text:
    Johnson & Grimes vs. McDaniel.
    An action on the case for deceit in falsely warranting a chattel to he sound, is maintainable, though assumpsit or covenant on the express contract of warranty would, at this day, he the more appropriate remedy.
    When the declaration in case sets out a contract of warranty, though alleged to have been falsely and deceitfully made, the issue is upon the breach of the special contract, as it would he in assumpsit or covenant: the scienter of the defendant need not he proved, nor is it necessary that the plaintiff should have returned the chattel,, or offered to do so, and rescind the contract.
    In either form of action, the rules governing and the results to he obtained, are substantially similar; so that, in the action on the case, it is necessary, in setting out the contract, to describe it correctly, and prove it is alleged.

      Appeal from Ora/uford Oi/rcmt Qowrt.

    Hon. A. B. GkeeNwood, Circuit Judge.
    Walker & GeeeN, for tbe appellants.
    ¥e maintain, first, "That to support an action on tbe case for deceit in tbe sale of personal property, it is essentially necessary to prove tbe scienter. Oha/ndelor vs. Lopus, Smith’s Leadi/ng Oases, Am. Ad., notes .and authorities collected; Ormond vs. Iluth eb al., 14 Mees, dk Weis. 651.

      Secondly, That tbe principal is not liable for the acts of a special agent, where be transcends tbe limits of bis authority. Stainer vs. Tysen, 3 Hill’s Rep. 279; North Rimer Bank vs. Aymam, lb. 262; Ranh of the U. S. vs. Ramis, 2 lb. 451; 2 Stark. Ev., 1240; 3 T. R. 760; 1 Esp. 112.

      Thvrdl/y, That there is a material and fatal variance between the allegation and proof respecting tbe price paid for tbe slave — the allegation being that $600 was tbe consideration, and tbe proof Ibeing that $1200 were paid for this slave and others. Pemm, vs. Stewa/rt, 6 Eng. 41; Buclanan vs. Hcmey, Ib.; 1 Oh. PI. 299,384; Í Selw. EF, P. 104; 5 T. R. 496; Bristow vs. Wright, 1 Smith’s Lead. Oas, 547, a/nd cases cited.

      Eowthby, That, even admitting tbe plaintiff’s right to recover, ■under tbe state of facts, be was entitled only to nominal damages — it does not appear what was tbe price paid, nor what was tbe value of tbe slave, nor that be has been returned, nor what ■disposition has been made of him — as to tbe rule and measure of damages upon a breach of warranty. 1 Taunt. 566; 2 Camp. 82; Ga/ry vs. Orwna/n, 4 Hill 625; Yoorhees vs. Ea/rl, 2 lb. 288; Oothers vs. Keever, 4 Bcvrr’s Rep. 168; Willis vs. Dudley, 10 Ala. Rep. 933; Millvn vs. Rowland, 11 lb. 732.
    S,. H. Hempstead, for appellee.
    Tbe action was in proper form, ■( 2 Oh. PI. 680, 681,) and tbe proof fully established tbe falsity of the warranty. Both counts are according to the form laid down in Chitty, at page 680 of 7 Amer. Edition. 2 OMtty’sPre-cedents, 528; 6 J. It. 142; 1 Com. Dig., action on the case for deceit, (A. 11.)
    In an action for deceit upon an express warranty, the scienter need not be alleged, nor if stated, need it be proved. % East 446; 2 OhittydRO, note d.¡ 2 GK.Prec. 528, note g.¡ 4Bingham 66,73; 1 Oh. PI. 157; 1 J. J. Marsh. 440.
    If an express warranty turns out untrue, it is immaterial whether the party making it knew it to be false or not. 1 Story’s Eg, 193; Hardin 50; 1 Bibb. 244; Ooohe 266; 3 Gra/nch 270.
    In the case of the breach of an express warranty, the party may sue upon it for damages, without returning the goods, or offering to return them. 2 Hmt 480; Sedgwiclt, on Damages, 296; Oanrvpbell vs. Fleming, 1 Ad. <& El. 40; 'Voorhees vs. Ea/rl, 2 Hild 288; BorrsMns vs. Bevcm, 3 Ba/iule 23; 3 Stew. c& Porte/r 322;' Story on Oon., 551.
    A plaintiff may recover for breach of warranty, in the sale off personal property, in an action on the .case for damages, without returning or offering to return the property sold. Boormcm vs„ Jenkins, 12 Wend. 566; 1 Term Pep. 136; Oivrtis vs.. Ha/rmayf 3 Esp. 82; Long on Sales, 126; 1 J. J. Ma/t'sh. 437
    As to the rule of damages, Seclg. on Dam. 290, 295, 401, 402,, 564, cmd cases cited; 5 Mason 1; 2 Hill 288; 4 lb, 626; 8 Porter 429; 8 Johns. 446; 7 Wend. 354.
   Mr. Chief Justice WatKINS

