum of five hundred dollars, &c.
    To this declaration Manuel pleaded several pleas:
    First, That Campbell did absent himself for ten days, without Manuel’s consent, and during that time refused to do any work.

      Second, That Campbell did not frame and build the mill, with all apparatus and machinery necessary and requisite to its full operation, or well and truly do and perform all the work of the mill, necessary and requisite to put the same in full operation, without unnecessary delay, and to the best of his knowledge, skill, and ability, until he was hindered and obstructed by Manuel, but refused to do it, and to complete and finish it.

      Third, That Campbell did not do or perform all or any of the work of said mill, requisite to putting the same in full operation, according to the best of his skill, knowledge, and ability; but so negligently and unskilfully did said work, and in so unworkmanlike a manner, that it was entirely useless and worthless.

      Fourth, That Manuel had paid the whole sum of $260.

      Fifth, That -he did board Campbell, according to the covenant.

      Sixth, That he did find and pay a hand to assist in framing and planking the mill; and, -

      Seventh, That he did find hands to assist in raising the mill.
    To the four last pleas, which concluded to the country, Campbell joined issue. To the first, second, and third, he filed replications, specially denying in terms the allegations of each, concluding to the country; and to each of these replications the defendant Manuel joined issue.
    At the March Term, 1040, the case was tried, on these issues, by a jury, who found for Campbell $70, for which judgment was rendered. The bill of exceptions sets out all the evidence in the case, which is as follows:

      Jones, witness for Campbell, stated that, in the spring of 1836, Manuel came to him and told him that Campbell had engaged to build a mill for him, and had not done it; that they had agreed that Campbell should quit, and leave it to Ctephen Cotter and Jones what Manuel should pay him. Cotter and himself then examined the mill. Manuel said he wanted them to make a final settlement between him and Campbell. That two receipts, one for $80 and the other for $15, were produced, and admitted by Campbell to be correct; and Campbell refused to admit certain accounts which Manuel had against him, They awarded that Manuel should pay Campbell §90. The lower works of the mill were under water, so that they could not see them. The upper works did not look well. Thought they had been put together when the timber was green. Manuel had before, told him that the frame was good, or would answer; but it was not good. Did not see any good work about the mill. The running gear was bad, and he did not consider the work to have been done in a workmanlike manner. Manuel said that the mill had been put in according to his directions, but that Campbell had not done the planking faithfully.
    Stephen Cotter stated the same. He said that he understood that the award was to be final, and that it was on that account Campbell quit working at the mill. That the work was very indifferent, and not done in a workmanlike manner; that the running gear was very indifferent, the carriage' bad, and the running gear would not carry on the work to any purpose. That if any body had made the mill, and given it to him, he would not have bad it.- That he has had experience in such matters, and a man would lose money in running such a mill.
    Felix G. Peyton stated that, in March or April, 1836, Campbell sent word by him to Manuel, that he wanted to finish the mill, and wished him to get the materials. He delivered the message, and Manuel said that Campbell had not done the work to suit him, (or, as he wanted it), and should not finish it; that Campbell was a damned rascal, and he would get the materials when he got ready. That Manuel once told him that his mill had braces enough in the frame, and that the flutter wheel, which he had been compelled to have made of unseasoned timber, answered very well, and was the only thing about the mill which did him any service. Had seen Manuel seasoning some timber, obtained from Danner’s mill, with which, he said, he was obliged to put up, because he had been unable to get seasoned timber.
    James Mills stated, that he was at Manuel’s when Campbell was making the rag wheel, and told Manuel that he would not have it made of unseasoned timber. Manuel said that he could not help it; that he had got it from Danner’s mill, and had been seasoning it three or four days, and that the wheel would do till he could get the mill going, and saw timber himself for another. Manuel said, a day or two before the-arbitration, that-Campbell was not at work at his mill; that he was a damned rascal, and should have nothing more to do with it. Manuel told him that he had to have his wheel and running gear made out of the best limber he could get. Was at the mill a week or ten days after she started, and Manuel said she cut as fast as Fisher’s mill, and seemed satisfied with her.
    This was all the evidence on the part of the plaintiff below. On the part of the defendant, George Brodie stated, that he was employed by Manuel to build a grist-mill; and being himself a millwright, he frequently examined the saw-mill spoken of, repaired it, and instructed Manuel how to have it repaired. It was a very poor mill.' The frame was pretty good, but as to the running works, he would rather have had the timber of which they were made. The defects were principally in the plan and workmanship, though a part of the fault was, that unseasoned timber had been used. The lower works, which are generally under water, and are made of green timber, were very poor — so poor that the mill would not saw fast enough to furnish timber for building the grist-mill. The iron bands of the cranks had bursted, and such of the upper works as do not require to be'made of seasoned timber, were very bad — wretched! The machinery-was so bad that it would not feed the saw, and Manuel had to help with a crow-bar. The gudgeons were not long enough, and would not stay fast. It is the duty of the millwright to instruct his employer how to get every thing to be used in building the mill. A good deal of the fault was in the gudgeons and carriage, and in the cogs not being firm set, or washing well. The cogs are small pieces of hard wood, about an' inch square, and there is no difficulty in getting them of seasoned wood. The rag wheel had fallen through, but witness did not know the cause. Danner had done some work on the flutter wheel — put a band on it, and wedged it. Manuel had sawed very little with the mill.
    'Danner stated that, in the winter of 1836-7, he repaired the mill for Manuel; that it was in a very poor condition, and could not work at all. The crank had come out, and the crank end of the wheel had fallen down. It was poor work: part of the lower works did very well, and part of it was very poor. The water-pitch, water-breast, and water-gate were poor work. They were out of place. The water-pitch had split for want of braces, and was torn out. The upper works were loose and shackling. Had to make a new backing wheel and trunk. The wheel which was there when witness went there, would not back at all. All this portion of the work is always made of green timber. There were no hauling-up works or hauling-up wheel to the mill. Witness made a hauling-up wheel, for which Manuel gave him fifty dollars, it having been commenced by another workman. If the hauling-up wheel and works had been put in, of the same kind of work as the rest of the mill, it would have been worse for Manuel. Manuel had sawed as long as he could, and had had to tinker at the mill all the time, to keep her going at all. A badly made mill is worse than no mill at all.
    S. M. Knowles stated that, before the arbitration, Campbell quit working on the mill, and told him that he had quit there, and never would go back. Witness told him that if he did not complete the mill, Manuel would never pay him. Campbell did not seem to care whether he paid him or not. Does not think he worked at any other mill during that time. Campbell said there had been some disagreement between him and Manuel, or that Manuel had not complied with his contract.
    F. G. Peyton stated that, in January or February, 1836, Campbell quit work on Manuel’s mill. He did some work on Mills’ mill, but whether it was before or after the arbitration, he could not recollect.
    The defendant, Manuel, then read in evidence two receipts signed by Campbell, one for $80, and the other for $15; and this being all the evidence, he moved the Court to instruct the jury:
    “ That if they believe that the work by said contract agreed to be “ done, was not done by said plaintiff in a workmanlike manner, or in “the manner specified in said covenant, the plaintiff cannot recover, “ unless the defendant accepted said mill in discharge and satisfaction “of the covenant aforesaid; and that the mere fact of his remaining “ in possession of said mill, does not prove that he accepted it in discharge and satisfaction of the covenant;” and,
    “ That the jury cannot make a deduction, and give a verdict for the “ plaintiff, for a balance which they may think should be reasonably “ allowed him for his labor, in this action, in case they believe the work “ not to have been done in a workmanlike manner, or not in the man- “ ner specified in the covenant; but must, in such case, find for the “ defendant.”
    Each of these instructions the Court refused to give; and Manuel excepted.
    Pike, Tkapnall, and Cocke, for plaintiff in error:
    We contend that all the instructions asked for were correct, contained the law applicable to the case, and should have been given to the jury.
    As to the first instruction, we remark that it was averred by the defendant below, in his third plea, that Campbell so negligently and unskilfully did the work, and in so unworkmanlike a maimer, that it was entirely useless and worthless. Let us now inquire what are the authorities applicable to and sustaining the first instruction asked.
    ■ Starkielays down the law on this subject, as follows: “ Where the plaintiff, under a special agreement, has executed the work improperly, since he has not done that which he engaged to do, and which is the consideration of the defendant’s promise to pay, it seems to be now settled that the plaintiff must recover, if at all, upon the quantum meruit, and that he cannot recover more than the value of the work and materials to the defendant. And where the plaintiff has executed his work so ill that the defendant has derived no benefit from it, or none which exceeds in value the sum which he has paid, the plaintiff is not entitled to recover at all, even for the labor and materials.” 2 Stark. Ev., 97, 98. See Basten vs. Butter, 7 East., 497; béfore which case, it had been held that the remedy of the defendant was by a cross action.
    In Ellis vs. Hamlen, 3 Taun. 52, a builder brought an action against his employer, upon a special contract for building a house, of materials and dimensions specified in the contract, to recover the balance of the sum therein agreed on. It .was proved, in defence, that the plaintiff had omitted to put into the building certain joists and other materials, ®f the given description and measure. The plaintiff’s counsel then resorted to a quantum valebant count in the declaration for work, labor, and materials; but Mansfield, C. J., said: “Suppose you had come hither upon a quantum valebant only,.could you have recovered on it? Certainly not.” And again: “The plaintiff has properly declared on his special contract, and be has shown and proved that he made such a contract, and has received much money on it. He cannot now be permitted to turn round and say, I will be paid by a measure-and-value price.” Again: “It is said he (the defendant) has the benefit of the houses, and therefore the plaintiff is entitled to recover on a quantum valebant. To be sure, it is hard that he should build houses and not be paid for them; but the difficulty is to know where to draw the line; for if the defendant is obliged to pay in a case where there is one deviation from his contract, he may equally be obliged to pay for any thing, how far soever distant from what the contract stipulated for.” And the plaintiff was accordingly nonsuited.

