text:
    Lindsay vs. Wayland.
    It is by no means certain that sections 132 and 133, {chap. 126, Digest,) were intended to apply to cases pending in the Circuit Court on appeal from a justice of the peace; and where, in such case, the courts upon consolidating several suits, upon which one action might have been brought, refuses to tax the plaintiff with the costs in all the cases but one, this court will not control the discretion of the Circuit Court in that respect.
    It is not the province of this court to disturb the verdict of a jury, if it be not totally unsupported by evidence, although inclined to think the weight of evidence is against the verdict.
    The application of a witness to explain his testimony, after he has given it in and retired, is addressed to the discretion of the Circuit Court.
    "Where the defence, to an action on a note is, that it was given for the purchase money of a slave, and that the slave was unsound at the time of the purchase, there is no objection to proof that the slave was sound at some time prior to the sale, provided the jury clearly understand that his soundness, at the date of the sale, and not at a prior time, is the matter in issue.

      Appeal from the Gvrcuit Court of Laxorence Gcnmly.

    Hon. Beaufort H. Neely, Circuit Judge.
    ¥m. Byers, for tbe appellant.
    JobdaN, for tbe appellee.
   Mr. Chief Justice English

delivered tbe opinion of tbe Court.

On the 28th of March, 1854, Jonathan Wayland, as guardian of Sinclair Manson, commenced nine separate suits against John A. Lindsay, A. J. Hardin and William S. Smith, before a justice of the peace of Lawrence county. The suits were founded upon nine bonds, eight for $100 each, and one for $20, executed by the defendants to the plaintiff, as such guardian, all of them bearing date on. tbe 12th of July, 1853, and due one day after date. Judgments in favor of tbe plaintiff, and appeal by tbe defendants, in each case, to tbe Circuit Court of Lawrence county.

In tbe Circuit Court, the defendants moved to consolidate tbe suits, and that tbe plaintiff be taxed with tbe costs of all of them but one. Tbe court ordered tbe suits to be consolidated, and that tbe costs in tbe several cases should abide tbe event of the suit so consolidated.

Tbe cause was submitted to a jury, tbe defendants relying upon failure of consideration as a defence; the jury returned a verdict in favor of tbe plaintiff for tbe full amount of all the bonds, and judgment was rendered against tbe defendants accordingly, and for costs. Motion for new trial overruled, bill of exceptions, and appeal by Lindsay to this court.

1. The refusal of tbe court to tax the plaintiff with the costs of all tbe suits but one, is assigned for error.

Neither of tbe bonds being for a greater sum than $100, tbe plaintiff might have joined them in one suit before tbe justice of tbe peace, though tbe aggregate sum of all of them was greatly over that amount. Collins vs. Woodruff, 4 Eng. Rep. 463; State vs. Scoggin, 5 Ib. 327.

But the plaintiff having elected to bring separate actions upon tbe bonds, there is no provision in tbe statute, regulating proceedings before justices of the peace, requiring tbe justice to consolidate them. See Barnes vs. Holland, 3 Mo. Rep. 47; Sykes vs. The Planters' House, &c., 7 Ib. 477.

Section 132, chapter 126, Digest, under the caption of “Prao-tice at Law,”'provides that, “whenever several suits shall be pending in the same court, by tbe same plaintiff, against tbe same defendant, for causes of action which may be joined, &c., tbe court in which tbe same may be prosecuted, may, in its discretion, order such suits to be consolidated into one action.”

Section 133, of tbe same chapter, provides that, “ when any plaintiff shall bring, in the same court, several suits against the same defendant or defendants, for causes of action that may be joined, the plaintiff shall recover only tlie costs of one action: and the costs of the other actions shall be adjudged against him, unless sufficient reason appear to the court for bringing several actions”'

It is by no means clear, that these sections were intended to apply to cases jiending in the Circuit Court, on appeal from justices of the peace. They could not be applied in all such cases, for the reason, that where defendant appeals, and the plaintiff succeeds in the Circuit Court, he is entitled to judgment against the defendant and his securities in the recognizance, for the debt and costs of both courts (Digest,• chap. 95, sec. 193,) and where there might be different securities in the several recognizances, the court would have no power, upon consolidating the several suits, to render judgment in favor of the plaintiff, against the securities in the recognizance taken in one suit, for the several demands, or for costs of all the suits. Such a judgment would not be warranted by the terms of the recognizance.

In this case, however, the same person was security in all the recognizances, but the court rendered no judgment against him at all.

Whether the court acted under the above provisions of the statute, or in the exercise oí its common law power in consolidating the several suits in this case, the motion to consolidate, and the taxing of the costs, were to be determined in the exercise of a sound discretion. Dewes vs. Eastham, 5 Yerg. Rep. 297; Thompson vs. Shepherd, 9 John. Rep. 262; Wilkinson vs. Johnson, 4 Hill N. Y. 47; Dudning vs. Bank of Auburn, 19 Wend. 23; William Scott & Co. vs. Brown, 1 Nott & McC. 417; 2 Ib. 438; McRea vs. Boast, 3 Randoph 481.

The suits were consolidated upon the motion of Lindsay, and for his own benefit. The taxing of the costs being a matter resting in the sound discretion of the court, we will not reverse the judgment, in the absence of any showing that there was manifest error or abuse of such discretionary power, &c.,,as held in Meadows vs. Rogers, at the present term.

2. The first ground of the motion for a new trial is, that the verdict was contrary to law and evidence.

It appears, from the bill of exceptions, that on the trial, the plaintiff read in evidence to the jury, the nine bonds sued on, and closed.

The defendants proved that the bonds were given for a negro boy, Sam, sold by the plaintiff to the defendant, Lindsay, on the 12th of July, 1853, for $820, with bill of sale, warranting the negro to be sound in body and mind.

A number of witnesses, mostly physicians, were examined, as to the soundness of the negro at the time of the sale, &c., &c.

It seems, from the testimony, that Lindsay had the boy hired in the year 1853; that he ran off from him about the last of May, and was out between three and six weeks, and when he returned, he was much reduced in flesh, and looked feeble and emaciated. In a week or two after he returned from the woods, being in Lindsay’s possession and employment, he purchased him of the plaintiff. He was kept employed on Lindsay’s plantation during the summer, but not generally put at hard or heavy work, nor required to make a full hand, in consequence of his reduced condition. On the 4th of September, 1853, Lindsay obtained a prescription, from his family physician, Dr. Yalentine, for the boy, saying he had a chill. Two or three days after this, the physician was called in to see the boy, and found him sick in bed, with symptoms of typhoid fever, of which disease he died, about twenty-two or three days afterwards.

The point in controversy, before the jury, seems to have been, whether or not the seeds or causes of the disease, of which the negro died, were contracted while he was run off, by exposure, alternate hunger and excessive eating, anxiety of mind, &c., &c., and consequently, existed in him at the time of the sale, &c.

It appears, from an entry of record, that the counsel of the parties agreed that the law of the case was, that if the boy, Sam, was sound at the time of the sale, no defence could he made against the bonds sued on; but that, if the boy was unsound, the unsoundness was a valid and legal defence to the bonds, to the extent of the unsoundness. That, in consequence of this agreement, the court gave no instructions to the jury.

Thus, the parties having agreed upon the law, there was nothing but a single question of fact to be determined by the jury; whether the negro was sound or unsound at the time of the sale. We are inclined to think that the weight of evidence is against the verdict, but it is not totally unsupported by the evidence, and it is not our province to disturb it.

3. The second ground relied on for a new trial, is as follows:

At some time during the progress of the trial, after the witness, Dr. Yalentine, had been examined, cross-examined, and retired from the stand, he came before the court, and asked leave to explain his testimony touching the primary and exciting causes of the disease of which Sam died. But he stated, in reply to a question of the court, that he was, himself, satisfied with his testimony, but that he feared that they did not understand him rightly, and he had been so told by Lindsay: but the court refused to allow the explanation by the witness, and defendant excepted.

There is nothing in this exception at all. The application of the witness to explain his testimony, was addressed to the discretion oí the court: the court deemed it unnecessary, and perhaps, improper at the time, and we find nothing in the record to induce the belief that the court erred in the matter. 5

4. The third cause assigned for a new trial, is stated in the hill of exceptions, thus:

“During the progress of the trial, John Bridges was introduced, as a witness for the plaintiff, to prove the soundness and good health of the boy, Sam, in 1852, which the defendant objected to, but the court overruled the objection, so far as to allow such evidence to be given, relating to the latter part of the year 1852, to which the defendant excepted.”

The sale was 12th July, 1853. The plaintiff had a right to go back to a point of time reasonably remote, to commence showing the health of the negro, and trace it to the day of sale. How far he might go back would depend much upon the circumstances of the case, and would have to be controlled by the discretion of the court. In this case, the jury must have understood very well, from the agreement of the counsel in relation to the law of the case, that the soundness of the negro, at the date of sale, and not at a prior period, was the matter in issue; and if the court erred in permitting evidence of his good health, &c., as far back as the latter part of the year 1852, to be introduced, it was merely irrelevant testimony, and we cannot suppose that the jury were misled by it.

Tire judgment of the court below is affirmed.

Absent, Mr. Justice Scott.


source: Caselaw Access Project

author: Mr. Chief Justice ENGklish

license: Public Domain

text:
    Cornish as. ad. vs. Keesee.
    Before the defendant in an action of replevin, -where the plaintiff has failed to prosecute his replevin suit with effect, can maintain a suit upon the bond against the security, he must obtain some judgment in the action, ag-ainst the plaintiff; and an execution must be issued thereon and returned unsatisfied in whole or in part.

      Error to Union Circuit Court,
    Hon. Thoaias Hubbabd, Circuit Judge.
    CaeletoN, for the plaintiff.
    Mark, for the defendant.
   Mr. Chief Justice ENGklish

delivered the opinion of the Court.