delivered the opinion of the Court

This was an action on the case,, brought by McDaniel against, the appellants, for deceit in falsely and fraudulently warranting-a slave, whom they had sold to the plaintiff, to- be sound. The declaration contained two counts. The first alleged, that, whereas on, &c., at, &c., the plaintiff, at their special instance and request, bargained with the defendants to- buy of them a. certain negro boy, slave, named Elijah, aged about twenty-two years,.for a certain price, to. wit i the sum of six hundred dollars,, and they, by then and there falsely and fraudently warranting said slave Elijah to be sound in body and mind, then and there sold said slave to the plaintiff, for the said sum of six hundred dollars, which was then and there paid by the plaintiff to the defendants, all of which fully appears, by a certain instrument •of writing, commonly called a bill of sale, then and there executed by the defendants to the plaintiff, and which he showed to the court, in the words and figures following, to wit: “ Know all men by these presents that we, Charles B. Johnson and Marshall Grimes., of -Fort Smith, county of Crawford, State of Arkansas, for and in consideration of the sum of twelve hundred dollars, to me in hand paid, the receipt whereof is hereby acknowledged, •do, by these presents, bargain, sell, and dispose of, unto James McDaniel, one negro boy, Elijah, aged twenty-two, one negro •girl, named Betsey, and child, aged, the first, twenty, and the child ten months, all slaves for life, whom we warrant to be sound in body and mind; and furthermore do warrant the title to said «laves unto James McDaniel, his heirs and executors, against all ■claims of whatsoever kind. In witness whereof, we have hereunto ■subscribed our names, by our legal attorney, this 5th day of April, 1849.

[Signed.] CHANDES B. JOHNSON,

MARSHALL GRIMES,

By E. B. BRIGHT, Attorney.

[■Witnessed.] J. M. Smith,

Wm. B. CRABTREE.”

The declaration then proceeds to aver that in fact said slave Elijah, at the time of such said sale and warranty, was unsound in body and mind, and thenceforward continued to be unsound, and that the defendants by means of the premises, on, &c., at, &c., falsely and fraudulently deceived the plaintiff in the sale of said slave, whereby such slave afterwards, to wit, &c., not only became of no use or value to the plaintiff, but he was also put to great expense, amounting to a large sum, to wit: three hundred dollars, for boarding, clothing, taking care of the slave, for medical attention bestowed upon Mm, &c.

The second count contains no allusion to the bill of sale, but sets out a parol contract of warranty,- in all other respects similar to the first, with general conclusion to the plaintiff’s damage, &c.

The issue upon the plea of not guilty, was submitted to the Court, sitting as a jury, for trial. The Court found for the plaintiff, assessing his damages to $703 50. The defendant moved for a new trial, because the verdict of the Court was contrary to the evidence, and not warranted by the law or facts of the case; and to the overruling of this motion, he excepted, setting out a mass of testimony adduced on the trial, all of which, including the bill of sale, set out in the first count of the declaration, was admitted without objection, and no question of law was raised during the progress of the trial. As usual in cases of this description, there was much conflicting testimony, as to the fact of the unsoundness of the slave, and the nature of his disease, but there is ample testimony to uphold the verdict, upon what we might suppose to be the substantial merits of the case. The evidence conduced to prove that the defendants below sent a number of negroes to the south'in charge of Bright, as their agent, for sale. On the way, he exchanged some of the negroes for Elijah and the woman Betsey and child, and not long afterwards he sold them to the plaintiff below for $1200, and executed the bill of sale with warranty of soundness, as set out in the first count of the declaration. That the negro Elijah was unsound, and radically diseased, at the time of the sale to the plaintiff, and continued to be so, and proved to be of no’ value to him, and that a negro of his age, &c., would have been worth, at the time of the sale, from five to seven hundred dollars. That, though the agent of defendants had no authority to exchange, but only to sell, the negroes sent by him for sale; yet that, on his return to Fort Smith, he reported to his principals how he had disposed of the negroes, and accounted to them for the proceeds, including what he had received of the plaintiff for Elijah, and Betsey and child, which the defendants received, and did not disapprove of what their agent had done.

TJpon such testimony, a jury, or the Court in their stead, might well have found that the defendants were liable for the acts of Bright, as their agent, upon the principle that a subsequent ratification is equivalent to a prior authority. Nor would there be any cause to complain of the verdict for excess of damages, if we look only to the evidence as to the value of the slave, or of one answering his description..

The plaintiff had his election, to sue in assumpsit, for a breach of the contract of warranty, or by action on the case, for a false warranty. It is true that the action of assumpsit is the more- appropriate remedy where there is an express warranty, which, may be said to negative the idea of fraud or deceit,, upon which the ancient form of the remedy by action on the case was founded. The written contract of warranty merges any contemporaneous verbal representation, by which the plaintiff may have been induced to accept it, and it is, at the same time, asubstantial pledge; on the part of the defendant, of his sincerity and his belief in the truth of the representation embodied in the warranty. And so, in this case, there is no evidence, tending to show actual fraud or unfair concealment, either on the part of the defendants, or the agent, who acted for them, even supposing they could be responsible, in any form of action, for a false and deceitful representation of their agent, not shewn to have been made by their direction or within the scope of his authority. But notwithstanding the marked distinctions, at this day, between case and assumpsit, there may yet be substantial reasons for admitting the authority of established precedents allowing the form of action in case for a false warranty; as if it be doubtful whether the representation to be proved will amount to a warranty in the particular case, and where none is implied by law; so that a countmay be joined for the deceit, without warranty, and though there be an express warranty, a case may be supposed where the vendee would prefer to repudiate the contract altogether and sue for the fraud,, or would have to resort to the' action on tbe case for deceit, in consequence of a representation concerning a patent defect, to which, it may not extend.