      Taft vs. Inhabitants of Montague, 14 Mass. 282, was an action of assumpsit. One of the counts was on a special contract, by which the plaintiff was to build a bridge, for a certain price, in a manner particularly described. The proof was, that he built the bridge, but not in a workmanlike manner, it stood, however, from the fall of 1810 till the spring of 1812, being occasionally repaired, and then one arch fell down. In 1814, the other arch fell in. The abutments were proved to have been built principally of cobble stones, not well laid together; and in one arch, the stones were not bound together at all. The plaintiff proved that he laid the foundations of the abutments as low as was requisite, and the bridge was as wide, high, and long as it should have been. But it was proven that the stones were not of proper .shape and size, and were not laid and bound together in a workmanlike manner, though proper stones could have been procured, and the understanding was that such stones were to be used.
    The Court said that it would be a reproach to the law, if the plaintiff could recover the stipulated price of the work which he undertook to perform; and therefore decided that the defence wa3 sufficient under the special count. See Crowninshield vs. Robinson, 1 Mason, 93; Templar vs. McLachlan, 5 Bos. & Pul., 136.
    In Morford vs. Mastin, 6 Mon., 612, this question was considered by the Supreme Court of Kentucky. They said: “ Here there is a general performance of the stipulation, agreeably to its general outlines; but in the manner, or rather in the quality, of the performance, proved as to part of the work, th'ere is a failure. Is this such a failure as totally to preclude all recovery in this action?” (which was covenant). “ Will the failure to complete the work in a workmanlike manner, in a small part thereof, when the greater part is well done, destroy for ever the right of action on the contract, and leave the other side to enjoy the labor already done? To answer these questions in the affirmative, may, at the first blush, seem rigid and severe. But still, we apprehend, such an answer must be given; and the evils arising from its apparent rigor, will be partially compensated by the preservation of good faith in performing special agreements.” * * “The receiving the work (say the Court, the same being done on a house,) will make no difference. He could not reject it, without abandoning his estate, on which it was situated. It was already part of his freehold, and he received every part as it progressed.” * * * “ The acceptance of work that a party cannot reject, as a building upon his land, does not bjnd the employer to waive the precedent condition, and permit the undertaker to recover the precise sum. Nor can he be allowed to recover in this action a quantum meruit, after failing to prove the preceding condition.” See also Farnsworth vs. Garrard, 1 Camp. 38; Onell vs. Smith, 1 Stark. C., 107; 3 Stark. Ev., 1769; Dana vs.-Boyd, 2 J. J. Marsh, 593; Hayward vs. Leonard, 7 Pick., 184; Champlin vs. Rowley. 18 Wend., 187.
    The authorities above quoted, it is submitted, conclusively show that both the instructions which were refused by the Court, ought to have been given. The evidence in the case conclusively shows, not only that the work was done in an unworkmanlike manner, but that it was so done as to be almost, if not entirely, worthless; and that those parts of it which were made of green timber,- were equally as bad where green timber was proper as where it was not.
    Upon the evidence given, it is certainly plain that the plaintiff below was not entitled -to recover in covenant, however he might have done if he had brought assumpsit; and if this be the case, the instructions were applicable, and, being correct law, were improperly and erroneously refused.
    Fowlek, Contra:

    The first instruction asked for by Manuel, in part, is an abstract proposition, and has no relation to the facts detailed in evidence; and the residue is a proposition to charge upon a matter of fact, which belongs exclusively to the jury, and over which a Court has no legal control. For a Court to state to a jury that such a thing proves or does-not prove a particular fact, it is a charge upon a matter of fact, and an invasion upon the constitutional province of the jury; consequently, for the Court below to have instructed the jury that the mere fact of Manuel’s remaining in possession of the 'mill, did not prove that he accepted it, &c., would have been improper, and was rightfully refused to have been given. And even if the Court below had given such instruction, the evidence would have fully authorized the same finding bj the jury; because the facts of a submission to an award by Manuel, several payments made by him to Campbell, and other circumstances detailed, go clearly to prove his acceptance of the mill, independent of his mere possession. Upon the evidence on this view of the case, Campbell was entitled to recover. On another, he was equally entitled — that he performed in part, &c., and until prevented by Manuel, &c. See 4 Cranch, 239; 2 Cond. Rep., 98; 1 Bibb, 389; 4 Bibb, 1; 1 Lit. Rep., 3; 1 Pet, Dig., 40. Y/henever a man can have an action upon an instrument under seal, he must resort to it. See above authorities, and 1 Ch. Pl., passim.

    Manuel was bound to pay Campbell for his labor, and the latter could have no other remedy than on the covenant. Manuel never denied that Campbell was entitled to compensation, until after suit was instituted. And the very nature of the contract itself, taken in in connection with the testimony, shotvs clearly, and by admissions of Manuel, too, that the defects in the work done were as much attributable to Manuel as to Campbell. Manuel was to furnish the materials. The lumber furnished by him was not seasoned; was not such as good work could have been made of; and it is in proof that he admitted the fact, and said that it would do, or he would have to make out with' it, until he could cut lumber and season it. It could not then be reasonable for him to bo allowed, either in justice or according to legal technicalities, to take advantage of his own wrong.
    The Court will further perceive that there is no undertaking, or allegation, or issue upon the point, that Campbell was to build the mill in a “ workmanlike mannerThe first we hear of it, is in the instructions asked for by Manuel. Campbell was only bound to do the work according to the best of his skill and ability; and for aught that appears, he fully complied with such undertaking. Thus far, then, the instructions were irrelevant, and properly refused.
   Dickinson, J.,

delivered the opinion of the court:

It is not denied by the counsel for the defendant in error that the mill was not finished; but it is contended that the facts of submission to an award by Manuel, the payments made by him to Campbell, and other circumstances detailed in evidence, go to prove his acceptance independent of mere possession. It is necessary for us to ascertain, first, the nature of the contract, and whether the performance of Campbell’s part of the agreement was a condition precedent to the payment by the defendant, or whether the covenants are mutual and independant. Sergeant Williams, in his note to Pordage vs. Cole, 1 Saund. 320, note (4), remarks that many of the old, as well as modern cases are decided upon distinctions so nice and technical, that it is difficult to lay down any general principle by which to determine what covenants are independent, and what dependent. The only court rule is, to construct covenants according to the meaning of the parties, and the good sense of the case. To ascertain that intention, some general rules are adduced from adjudged cases: 1st. If a day be appointed for the.performance of any act, and such a day is to happen or may happen before the performance of the act which is the consideration of the first mentioned act, then the covenants are considered mutual and independent, and an action may be brought without averring.performance of the consideration; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent, and so it is when no,time is fixed for the performance of the consideration. 2d. But when the day or time appointed for the payment of money, or performance of an act is to happen after the thing which is the consideration is to be performed, no action can be maintained before performance of the condition. 3d. When a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid in damages, it is an independent covenant, and an action may be brought for a breach of the covenant without averring performance.

And when a person has received a part of the consideration for which he entered into agreement, it would be unjust that because he has not had the whole, he should therefore be permitted to retain that part, without either paying or doing any thing for it; and therefore, the law obliges him to perform the covenant on his part, and leaves him to his remedy — to recover damages for not receiving the whole consideration. 4lh. But when mutual covenants go to the whole consideration, on both sides, then they are mutual conditions and dependent.