This was an action of debt, brought by John H. Cornish, as administrator of John H. Hines, deceased, and assignee of Shadrack D. Drennon, sheriff, &c., against George W. Sims and Gideon Keesee, in the Hnion Circuit Court, upon a replevin bond.

The declaration alleged, that, on the 26th of April, 1853, the defendant, Sims, as principal, ánd the defendant, Keesee, as security, executed to Drennon, as sheriff of Union county, a replevin bond of that date, in the penal sum of $1600, conditioned as follows : That, whereas, Sims had sued out of said Circuit Court a writ of replevin against Cornish, returnable to the June term, 1853, by which the sheriff, Drennon, -was commanded to replevy a slave named Catron, and deliver her to Sims; now if Sims should prosecute his replevin suit to effect and without delay, and if Cornish should recover judgment against him, Aims, in said action, he would return said slave, if return thereof should be adjudged, and pay Gornish all sucb sums of money as should, be recovered against him, Sims, by Gornish in said action, for any cause whatsoever, then said obligation was to be void, else to remain in full force, &c., which bond and condition were approved by Drennon, as sheriff, &c.; and, thereupon, the slave was taken from the plaintiff, Gornish, and delivered to the defendant, Sims. That prior to the issuing and service of said writ of re-plevin, Cornish had been appointed by the Probate Court of Union county, administrator of said John H. Hines, deceased, and held said slave as such, and as the property of Hines. Pro-ferí is made of the letters of plaintiff, as such administrator.

Breaches of the bond are assigned, in substance, as follows :

1. Breach: That Sims, with an attempt to defraud Gornish, as such administrator, falsely and fraudulently instituted said suit of replevin against him, that by means thereof, he (well knowing his title to said slave was fraudulent and void) might obtain possession of said slave. That he did get possession of her by means thereof; that at the time, and ever since, he, said Sims, was and has been, a non-resident of this State; and having obtained jios-session of her, he has, with like fraudulent intent, run hér out of the jurisdiction of the court, and beyond the limits of this State( to parts unknown, &c. And has heretofore, well knowing he could not succeed, abandoned and neglected, and still does neglect to prosecute his said suit of replevin against said Cornish with effect, and without delay, but wholly fails and neglects so to do, whereby said Sims has falsely and fraudulently converted said slave and her hire to his own use, to the damage of plaintiff, as such administrator, to the value of said slave, to wit: $900, and of her hire, worth $300, &c.

2d. Breach: That after the commencement of said replevin suit by Sims, for the purpose aforesaid on his part, on the 27th of June, 1853, one Bhoda Hines, the widow of said John H. Hines, exhibited her bill.in the chancery side of Union Circuit Court, against said Cornish and Sims, claiming said slave as her separate property, alleging that Sims was a non-resident of the State; that be bad no means in tbe State; tliat Cornisb was hopelessly insolvent ; that Sims’ claim to said slave was fraudulent, and that sbe bad petitioned to become party to said replevin suit, but by the strict rules of law and tbe decision of tbe court, sbe bad been refused; praying a temporary injunction; that said dispute between Cornisb, Sims and herself, about tbe title of said slave, might be removed to that forum ; and that Sims be enjoined from further prosecuting said replevin suit in tbe law side of the court, which temporary injunction was granted, and said dispute removed to said Chancery Court, and Cornisb and Sims made parties thereto. That Cornisb filed bis answer and cross bill to said bill in chancery, charging, among other things, that tbe pretended claim of said Sims to said slave was fraudulent and void. That afterwards, at tbe December term, 1854, of said Chancery Court, it was adjudged and decreed that tbe claim of Sims in tbe replevin suit against Cornisb, to tbe slave, was fraudulent and void; that be be forever restrained from further prosecuting said replevin suit against Cornisb for tbe recovery of said slave; that said temporary injunction be made perpetual; that said replevin bond be condemned as forfeited, and that tbe same be forthwith put in suit at law, to recover tbe value of said slave and her hire, and that Sims pay tbe costs of tbe replevin suit; which decree remains in full force, &c. Tbe value of tbe slave and her hire, and tbe amount of tbe costs in tbe replevin, and in tbe chancery suits, are averred. It is also alleged, that execution bad been issued against Sims upon tbe decree, and returned no property found.

3 Breach: That plaintiff, Cornisb, held said slave as administrator of said John IT. Hines; that Sims’ claim to tbe slave was fraudulent and void as to Cornisb; that Sims, who was a non-resident of tbe State, fraudulently, and with an intent to defraud Cornish as such administrator in that behalf, procured said writ of replevin to be sued out against Cornish at tbe time, place, and in tbe manner aforesaid, that be might, under color thereof, get possession of said slave. That he procured, with tbe like fraudulent intent, said writ to be levied on said slave, and her delivery into bis possession; and, thereupon, fraudulently, and for the purpose of defrauding Cornish, as such administrator, out of said slave, run her out of the jurisdiction of the court, and beyond the limits of this State, and to parts unknown, &c., and wholly abandoned and neglected to prosecute said writ of replevin. That afterwards, on the 27th day of June, 1853, said Rhoda Hines, widow of said John TI. Hines, exhibited her bill on the chancery side of said court, claiming said slave as her separate property, and charging, among other things, that the claim of Sims set up in said replevin suit against Cornish, to said slave was fraudulent and void; that Sims was anon-resident; that he had removed said slave beyond the limits of the State; that he had no property or effects in the State; that the claim of Cornish to the slave as the property of her said husband was unjust; that Cornish was insolvent, and a judgment against him would be worthless; and that there was nothing within the jurisdiction of said Chancery Court, except the said replevin bond; praying an injunction of said replevin suit; that Cornish and Sims be made parties ; that the whole matter bead-justed in the Chancery Court, and she substituted to the rights of Cornish to the said replevin bond. That Sims and Cornish were made parties to said suit' in chancery ; that Cornish answered the bill, and charged, as by cross-bill, that the claim of Sims to said slave was fraudulent. That the whole matter in relation to the title to said slave was removed from the law to the chancery side of the court. That Sims failed to make any defence to the bill; or to prosecute his said replevin suit against Cornish with effect, and without delay, but in all things wholly made default. That, at the December term of said Chancery Court, 1854, it was decreed, that the claim of Sims to the slave was fraudulent and void, that he be forever restrained from further setting up his title to said slave; that said replevin bond be, and it was^condemned as forfeited by reason of the default of Sims ; that said bond should forthwith be put in suit at law to recover the value of said slave and her hire, and that Sims pay all the costs of the replevin and’ chancery suits; which decree remains in full force, &c. The value of the slave, her hire, and the amount of the costs in each suit are averred. That, by an agreement entered of record, and the decree of the Chancery Court made at the December term, 1834, the said replevin bond, and the recovery thereon, were to go to, and belong to Cornish, as administrator of said John H. Hines, less certain amounts to be deducted out of said money after recovery ; and said recovery, except as therein stated, will belong and enure to plaintiff as such administrator. That execution had been issued against Sims upon the decree, and returned no property found, &c.

That the replevin bond being so forfeited, it was assigned by Drennan to the plaintiff, as such administrator, at his request, &c„

That defendants had not paid to said plaintiff the value of said slave, nor her hire, nor returned her to him. Nor had they paid the costs in the replevin or chancery suit.

General breach — non-payment of the replevin bond.

Sims not having been served with process, the cause was dismissed as to him. Keesee demurred to the declaration on the following grounds:

1. There is no allegation in either of said breaches, that the plaintiff in this suit ever obtained judgment of any kind whatever against Sims, the plaintiff in the replevin suit.

2. There is no allegation iu either of said breaches, that Sims failed to prosecute the replevin suit with effect and without delay, or that the defendant therein, (the plaintiff in this suit) recovered any judgment whatever in said action of replevin, or that any return of the property sued for therein was ever adjudged to the plaintiff against Sims, and that he failed to return the same, or that any sum or sums of money whatever -were recovered against Sims by the said plaintiff in said replevin suit, and that Sims failed to pay the same.

The court sustained the demurrer, and the plaintiff restiug, final judgment was rendered in favor of defendant.

Plaintiff brought error.

The replevin bond sued on is conditioned according to the provisions of sec. 11, chap. 136, Digest; and, is in form, a good statutory bond, as set out in. tbe declaration.

Before tbe defendant in an action of replevin, can maintain a suit upon the bond against the security, be must obtain some judgment in tbe action against tbe plaintiff, and an execution must be issued tbereon, and returned unsatisfied, in whole or in part. Digest, chap. 136, secs. 11, 29, 30, 37, 38, 39, 40, 43, 44, 45, 46, 47, 51, 52; Cowden vs. Pease, 10 Wend. Rep. 334; Cowden vs. Stanton, 12 Wend. 120; Gould vs. Warren, 3 Wend. 54. Tbe provisions of tbe New Tort statute, on wbicb tliese decisions were made, are similar to ours.

In this case, tbe declaration shows no judgment whatever against Sims in favor of Cornish in the replevin suit. It was held,' in the above cases, that tbe issuance and return of the execution were matters to be proven, but need not be averred in the declaration. Be this as it may, it was clearly necessary to aver a judgment, &c.

Keesee was not a party to the chancery suit, and bis rights or liabilities were not affected thereby.

If be bad been a parti1- the court could not have rendered 'any decree, enlarging or changing the conditions of the bond, so as to make him responsible otherwise, or upon other conditions than were stipulated by the terms of the obligation Badlaw vs. Tucker, 1 Pick. 285; Whitewell et al. vs. Burnside, 1 Metcalf 39.

Tbe judgment of tbe court below is affirmed.