But the leading ease of Williamson vs. Allison, 2 East 446, ,also establishes that in the action on the case in tort for a breach of warranty in the sale of chattels,-the deceit-consists, or rather is implied, in the falsehood of the warranty, which being established, the defendant’s knowledge of it is immaterial, and though averred, need not be proven. Whether we regard the warranty as a contract, or as the means of practising a deceit, whereby, if false, the purchaser may be induced to buy without due examination, it is the breach of it which is the gist of the action, and it may now be considered as well settled that the action on the case for a breach of warranty is governed by like rules, and is the same in its results as assumpsit upon the contract, or covenant, where it is under seal. Where there is an express warranty of soundness of a chattel, the measure of damages for a breach of it, in either form of action, is the difference between the value of the chattel, supposing it to be sound, and its actual value, according as it is proved to have been unsound, with interest on the amount so ascertained, and in the absence of any proof to the contrary, the price paid for a chattel, warranted to be sound, is the best evidence of its value as fixed by the parties to the contract: and in either form, the action, proceeding upon the contract, is an affirmance of it. When there is deceit without warranty, or a warranty accompanied by fraud, the vendee may disapprove the sale, and return the chattel or offer to do so, and recover such direct consequential damages, for the injury, as he may have sustained, in an action strictly on the case, the gravamen of which is not merely the falsity of the representation, but that it was false within the knowledge of the party making it. We apprehend that whenever the declaration, conceding that it may be framed in case, sets out a contract of warranty, though alleged to have been falsely and deceitfully made, the issue is upon the breach of the special contract, as it would be in assumpsit. If treated as an action on tbe case for deceit, or breach of tlie general duty of fairness required of men in their dealings, which would avoid the contract, it is obvious that the plaintiff here must have failed for want of proof of the scienter in the defendants, or of any effort on his part to return the slave. The contract not being mere inducement to the fraud, but the foundation of the action, the plaintiff, in setting it out in his declaration, was bound to describe it correctly, and prove it as laid. If indeed the repugnancy does not appear on the face of the declaration, there can be no doubt (Penn vs. Stewart, 6 Eng. 41; Turner vs. Huggins, Ib. 337; Buckman vs. Haney, Ib. 340,) that there was a material variance between the allegations and proof respecting the contract, for which the bill of sale should have been excluded, if theobjectionhadbeen made. The bill of sale being for three negroes for an entire consideration of twelve hundred dollars, it was incumbent on the plaintiff, suing for a partial breach of it in consequence of the unsoundness of one of the negroes, to describe the contract correctly, and then show by appropriate averments, the partial breach for which he claims to recover damages. If, after verdict, the term “price” may sometimes be considered as synonymous with value, or as meaning, in this instance, the parties at the time of agreeing upon the gross price to be paid for the three slaves, estimated Elijah being one of them, at six hundred dollars, still we do not find any evidence to that effect reported in the bill of exceptions. If the plaintiff in stating the breach, had thought proper to aver that the slave in question, supposing him to be sound as warranted, was of the value of six hundred dollars, whereas in his actual unsound condition he was of no value, the proof might have varied either way, the extent of the recovery depending upon the evidence; but according to the construction which seems unavoidable, the allegations of price, as made in the declaration, must be regarded as descriptive of the article, and therefore ought to have been proved.

A difficulty consists in determining the effect of the motion for new trial, with reference to the practice heretofoi’e sanctioned by this Court. "We have held tbe motion for new trial to be an application to tbe sound equitable discretion of tbe Court below, and a waiver of all previous exceptions for error in matters of law reserved during tbe progress of tbe trial, yet they may be reserved by incorporating them as part of tbe grounds assigned of tbe motion for new trial. Here no such exceptions appear to have been taken or reserved, and tbe only ground of tbe motion for new trial was one addressed to tbe discretion of tbe Court below, and which elsewhere could not be reviewed on appeal or error. But while a judgment will not be reversed upon a question as to tbe weight of evidence, according to tbe settled practice of this Court, a new trial may be awarded where there is a defect or failure of evidence as to any material fact necessary to uphold tbe verdict. Even supposing tbe declaration here discloses a sufficient cause of action, upon which a valid judgment could be rendered, a good title defe.ctively stated so as to be aided by tbe verdict, though tbe first count to which tbe evidence applies sets out two distinct and inconsistent contracts, tbe judgment would have to be reversed, because of tbe want of any evidence conducing to prove tbe allegation as to tbe price at which tbe plaintiff purchased tbe unsound slave. Upon tbe remanding of tbe cause, tbe plaintiff will have leave to amend bis declaration, adhering to tbe form of action adopted in case.


source: Caselaw Access Project

author: Mr. Chief Justice 'WatKINS

license: Public Domain

text:
    Duggins vs. Watson et al.
    If instructions asked by either party be refused, and he excepts, it devolves upon him to set forth, in his exception, all or so much of the evidence with reference to which it may have been asked, as will present the question of law designed to be made; else the-appellate court would have to presume in favor of the judgment that the instruction was properly refused: unless the instruction contradicts or is inconsistent with the pleadings.
    Where an instruction is given, purporting- to be predicated upon the evidence, as that certain facts shall have been proven to the satisfaction of the jury, the appellate court ought to presume in favor of the court below, that such evidence, not set out in the bill of exceptions, had been adduced.
    Where one steamboat is sunk by collision with another, and she contributes to such collision by her own carelessness or unskilful management, or the collision was the result of inevitable accident, and not occasioned by negligence or want of skill on the part of either boat, the owners of the other boat would not be responsible for any damage sustained by the sunken boat.
    'The shipper of goods on such boat, lost by the collision, is bound by the same principles of law as would be applicable to an action, by the owners of the sunken boat, for the injury done to her, and could recover in such case only as they would be entitled to recover.
    But if the collision was produced by the wilful act ot the officers and agents of the other boat, then engaged in the service of the owners, though without orders or against orders, the owners would be liable to the freighter for any injury to his property.