When two acts are to be done at one and the same time, neither partj can maintain action without performance, or an offer to perform his part. Under what head ought this contract to be classed? We think there is no difficulty in putting a proper construction upon it. The building of the mill is a condition precedent to the payment of it; and when the mill is finished, according to his stipulation, all of Campbell’s covenants are necessarily fulfilled; while Manuel’s covenants, to find and pay one hand, &c., as they must be performed while the work is progressing, are necessarily concurrent and dependent upon Campbell’s. Each has charged himself with certain specified duties, for the non-performance of which an action of covenant will lie; or the party can bring debt upon the penalty, and assign breaches; but he cannot go out of his contract. He must recover, if at all, upon it. The plaintiff, in his declaration, avers performance, until hindered and prevented by the defendant; who, on his part, pleads performance of all his covenants, and non-performance by the plaintiff. He also pleads payment. The execution of the contract, and the payment of ninety dollars, are admitted. Manuel denies all liability. On the trial of this case, a verdict was given to Campbell for seventy dollars: to secure it, the plaintiff in error sued out his writ to this Court. The evidence adduced upon the trial, is substantially correct, as stated by the counsel of the plaintiff in error. The whole is set out in a bill of exceptions; also, the objections raised to the judgments: that the Court refused to instruct the jury, 1st, “ That if they believed that the work by said contract agreed to be done, was not done by said plaintiff in a workmanlike manner, or the manner specified in said covenant, the plaintiff cannot recover, unless the defendant accepted said mill in discharge and satisfaction of the covenant aforesaid ; and that the mere fact of his remaining in possession of said mill, does not prove that he accepted it in discharge or satisfaction of the covenant. 2d, And also, that the jury cannot make a deduction, and give a verdict for the plaintiff, for a balance which they may think should be reasonably allowed him for his labor in this action, in case they believe the work not to have been done in a workmanlike manner, or not in the manner specified in the covenant; but must, in such case, find for the defendant.”

The mere fact of remaining in possession, proves nothing; for Manuel could not divest himself of it without surrendering a portion of his freehold, which he was not bound to do. The residue of the instructions asked for, will be considered together. Here is a contract under seal, entered into, by which Manuel stipulates to pay Campbell a certain sum, upon certain conditions, second, by a penalty. Campbell aveys performance, or what he contends is equivalent to performance, and therefore claims the sum stipulated to be his in that event. The parties themselves have made the contract the law by which they are to be governed, and have fixed the criterion of damages to which Campbell is entitled; and a jury cannot obviate the effects, of such a contract, by giving damages only commensurate with the labor. The sum stipulated to be paid for the whole, might be greatly over the real value of that kind of work; or, on the other hand, if that price, so agreed upon, had been too low, by disregarding the terms of the agreement, and rating the labor at the ordinary value of such work, it might, upon the same principle, if only partly done, carry it beyond the price agreed upon for the whole when completed. In neither event, would such a rule have an equal bearing upon the parties, or be consonant with justice.

If there is no fixed sum'agreed upon, then the rule is, that he shall have a reasonable price, commensurate with the labor done, allowed him. It is not so much of an inquiry whether Manuel complied with his contract, as whether Campbell, the party claiming to be injured, fulfilled his own covenants. For the breach of good faith on one side, will not aid him who is equally guilty. Campbell must first bring himself within the equity of the law, before he can claim to have it enforced upon the other. In conclusion, Campbell must show that, up to the time when he charges Manuel with a refusal to board him, &c., he had himself complied with every thing which on his part he had promised to do. Then, and not till then, can he claim the price stipulated to be paid him; and then, he is entitled to the whole of it; for, if Manuel was in fault, and threw Campbell out of employ, and compelled him to incur losses and expenses, he has no right to complain upon being required to conform to his contract.

This is not like many of the cases reported in the books, where contracts arc enlarged, changed, or rescinded, by mutual consent, or where extra work is done, for which the party claims a reasonable compensation upon a quantum meruit in assumpsit, without relying upon the stipulations expressed in the contract.

The counsel for the defendant in error, contends that he only contracted to do the work to the best of his “knowledge, skill, and ability,” and objects to the introduction of the word “ workmanlike” in the instructions asked for. This objection cannot be sustained; for when a party contracts to do a certain piece of work in his “ trade,” he is presumed to be both able and willing to do it in a workmanlike manner: the very oiler to do the work, pre-supposes capacity. To say that a builder, after the destruction of the materials, and the expenditure of his employer’s means, should be permitted to shield himself from damages, upon the ground that he only contracted to the best of his knowledge, skill, and ability, and that he is not responsible if the work is not done in a workmanlike manner, would be a fraud which the law will not countenance. If the contractor doubts his own capacity, he must provide for it in his contract; otherwise, if he uses general expressions, he must be governed by general rules: Bull. N. P., 139; 10 Mass., 287; Stagg vs. Munro, 8 Wend., 399; Northrop vs. Northrop, 6 Com., 296; Lawrence vs. Dale, 3 J. C. R., 23; Jewell vs. Schroeppel, 4 Cowen, 564.

The award of the arbitrators ought not to be considered; for the object of submitting matters of contract to arbitrators, is for the purpose of obtaining a speedy and final determination of the matters in dispute, with less delay and expense than by having recourse to the ordinary tribunals of the country, it is the intention of the parties, in submitting their disputes, to have something ascertained, which was «before uncertain; and it is a general rule, that the award ought té beso plainly expressed, that there may be no uncertainty in what manner, and when, the parties may put it into execution, but that they may certainly know what it is they are to do. An uncertain award is useless.

The award here is neither certain nor conclusive, but indefinite, unfinished, and not final; it can therefore have no bearing upon either of the parties. The testimony of the several witnesses introduced, does not clearly show cither performance or its equivalent upon the part of Campbell, nor the acceptance of the work by Manuel. Upon the whole, we are of the opinion that the first instructions asked for were rightfully refused by the Court, as too broad and general; for it is a sound principle, that he who prevents a thing from being done, shall not avail himself of the non-performance he has occasioned; but that the Court erred in not giving the second instructions, as moved by the plaintiff in error; and as this Court cannot know what influence the refusal so to instruct may have had upon the finding of the jury, the judgment is reversed.


source: Caselaw Access Project

author: DicKiNSON, J.,

license: Public Domain

text:
    George A. Renner against Edwin J. Reed.
    Eeeoii to Hempstead Circuit Court.

    Any irregularity, defect, or informality, in the terms, form, or structure of the writ, or in the mode of issuing it, is ground of abatement.
    By the modern practico, a right to oyer entitles the party to a copy, that he may, if ne. cessary, spread it upon record, to enable him to make his defence.
    By the practice in this State, the writ is a matter of record, of which either party can procure a copy; and the defendant is no more bound to crave oyef of the writ, than the plaintiff is to make profort of it.
    The writ is a record; and of records profort is not necessary.
    In every original writ, the nature of the plaintiff’s complaint must bo set out.
    Final judgment should not be given for the plaintiff, on demurrer sustained to a plea in abatement. The proper judgment is respondeat ouster.