Absent, Mr. Justice Sooxt.


author: Mr. Justice Hakly

text:
    Kinney & Goodrich vs. Heald.
    An affidavit for attachment, containing all the substantial requirements of the statute, and filed before the issuance of the writ, is sufficient, though not “entitled,” nor attached to any of the original papers in the cause.
    An action will lie at the suit of a drawer of a bill of exchange, against the acceptor, upon presentment to, and refusal to pay by the acceptor, and payment by the drawer: And such bill, with endorsement of acceptance, is admissible in evidence for the • plaintiff.
    The cases of State Battik vs. Gonway, 13 Aria. 305, and Jones vs. Gatlin, 16 lb. 35, as to the practice on motions for new trial, cited and approved.

      Writ of Error to Sebastian Oi/rouit Oourt^
    Hon. Felix J. Batson, Circuit Judge.
    "WatKINs & Gallagher, for the appellants.
   Mr. Justice Hakly

delivered the opinion of the Court.

This was an action of assumpsit, commenced by attachment,. brought by the defendant in error, against the plaintiffs, in the Sebastian Circuit Court. The declaration was as follows: “For that, whereas the said plaintiff, on the 19th day of April, 1853, at New Orleans, in the State of Louisiana, to wit, at the county of Sebastian, made his bill of exchange in writing, dated on that day, and directed the same to the said defendants, to pay to the order of Hume & Butt, $836 19, and then and there delivered the same to the said Hume & Butt; and the said defendants then and there accepted the same, and promised the said plaintiff to pay the same, according to the tenor and effect thereof, and of their acceptance thereof. Yet they did pot pay the amount thereof, although the said bill was then presented to them, on the day when it became due, and thereupon, the same was then and there returned to tlie plaintiff; of all of which, the defendants then and there had notice, and then and there, in consideration of the premises, promised to pay,” &c., with the usual breach, and damage, &c.

The affidavit upon which the attachment was issued, is in these words:

“’We,” (the attorneys for the plaintiff — naming them,) “do depose and say, that the defendants ” (naming them,) “ are justly indebted to John Id, IJeald, in the sum of $836 19, which sum is now due, and that the said defendants ” (naming them,) “ are not residents of the State of Arkansas.”

It appears, from the bill of exceptions taken during the progress of the trial, that the above affidavit was written on a separate piece of jiaper, not “entitled,” nor connected with, or attached to p.ny of the original papers in the cause.

The plaintiffs in error pleaded non assumpsit, and excepted to the sufficiency of the above affidavit. The exceptions to the affidavit were considered by the court, and overruled, for which, the plaintiffs in error excepted.

The issue upon the plea of non assumpsit, was submitted, by consent, to the court, sitting as a jury; and the defendant in error, to maintain the issue on his part, produced, and offered to read as evidence, a bill of exchange, which is as follows:

“$836 19. New Orleans, April 9th 1853.

Pay to the order of Hume & Butt, eight hundred and thirty-six 19-100 dollars, value received, and charge the same to account of

j. heald;

Pee Johk Phelps.

To Messrs. KiNNEY & Goodkioh,

Fort Washita.”

This bill was duly accepted by the plaintiffs in error, and the introduction and reading of which, were objected to by them at the triol, and their objection overruled by tbe court, and the same permitted to be read as evidence for the defendant in error: to which, the plaintiffs in error excepted at the time, and set out in the bill, that the above facts were all the evidence introduced at the trial. On these facts, the court found for, and rendered judgment in behalf of the defendant in error, for the amount of the bill of exchange, and interest, and the plaintiffs brought error.

Three errors are assigned and relied upon for the reversal of the judgment of the Circuit Court.

1. Because the Circuit Court refused to sustain the exceptions of the plaintiff's in error, to the affidavit for attachment.

2. Because the Circuit Court overruled the objection of the plaintiffs in error, to the introduction as evidence, by the defendant, of the writing sued on.

8. Because the judgment is in favor of the defendant in error, when it should have been for the plaintiffs.

1. The first error assigned, does not seem to be much relied on by the plaintiffs, as it is not noticed in the brief of counsel, or alluded to in their argument. As far as we can judge, from the face of the affidavit, on which the attachment issued, it contains all the substantial requirements of the statute. The mere fact of its having been written on a detached piece of paper, and not “entitled,” though a loose and irregular mode of procedure, in such cases, is not so, to such an extent, as to authorize this court to say, that the court below should have sustained the exceptions of the plaintiffs in error, taken to the affidavit on this account.

2. It is evident, from both the letter and tenor of the declaration in this case, that it was intended to be an ordinary suit, by the drawer of the bill of exchange, against an acceptor, after its presentment to, and refusal to be paid by the acceptor, and after its return to, and payment by the drawer, in accordance with the law merchant. There can be no doubt, but that such an action will lie under the law merchant, and we know of no provision of our statute which changes that law, to the extent of rendering the action questionable with us. It was, therefore, proper for the defendant in error in this cause, not only to produce, but to read the bill, and the acceptance thereon endorsed, as a part of his evidence, to sustain his action. We will consider of this branch of the subject more fully, when we come to consider and dispose of the third error assigned. We, therefore, hold that the court below did not err in permitting the defendant in error to read the bill sued on, and the acceptance thereon endorsed, on the trial.

3. We- have said, that an action will lie, at the suit of a drawer, against an acceptor, under the facts stated in the preceding head, and we are sustained- in this, by both principle and authority. See 1 Saunders Pl. & Ev. 513; Symmond vs. Parmintu, 1 Wils. 185; Bayley on Bills 392; Chitty on Bills 304; Smith vs. Bryan, 11 N. C. Rep. (Iredell,) 419; Benjamin vs. Tilman, 2 McLean's Rep. 213.

Bjr the law merchant, when the drawer of a bill, payable to the order of a third person, and returned and taken up by him, sues the acceptor, he must, if denied, prove the acceptance. See 1 Saunders Pl. & Ev. 493, 503. lie must prove the presentment of the draft to the acceptor, and his refusal to pay. This may be done by calling the person who presented the bill, or else by proving a promise by the defendant to pay, as that will dispense with the proof of the presentment. In such a suit, the return of the bill to the drawer, and his payment of it must be proved, in order to show that the right, of action thereon, was vested in him. See the reference we have made to 1 Wils. 185; Pfiel vs. Van Catenburg, 2 Camp. 439; 1 Saunders Pl. & Ev. 513.

And such we hold the law to be, in this State, in such cases: except, that here, it would not be necessary for the plaintiff to prove the acceptance of the bill, unless that fact were denied by the acceptoi by plea, verified by affidavit, under our statute.

In Smith vs. Bryan, 11 N. C. Rep. 419, before referred to, and a case very similar in its facts, to the one we are considering, EuffiN, 0. j., in delivering the opinion of the court, said: “But when the drawer brings suit on the bill, the declaration states, not only the drawing of the bill, and its acceptance, and the nonpayment by the defendant, but that the plaintiff thereby became liable as drawer, and paid it. It is, therefore, indispensible on such a count, to prove the payment of the bill, or, at least, to prove the payee’s name, in blank, on the bill, as an authority to fill up a receipt to the plaintiff for its amount: for the mere possession of the bill, payable, and therefore belonging to a third person, is not evidence that the drawer lias got it up by paying it, so as to entitle him to sue on it. If a bill be payable to the drawer’s own order, and be transfers it by endorsement, and afterwards becomes holder again, he may then have an action on it against the acceptor, because, by the possession, he stands, ¡prima facie, on his original rights,” &c. * * * * * *

“ But, it is otherwise between the drawer and the acceptor of a bill, payable to another; for the drawer has no original right to the instrument against the acceptor, but only the right arising out of his secondary liability, in the event of non-payment by the acceptor, on due presentment. Hence, the necessity, as before mentioned, that the drawer should show such failure by the acceptor, and that he, the drawer, paid the money, in order to entitle him to sue on the bill.”

"We have thought proper to say this much in reference to the averments that a declaration should contain, founded on a cause of action, such as the one before us, and the proof necessary to support such action, with the view and hope of making ourselves understood in reference to the competpney of the bill, as evidence, in part, to enable the defendant in error to support his-action, the bill itself, with the acceptance thereon endorsed, being an important link in the chain of testimony, which,' to entitle the party to a recovery, must be connected and unbroken in all its parts.

The plaintiffs in error, having only excepted during the progress of the trial, to the ruling of the court below, in permitting the defendant in error to read the bill sued on, as a part of his evidence, to support his action, (and we have held that ruling right,) and not having, after all the evidence was submitted to the court, sitting as a jury, and after tbe finding of the court in favor of the defendants in error, upon that evidence, moved for a new trial, we cannot, consistently, with the recent decisions of this court, consider whether or no, there was any other evidence adduced on the part of the defendant in error, in addition to the bill and its acceptance endorsed, notwithstanding the bill of exceptions copied in the transcript, affirmatively shows, that none other was, in point of fact, offered; for the practice of this court, and consequently the law, is, in the language of WatKINS, O. J., in State Bank vs. Conway, 13 Ark. Rep. 354, 355, “That if a party merely excepts to the finding of the court or jury, setting out the testimony, without any motion for a new trial, or without any exception, whereby he shall put his finger upon the alleged error of law, as to any ruling or decision of the court below, there is no case presented for the consideration of this court.” And to the same purport, is the opinion of Mr. Justice Soott, in Jones et al. vs. Gatlin, 16 Ark. Rep. 35.

In the case before us, no other question or point of law, was saved during the progress of the trial, after the exception was taken to the admission of the bill as evidence for the defendant in error, and as we have before remarked, no motion for a new trial was made after the evidence was concluded, and the finding of the court thereon pronounced. The exception was to the finding of the court, upon the evidence offered, and. the party excepting, in the very expressive language of the learned Chief Justice, just quoted: “did not put his finger upon the alleged error of law,” committed by the court, in the finding upon the facts.

Wherefore, upon the transcript as it stands, divested as'it should be, of every fiict brought upon the record by the bill of exceptions, after the admission of the bill of exchange sued on, we shall be compelled to affirm the judgment of the court below.

Let the judgment of the Sebastian Circuit Court be affirmed at the costs of the plaintiffs in error.