      Error to Independence Oireuit Court.

    Hon. B. H. Neely, Circuit Judge.
    Faiechild, for tbe plaintiff.
    No matter bow mucb to blame tlie Cate Joyeuse might be, Duggins bad a right to sne- tbe defendants, if tbe Talma was in tbe wrong, as tbe injured partj may sue one, some or all joint wrong doers. 1 Ch. PI- (7 Am. Ed.) 91; Marsh vs. Williams, 1 IIow. {Miss.) 138; Bishop vs. Ely, 9 J. B. 291; Goodrich vs. Rogers <& Strader, 5 West. Lana Journal 20.

      Because tbe plaintiff was a shipper and passenger on the Cate Joyeuse, to. say that he cannot recover without the Cate Joyeuse could, is certainly giving greater liability to his position than his contract. (Goodrich vs. Rogers & Strader, ub. sup.) If such was the law, a passenger could not recover of a boat or railroad, for he would be identified with it. Philadelphia & Reading R. R. Co. vs. Derby, 14 How. 462.
    The defendants are liable civilly for the consequences of the wrongful acts of their servants. 1 Ch. Pl. (7 Am. Ed.) 92; Bussey vs. Donaldson, 4 Dall. 207; 6 Cow. 192; Goodrich vs. Rogers & Strader, sup.; 14 How. 486.
    This Court will presume that the instructions were made upon facts applicable to the law of the instructions; and whether they be law, is the only question.
    Byers & PatteesoN, contra.
    All legal presumptions must be indulged'in support of the judgment and instructions of the Court: and this Court must presume that the instructions were correctly given, if there could be such a case made by the evidence as would support them; as the evidence upon which they were based, is not before the Court.
   Mr. Chief Justice 'WatKINS

delivered the opinion of'the Court.

The plaintiff in error sued the defendants in an action on the case, to recover damages for the loss of some beef-cattle,, belonging to him, and which had been shipped on board the Cate Joy-euse, bound for New Orleans. The declaration alleges that the Cate Joyeuse, descending the Mississippi river, met with the-steamboat Talma, of which the defendants were the owners, and that, by the negligence and mismanagement of the officers, who had charge of the Talma for the defendants, she ran into and sunk the Cate Joyeuse, whereby the plaintiff’s cattle were drowned and lost to him. The case being tried before a jury, on the plea of not guilty, the plaintiff excepted to three of the instructions given by the Court, at the request of the defendants, which, are as follows : “ 5th. If the Cate Joyeuse contributed to the accident or collision by her own carelessness or unskilful management, the defendants are not liable.” “6th. The plaintiff being a passenger and shipper on the Cate Joyeuse, he is bound by the same principles of law as would the boat be, were she plaintiff in the action.” “Yth. If the collision was produced by the wilful act of the officers and agents of the Talma, the defendants are not liable. If the collision was the result of inevitable accident, and not produced by negligence, or want of skill, on the part of either boat, the plaintiff cannot recover’, but must bear the loss himself.”