    This was a suit brought by E. J. Reed against the plaintiff in error, by petition and summons, to the April Term of the Hempstead Circuit Court, A. D. 1840. The command in the summons, to the Sheriff, was in the following words and figures, to wit: “ You are hereby commanded to summon George A. Renner, if he be found within your bailiwick, to appear before the Judge of the Circuit Court of Hemp-stead county, at the Court-house in the town of Washington, in the county aforesaid, on the first day of our next April Term, then and there to answer the complaint of Edwin J. Reed; and that you make due return to our said Court, in testimony whereof,” &c. The defendant pleaded, in abatement, that the summons did not charge him in any form of action whatever, when, in truth and in fact, the petition being founded on a writing obligatory, the summons should have notified him to answer in such form of action as could be rightfully maintained on such instrument, to wit, in debt. To this plea the plaintiff demurred, without setting out any special cause of demurrer. The Court gave judgment on the demurrer: “ That the matters and things set forth in said plea of the defendant, were not sufficient in law to bar the said plaintiff from having and maintaining his action against the defendant; and the defendant saying nothing further in bar,”&c.; with final judgment against the defendant.
    Trimble, for plaintiff in error:
    The objection to the summons in this case is, that the defendant is summoned to answer the complaint of Edwin J. Reed; but it does not stale the nature of the complaint,.whether debt, assumpsit, or covenant. Sec Jeffrey vs. Underwood, 1 Ark. R., 119. If the cause oí the action be set forth so imperfectly in the summons, that the defendant could not have sufficient notice of the plaintiff’s cause, of action, the writ might be abated by plea: Story's Pleadings, 153 and 24. If the writ, when served, contained r.o declaration, and no cause of action in it, this is sufficient cause of abatement: ib. 24. It was not necessary to swear to said plea in abatement, because the defence set up was apparent on the face of the summons — a part of the record. But if the plaintiff could have objected to the plea, for want of an affidavit verifying the truth of the matter contained in the plea, it was an objection to the filing of the plea, or by motion to strike it out: having demurred, the demur admits the truth of the matter set out in the plea, and rests alone on the insufficiency, in law, of those matters to abate the summons; an issue of law was made up for the decision of the Court. The judgment of the Court on the issue, is erroneous. The issue was in abatement; while the judgment is in bar. The judgment ought to have been: That the matters and things in the plea of the said defendant, by him above pleaded, are (or are not) sufficient in law to abate the writ, &c. If they were not, then the Court ought to have awarded a judgment of rc.spondc.ai ouster. 3 Wend., 169. If the defendant plead in abatement, and the plaintiff demurs, if the judgment is for the plaintiff it will be, that the defendant answer over: Sioi-y's Pleadings, 31. The judgment of the Court on the issue of law made by the demurrer, is not a response to that issue; and the same issue of law yet remains undecided; and, until that issue is disposed of, the Court could render no final judgment against the defendant below. It was moreover alleged by the defendant below, that the matters and things in his said plea set forth, were sufficient in law to bar or preclude the plaintiff below. It is not now pretended that they are sufficient to bar said plaintiff, yet they might be fully sufficient to abate the writ of said plaintiff, and which the counsel for the plaintiff insists they are. The final judgment is by nil dicit. The defendant below could say nothing further, until the Court disposed of the issue of law, and thereby afforded the said defendant an opportunity to speak further and answer to the merits of the suit, should the Court determine the matter of his pica was not sufficient to abate the writ of the plaintiff below.
    This summons issued upon a petition filed under out statute; (See Revised Statutes of Arkansas, 152); and the petilion does not go out with the summons, and the summons does not disclose the cause on which the petition is founded, that it docs not disclose any cause of action. Story's Pleadings, 24.
    The sheriffis commanded to summon the defendant below, to answer the complaint of the plaintiff. This does not disclose the cause of suit, and was calculated to mislead the defendant.
    For the above reasons, the judgment of the Court below ought to be reversed.
    Royston, Trapéale, and Cocke, Contra:

    It was formerly necessary to demand oyer of the writ, before any advantage could be taken of its defects by plea in abatement. Tidd, 529; Chitty Pl., 465, 485. This practice continued until it was altered by a rule in the Court of the Common Pleas, in the case of Ford vs. Burnham, C. B. T. 11 and 12, Geo. 2, Barnes, 340, 4to edit.; and in the Court of King’s Bench, in the case of Boats vs. Edwards, 1 Doug., 227, where Lord Mansfield said, “He desired the bar to take notice, that the practice for defendants to crave oyer of the original, which is so much used for delay, is not warranted by any rule or principle of justice. That it is incumbent on the Court to make their proceedings as little dilatory, oppressive, and expensive, as possible. That it is unnecessary for the defendant to see the original, after ho has been informed of the cause of action by the declaration. That the Court of Common Pleas has rejected (he practice; and that from hence the plain tills in this Court may proceed as ifsuch demand had not been made.” The effect of this rule is, that the refusal of oyer of the writ prevents an objection to it; but as the declaration is presumed to agree with the writ, any mistake carried out into it, may be the subject of a plea in abatement to the writ or bill.
    Matter apparent on the face, of the writ, such as an omission of the defendant’s addition, and other defects which do not appear in the declaration, are no longer subjects of abatement. But matter dehors, such as misnomer, nonjoinder, esc., which are ensting defects at the time of suing out the writ, are.” 1 [launch P. & 15., 3; Chilly's PI., 485; 1 Saund. RepSIC, nota 3; Cray cl ah vs. Siine.ff, 3 B. & P., 398. The objection to tie writ in ibis cr.ce, is founded upon a defect, (if there be a defect at nil,) apparent on Ilia faca of the writ, and not carried into the declaration. If, therefore, the modem English practice is to prevail in this country, no advantage can be taken of the alleged defect by a plea in abatement, and the Court will treat that pica as a nullity. But, inasmuch ns this rule of Court was adopted at a time long subsequent to that when the common law of England and the practice of their courts were made, by statute, a part of our system of jurisprudence, we must look to the practice as it existed before this alteration by the Court, fordhc rule by which wc are to be governed. The authority heretofore referred to shows that, by the ancient practice, there could be no plea in abatement of the writ, without first demanding oyer of the writ. And as the defendant had put in his plea in this case without demanding oyer of the writ, the plea must be adjudged bad, and will not be regarded with the writ.
    We admit, as a general rule, that judgment for plainupon demurrer to a plea in abatement, is not final, but merely a respondeat ouster. But this must be understood as having reference only to those cases where the matter of the plea is not sufficient in law, but the plea itself is pleaded in apt time and proper manner; and cannot have relation to those cases where the pica is in fact no plea at all. If wc are correct in the positions we have assumed, the plea in this case is a mere nullity, and the plaintiff might have taken judgment for want of a plea. And although there may be a technical impropriety in the manner of rendering the judgment, yet, as the final result would have been the same, the Court will not disturb the judgment for a mere matter of form. Errors may often be commuted in the inferior Courts, yet, if they are such as do not prejudice the rights or interests of cither party, the Appellate Court will not, for these immaterial errors, reverse the case, and subject the parlies to the expense and inconvenience of another trial, merely to observe technical forms, and at last to arrive at the same result by a different process.
   DicKiNSON, J.,

delivered the opinion of the court:

The plea in abatement was properly put in'; for, in general, any irregularity, defect, or informality, in the terms, form, or structure of the writ, or in the mode of issuing it, is a ground of abatement. Com. Dig., Abatement, H. 1, 6; Lava’s Pleadings, 106; Gould P., 287.

It is contended, however, that the demurrer to the plea was rightfully sustained, the defendant not having first craved oyer of the writ. Is this necessary? Craving oyer, according to the original signification of the law, is demanding to have it read. 3 B. Com., 299. And it is discretionary with the Court to grant it or not, as the party applying may or may not be entitled to it. But in the modern practice, a right to oyer entitles the party to a copy, that he may, if necessary, spread it upon record, to enable him to make his defence. For the law presumes him, if he is entitled to it, to be unable, without it, Jo put in a proper plea. In the case before us, the writ itself is a matter of record, of which either party can procure a copy, and the reason of the rule authorizing oyei craving, the rule itself necessarily ceases to exist. The defendant is no more bound to crave oyer of the writ, than the plaintiff is to make proferí of it. Of record (and that the writ is a record, there can he no doubt,) proferí is not necessary. Co. Litt., 225; Tidd, 529; Bull, N. P.,252; S Wheaton, 691. For records are public property, deposited and kept for public use, in public offices, for that purpose, and therefore not subject to the control of individuals. If such be the reason why profert is not necessary, the same reason is equally applicable to the demand of oyer. This suit was instituted by petition and summons. The 7th sec. Rev. St,, p. 620, declares that the original writ shall charge the officer to summon the defendant to be and appear in Court, on the return of such writ, to answer the complaint of the plaintiff. Under the mode of proceeding, as prescribed by statutory provision, the declaration or petition is filed with the clerk of the court, and does not accompany the writ. It is obvious that, in requir-ió the party defendant to answer the complaint of the plaintiff, it is presumed that the nature of that complaint is set forth in the writ; otherwise, it would be too general to meet the object of the law, in requiring a notice to be given to the defendant, by which he might be enabled io prepare bis defence. There is no cause of action set forth, and the party is left wholly in ignorance of the nature of the plaintiff’s complaint. The writ is evidently defective, and the plea properly put in. it follows, therefore, that the Court below erred in sustaining the demurrer. The judgment, upon its face, is erroneous, because a final judgment appears to have been given for the plaintiff below on the demurrer to the plea in abatement, w'hcn, by law, if the plea was bad, the judgment ought to have been interlocutory, viz: a respondeat ouster — that the defendant answer over, under which judgment he may plead any plea, la baquent (in the order of pleading) to that which has been overruled. The judgment is reversed.