Absent, Mr. Justice Scott.


author: Mr. Justice HaNly

text:
    Hicks et al. vs. Badham.
    The questions of law arising upon a demurrer to the declaration, which has been overruled by the court, will be considered as waived by filing a plea in bar.
    (The case of State Bank vs. Gonway, 13 Arle. 354, and subsequent cases, as to new trials.)

      Appeal from Phillips Oi/rcuit Court.

    Palher and. "WatKINS & Gallagher, for appellants.
    Fowler & Stillwell, for appellee.
   Mr. Justice HaNly

delivered the opinion of the Court.

This was an action of assumpsit instituted at the May term, 1855, of the Circuit Court of Phillips county by the appellee, for the use, &c., against appellants, founded on a promissory note. The plea of the general issue, non-assumpsit, was interposed by the defendants below, and issue thereto joined by the plaintiff. This issue was submitted to the court, sitting as a jury, by consent, and there was a finding and judgment by the court in favor of the plaintiff, for the amount of the noté sued on, with interest. There was an exception taken to the finding of the court upon the evidence, and a bill of exceptions signed and sealed, purporting to embody and contain all the evidence adduced at the trial, but which we do not deem material to state, or farther notice, in the view of the disposition which we shall make of the case.

There was a demurrer to the declaration interposed and overruled by the court; to which, the defendants below excepted, but having interposed their plea in bar afterwards, and not saving the point by their bill of exceptions taken to the finding of the court upon the evidence, the questions of law arising on such demurrer, must be considered -as waived by their subsequent plea in bar.

There was no motion for a new trial.

This case, therefore, falls fully within the rule laid down by this court in State Bank vs. Conway, 13 Ark. Rep. 354, 355; Jones et al. vs. Gatlin, 16 Ark. Rep. 35, and Kinney et al. vs. Heald, just decided. Lefils & Christian vs. Sugg, 15 Ark. Rep. 137.

Judgment of the Circuit Court of Phillips county, is, therefore, affirmed, with costs. . ' ..

Absent, Mr. Justice Soott.


author: Mr. Justice Hanxy

text:
    White et al. vs. The State.
    Newly discovered evidence, to afford a ground for new trial, must have been discovered since the fomer trail; must be such as reasonable diligence could not have secured at the former trial; must be material, and not cumulative; must be such as ought to produce on another trial, a diffierent resuelt, on the merits, and must go to the merits. ;
    A motion for new trial, in general, will not be granted unless 'accompanied by the affidavit of the newly diecovered witness.

      Appeal from the Circuit Court of Pope County.

    Tho Hon. Felix J. BatsoN, Circuit Judge.
    Hollowell, for appellants.
    JordaN, Attorney General, contra.
   Mr. Justice Hanxy

delivered the opinion of the Court.

The appellants were indicted at the March term, 1855, of the Pope Circuit Court, under the 5th section of the 5th Article of the 51si chapter of the Digest, under the title of Sabbatii BREAKING.” There were two counts. The first was under the 1st clause in the 5th section ¡ and the other, under the second clause of the same section. At the September term, 1855, the defendants pleaded not guilty; were tried by a jury, convicted and fined ten dollars each.

At the same term, the defendants filed a motion for a new trial, on the ground of newly discovered evidence since the trial and verdict. The motion was supported by the affidavit of one of the appellants; stating, in effect, that he was not aware of the existence of the evidence newly discovered, until since the trial; stating furthermore, what he expected to prove, but which we do not deem necessary to state, as it was only cumulative of the evidence, which it appears, from his bill of exceptions, he introduced to the jury at the trial. Neither the motion, nor the affidavit in support of it, shows any diligence on the part of the appellants, to procure the evidence newly discovered, anterior to the trial. Ve will not copy the evidence set out in the bill of exceptions, as the appellants do not question the propriety of the finding of the jury upon that evidence, but predicate their motion for a new trial wholly upon the ground of newly discovered evidence, which they set out, and which we hold, is only cumulative of that, which they offered to the jury at the trial. Ouomo-lative evidence, as understood in the sense in which we use it, in this connection, is such evidence as goes to support the facts principally controverted on the former trial, and respecting which, the party asking for a new trial, as well as the adverse party, produced testimony. See Wharton’s Amer. Grim. Law, 913.

After, or newly discovered evidence, in order to afford a proper ground for tbe granting of a new trial, must possess the following qualifications:

1. It must have been discovered since the former trial.

2. It must be such as reasonable diligence, on the part of the defendant, could not have secured _ at the former trial.

3. It must be material in its object, and not merely cumulative, and corroborative or collateral.

4. It must be such as ought to produce, on another trial, an opposite result on the merits.

5.' It must go to the merits, and not rest merely on a technical defence. See Whart. Amer. Crim. Law, 908, 909; Burris vs. Wise & Hind, 2 Ark. Rep. 33.

The after discovered evidence, set out in this case, wants several of the elements and features necessary, to make it available as a basis of a motion for a new trial. Por instance, the appellants show no diligence in the way of its procurement for the former trial: it is wholly cumulative of the evidence which was before the jury; and, lastly, it is not of sucha character, as ought, or would, likely, produce on another trial, an 023posite result.

There are, however, other grounds, in addition to the above, deemed preliminary points of practice, which must be conformed to, before a motion on the ground of newly discovered evidence will be entertained. It is necessary, that the party should mention the witnesses by name, and what he expects to prove by them. This seems to have been done in the case before us. And, in addition to this, that either the witnesses themselves, should state, on oath, the evidence they can give, or that the party should add Iris own belief to the statement made by the witnesses. See Burriss vs. Wise, & Hind as above; Hollingsworth vs. Napier, 3 Caine’s Rep. 182; Dunn vs. Marrill et al., 1 Ham. Rep. 382; Brown vs. Swan, 1 Mass. Rep. 202; Adams vs. Ashby, 2 Bibb. 287.

The rule for a new trial, in general, will not be granted in such cases, if supported only by the affidavit of the party, or one interested. The motion must be accompanied by the affidavit of the newly discovered witness. And this rule is as well applicable to criminal, as civil practice. See Whart. Amer. Crim Law, 909; Webber vs. Tres, 1 Tyler Rep. 441; Noyee vs. Huntington, Kirby 282.

In the case before us, the motion was only accompanied by the affidavit of one of the appellants.

"We, therefore, in view of the above principles] hold, that the court below very properly overruled the appellant’s motion for a new trial in this cause, and finding no error in the whole transcript, we consequently, affirm the judgment of the Pope Circuit Court, in this behalf. Let the judgment be affirmed, at the ap pellants costs.

Absent, Mr. Justice Soott.


author: Mr. Justice Handy

text:
    The State vs. Johnson.
    A candidate for an elective office, receiving a majority of the votes polled, where tlier wore but two persons voted for, but not a majority of the votes of the qualified electors, is not legally elected to the office, though so proclaimed by the judges of election, and commissioned by the Governor — the authority to fill the office being derived from the free choice and election of the qualified electors, not from the pro clamation of the judges of election, nor the certificate of election, nor the eommis sion of the Governor.
    A commission is, simply, evidence of a right to hold an office, gives color to the acts of the incumbent, and constitutes him an officer de facto; but invests him with no right to the office, and it becomes destroyed, canceled and superseded, upon the issuance of a commission to another, who has been legally elected to fill the office.

      The corporate authorities of a city, having the right, by their charter, to pass an ordinance providing a tribunal before whom contested elections, under it, should bo tried’, and providing the course of procedure in such cases, may pass such ordinance after an election has been held, and invest such tribunal with power to determino contests arising out of such previous election.

      Append from Sebastian Circuit Court.

    Hon. John J. Clendenin, Circuit Judge, presiding.
    JobdaN, Attorney General, for tbe appellant.
   Mr. Justice Handy

delivered the opinion of the Court.

Upon the order of the prosecuting attorney for the 4th Judicial Circuit, the clerk of the Sebastian Circuit Court issued a writ of quo warranto, against the appellee, Raphael M. Johnson, requiring him to show by what authority or warrant, he exercises the office and frenchise of Mayor of the city of Fort Smith, in the county of Sebastian, in this State. This writ bears date the 20th August, 1855, and was made returnable, and was returned to the September term, of the Sebastian Circuit Cdurt, next after its date. At the term of the court to which such writ was returned, the appellee appeared thereto, and interposed a plea in response to the writ, alleging therein, that he was, at the time of the election hereinafter mentioned, a free, white, male inhabitant of said city, over the age of twenty-one jmars, and a resident within the corporate limits of said city: that an election, for the election of the officers of said city, was holden in said city, on the first Monday in May, A. D. 1855, by the judges and clerks elected for that purpose, by the electors present, at the opening of the polls, in pursuance of, and in accordance with the provisions of the 33d and 34iA sections of the act of the General Assembly of this State, approved the 19th December, A. D. 1854, entitled, “An act to provide more fully for the incorporation of the City of Fort Smith: ” that, upon said election,-votes were offered to be given in, and the appellee received of the votes so offered, for the office of Mayor, - votes, being a majority of all the votes offered to be given in for the candidates for that office; and he avers, that he then and there received a majority of the votes cast, by the qualified electors of said city, for the candidates for the said office of Mayor, and was, thereby, duly elected Mayor of said city, for the term of one year: that immediately after the said election was completed, the judges who held it, granted unto him a certificate of his election, and that the said judges filed the poll-books of said election with the city council of said city, immediately after the organization of said council: that within three days after said election was completed, the said judges forwarded to the Secretary of State, an abstract of all' the votes polled at said election for Mayor of said city: that on the 16th day of May, A. D. 1855, a commission, in the name, and by the authority of the State of Arkansas, sealed with the seal of said State, signed by Elias N. Conway, Governor thereof, and attested by the Secretary of said State, and bearing date the day and year aforesaid, was issued to the appellee, whereby, after reciting, that whereas, it appeared that the appellee had been duly elected Mayor, in and for the city of Fort Smith, in this State, at an election held in said city, on the 7th of May, 1855, the said Governor, by virtue of the authority in him vested by the constitution and laws of said State, did thereby commission said appellee, Mayor, in and for said city, for and during the time prescribed by the laws of said State. And thereby authorized and required the appellee to do and perform all and singular the duties incumbent on him as Mayor, in and for said city, according to law, and the trust reposed in him, as in and by the said commission to the court shown, more fully appears: that on the SOth’May, 1855, he took and subscribed the oath prescribed, to qualify him as such Mayor, in due form of law, and on that day entered on the duties of his office as such Mayor, and averring that, by that warrant, he was exercising the franchise of Mayor of the City of Fort Smith, and had entered upon, and was using the powers, rights and privileges to said office belonging.