The bill of exceptions taken by the plaintiff, does not set out any of the evidence adduced at the trial, nor is it made to appear upon the record, by agreement of the parties or otherwise, what the facts of the case were, or which the evidence may have conduced to prove; and it is therefore contended for the defendants in error, that no questions are presented .for the consideration of this Court. The salutary rule of law is, that every judgment of a Court of competent jurisdiction is presumed to be correct, unless the party complaining that it is erroneous will make it appear by his exception, or in some other appropriate mode upon the record, wherein the alleged error consists. Hence, if instructions asked for by either party be refused, and judgment go against the party dissatified with the refusal, it devolves upon him to set forth in his exception all, or so much of the evidence, with reference to which it may have been asked, as will present the question of law designed to be made. . Else the appellate court would have to presume, in favor of the judgment, that the instruction was properly refused, because there may have been no evidence upon which to predicate it. (Collins vs. Bowler, 2 Ark. 143; Mason vs. McCampbell, Ib. 506.) And the like result would take place where it could be inferred that the same charge in substance may have been given in other instructions. But where an instruction is given, which contradicts, or is inconsistent with •the pleadings, if excepted to, the error may be apparent without any reference to tbe evidence, as in Danley vs. Edwards, 1 Ark. 446, where an instruction given on bebalf of tbe plaintiffs below exempted them from proving a material averment in their replication. Where an instruction is given, purporting to be predicated upon the evidence, and upon the hypothesis that certain facts shall have been proven to the satisfaction of the jury, the appellate court ought to presume, in favor of the court below, that such evidence, though not set out in the bill of exceptions, had been adduced; certainly it does not lie in the mouth of a party obtaining an instruction, the correctness of which is called in question, to argue that there may have been no evidence upon which to base it, but he is estopped from doing so, by his position and the undue advantage gained by the instruction, supposing it to be erroneous. In such case, if the instruction objected to be the only error complained of, no obligation devolves upon the party excepting to set out the evidence; on the contrary, it would only, be a useless incumbrance of the record, if the instruction states clearly a proposition of law applicable to the case, and leaves it to the jury to say whether the evidence brings it within the principle asserted. (Pennock and Sellers vs. Dialogue, 2 Peters 15.) As there said, “the only question, then, is, whether the charge of the Court was correct in point of law.” And so we doubt not, that if a party asks and obtains an abstract instruction, that is, one which enunciates a naked legal proposition not connected with any supposed state of case, according as the jury may find it, proved or not proved, or one which assumes the existence of the facts upon which it is predicated, thereby depriving the jury of their right to make the application of the evidence to the law given them in charge, he does so at his peril, and the law would presume that the opposite party, standing upon his legal exception to such a proceeding, has been injured by it. The enforcement of such a rale would discourage the practice of moving for a series of instructions, framed so as to meet every opposite, and, therefore, improbable state of case, that may be made by the evidence. In almost every case where the pleadings tend to single and direct issues, the drift of tlie evidence, however tedious or contradictory, is to establish or repel the existence of a few prominent facts, and which are to be decisive of it according as' the Court may charge the jury what the law is arising upon them. Thus, in the case now under consideration, we have, out of respect to the Court below, and the defendants in error, who-moved for the instructions, to presume that there was evidence conducing to prove three inconsistent conclusions of fact supposed by them: 1st. That the Cate Joyeuse contributed to the collision; 2d. That it was occasioned by the wilful act of the officers of the Talma; and, 3d, That it was the result of inevitable accident. Where the instruction excepted to is abstract, or assumes facts, or, upon the facts supposed by it, is bad law, or is not applicable to the nature of the action, the error is as fully open to revision in the appellate court without the evidence, as if the instruction be one which contradicts the pleadings. But if the objection be that there has been no evidence adduced, to which an instruction given can apply, the party excepting, in order to overcome the presumption indulged in favor of the Court below, must set out the evidence, which, if it conduce, though in a slight degree, to prove the hypothesis, which, as a fact, the jury might possibly find, and which it was, therefore, proper to submit to them, and then the instruction, if not objectionable in point of law, will be sustained ; but if there be no evidence on which to base it, the giving of the instruction, though good law, will be erroneous. (Pogue vs. Joyner, 2 Eng. 468; State Bank vs. Williams, 1 Ib. 162.) A practice has grown up for the Court to instruct the jury, at the instance of the defendant, to find, as in case of non-suit, or that the plaintiff has failed to make out his case in evidence, (Hill vs. Rucker, 14 Ark.,) an anomalous substitute for the peremptory non-suit, as well as a demurrer to evidence, neither turning the plaintiff out of Court against his will, nor taking the case from the jury, as upon a formal demurrer to evidence. If such an instruction be given, the plaintiff, preferring to have the benefit of the most favorable construction that can be put upon the evidence in his favor, rather than to suffer a voluntary non-suit, may except to it and thereby elect to be concluded by the verdict, though in doing so he is required to set out all the evidence. And it is to be understood that these observations are not designed to extend to cases, where the unsuccessful party chooses to move for a new trial, and in which, according to the practice sustained by the repeated decisions of this Court, it would be the most prudent course, if not indispensable, for him to set out all the evidence.

Presuming, therefore, that the Court below would not have given the instructions complained of, unless there had been some competent evidence at the trial upon which to predicate them, it results of necessity that their correctness in point of law will have to be determined.