author: Dickinson, J.,

text:
    Richard C. Hawkins against More, Probate Judge.
    If a writ of mandamus is defective in substance, it may be quashed on motion.
    And such motion may be made after the defendant has made his return upon the writ.
    Great strictness is required in issuing a writ of mandamus. It must not be enlarged, nor can it be limited within narrower bounds than the Court directs. A variance in substance, changing its character as to tho act required to bo done, will be fatal.
    Where the order of Court was for a mandamus, directing the Probate Judge “ to desist from proceeding to adjudicate upon tho matter of a particular estate,” and the writ commanded him to desist from any further proceeding against the administrator on a citation requiring him to file his accounts for settlement, and from any further proceedings in relation to the matter of the settlement, tho variance was fatal.
    On the 14th .day of February, 1840, Richard C. Hawkins presented to the Chief Justice and one of the Associate Judges of the Supreme Court, his petition, supported by affidavit, for a mandamus, in substance as follows:
    “Your petitioner, Richard C. Hawkins, in his capacity of administrator, with the will and codicil annexed, of Alexander Burton, dec’d, represents, that the said Alexander Burton having heretofore departed this life, testate, and having, by his last will and testament, and the codicil thereto, duly proved and admitted to record, appointed Elias N. Conway and Elijah A. More executors of his last will and testament and the codicil thereto; and the said Elias M. Conway and Elijah A. More having both declined taking upon themselves the burthen of said executorship, letters of administration on the estate of said Alexander Burton, with the will and codicil annexed, were, on the seventeenth day of July, A. D. 1838, in due form of law, by the County Court of Pulaski, in the State of Arkansas, sitting as a Court of Probate, through the clerk thereof, in vacation, granted to your petitioner, who thereupon, having complied with all the requisites of law, became such administrator, and took upon himself the burthen of said administration, and thence hath continued to be, and still is, such administrator; which said letters of administration are herewith submitted, marked (A), and prayed to be taken as part of this petition.
    “And your petitioner further represents, that on the same day when your petitioner so obtained said letters, as aforesaid, it was agreed by and between your petitioner and said Elijah A. More, that, in consideration that your petitioner would take upon himself the burthen of said administration, and so enable the said More to avoid the burthen of said executorship, the said More should be employed by your petitioner, in his said capacity of administrator, as the attorney of said estate, (the said Elijah A. More being then an attorney at law, prac-tising in the courts of this Slate); and your petitioner then employed and retained the said Elijah A. More as the attorney of said estate, which retainer and employment was to continue until the close of said administration. And it was then contracted and agreed, by and between your petitioner, as such administralor, and the said Elijah A. More, that he, the said More, should be and become the attorney for said estate, generally; and the said More was then, by your petitioner, as such administrator, retained and employed as such attorney for said estate; and it was further contracted and agreed, by and between the said More and your petitioner, that the said More should act as such attorney for such estate, in all matters belonging to the personal property of said estate, and in every thing necessary and requisite to the management of the same, until the full end and close of said administration; for which your petitioner should pay to him, the said More, the sum of one hundred dollars, in full compensation therefor.
    “And your petitioner represents, that on the day following, to wit, on the 18th day of July, A. D. 1838, your petitioner paid to said More the sum of fifty dollars, as part of said fee, and the said More received and receipted for the same, and then entered upon the performance of his duties as such attorney; which receipt of said Elijah A. More is herewith exhibited, marked (B), and prayed to be taken as part of this petition.
    “Your petitioner further represents, that, subsequent to such retainer and employment by your petitioner of said More, he, the said Elijah A. More, was elected and commissioned presiding judge of the county court and judge of probate for said county of Pulaski, which office he still holds; and your petitioner represents, that, on the twenty-fifth day of December, A. D. 1839, by the order of said Elijah A. More, as such judge of probate, a citation issued from said court of probate, whereby your petitioner, as such administrator, was required to appear before said probate court, and exhibit his accounts as such administrator to said court for settlement, on the second Tuesday of January, A. D. 1840; which said citation was lately served upon youi petitioner; all which will appear by a copy of said citation, herewith exhibited, marked (C), and prayed to be taken as part of this petition.
    “Your petitioner further represents, that being advised and believing that the said Elijah A. More, on account of his retainer and employment, and the acceptance thereof, was and is incompetent to sit in said matter, or in any manner to make settlement of said estate, your petitioner has not appeared in obedience to said citation, and respectfully informed said Elijah A. More, in writing, that he, your petitioner, did not consider him competent to sit in said matter, or in any way to take cognizance thereof.
    “Yet the said Elijah A. More is publicly threatening to vacate the said letters of your petitioner, and annul them on account of his said failure; and your petitioner is well advised and believes that he will do so, and adjourn immediately thereafter, so as to prevent the taking of an appeal from his decision, and further to harass and vex your petitioner; and the said Elijah A. More, as such judge of probate, is intending to take cognizance of said matter of settlement of said estate, and to enforce and adjudicate upon said settlement, and in disregard of law and his duty.
    “ Wherefore, your petitioner prays your Honors to grant him an alternative writ of mandamus, directed to said Elijah A. More, as such judge of probate, commanding the said Elijah A. More, as such judge of probate, to certify said matter of settlement to the Governor of this State, and to desist, as such judge of probate, from any further proceeding on the matter of said estate, or to show cause on a day certain to the contrary; to the end that, by the proper authority, a competent tribunal may be appointed and constituted, if none already exists, before which your petitioner can make a valid and legal settlement, which he is ever ready and willing to do. And your petitioner will ever pray.”
    Upon this petition, on the same day, the Chief Justice and Associate Judge endorsed the following order:
    “Upon hearing the foregoing petition, and the application of Richard C. Hawkins, founded thereon, for a writ of mandamus, to be addressed to Elijah A. More, judge of the court of probate in and for the county of Pulaski, in the State of Arkansas; and upon consideration thereof, it is hereby ordered that a writ of mandamus issue, to the said Elijah A. More, as judge of said court of probate, commanding him, as such judge of said court of probate, to certify the matter of the settlement of the accounts of the administration of the estate of Alexander Burton, deceased, with the will annexed, to the Governor of this State, as a case pending for adjudication in said court of probate, in which he is alleged to have been of counsel for the said administration, on the part of the administration thereof; and to desist from proceeding to adjudicate upon the matter of said estate, or that he appear before the Supreme Court of said State, at the Court-house in the city of Little Rock, in Pulaski county, in said State, on Monday, the 17th day of February, A. B. 1840, and then and there show by what authority he takes cognizance of, and adjudicates upon, the matter of the settlement of the accounts of the administrator of said estate. And the Clerk of said Supreme Court is hereby directed to issue said writ,”
    Upon this order, the following writ of mandamus issued:
    Pulaski, Set.

    The State of Arkansas, to the Hon. Elijah Á. More, Judge of the Court of Probate of Pulaski county, in said State — Greeting:
    Whereas, it hath been represented to us in our Supreme Court, in and for said State, by Richard C. Hawkins, as administrator, with the will and codicil annexed, of the estate of Alexander Burton, deceased, that you, as such judge of probate, cited him, the said Richard C. Hawkins, to appear before you in said court of probate of Pulaski county, to make settlement of his accounts as such administrator; and that you, as such judge of probate, are about to proceed and adjudicate upon and make settlement of such estate, and to vacate the letters of administration on said estate, with the will and codicil annexed, to said Richard C. Hawkins heretofore granted, for his failure and refusal to appear and make settlement in obedience to said citation: And whereas, it is also, by said Richard C. Hawkins, to us in our said Supreme Court represented, that you, the said Elijah A. More, were, on the seventeenth day of July, 1838, and before you were elected and commissioned as such judge of probate, by the said Richard C. Hawkins, as such administrator, retained and employed as attorney for said estate, and that you did then accept said retainer and employment, and that he, the said Hawkins, did, on the eighteenth day of July, 1838, as such administrator, pay (o you, and you, the said Elijah A. More, did. on said last mentioned day, accept and receive from him, the said Richard C. Hawkins, as such administrator, the sum of fifty dollars, as your fee in part for services by you rendered, and to be thereafter rendered, as attorney for said estate; and that you did then act as such attorney in the management of said estate, whereby you are, by the law of (he land, incompetent to sit, act, and adjudicate as such judge of probate, in the matter of the settlement of said estate.
    You are therefore commanded, and strictly required, that you do forthwith proceed to certify to the Governor of said State of Arkansas, in accordance with the provisions of the Constitution of said State, that you are so disqualified from acting and adjudicating in the matter of the settlement of said estate, to the end that a special judge may be by him commissioned, to make settlement of said estate; and you are moreover commanded, and strictly enjoined, that you utterly desist from any further proceedings against said Hawkins, upon said citation, and from any further in regard to the matter of the settlement of said estate; or else that you show cause to our said Supreme Courl, on Monday, the seventeenth day of February, instant, at the present Court-house in the city of Little Rock, why you should not obey the mandate aforesaid, and by what authority you, as such judge, claim to take cognizance of, and proceed to adjudicate on, the matter of said settlement. Hereof you will see that you fail not, at your peril.
    In testimony whereof, &c.
    On the 20lh of February, 1840, the probate judge returned that he had obeyed the writ; and Hawkins filed his plea to the return, denying its truth, and averring, that after the mandamus was served, More, as probate judge, had committed him for contempt in not obeying the citation. After which, and on the 12th of May, the counsel of More moved to quash the writ.