And at the same term, at which the above answer or plea was filed by the appellee, the State, by her attorney, interposed her replication thereto, in substance, as follows: That by an ordinance of the City Council of the City of Fort Smith, entitled, “An ordinance providing the mode of contesting elections within and for the said city, passed and approved by the council of said city, on the 8th day of May, A. D. 1855, in pursuance of the provisions of the 38d and 34th sections of the act of the General Assembly of this State,” approved the 19th December, 1854, entitled, “An act to provide more fully for the incorporation of the City of Fort Smith,” it was provided as follows, to wit:

1. Be it ordained by the Oity Oouneil of B'ort Smith, That John Pearson, Calvin 'Walker and Francis McKieruan, justices of the peace within said city, be, and they are hereby constituted a board of commissioners, for the purpose of hearing and determining upon the elections held within and for said city,

2. When the election of any Mayor, Alderman or Constable of said city, shall be contested, it shall be before said board of commissioners, and the person contesting any such election, shall give the opposite party notice in writing, two days before the time of contesting the same, specifying the grounds upon which he intends to rely, and if any obj ection be made to the qualification of voters, the names of such voters, with the obj ections, shall be stated in the notice, and the parties shall be allowed process for witnesses.

3. That the said board of commissioners shall have full power ■and jurisdiction in the premises, and shall hear and determine such contest, in a summary way, according to the evidence, and if such board of commissioners, or a majority of them, shall be of opinion, that the person proclaimed elected, is not duly elected, but that the person contesting is elected, they shall enter up an order to that effect, which said order, under the hands of said commissioners., or a majority of them, shall be filed with the .Recorder of said city.

4. That upon the application of either party, seeking to oon-iest such election, the said commissioners, or a majority of them, shall immediately set a clay and place to bear such contest, and shall have full power to issue subpoenas for witnesses, to administer oaths, and shall, in every respect, constitute a corporation court, for the purpose aforesaid, and shall have full and ample powers to do any and all things necessary for the full and complete performance of the duties aforesaid.

5. If a vacancy shall occur in said board by refusal to act, death, resignation or otherwise, such vacancy may, at any time, be filled by appointment of the city council.

6. If the election of Mayor shall be contested, and the order of said commissioners shall be, that the person so contesting is duly elected, it shall be the duty of the recorder to forward a certified copy of such order, so filed with him, together with a certified copy of this ordinance, to the Governor of the State of Arkansas, within three days after filing such order with him as aforesaid.

I. The decision of said board of commissioners shall be conclusive, and the party so declared to be elected, shall be entitled to such office, and upon being duly qualified as prescribed by law, maj' enter upon the duties thereof.

S. Be it further ordained, That this ordinance take effect and be in force, from and after its passage. Approved, May 8,1855.

That under and in pursuance of the provisions of said ordinance, afterwards, to wit: On the 9th May, 1855, one Win. H. Rogers, also a free white male inhabitant of said city, over the age of twenty-one years, and a candidate for the office of Mayor, at said city election, so held on the said 7th of May, 1855, made application to the said board of commissioners to contest the election of said appellee to the said office so proclaimed to be elected to, at said election, by the judges thereof; and thereupon, the said board, appointed the 16th May, 1855, at 10 o’clock, A. M., of said day, at the court house, in the said county of Sebastian, to hear and determino such contest, and afterwards, on the 14th May, 1855, the said Rogers, under the ordinance as above, caused notice ip writing to, be duly served on the appellee, specifying the time and place of holding such contest, and the grounds on which he, .Rogers, intended to rely, together with the names of the voters at said election whose qualifications were objected to, and the objections: that on the 16th May, 1855, at the hour and place named, the board met and proceeded to hear evidence, and thereon adjudged and declared that appellee did not receive a majority of the votes polled for the office of Mayor of the City of Tort Smith, and was not elected to said office at the election aforesaid, and that the said Rogers was, by a majority of those votes, and so entered up their order or judgment accordingly, which said judgment was signed by each of the commissioners, and filed within the time, and in the manner prescribed by the ordinance, as above: that the decision or judgment of the commissioners as above, was, on the 21st May, 1855, copied, and that, with a copy of said ordinance, was transmitted to the Governor of this State, who, on the 7th June, 1855, commissioned, in due form, the said Rogers, as Mayor of the said city of Fort Smith, for the time prescribed by law: that Rogers took the oath of office, as such Mayor, in due form, on the 13th June, 1855, and then took upon himself the duties of said office, and the franchises pertaining thereto, and from that time forward, had continued so to act.

The appellee demurred to the response or replication of the appellant to his plea, and which was, on argument and consideration, sustained by the court, to which appellant excepted at the time, when judgment final was rendered, discharging appel-lee from the writ in this cause, and the State appealed, on which the case now stands in this court.

The only question presented for our adjudication is, as to the propriety of the judgment of the court below, in sustaining the appellee’s demurrer to the State’s replication, and rendering judgment discharging appellee from the writ in this behalf.

"We think there can be no question, in view of the facts set forth in the replication, that the appellee was not legitimately elected Mayor of the City of Fort Smith, by the electors thereof, on the 7th May, 1855, but, if we may determine from the same source, it appears, most conclusively, that Rogers was; for, according to our construction of the several acts of the Legislature, pertaining to the incorporation of the City of Fort Smith, the electors of that city were required to possess certain qualifications; as for instance, to be free, white men, over the age of twenty-one years, &e., &c. To determine the result of the election between the appellee and Rogers, they being the only two candidates for the office of Mayor of that city, at the election on the 7th May, 1855, we have but to ascertain who received the majority of the votes of the electors, possessing the qualifications prescribed by those acts of the Legislature, to which we have before herein referred. The poll books of an election serve as conclusive evidence to the judges, who preside at the polls, to enable them to determine the result; as it is from those books alone, that such judges can ascertain that fact. After they have been thus used, and are deposited and filed away, as the law requires, they are, simply, memorials of what they contain, and intrinsically, as a medium of evidence of the qualification of the electors, they are only prima, facie evidence of that fact. The proclamation and certificate of the judges, who presided over the election of the 7th May, 1855, declaring and making known, that the appellee had received a majority of the electoral votes polled on that day for the office of Mayor, were certainly not more potent than the original books, from which the fact proclaimed and certified to, was derived. The office of the proclamation was to inform the parties concerned of the present result, and that of the certificate and the abstract they were required to make out and send to the Governor, was to furnish Kim with evidence, prima facie, or con-cltiswe, as to him it makes no difference, whereon he might proceed to issue the commission to the person so appearing to him to have been elected. But, at last, after all this has been done, and the party thus commissioned, he derives his authority as an officer, not from the proclamation of the judges, not_ from the certificates of elections, not from those abstracts made.out for the Governor, and not from tbe commission; but from tbe free choice and election of tbe people, not the people in the popular sense of those words, but from the people who were competent and qualified electors, when the votes were polled and the election held. See Marberry vs. Madison, 1 Cranch. 137; Wammach vs. Holloway, 2 Ala. Rep. 33.

If we are correct in this, and of which we do not entertain a doubt, it is shown by the facts set forth in the replication of the appellant to the plea of the appellee, which are confessed by the demurrer, that Rogers received a clear majority of eleven votes over the appellant, of such as were competent and qualified to vote, under the acts of the Legislature, at the election for Mayor of the City of Fort Smith, held on the 7th May, 1855. The commission to appellee gave to him no right to the office of Mayor. It was, it is.true, evidence of a right to the office; gave color to his acts, and constituted him thereunder, an officer, do facto; but invested him with no right, impairing the right to the office of Mayor, which Nogers had derived from the people by means of the election on the 7th May, 1855. After the close of the election, Nogers was, to all intents and purposes. Mayor, de jure, of the City of Fort Smith, and so soon as he was commissioned by the Governor, and proceeded to act thereunder, he became Mayor, defacto, of that city, and the commission, which had been issued to appellee by the Governor, became, and was, from that time, virtually destroyed, canceled and superseded; so, that if he continued to act as Mayor, after that time, he was a naked officer, de facto, without the commission to give color to his acts as such.

It is evident to our minds, from the facts and the views already expressed, that the appellee was commissioned and acted as Mayor of Fort Smith; and, consequently, exercised the franchises pertaining to that office, without lawful authority: and the fact of usurpation having been established by a judicial or quasi judicial tribunal, instituted for the purpose, in the mode prescribed by law, the franchise may be resumed by the State.

The fact that the ordinance providing a tribunal, before whom contested elections should be tried, and prescribing the course of procedure in such cases, having been passed after the election of the 7th May, 1855, does not, in the slightest, affect this case, as between the appellant and appellee. The city authorities of Fort Smith had the right, under their charter, to pass the ordinance in question.

It did not disturb any right of the appellee. It gave to Bogers a remedy, as against the appellee, and opened to Bogers the means of confirming to himself the right which he had derived from the election, which was being threatened- by the appellee.

We are clear, therefore, from the above views, that the court below erred in sustaining the demurrer of the appellee to the appellant’s replication, and rendering judgment discharging the appellee'from the writ of quo warranto issued in this behalf.