The plaintiff sued as a shipper on the Cate Joyeuse, and, considering the 5th and 6th instructions, and the latter clause of the Yth together, the Court below may be understood as charging the jury, that if they believed the Cate Joyeuse contributed to the collision by her own carelessness, or unskilful management, or that it was the result of inevitable accident, and not occasioned by negligence or want of skill on the part of either boat, the owners of the Talma would not be liable for any damage sustained by the Cate Joyeuse, and that the plaintiff is bound by the same principles of law, as would be applicable to an action by the owners of the Cate Joyeuse for the injury done to her. No fault is to be found with the tenor of this instruction. However equitable the course of decision in admiralty, which would apportion the damages, as between the vessels and the freighters or insurers of cargo in board, arising from collision, when occasioned by mutual fault or neglect, or was the result of inevitable accident, without fault on either side, may seem to be, and whatever conclusion might be proper, if the maritime law extended over the waters of the Mississippi, with courts competent to adjudicate the whole subject matter, to investigate and adjust the divers interests of all the parties interested, it seems to be well settled that, in a common law action, a Court, proceeding according to the course of the common law, cannot exercise such powers, and the rule is, that if collisions happen, on land or on water, from unavoidable accident, as between the two vessels, or vehicles, each one injured must bear its own loss; and the ruléis the same where the collision is occasioned by the mutual fault of both; not indeed that the plaintiff complaining of the injury must have been wholly free from blame, because, though in some degree in fault, or negligent, as for example by being in a wrong position, that will not excuse the defendant if there be a want of ordinary care, on his part, to avoid a collision, much less can he take advantage of it as a license to commit a wanton aggression. In such case, the injured vessel, though in fault, is not considered as having contributed to the collision. But we are not to presume that there was any evidence in the cause to render such a qualification necessary, and, according to the terms of the instruction, the Cate Joyeuse must have contributed by her own carelessness or unskilful management. Presuming in favor of the Court below, that there was no evidence conducing to show that it was in the power of the Talma to have kept clear of the Cate Joyeuse, there can be no reason to doubt the correctness of the general proposition asserted by the instruction- — a number of the authorities in support of which, are collected in Broadwell vs. Swigart, 7 B. Mon. 39. Conceding that if, as between the two vessels, the Talma had been the one in fault, so that her owners would have been liable to those of the Cate Joyeuse, they would also be liable to the plaintiff in this action, yet the law seems to be that, for an injury done to freight by a collision, the owner of it must share the fate of the vessel, on board of which his goods are shipped, and cannot recover unless upon the same state of case as proved, her owners would be entitled to recover. The vessel upon which his goods are shipped may be liable to him, as well for a tort by which they are injured, as upon the contract of affreightment, and we may suppose that, for an injury done, by collision, to person or property, disconnected from either boat, where both are in fault, there might be redress for the tort by action against any of-the owners of both or either of the boats; but the owner of goods, entrusted to a carrier, and who is for that employment regarded as his servant or agent, cannot, according to the common law, which admits of no enquiry as to the degree of fault, and makes no provision for apportionment of damages or contribution among tort feasors, hold another liable for the whole damage resulting from an injury, to which he, or his own bailee, may have contributed or aggravated, and consequently can have no recovery at all. In Vanderplank vs. Miller, 1 Mood. & Mal. 169, Lord TekbeedbN, without hesitation, declared that such was the law; and in Sampson vs. Hand, 6 Wharton 311, a case altogether analagous to the present one, Chief Justice GibsoN illustrated the rule, not without reason and sustained by authority, though he admitted the argument against it seemed plausible. The only case cited for the plaintiff here, asserting a different doctrine, is that of Goodrich vs. Rogers and Strader, 5 West. Law Jour. 20, in one of the courts of common pleas of Ohio, which may have been acquiesced in by the eminent counsel engaged, as we do not find any subsequent trace,of it in the Ohio Keports. That was an action, for an injury to his person, by a passenger on one of two colliding boats, both of which he alleged to be in fault, against the owners of the two boats, j oined as defendants. The presiding judge properly charged the jury that, as against the owners of the boat on which he was a passenger, his right to recover did not depend upon the breach of any contract to transport him, but also asserted the questionable proposition, that, “ If the act was caused by the negligence of both pilots, both owners are liable, and each is liable for the whole damage.” Possibly this may be the law, applicable to a passenger; because having volition and the power, whether from wilfulness or ignorance, of placing himself in the way of danger, there ought not to be the same measure of accountability for his safety as there would be for the carriage of passive or inanimate freight, wholly under the control of the carrier; and this might have the effect to enlarge the recourse of the passenger, as one occupying an independent position, against all persons contributing to the injury. But freight is committed to the carrier as bailee. True, the freighter, or all the freighters of goods, on a vessel, have no control over the officers in charge of her, anymore than they would have over the owner of the vessel or vehicle were he managing it in person. Neither does the sole charterer of a ship; the owner of which, in either case, if he retains the -control, undertakes that he, or the substitutes appointed by him, will be trustworthy and competent to navigate her properly. Hence, the maxim of respondeat superior, does not apply to the freighter for the misconduct of those having command of the vessel, yet the carrier, being responsible for the safe carriage bf freight, and held to a strict accountability, has a duty to perform about it, a right of action respecting it, and, to that extent, as .•against third persons, takes the place of the owner, who, if engaged in the transportation of his own goods, could not recover for an injury occasioned by his own fault.

The Court also charged the jury, that if the collision was produced by the wilful act of the officers and agents of the Talma, tier owners are not liable. We understand it to be implied in the terms of this instruction, that the officers of the Talma, at the time of the collision, were engaged in the service of the defendants ; being in charge of the boat, and navigating it, the presumption would be, that they were employed about the business •of the owners, and acting within the scope of their authority. Obviously the fact, to which it directed the enquiry of the jury, was whether the trespass was wilfully committed by the officers -of the Talma, and not whether they were at the time exercising ,an independent employment. In a variety of cases, according to their peculiar circumstances, it may be difficult, in view of adjudged cases, to say whether the servant or agent was or was not acting in the employ of the principal, and the determination of it has often been swayed either way by the apparent hardship of the particular case. But, conceding the premises laid down in tbis instruction, the only safe rule of law is, tbat the master is-liable for the tortious act of his servant, engaged in his employment, though done wilfully, without orders, or even against-orders. If the servant’s disobedience of instructions will exonerate the master, the proof, easily mgide, virtually does away with the maxim of respondeat superior, designed for the protection of' innocent third persons, and obliging the principal to be careful in the employment of agents, to whom he entrusts the means of' committing an injury. In the case cited of Philadelphia and Reading R. R. Co. vs. Derby, 14 Howard 468, Mr. Justice Geiee, delivering the opinion of the Court, urges another consideration, equally applicable to the management of steam power on water as on land, and to all officers, though having different duties, engaged in its management. He says: “The entrusting such a. powerful and dangerous engine as a locomotive to one who will' not submit to control and render implicit obedience to orders, is,, itself, an act of negligence, the ecmsa ecmscms of the mischief;, while the proximate cause, or the ipsa negUgentia, which produces it, may truly be said, in most cases, to be the disobedience; of orders by the servant so entrusted.”