      Trapnali. and Cocke, for the motion:
    Pike, Contra:

   Dickinson, J.,

delivered the opinion of the court:

The order of the Court was, that “ he certify the matter of the settlement of the administration of the estate of Alexander Burton, deceased, with the will annexed, to (he Governor of this State, as a case pending for adjudication in said court of probate, in which he is alleged to have been of counsel for the. said administration, on the part of the administrator thereof; and that he desist from proceeding to adjudicate upon the matter of the said estate; or that he show cause,” See. The command of the writ is, “that you utterly desist from any further proceeding against said Hawkins upon said citation, and from any further proceedings in regard to the matter of the settlement of said estate.” A return was made, to which the plaintiff filed his plea. The defendant then moved to quash the writ, because it does not conform to the order of the Court upon which it issued. If the writ is defective in substance, the motion may be sustained. Rex vs. Bishop of Oxford, 7 East., 345; The People vs. The Judges of Westchester, 4 Cowen, 73. The only question is, whether the motion can be made after a return. In the case of The King vs. the Mayor of York, 5 T. R., 74, Lord Kenyon and Justice Bulles, said, “It was too late to take objection to the writ after a return thereto.” This is, however, the only case which we have succeeded in finding, that limits the right to object previous to the return. All the other authorities show, that the motion will lie for any defect in substance after the return has been made. And in the case of T e King vs. The City of Chester, Holt R., 438, the return was considered insufficient, and the writ, being found bad, was quashed. See, also, in the case of The King vs. The College of Physicians, 5 Burr., 2740, the mandamus was quashed after the return was made. The same decision was made in the case of The King vs. The Margate Pier Company, 3 B. & A., 221. And Chancellor Walworth held the same doctrine,' in the case of The Commercial Bank of Albany vs. Canal Commissioners, 10 Wend. R,, 25. And these decisions are, 'in our opinión, sustained by reason and justice; for it is presumed that all the material facts on which the relator founded his claim, are set out in the writ, in accordance with the order of the Court by which it is issued.

It is from the writ only that he can learn the commands of the Court, and what he is required to do. Great strictness is at all times required in the issuing of this writ. It must not be enlarged, nor can it be limited within narrower bounds than the Court directs. A variance in substance, changing its character as to the act required to be done, will be fatal. The writ shows the grounds of the complaint. The command to desist from proceeding in the settlement of' the administration, is one tiling; and rights inserted in the writ to desist from further proceeding upon the citation, is another, and wholly different and distinct, for which the Court made no order. If the writ can ex'end at all beyond the order granting it, so as to include other matters, the right involved could, at the will of the party, be made to depend upon a state of facts never presented to- or contemplated by the Court, and upon which, if exhibited, the writ might have been refused, and the original grounds upon which the Court acted in awarding it, &c., wholly lost sight of, and a determination had upon a collateral question, different from the one upon which the Court passed in awarding the writ. So, if it can be entered, upon the same rule, the writ might be more limited in its terms, and in effect thereby not present the whole subject matter as intended to be acted upon by the Court, who is presumed, from a view of the whole state of facts, to have framed the order, and directed the performance of an act, in such a manner as may best effect the object in view, and answer the purposes of justice. It is for the plaintiff to see that his writ is properly issued, and that it conforms to the order of the Court. He cannot complain, if, when he departs from the authority under which he acts, his writ should be quashed and set aside. The writ, in this case, was clearly wrong in commanding the defendant to desist from further proceeding upon the citation, and must therefore be quashed, with costs.


author: Ringo, C. J.,

text:
    Toby, and Others, against James C. Bowen.
    EkRok to Pulaski Circuit Court.

    Under the Territorial statute of attachments, a writ of attachment could be issued by a justice of the peace in any county where property or effects of the debtor were found, whether the debtor had ever resided in that county, or in the State, or not.
    And if the writ could only bo issued in the county where the debtor resides or has resided, still the fact of residence is not required to be stated in the affidavit; and therefore the omission could bo no ground for a motion to quash, though it might be good in abatement.
    A failure to file a declaration in time, in attachment, is no ground for quashing the writ, although in some cases it might be ground of nonsuit, or plea in abatement.
    The issuing of a writ of attachment by a justice, is not a judicial, but a ministerial act. It is no such exercise of jurisdiction over the matter in controversy, as is spoken of by the Constitution, in defining the jurisdiction of courts and justices.
    No writ issuing out of, and returnable to, a court of record in this State, can be issued by any person or officer other than the clerk of such court. All writs must be signed by such clerk, and sealed with the seal of the court.
    A justico, therefore, cannot issue a writ of attachment returnable to the Circuit Court; and the law authorizing him to do so, is unconstitutional and void.
    This action was commenced by the defendant against the plaintiffs in error, by writ of attachment, issued by a justice of the peace, bearing date the 26th day of November, 1838, returnable to the nest term of the Circuit Court of the county of Pulaski. The sum sworn to and demanded by the defendant in error, as set forth in the writ, is three hundred and eighty-nine dollars and fifty-seven cents. The plaintiffs in error, at the term of the Court to which the writ was returnable, moved the Court to quash the writ and dismiss the suit, on three grounds, which are specially set forth in their motion:
    1st. That the affidavit was insufficient, in not showing that the defendants resided, at or before the institution of the suit, in the county of Pulaski; and that such an affidavit could only be taken, legally, before the Clerk of that Court. '
    2d. That no statement, in writing, of the nature of the plaintiff’s demand, was filed, according to law.
    3d. That the amount in controversy, as set forth in the affidavit and writ, was not within the jurisdiction of a justice, and the writ was therefore improvidently and illegally issued.

      This motion was made on the 7th, and on the 8th March, 1839, the defendant in error filed in Court his declaration in assumpsit; and the Court, on the 11th day of the same month, overruled the motion, and entered an order of publication against the plaintiffs in error, as non-residents of this State, notifying them that a writ of attachment had been issued against them, and that unless they should appear, by themselves or attorney, and file special bail to the action, on or before the first day of the next term of the Court, judgment would be entered against them, and their estate sold to satisfy the same.
    The order was duly published. At the September term next after the publication of the order, judgment was entered for the defendant, against the plain tiffs in error, they having failed to file special bail, or appear to the action, as they were required to do by the order. A writ of inquiry, returnable instanter, issued and was executed, and a verdict returned for $395.19 damages, for which sum final judgment was pronounced.
    Fowler, for plaintiff in error:
    it is contended, for the said plaintiffs in error, that the whole proceeding in the courts below, from beginning to end, is illegal and void.
    Bower, to defend and legitimate his acts, and those of the tribunals before which he set up his claim, must necessarily entrench himself behind the 29th section of the statute regulating attachments, found in Pope, Steele & Me Campbell's Dig., p. 88. This must prove wholly unavailing. It requires that the plaintiff should “have good cause to believe that said debtor has removed or is about to remove himself or effects out of this Territory;” and that application should be made “to some justice of the peace for the county where such debtor resides showing clearly and satisfactorily, to counsel at least, that such proceeding could only be sustained where the debtors, at the time of the application, or previously, resided in the county where the justice was acting. No such residence appears by the record in this case; consequently, Bower misconceived his remedy, and applied to a tribunal having no jurisdiction of the matter. In all cases before tribunals of inferior or limited jurisdiction, every fact accessary to give jurisdiction, must appear in the writ, declaration, or other proceedings- And this remark will apply fo other objections, to be hereinafter made, as well as the foregoing. Vide 6 Pet. Cond. Rep., 74, McCormick et al. vs. Sullivant et al.\ 10 Wh. Rep., 192; 5 Cranch?s Rep., 185; '2 Cond. Rep., 223, 368; 6 Or. Rep., 267.