Wherefore, the judgment of the Sebastian Circuit Court for the cause aforesaid, is reversed, and this cause is remanded to that court, with directions that the demurrer aforesaid be overruled, and that the court otherwise proceed herein, in accordance with law, and not inconsistent with this opinion.

Absent, Mr. Justice Soott.


author: Mr; Justice Hanly

text:
    Redd vs. St. Francis County.
    This court lias jurisdiction, on appeal from the Circuit Court, of a cause originating in the County Court, on the petition of a land owner to reduce and correct the assessment of his lands.
    The 4th section of the act of 1853, (Acts of 1853, page ‘13,) prescribing the mode of assessing the lands of non-residents, is not in conflict with Article 4, section 2, of the Constitution of the United States, nor of the compact entered into between this State, upon its admission into the Union, and the United States, which forbids nonresident proprietors to be taxed higher than residents.
    This court will not set aside the assessment of lands made by three house-holders of the vicinage under oath, upon the testimony of witnesses who swearmerely as to the value of the lands, generally, in the same township.

      Appeal from, St. Francis County.

    lion. George W. Beazley, Circuit Judge.
    Palmer and "Watkins & Gallagher, for tbe appellant.
    JORDAN, Attorney General, for the appellee.
   Mr; Justice Hanly

delivered tbe opinion of tbe Court.

This was a case commenced in the County Court of St. Francis county, founded on a petition filed in that court by the appellant, setting up that he was not a resident or inhabitant of the county of St. Francis, but was the owner therein of a large body of lands, which were taxed and assessed to him for the year 1855, at tbe rate and price of-$10 per aero ; averring that the actual and intrinsic value of such lands did not exceed the price and sum of three dollars per acre. The petition also states, that the mode and manner pursued by the assessor for said county in the assessment of said lands for said year, was by having the same appraised and valued by three house-holders of the elective township, within which said lands are situate, selected and appointed by the sheriff of said county, charging therein, that such mode of assessment was not only unjust, but unconstitutional, and insistingthat such assessment ought to be corrected, and his said lands valued at three dollars per acre.

This petition was presented to the County Court of St. Francis county, at the July term thereof for 1855, being the first term of said court held after the assessment of 1855, wTas filed in the office of the cleric of the County Court for said county under the statute in such case made and provided.

At the term of the court at which it was presented, the County Court proceeded to consider of, and act upon, the petition, and after hearing the evidence introduced upon the part of the appellant, and such as may have been introduced by the appellee, dismissed the petition of the appellant, without the relief prayed for, and rendered judgment against him for the costs, incident to proceedings thereon in the County Court. To which judgment of the court, the appellant, by his attorney, excepted at the time. The appellant moved the court in writing filed for a new trial, which, on consideration, was overruled by the court; to which appellant also excepted, and tendered his bill of exceptions, which was duly signed and sealed by the court; and from which it appears that the following evidence was introduced at the hearing of the above petition: that is to say, that the appellant was a non-resident of the county of St. Francis; that the term, at which said petition was presented and heard, was the first term of the County Court of St. “Francis count}*-, held since the 25th March, 1855, the time at which the assessment list for said county was filed that year ; that the lands taxed and described in the petition were assessed to the appellant, for the year 1855, at the rate of $10, per acre; that the lands, generally, in the townships in which such lands are situate, are not worth more than $6 per acre ; that the lands had a prospective value placed on them, and not a cash value ; and this was all the evidence adduced at the hearing of said petition, as the bill of exceptions expressly states.

The appellant, on bis motion for a new trial as above, being overruled by tbe County Court, filed tbe affidavit and recognizance required b}r law, and prayed for an appeal from tbe judgment of tbe Count3r Court to the Circuit Court of said county pf St. Francis, wbicb was granted.

At tbe October term, 1865, of tbe Circuit Court for St. Francis county, the appeal in tbis cause came up before that court, and tbe judgment of County Court was affirmed, no error being found in tbe transcript thereof.

Tbe appellant appealed from tbe judgment of tbe Circuit Court of St. Francis county, affirming tbe judgment of tbe County Court of said county, and rendering judgment for costs against him, upon wbicb appeal tbe cause is now pending in tbis court.

1. No question is made on tbe part of tbe appellee as to tbe jurisdiction of tbis court, derived intermediately through tbe Circuit Court. Tbe appellant has, however, devoted much space in bis brief to tbe discussion of tbe question of jurisdiction, as if, in bis opinion, it were a matter of doubt whether tbis court can take cognizance of tbis cause by appeal from tbe Circuit Court. We think there can be no doubt on tbe subject, when the several acts of tbe Legislature, that have been passed bearing on tbe subject, are considered in connection with tbe various adjudications of tbis court construing them with reference to questions of jurisdiction. Without, therefore, attempting to travel over the field of argument laid open by tbe appellant in this cause, we shall content ourselves by simply stating the result of our convictions on the subject; bolding as we do, that tbis court has full jurisdiction of tbis cause, derived intermediately through tbe Circuit Court. See Carnall vs. Crawford County, 6 Eng. Rep. 613; Allis ex parte, 7 Eng. Rep. 102; Roberts vs. Williams, 15 Ark. Rep. 45.

Having disposed of tbe above question, we will at once proceed to the consideration and determination of tbe several errors assigned, as follows:

1. That the County Court of St. Francis county, erríed in overruling appellant’s application to correct and adjust the assessment of tbe lands of appellant made by the sheriff..

2. That the County Court erred in overruling appellant’s motion for a new trial.

3. That the judgment of the County Court should have been for the appellant instead of the appellee.

4. That the Circuit Court erred in holding there was no error in the record and proceedings, and in the judgment of the County Court.

5. That the Circuit Court erred, in affirming the judgment of the County Court.

6. That the Circuit Court erred, in rendering judgment for the appellee, and against the appellant.

1. It is insisted that the fourth section of the act of 1853, is virtually in conflict with that provision of the Constitution of the United States, article 4, section 2, that declares that: “ The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States,” as well as the compact entered into between this State and the United States, when Arkansas was admitted into the Union, which forbids non-resident proprietors to be taxed higher than residents.

The fourth section of the act of 1853, is in these words : “ That all lands belonging to non-residents, shall be valued by three house-holders of the election township, within which the lands are situate, to be appointed by the sheriff, and such valuation, provided it is not less three dollars per acre, shall govern the sheriff in assessing the same.” See Acts of 1853,page 73.

In order to determine the question made by the appellant in reference to this section, it is necessary, that we should consider it with reference to the provisions of the revenue law of this State, applicable to residents, which are as follows :

Secion 13. Each assessor shall require each person in his county to give in a description of all his lands, by township, range, section, quarter section, tract, lot or part thereof, and the number of acres in each particular tract or sub-division thereof.

Section 14. The sheriff or assessor shall make out a schedule of the property given in by each and every person for taxation, and its value, and. when thus made out, it shall be sworn to by the person or his agent, as being the full amount of property owned by him subject to taxation, together with the true value thereof; provided, that'no land shall-be valued at less than three dollars per acre.

Section 15. The assessor shall require each person owning or holding taxable property in his county, to value the same under oath, valueing each lot or town lot separately, and each kind of other property separately from every other kind.

Section 19. If anj1- taxable inhabitant of any township neglect or refuse, when called on to furnish the assessor, with a list of his taxable property, as required by law, or if the assessor has reason to believe that the list so furnished him is fraudulent, or does not contain a correct list of the property owned by such person, the assessor shall ascertain by the best means in his power, the taxable property and the value thereof, and as a penalty for such neglect, he shall assess said property at double its value.” See Digest, 872. These are all the provisions of our law bearing on the subject, directly before us.

There can be no question, if the Legislature have, by the act of 1853, conferred “immunities and privileges” upon the citizens of this State not guaranteed thereby, or other acts in relation to the same subject matter, to the citizens of other States of this Union, holding interests in this State, that the act in question is repug.-nant to the provisions of the Constitution which we have quoted above; and, moreover, if the act of 1853, has the effect to tax the property of non-residents higher than it does that of residents, by the terms of the compact entered into with the United States, before herein referred to, that act is void, and cannot, in goodfaith, be enforced by the courts of the country. "We will proceed at. once to examine those various provisions with the view of determining the propositions which we have stated.

It is evident, we think, from the provisions of the statutes which we have copied above, what objects the Legislature had in view by their enactment. There can be no doubt, but that the act of 1853, was passed to cure the defects which really existed in the law in reference to the assessment of property of non-residents, which was in force up to that time. The law, as copied from the Digest, required all ¡persons owning taxable property in this State, either by themselves or agents, to furnish lists under oath to the assessor in the several counties. This requirement, as applicable to non-residents, must have been not only inconvenient and burdensome to that class, but highly insecure and unsatisfactory to the State. Burdensome to the non-resident for the reason, that its observance required him to have an agent in each county in the State, in which he might own taxable property, who should have a personal knowledge, not only of the kind of property owned by his principal, but from personal knowledge should be able to swear to its actual and intrinsic value. Insecure to the State, for the reason, that it was confiding to an individual, who might not be supposed to be informed fully on the subject, the assessment of the value of the property of others, who, from corruption or ignorance, might place too high an estimate on such property, or else value it so low as to defraud the State out of its legitimate revenue. By the 16th section of the 12,6th chapter of owr revenue law, it is provided, that: “ All lands shall be valued at the true value thereof in ready money, taking into consideration the fertility of the soil, the vicinity of the same to roads, towns, villages and navigable waters, water privileges on the same, and all other local advantages, &c. See Digest, page 872. It may be that the Legislature had become satisfied, from the experience derived from the practical working and operation of the law, as it existed prior to 1853, that it was not practicable for non-resident proprietors to furnish lists and appraisements, under oath, of. their lands and property subject to assessment and taxation ; and hence, the necessity of the act of 1853, to cure the evils existing in the old law in respect to non-residents. This was evidently the mischief which the new act was intended to remedy. If so, the object the Legislature had in view, was not only laudable, but eminently calculated to accomplish the design intended. The appointment of three house-holders from the vicinage, of the election township in which the lands of non-residents might or should be situate, would be more likely to effectuate and attain this design, than by any other means that could be devised or suggested. “ Being residents, and, consequently, familiar with the actual locality ot the lands, with reference to the character of the soil, its proximity to roads, towns, villages and navigable waters with privileges on the same, and all other local advantages,” it is fair to presume, that they would be more competent to determine its “true value in ready money,” than its proprietor, a stranger to all these, or even an agent, who, ordinarily, could not be expected to be fully informed on these subjects. How it is possible, under such circumstances, for the lands of non-residents to be assessed higher than their real value would justify or warrant, we are unable to conceive, without it should be assumed, that the assessor in every instance was corrupt; and,'consequently, that he would only appoint the appraisers of such men as would, by forswearing, loan themselves to his compit designs. The vdiole scope and design of the fourth section of the act of 1853, was to prescribe a mode and means of ascertaining the value of certain species of taxable property, and this clearly was within the province and power of the Legislature. It is provided by the Constitution of this State, under the head of “Bevenue,” that, “all revenue shall be raised by taxation to be fixed by law,” and that “all property subject to taxation shall be taxed according to its value — that value to be ascertained in such manner, as the General Assembly shall direct,” cbe.