Tor the error in giving so much of the 7th instruction, the judgment is reversed, and the cause remanded, to be further proceeded in according to law, and not inconsistent with this opinion.


author: Mr. Chief Justice "WatKiks

text:
    Hershy vs. The Clarksville Institute.
    According to what seems the proper construction of the statute concerning attachments, the claimant of personal property, seized under the writ, and who has not been summoned as garnishee, may prosecute his claim to the property as an independent proceeding, the determination of it not affecting- the right of property as between the defendant in the attachment and the claimant or third person: and so whore a garnishee, in answer to the plaintiff’s allegations, claims property in his hands.
    Though the owner of the property, not choosing to interplead, may obtain redress, in damages, for the injury he has sustained; or may perhaps follow his property in the hands of a purchaser, if he elects to assert his claim by interplea, he, as well as the plaintiff, ought to be bound by the determination, and either may appeal from the judgment.
    The trustees of the Clarksville Institute, which is a corporation for a benevolent object, having no personal or pecuniary interest in the property or assets of the corporation, were competent witnesses in a suit to which the corporation was a party.
    The recognizors in an appeal bond are incompetent witnesses for the appellant, but if no objection be made in the Court below for that cause, it cannot be taken in the appellate court.

      Appeal from, Johnson Cvrcmb Cowt.

    Tbe Hon. A. B. GbeeNwood, Circuit Judge.
    Fowler, for tbe appellant.
    Tbe trustees of tbe Institute, in whom all its property rested under tbe charter, were incompetent as witnesses, on tbe ground that they were parties to tbe suit— parties on tbe record baring a direct interest, to tbe extent of the costs at least. Phill. Eh. 57/ 1 Crernl. on Ed., seos. 329, 330/ Pet. O. C. P. 807/ 4 How. V. 8. Rep. 417/ 5 lb. 94.
    Corporators, as such, in such cases, being tbe real parties to tbe suit, are not competent witnesses. 13 Petersd. C. L. 418; 1 Qreenl. Eh., seo. 175.
    Those who were bound in tbe recognizance for tbe appeal, were utterly inadmissible as witnesses. They were directly interested in the defeat of Hershy’s suit; and, in the event of his success, were liable to have judgment rendered against them, in that suit, for the whole amount in controversy, with all costs of both courts. Scott vs. Wathms et al., 2 Smedes <& Marsh. Rep. 240/ 1 Oreenl. Ev., secs. 333, 392 to 395.
   Mr. Chief Justice "WatKiks

delivered the opinion of the Court.

The appellant, Hershy, instituted suit, by attachment', before a justice of the peace, against James Ohamplin; and among the effects seized by the officer, under the writ of attachment, was a piano, which vas claimed by the Clarksville Institute, who accordingly filed an interpleader, and the justice, before whom the process was returnable, immediately proceeded to enquire into and determine the right of property. The decision there was, that the property, claimed in the interplea, belonged to Ohamplin, the defendant in the attachment, and, as such, subject thereto, and costs were adjudged against the claimant. From this decision, the claimant appealed to the Circuit Court, where, upon trial of the issue upon the interplea, the piano, in question, was found to be the property of the Institute, and final judgment for costs in both courts was rendered against the plaintiff, in the attachment, who prosecuted the present appeal, upon exceptions to the decision of the Circuit Court, admitting certain persons to testify in behalf of the corporation, against his objection to their competency.

The right of property was tried before the justice, and the appeal from his decision allowed, before the return day of the writ of attachment; so that it does not appear upon this record, whether the plaintiff obtained judgment against Ckamplin, or that any further proceedings were had in the principal suit. According to what seems to be the proper construction of the statute concerning attachments, the claimant, other than the defendant, of personal property, seized under the writ, and who has not been summoned as garnishee, may prosecute his claim to the property as an. independent proceeding, and without reference to any controversy between other parties, the determination of it not affecting the right of property as between the defendant in the attachment, and the claimant, or third persons. Nor are the rights of the defendant or third persons affected, where a garnishee, in answer to such allegations as the plaintiff may exhibit against him, claims property in his hands. But the person summoned as garnishee retains, unless having no claim he elects to surrender them, the effects alleged to belong to the defendant in the attachment, to which suit the contest between the plaintiff and the garnishee is ancillary, so that no judgment can be entered or execution issued against the garnishee until after the plaintiff has obtained judgment against the principal defendant, and for no greater amount. "Where property belonging to a third person, is seized by virtue of a writ of attachment, his claim, by way of interplea, proceeds upon the ground of a wrongful injury to his right of possession. As such wrongs are liable to be done, and the statute (Digest, ch. 136, sec. 2) forbids that any cross replevin, or replevin for property in the possession of an officer, by virtue of any legal authority, shall be brought, Spring vs. Bourland, (6 Eng. 658,) approving Goodrich vs. Fritz, (4 Ark. 325,) the trial of the right of property is allowed as a summary, though where the attachment is from a Circuit Court, not informal, substitute, (Neal vs. Noland, 4 Ark. 459,) for the remedy by replevin, thus taken away. The property seized, and to which an adverse claim is set up, is supposed to remain in the custody of the officer, ready to be delivered to the claimant, or held subj ect to the attachment, one or the other consequence following according as the right of property may be determined. Though the owner of the property, not choosing to interplead, or as it may happen, not having an opportunity of doing so, may obtain redress in damages, for the injury he has sustained, by action of trespass or trover, or may perhaps-follow the specific property in the hands of any purchaser under the attachment, yet if he elects to assert his claim by interplea, he, as well as the plaintiff, ought to be bound by the determination* The finding does not affect the title of the property, as between tbe absent defendant and the claimant, or garnishee, and the rights of third persons are in no wise affected; bnt as between the plaintiff and the claimant, the determination, with the collateral consequences of a judgment, is conclusive that the thing in dispute is or is not the property of the claimant. The seizure of the property, to which the claimant asserts title, is, in whole or in part, the foundation of the jurisdiction in attachment, and the source from which the plaintiff is to obtain satisfaction of his demand; and, on the other hand, unless the proceedings be a nugatory one, the claimant is estopped by the decision, from any after assertion of his title, as against the plaintiff, or any person acquiring title by sale under the attachment. From such a judgment, either party to the issue, not only the claimant, as held in Mitchell vs. Woods, (6 Eng. 180,) but the plaintiff, also may appeal.