    The clause in said section of the statute, authorizing justices of the peace, where the amount in controversy exceeded the sum of fifty dollars, “ to issue a writ of attachment returnable to the next Circuit Court for the county in which he resides,” was meant evidently to restrict the exercise of such authority to the maximum of one hundred dollars, which was then the extent of their general jurisdiction in civil cases. But whatever may have been the intention of the Territorial Legislature of 1828, if indeed they had any well defined intention, or of their power to extend the jurisdiction of justices beyond one hundred dollars, since the change of government, the exercise of such jurisdiction is clearly restricted to one hundred dollars. “ Justices of the peace shall have, individually, or two or more of them jointly, evclusive original jurisdiction in all matters of contract, except in actions of covenant, where the sum in controversy is of one hundred dollars and under.” Constitution, Art. 6, sec. 15. “ The Circuit Court shall have original jurisdiction of all civil cases which shall not be cognizable before justices of the peace, until otherwise directed by the General Assembly ; and original jurisdiction in all matters of contract, where the sum in controversy is over one hundred dollars.” Const., Art. 6, section 3. Upon the principle adopted by the Courts of the Union generally, and by this Court particularly, in the construction of constitutions, which is sustained by the general legal principle of construction, the maxim of liexpressio unius, exclusio olterius,” applies to-the above grant of jurisdiction to justices of the peace. Vide decision of this Court in case of The State vs. Chester Ashley. Giving justices of the peace exclusive jurisdiction of one hundred dollars and under, is therefore tantamount to an express denial of jurisdiction over one' hundred dollars; and this position is strengthened, should any aid be necessary, by the grant of jurisdiction to the Circuit Courts of all sums over one hundred dollars. The two taken together, limits a justice conclusively to a jurisdiction of one hundred dollars and under. And since the adoption of the Constitution, no legislative enactment has attempted to extend, in attachments, the jurisdiction of a justice of the peace beyond one hundred dollars; or, at any rate, no such enactment was in force at the time the writ of attachment was issued in this case.
    But it may be urged, on the other hand, that the simple issuing of the writ of attachment, without finally adjudicating the matter in controversy, is not an exercise of jurisdiction. Such an argument, however, would be too fallacious for serious consideration. The first act of judicial discretion is an assumption of jurisdiction, legal or usurped. Here the affidavit and the bond both had to undergo the scrutiny of the justice, and receive his judicial action; both of them had to be approved or rejected; and the power to approve or reject, includes discretion, judgment, jurisdiction. The adjudication upon the affidavit and bond, severally, was an exercise of jurisdiction over the sum of three hundred and eighty-nine dollars and fifty-seven cents; consequently, a usurpation of power not granted by the constitution and laws. The issuing of the writ for the same sum, was still a greater exercise of illegal decision. A magistrate, who, by the. constitution and laws, cannot pass judgment or issue a summons upon a note under seal for one hundred and one dollars, has issued an extraordinary writ —a writ which, from its oppressive character, is always bound down to the letter of the statute — to seize the property of a citizen, and wrest it from his possession, to satisfy a debt (not established by evidence) of three or four hundred dollars; and, by the same right, could issue a writ to seize property to satisfy a debt of hundreds of thousands, without the production of any written evidence of such indebtedness, save the ex parte affidavit of a party in his own cause.
    The intention of the framers of the statutes regulating attachments, was evidently to restrict the jurisdiction of justices, in their final adjudications, to sums of fifty dollars and under; and, between fifty and one hundred dollars, to allow them to issue writs, &c., but to take away from them the final adjudication. And no construction, however forced, under the restrictions of the constitution, can give them any jurisdiction whatever, whether inceptive or final, where the matter in controversy exceeds one hundred dollars.

      TeapxíalR, and .Cocke, Contra :■

    The proceeding was instituted under the 99th section of the statute of attachments. See Steele’s Digest, page 88. Although the phraseology of that section is somewhat contradictory, yet the meaning evidently is, that the writ of attachment shall issue in the county in which the debtor last resided; but it does not require that fact to be stated in the affidavit. The affidavit corresponds with the statute, and contains every fact necessary to show the plaintiff entitled to this summary remedy. The case of Plympton vs. Cook, 2 Marsh, 451, made upon a similar statute, contains a conclusive answer to this objection. “An attachment,” says the Court, in their opinion, “ no doubt should contain a statement of every thing which is necessary to justify that mode of proceeding; but only as to the' county where the proceeding is to be had. If the fact be, that the debtor was not, or had not been, a resident of the county when the attachment issued, it will be at the peril of the plaintiff, and the defendant may avail himself of that matter to abate or quash the attachment, in the same manner as he may do of any other matter of defence which is dehors the record.”
    The fact whether the defendants were residents, or had been residents of the county, has not been raised in this record.
    The 32d’section of the same statute provides, that the affidavit-should be sworn to before the justice of the peace issuing the same.
    That portion of the statute of attachments by authority of which this writ was issued, makes no requisition upon the plaintiff to file a statement in writing of the nature of his demand. Yet, a declaration in the ordinary form, in assumpsit, containing a technical statement of the plaintiff’s claim, was filed, by consent of the Court, before the legal appearance of the defendants, or any actual or constructive service upon them, and before the calling of the causes, or the hearing or consideration of the motion to dismiss.
    If the filing of a declaration was essential to the maintenance of the plaintiff’s attachment, it could only be done in term time, and the Judge of the Circuit Court, in the exercise of a legal discretion, was the exclusive arbiter of the motion. And the record contains no evidence of an illegal use or abuse of that discretion.

      The justice of the peace, in this case, considers and determines nothing touching the merits of the case; his action is not for the purpose of enabling him to take jurisdiction, but is merely auxiliary to the jurisdiction of the Circuit Court, and under circumstances in which the extraordinary remedy given by the statute could not afford efficient relief, without the preliminary assistance of the subordinate magistrates in every county.
    In Tennessee, Kentucky, and Virginia, and in other States, where a decision of jurisdiction is made by their constitutions similar to ours, similar laws of attachment exist, without any impeachment of their constitutionality.
    Defects in attachment not alleged, not regarded. 2 Bibb, 221-2.
    Trimble and Fowler, in response;
    An attachment being an extraordinary remedy, not derived from the common law, but founded on statute, and the justice of the peace exercising a special and limited jurisdiction, a strict jurisdiction obtains in such cases. See Hardin R., 95 and notes; 1 Marshall, 249 & 355; 2 Marshall, 350; 15 J. R., 196; 6 Cow., 603; 1 Wend., 44.
    It is a clear and settled principle, that inferior jurisdictions, not proceeding according to the course of the common law, are confined strictly to the authority given them. They can take nothing by implication, but must show the power expressly given them, in every instance. 1 J. Cas., 20; 10 J. R., 161; 6 Wend., 440 ; 7 J. R., 77; 6 Cow., 224 and 234; 5 Wheaton, 116; 3 Cow., 208; 1 Saunders, 74, and notes; 19 J. R., 31; 20 J. R., 207; Wittes, 199; Du Ponceau on Jurisdiction, 21, 22.
    On construction, see 9th Law Library on Construction, 43 and 44.
    By adverting to the first section of the statute (title Attachment,) Steele éfc. Digest, 75, the words of that section do not confine the remedy to debtors and creditors residing within the State, or any county. But by the 29th section, the remedy is confined to debtors and creditors residing within the Territory; and the jurisdiction, or power to issue the process, is confined to a justice of the peace of the county where the debtor resides; and, according to the authorities above referred to, every thing necessary to such jurisdiction must appear: but, in the present case it appears affirmatively that the defendant was not a resident of the State, and consequently, not a resident of the county. The 29th section gives jurisdiction to the justice only where the subject-matter, (i. e.,) the contract, is between persons in the Territory (State.) The proceeding is limited to the county where the debtor resides, and the affidavit does not show those facts which would give jurisdiction of the subject-matter, the persons, or place.
   Ringo, C. J.,

delivered the opinion of the court:

The motion is so framed as to present three distinct propositions, upon either of which the plaintiffs in error insist the writought to have been quashed and the suit dismissed. These will be considered and disposed of, in the order in which they appear in the motion. The first objection rests upon the supposition that the affidavit upon which a writ of attachment is issued by a justice of the peace must disclose or set forth the place of residence of the defendants, and show that they have resided or do then reside in the same county as the justice who issues the writ. This question was settled in the case of Jones, et al., vs. Buzzard, et al. 2 Ark's, in which this court held that the proceeding by attachment, under the 29th section of the law in Steele & McCampbell’s Digest, under the head of “Attachments,” page 88, being the same as the 6th section of an act of the late Territory of Arkansas, approved October 24th, 1820, by virtue of which, the writ in this case was issued, is not restricted to the county where the defendant resides at the time of suing out the writ, or has resided at any time prior thereto; and further, that such proceeding may be instituted in any county where property or effects of the debtor may be found, upon such affidavit as is required by said statute being made and filed as required by law, notwithstanding the debtor or defendant may never have been a resident of this State; and we are not disposed- to question the propriety of that opinion, or the reasoning upon which it is based, as the view there taken is, as we conceive, substantially correct. Be this, however, as it may, there is another view of the question, which appears to us equally decisive of the first objection specified in the motion. For, if it should be conceded that the writ can only be issued by some justice of the peace of the county where the defendant resides, or has resided, yet there is nothing in the statute requiring any thing respecting the residence of either party to be stated or shown by the affidavit; and therefore, as the plaintiff is not bound to show this fact by affidavit or otherwise, upon his application of the writ, the omission cannot constitute such an irregularity or defect in the proceeding as can be taken advantage of by the motion; because, notwithstanding it might be good defence in abatement of the writ, yet, as the law does not oblige the plaintiff to show it, the defendants, if they would avail themselves of it, must do so by pleading the fact in abatement of the writ, within such time and in such manner as is prescribed by law, so that an issue may be formed, and the fact tried by a jury, unless the parties consent to a different form of trial; and this, we apprehend, is the only mode by which the fact could be regularly put in issue and determined. We are not prepared to sanction a practice by which matters regularly pleadable in abatement, and only calculated to delay the final adjudication upon the merits of the controversy, may be introduced into judicial proceedings by motion simply without affidavit or respect to lime, form, or ord er, and determined without the certainty of an adjudication upon demurrer, or the liberty of a trial by jury, which, if it is not contrary to, is certainly not in terms warranted by, law, while it appears to us opposed to all the rules of pleading and practice, as laid down in the most approved treatises on these subjects. And therefore, we are of the opinion, upon every view which we have been enabled to take of the question, that the court did not err in refusing the motion on the first ground. The second objection may be disposed of without any other remark than this, that from the view which we take of the case, it is clearly not a legal ground for quashing the writ, under any circumstances, although under some circumstances, not shown in this case, a failure to file a declaration might be made the ground of a non-suit, or perhaps as the law now stands, of a plea in abatement. The third objection is based upon the assumption that the issuing of a writ of attachment is a judicial act, or an act done in the exercise of judicial power; and if this conclusion be correct, the writ must be void, because the sum in controversy, as shown by the writ itself, is not within the jurisdiction of a justice of the peace. The only question, therefore, presented by this objection is, whether the issuing of such a writ is, or is not, a judicial act, embraced within the meaning of the terms “judicial power,” as used in the constitution in reference to the distribution of the judicial power among the judicial tribunals, and prescribing to each the exercise of a certain portion of such power. In discussing the question as to what shall be considered a judicial act, the Supreme Court of New-York, in the case of Tompkins vs. Sands, 2 Wend. 466, uses the following language: “It may sometimes be difficult to determine whether an act is judicial or ministerial. A justice of the peace performs acts of both kinds, and which are clearly distinguishable. He issues process in the first instance, and in so doing he acts ministerially, his judgment is not at all exercised.

When the parties appear before him and the cause is heard, he renders judgment. He then acts judicially. After judgment, he issues execution. He then again acts ministerially. And in the case of Yates vs. Lansing, 5 J. R., 282, Chief Justice Kent, in delivering the opinion of the same court, states that the allowance of a writ of habeas corpus, in vacation, is a ministerial act. The statute imposes a penalty on the Chancellor and Judges for refusing to allow the writ, when properly applied for, in vacation. Such application may be denied or granted, at their discretion, in term, because there they act judicially. But when they act ministerially, they are liable to the penalty for a refusal; in this instance, it would seem that the same act may, at one time, be judicial, and at another ministerial. And, in ihc case of Tompkins vs. Sands, cited above, it was held that a justice of the peace “in approving or refusing to approve an appeal bond, does not act judicially,” for although he does indeed exercise his discretion, it is the came discretion exercised by every ministerial officer who lakes bail. So, in issuing a writ of attachment; the officer, whether a justice of the peace or clerk of the circuit court, must necessarily exercise his discretion so far as to see that the plaintiff has clone what the law enjoins upon him io do, before he is entitled to the writ; or,in other words, if the writ is issued by a justice, he must see fluff the plninfíííhas filed such bond and affidavit as the law requires-But this discretion is such only as every officer is bound to exercise when he issues any writ or performs any other official duty, the proper execution of which depends upon his learning, skill, and judgment. But it must be apparent to all, that this discretion is, not only in its nature, but in its consequences, essentially different from the jurisdiction or judicial power, the exercise of which is conlided by the constitution to the courts and justices of the peace. The former neither determines the right,nor concludes the parties in any way as regards tho matter in controversy, but serves and operates simply as an auxiliary, in biinging the parties and matter in litigation into and before the tribunal clothed with jurisdiction; while the latter, exercising the judicial power vested in it by the constitution, distributes judgment, by legal trial and determination of the controversy between the parties, and so concludes them as to the matter adjudicated and determined; and it is the power to exercise acts of this latter description, and those only which are attended with this legal consequence, that is limited by the constitution to the courts and justices of the peace. This must at least be the general rule; and so far as regards tho question of jurisdiction, it appears to admit of few if any exceptions, in civil as contra-distinguished from criminal cases; and in regard to the latter, there can be no exceptions, except such as arc expressly made and warranted by tho constitution itself. And, therefore, after the most mature and careful consideration of the question, we entertain the opinion that the issuing of a writ of attachment is not a judicial act, or such an exercise of jurisdiction over the controversy or matter in litigation, as is required by the constitution to be exercised by the courts and justices of the peace. But here another question arises, of as much importance as the one just decided: that is, whether, under the constitution of this State, any writ can be issued out of and returnable to any court of record, by any officer or person other than the clerk of the court out of which it issues, and to which it is returnable. The 14th section of the 6th article of the constitution ordains, that “all writs and other process shall run in the name of the State of Arkansas, and bear teste and be signed by the clerks of the respective courts out of which they issue.” This, considered, as it must be, in connection with the gene» ral organization of the judiciary department, including a3 it does the office of Clerk of the Circuit Court, conveys the idea distinctly, that the writs and process of each court, without regard to the time when they are issued, shall bear teste and be signed by the clerk of the court from which they issue, and to which, according to the obvious design of the constitution, they must be returned; and notwithstanding the language used is affirmative only, we think the negative is as strongly implied as if negative terms had also been used; and this is a proposition which, upon a fair and full view of the whole organization of the judiciary department, appears to us too plain to admit of serious doubt or grave controversy. And, therefore, so much of the statute passed in 1820, before cited, as purports to authorize a justice of the peace to issue writs of attachment, returnable to the Circuit Court, is in conflict with, and repugnant to, the 14th section of the 6th article of the constitution, above quoted, and therefore void, upon and since the adoption of the constitution; and for this reason, the writ of attachment in this case, issued by a justice of the peace, cannot be regarded as sufficient, and no valid judgment could be given against the plaintiffs in error, notwithstanding their failure to appear, as neither the writ, nor the notice subsequently published, imposed upon them any legal obligation to respond in court to the demand so exhibited against them; and, upon this ground, the Court erred in giving judgment against them by default. The judgment is reversed, under the common appearance rule.


text:
    In the matter of James Lawson, jun., Sheriff.
    The Sheriff of Pulaski county is bound to be at all times in attendance on this Court, when in session.
    If he is absent on other official business, and leaves the Court without an officer, he is guilty of contempt.
    During the present term, the Sheriff was fined five dollars, fbr not being in attendanee when it was required in the execution of an order of the Court. On the same day, an application was made by him to remit the fine, in support of which, he made an affidavit that his absence was but momentary, and occurred in the discharge of his official duties, and that said absence did not occur in neglect or disregard of his duties to said Court.
   Dickinson, J.,

delivered the opinion of the court:

What the Sheriff’s official duties were, we are utterly ignorant. He was not, at the time, engaged in the discharge of any order of this Court, which authorized his absence. And it is certainly true, the proceedings of the Court, in the adjudication of the case then pending, were suspended, for the want of a proper officer to call the parties, before any further progress in the cause could be made.

The facts occurred within our knowledge, and therefore we cannot be mistaken. The affidavit is not explanatory, but, on the contrary, in express contradiction to the judgment of the Court. The Sheriff is not only bound to be at all times in attendance, as a duty enjoined upon him by law, but is allowed an extra compensation for this service.

A Court cannot be subordinate to its officers, or suspend its proceedings for their convenience, or to enable them to discharge other duties than those required of them by the Court in session. They must be prompt and ready, in person, or by competent deputies, to execute its mandates when given. The motion to remit must therefore be overruled, with costs.