The Legislature has directed one manner to be pursued for the ascertainment of the value of taxable property owned by residents, and another manner for the ascertainment of the value of such property when owned by non-residents. We have endeavored to show, that this policy was forced on the Legislature, on account 'of the inconvenience or impracticability of the old system; that it cannot, except in extreme'cases, operate to the disadvantage of non-residents. The difference in the two modes devised in the case ofresidents, and non-residents does not, in our judgment, amount to a discrimination in favor of our own citizens, both being alike fair. It is the fact of discrimination in favor of our citizens, or the imposition of burdens upon the citizens of other States, from which our own citizens are made exempt, which must be the true test to determine the constitutionality of an act, such as we are at present considering. ~We find no such discrimination in the act in question; and, therefore, hold, that it is not obnoxious to the second 'section of the fourth article of the Constitution, as copied above, and that it does not, in its letter or spirit, violate the compact entered into between this State and the United States at the time of the .admission of Arkansas into the Union and family of States.

2. Having disposed of the above question, we will next proceed to consider and determine the remaining one raised by the assignment of errors. That is to say, whether the County Court of St. Francis county ought to have, from the evidence set forth in the bill of exceptions and stated above, reduced the assessment upon the lands of the appellant ?

By the practice, the appellant on presenting his petition to the County Court to correct and adjust his assessment,- took upon himself the burden of proving the averments and allegations set forth in his petition. It was his duty, therefore, to have furnished proof necessaiy to make out the truth of his charges. We do not regard the evidence set outpn the bill of exceptions, of such character as to out weigh the assessment of three persons, who fixed the value on the lands of appellant at ten dollars per acre ; particularly, when we are forced to the conclusion, as we are in this instance, that the three assessors appointed by the sheriff made up their assessment and valuation from actual observation or knowledge of the worth of the lands assessed by them j whilst, the witness or witnesses, who deposed or testified before the County Court, judging from the manner in which the evidence is put down, testified oply from a general knowledge, which such witness or witnesses had of the lands of the townships in which the lands of the appellant are situate, and not from a knowledge of the particular lands upon which the assessment was made. The statement of the testimony in the bill of exceptions, is, that the lands generally in those townships, are not worth more than six dollars per acre.” The enquiry before the County Court was not as to the value of the lands generally, in, the townships in which appellants - lands were situate, but was, as to the value of the particular lands of the appellant. Beside this, the transcript does not show or indicate how many witnesses swore to the facts stated. This court is bound to presume in favor of the judgment of the County Court: and, consequently, that there was but one, or at most, not more than two witnesses, who swore to the facts stated. Supposing the appraisers sworn by the sheriff, and the one or two witnesses, who testified in the County Court, to be equally creditable, the weight or preponderance of evidence is in favor of the sheriff’s assessment of the lands at ten dollars per acre. In either view, we think the judgment of the County Court right, and will not, therefore, disturb it. •

3. The determination of the last preceding proposition is'a virtual decision of the cause, upon the other errors assigned. The Circuit Court, acting upon the transcript from the County Court, very properly held there was no error therein, and affirmed the judgment of said court.

Wherefore, in view of the case as above, we affirm the judgment of the St. Francis Circuit Court at the costs of the appellant. Let the judgment be affirmed.

Absent, Mr. Justice Soott.


author: Mr. Justice Hauly

text:
    Adkins vs. Hershy.
    ■Where a party, in a suit before a justice of the peace, or on appeal from such justice to the Circuit Court, is made a witness, under the statute, by the opposite party, he may give evidence as well for, as against himself — as where a defendant files a set-off, and is called by the opposite party to prove the cause of action sued on, he may also give evidence to prove his own set-off.

      Appeal from the Circuit Court of Johnson County.

    Hon. JohN J. CleNDENIN, Circuit Judge.
    Mat, for the appellant.
   Mr. Justice Hauly

delivered the opinion of the Court.

This cause was originally commenced before a justice of the peace, on an open account, and was before, and decided by this court, at the January term, 1854, when the judgment of the Circuit Court was reversed, and the cause remanded.

At the September term of the Johnson Circuit Court for 1855, the judgment of this court was spread upon the minutes of that court, and the cause again proceeded in, when, by consent, it was submitted to the court, sitting as a jury, when the finding and judgment were again for the appellee on the evidence*

The appellant moved the court for a new trial, and on his motion being overruled, he excepted, and set out in his bill, the following facts, to wit :

That the appellee, to prove his demand, called upon the appellant to testify; who, being duly sworn, said that appellee’s account was just and correct: that he had bought and received of appellee the articles therein specified; and thereupon appellee closed his evidence, when appellant’s counsel offered to prove by ‘him his set-off, which was hied in due and ample time, and in proper form; to which evidence the appellee objected, and the court sustained the objection, and refused to permit appellant to prove his set-off by his own testimony, to which the appellant ex'cepted at the time.

The appellant appealed; upon which the cause is now pending •in this court.

1. "Upon an appeal being taken from a justice of the peace, to the Circuit Court, that court proceeds to try, hear and determine the cause anew on its merits, and the same course of procedure, ■and the same rules of practice are observed in the Circuit Court that obtain, in such case, before a justice of the peace. See Digest, sec. 181, p. 668; Drennen vs. Lindsey, 15 Ark. Rep. 359.

2. If there shall be no evidence given to establish any-demand 'founded upon a contract, or to establish any set-off, or if the evidence given be ‘insufficient for that purpose, the justice, before whom any such cause may be depending, or the Circuit Court in which jurisdiction may have been .acquired of such cause by appeal, upon the application of the party offering such demand -or set-off, may order the opposite party to be sworn, and examined in relation thereto, and after the examination of (either party, no further evidence shall be given in relation to such demand or ■set off. See Digest, see. 108, p. 656.

We think it clear, from the foregoing provision of the statute, that the design which the Legislature had in view by its enact-ment, was, to make the party sworn as a witness, stand in the place and attitude of a witness In the cause, as much so, as if he were an indifferent party. And we are confirmed in this, by the latter phrase -of the section, the .substance of which we have given above, which is, that “after the examination of either party, no further evidence shall be given in relation -to such demand or .-set-off; ” cotipled with the provision contained in the 109i/¿ section of the same chapter, which is in these words: “ Either ;party, in any suit founded on contract, may cause ithe opposite party to be subpoenaed as a witness in the cause in the same manner, and with like effect, as any other person.” It would be extremely onerous and unjust, if it were competent for the appellee, in the case we are considering, to require the appellant to be sworn as a witness in Ms behalf, for a special purpose, as, for instance, to prove his demand, and after lie had established it, as was really the case in the instance before us, to discharge him from the stand, and thereby preclude him from giving evidence to sustain his set-off. An indifferent witness, in ordinary causes pending in the courts, is sworn to speak the truth, and the whole truth, touching the cause in which he is sworn. ¥e cannot speak as to the practice in relation to the swearing of parties under the provision of the statute before referred to. Whether it is uniform throughout the State, we know not. But as far as our experience in, and knowledge of the practice in such case extends, it is to administer the same oath to parties, when sworn as witnesses under the statute as above, that is usually administered to witnesses in ordinary cases. When a party is called as a witness by his adversary, the presumption is, that he has no other means of proving his case, except by his testimony. By the act of calling him, the party virtually declares that he confides the eause to his conscience, and relies upon his integrity and truthfulness for the facts. When a set-off is filed, that is as much a part of the cause, and is, to all intents and purposes, as much at issue, as the original demand, upon which the action ivas founded. A witness, sworn in such cause, might as properly be interrogated in reference to the set-off, as the original cause of action. And sucli, we apprehend, is the case in reference to the party who is made a witness. He may testify in regard to any matter that is pertinent to the issue to be tried.

Whether the evidence of appellant would have changed tho result in this cause, we, of course, cannot determine, except from conjecture. Wo think it possible, at least, that he would swear to his set-off: if so, it is evident the result of the canse would, have been different, had the judge, who tried tliQ.Qause, given, heed to his evidence.

We are clearly of the opinion, that the court below should have allowed the appellant, when upon the stand, to have testified in reference to-his set-off. Having refused to allow him to do this, and believing it possible that, had he been allowed to testify, the result might have been different, the judgment of the court below will be reversed, and the cause remanded, with directions to the Circuit Court of Johnson county, to grant the appellant a new trial, and that the cause proceed in accordance with law, and not inconsistent with this opinion. Let the judgment be reversed at the cost of the appellee.

Absent,.Mr. Justice Scott.


author: Mr. Justice Hajsxy

text:
    Burr & Co. vs. Sickles & Co.
    A remittance of money by mail, is at the risk of the party mailing it, unless there he an express direction to remit in that mode, or a usage or course of dealing from which the authority so to remit maybe inferred.
    The fact that a previous remittance had been made by mail, and the mode of remittance not objected to, is not an authority or direction to adopt that mode at the risk of the creditor, to whom the remittance is made: nor is the letter of the creditor requesting remittance, but specifying no mode.
    A usage is not proved by a single, isolated instance: nor' is a course of trade or dea ing proved by a custom on the part of one person.

      Appeal from Independence Circuit Gourt.

    Hon. Beaufoet H. Neely, Circuit Judge.
    Baikohild, for the appellants.
    W. Byers, contra.
   Mr. Justice Hajsxy

delivered tbe opinion of the Court.

This was an action of debt, commenced by the appellees against the appellants, in the Independence Circuit Court, on a promissory note, for the sum of $521 12, date the 18th Eebruaiy, 1854, and payable six months from date. The appellants appeared to the action, and filed two pleas in bar, i. e., nil debit, and payment; to which issues were joined, and the cause submitted to the court, by consent, upon those issues. At the trial, the following evidence and propositions of law were submitted to the court, to wit:

The appellees read as evidence, the note declared on, upon the back of which were endorsed the following credits:

August 24th, By cash, $100 00

December, 20th, “ “ 180 00

$280 00

Which was all the evidence introduced or offered by the ap-pellees. The appellants then read in evidence, the following receipt of Beuben Harpham, who is admitted to have been post master at Batesville, at its date.

f‘ Messrs. Burr & Co. have deposited in P. O., Batesville, a $20 Bank bill of the Bk. Misso: A No. 1265; Nov., 1850; payable at Lexington; H. Shields, Cashier; J. M. Hughes,-. Also land warrants, No.’s 54584 and 29985, issued to John Smith, private, in Capt. Phillip’s Co., Arkansas volunteers, Florida war, and W. Helm Hunt, private, in Capt. Kelly’s Co., S. C. militia, war of 1812, and both under act of 28th Sept., 1850; all which are enclosed in letter to J. B. Sickles & Co., St. Louis, Mo., which is to be mailed thither, to go in mail of Saturday, 9th December, 1854.

K. HABPHAM, P. If.

JBatesville, 1th Peoember, 1854.”

Which said receipt was taken as evidence of the mailing of the letter, enclosing warrants and money, as therein stated, by the appellants, and directed to the appellees.

The appellants then read in testimony, the following letter, having first given proof of the same having been written by, or on behalf of the appellees:

Gentleman: We are just in receipt of your favor of the 7th mst., covering two eighty acre land warrants and a $20 bill. We sold the former at one dollar per acre, and placed the whole amount to your credit, as above stated, (alluding to the statement as made upon the note.) In the event of your sending u& any more land warrants, please endorse them on the margin, &c.

Messrs. BuitR & Co.

Batesville, Arks., Deo. 20th, 1854.”

And the appellants then read in evidence the following receipt of the post master at Batesville, which was agreed to be taken as his receipt, and as proof of deposit, and mailing- of the letter and money therein mentioned.

“ Burr & Co., have deposited in P. O. heve, a $50 bill, on BIc. of Mo., and a $20 bill, Union Bk. Tenn; the last, C. 184, l.Oct., 1853; the other, 16th Feb’yj 1853, No. 15, 2592, B., under address to J. B. Sickles & Co., St. Louis, Mo.

Batesville, 19¿A January, 1855.”

And the appellants also read in evidence, the following letter, having proven it, as the former letter, herein copied, was:

“ Saint Louis, Oct. 26, 1854.

Messrs. BdkR & Co., Batesville, Arks.,

Gentlemen: Tours of the 10th inst. is at hand, and contents noted, &e. * * * * * * * We were never more badly in want of money than at present, being compelled to borrow largely, to meet our liabilities. You will, therefore, if it is at all possible, do us the favor to remit the balance of your note, &c-

J. B. SICKLES & CO.”

And the appellants then introduced James H. Patterson as a witness, who testified, that he was in the habit of doing business, with, and had received letters from the firm of J. B. Sickles & Co., which had been recognized by that firm as genuine letters, and that he believed the letters, purporting to be from that firm, to the appellants, shown to him, under dates of October, 26th, and December 10th, 1854, were written by the authority and sanction of that house. And he stated further, that there are no. means of remittance between Batesville and St. Louis, that are regular, but by the mail or post. That there is no market, at which to buy exchange on St. Louis, at Batesville, .and that mer-» chants and’ others frequently send money for orders, and to pay debts, by the mail or the post,-and that he was in the habit of so doing himself, though he always supposed remittances to be at. his own risk, unless made upon the authority of the persons to., whom. made. And this was all the testimony offered at the-trial.

The appellants moved the court, when the testimony as above was concluded, to declare it as law, and applicable to this case

1. That if the appellees, by letter of 26th October, 1854, directed the appellants to remit money to them, and they did re^ mit to them seventy dollars by mail, and that was a usual way of remitting money, then, in such case, the appellants should be credited with the amount of money so remitted.

2, That if the fact bo, that the appellants sent to the appel-lees money by letter of December 7 th, 1854, through the mail, and the appellees acknowledged receipt of the same, without disavowing the risk of the mail, that was an implied authority to the appellants to continue tlie remittance of money to tbe ap-pellees by mail, and if they did so, afterwards, say on tbe 19th January, 1855, remit to the appellees $70, that such remittance was a payment to the appellees, for which the appellants should have credit in this action.

3. That if the appellants sent to the appellees money and land warrants, in payment of the note sued on, by letter of 7th December, through the mail, and which was received by the ap-pellees, by due course of mail, and that it is usual for money and land warrants and valuables to be sent and received by mail, then, the presumption is, that, if the appellants, afterwards, on the 19th January, 1855, sent to the appellees $70, by mail, such money reached its destination by coming to the hands of the ap-pellees, and must be taken to have been a payment by the appellants to the appellees, unless such presumption be rebutted by other testimony.

And the court refused to sustain either or all of said propositions as the law, and as applicable to this case, and found the fact for the appellees to be, that the appellants were not entitled to credit for the $70, mentioned in the receipt of the post master at Batesville, under date 19th January, 1855, and found for the appellees, the sum due on the note, without deducting therefrom, the said sum of $70, and proceeded to render judgment therefor. To which finding of the court, and refusal of the court to declare the three foregoing propositions to be the law, and applicable to this case, the appellants excepted.

From this judgment the appellants appealed, on which the ease is now depending in this court.

1. It is laid down by Mr. GbeeNleae, in his admirable treatise on the law of evidence, that: “When payment is made by remittance by post to the creditor, it must be shown, on the part of the debtor, that the letter was properly sealed and directed, and that it was delivered into the post office, and not to a private carrier or poster. He must also prove, either the express direction of the creditor to remit, in that mode, or a usage or course of dealing, from which the authority of the creditor may be inferred. When these circumstances concur, and a loss happens, it is the loss of the creditor.” See 2 Greenl. Ev., p. 497, sec. 525, citing in note 5, Warwieke vs. Noakes, 1 Peake 69; Hawkins vs. Rutt, Ib. 186; Walter vs. Haynes, Ryan & Moody 149; Chitty on Cont. 750; 2 Stark. Ev. 823.

We will examine and consider the propositions submitted by the appellants to the 'court, at the trial below, with reference to the facts and law as above stated.

By reference to the letter of the appellees under date the 26th October, 1854, it will be perceived, they gave to the appellants no express authority to remit the balance due them on the note in any partiexilar or stated mode. The direction was general, to remit: leaving the matter, from that letter, with the appellants, to select a mode, which might best serve their convenience, and at the same time comport with their interests. Upon the authority of this letter alone, we think it clear, that the appellants were not authorized to select the post, or mail, as the medium or agent of conveying to the appellees, the balance due on the note in question, so as to impose the risk of the remittance, which seems to have been made, of $70, on the 17th January, 1855, upon them.

The fact of the appellants having made to the appellees a similar remittance, on the 7th'December, 1854, which was acknowledged by them on the 20th of the same month, does not, in our judgment, qualify the authority of the appellants, or tacitly authorize them to adopt the mode pursued in that instance, as the mode in which the appellees desired future remittances to be made to them in liquidation and payment of the note sued on, and thereby take upon themselves the risk, in transitu, from Batesville to St. Louis. For it is fair that the appellees should have presumed, inasmuch as the appellants, without instructions, and, consequently, at their own risk, selected the post to make tLeir first remittance, that in case they should choose to pursue that same course, they would expect to do so, as they bad done at first, on their own risk.

There is no evidence of any usage1'proven to have prevailed between the parties to this suit, prior to the 19th January, 1855, when the remittance of the $70 was made through the post. The single isolated instance of the remittance made on the 7th December, 1854, certainly does not establish such usage; for usage is defined to be the 'legal evidence of custom. See Broom's Leg. Max. 712. And custom — the law established by continued usage. See Read vs. Rann 10 B. & C. 440; Ecl. Rep. 21, per Bayley, Judge.

There was no evidence that it was the course of trade or dealing, between persons doing business in St. Louis and Batesville, that remittances made by the latter to the former, by the post, are made at the risk of the former. Patterson, the only witness, who testified in the cause, stated that it was - customary, on his part, to give orders and make remittances through the mails: but not a word was said as to the eov/rse of dealing, in reference to the risk between him and his correspondents, except that he said, he always supposed when he made such remittances, he made them at his own risk.

In view, therefore, of the law and facts of the case, we must hold that the finding of the court below was right, and its ruling in respect to the three propositions submitted by the appellants, correct.

The judgment of the court b.elow is, therefore, affirmed with costs.

Absent, Mr. Justice Soott,