The plaintiff moved for a new trial of the issue upon the inter-plea, upon the ground that the Court had admitted illegal or incompetent testimony to go to the jury, and it appears from the bill of exceptions, taken to the overruling of the motion, that he had objected at the trial to the competency of certain witnesses to testify in behalf of the corporation, of which they were trustees, and therefore interested in the event of the suit. The charter, granted by act of the General Assembly, approved January 1st, 1849, being in evidence on the part of the claimant, and brought upon the record by the bill of exceptions, it is clear that the Court below properly overruled the objection. The Institute was incorporated for the education of the blind. The cor-porators have no personal or pecuniary interest whatever in the property and assets belonging to it, of which they are mere trustees in aid of ahenevolent object. The corporation being the party to the record, and liable for the costs of suit, there was no reason for excluding, on the score of interest, the individuals composing it.

JBut it is assigned, for error, that some of those witnesses had entered into recognizance for the corporation upon appeal from the justice of the peace to the Circuit Court, and consequently had a direct pecuniary interest in the event of the suit.

If this objection had been taken in the Court below, it must have prevailed. But it seems to have been overlooked by the parties, and the witnesses themselves, if we may judge from their statements, on vow dwe. The objection, not having been made there, cannot be entertained in the appellate court; more especially as it was one which, if taken at the trial? might have been obviated by the substitution, with leave of the Court, of other persons as recognizors, in lieu of those offered as witnesses; or the claimant may have been able to dispense with their testimony by adducing other evidence. Affirmed.


author: Hr. Chief Justice "Watkins

text:
    Cummins and Fenno vs. Garretson.
    The failure of the obligee or payee to sue the principal debtor, within the time prescribed by the statute, will not release the security where the notice to sue, given by the security, under the statute, is served, not upon the obligee or payee himself, but upon his attorney at law, who has the note for collection.

      Appeal from, PulasM Circuit Cowrt.

    Hon. Vk. H. Feild, Circuit Judge.
    Pike & Cummins, for the appellants.
    S. IT. Hempstead, contra.
   Hr. Chief Justice "Watkins

delivered the opinion of the Court.

This was an action of debt, by an assignee, against two of the makers of a promissory note of the tenor following:

“Little EooK, Akk., February 12th, 1851.

Ninety days after date, we promise to pay JohnTI. Hammock, the sum of two hundred and fifty dollars, for value received, with ten per cent, interest, after due, until paid.

[Signed,] C. TEOUSDALE.

E. CUMMINS.

JOSEPH EENNO.

(Endorsed,) Pay John W. Garretson, or order.

John .H. HamMooe.”

The action was commenced on the 21st day of February, 1852, and the defendants, pleading ml debet, upon the trial of the cause at December term, 1852, it was submitted to the Court upon an agreed statement of facts, ordered to remain on file and constitute a part of the record; and, as we understand the terms of the submission, it was stipulated that, under the general issue, either party was to have the benefit of any legal conclusion from the facts stated, with like effect as if such matter had been specially pleaded or replied. The Court below decided that the defendants were liable, and gave judgment accordingly, to which they excepted.

It appears that in the inception of the note sued upon, the defendants were the securities of Trousdale. He was insolvent, having no means except his salary as Swamp Land Commissioner, which was payable at the Treasury, in scrip, not subject to execution, or process of garnishment. Upon his appointment, he had gone to reside at Helena, but the duties of his office called him to different parts of the State; so that he frequently came to Little Eock. The plaintiff resided in another county, 120 miles from Little Eock.

On the 1st March, 1852, eight days after the institution of the suit, the defendants gave a notice in writing, addressed in the alternative, to tbe plaintiff or bis attorney, Mr. Hempstead, informing him that they were merely bound as the securities of Trousdale in the note in question, and requiring him forthwith to commence suit against the principal debtor and other parties liable ; and which notice was served upon Mr. Hempstead, the plaintiff’s attorney, in whose hands the claim had been placed for collection. On the 20th of March, the plaintiff came within the county of Pulaski, and, being at Little Pock, was informed, by his attorney, that such notice had been served upon him. Suit might have been instituted in Phillips county against Trousdale, within thirty days from the time the notice was served upon the attorney. On the 29th of March, the plaintiff caused a separate suit to be instituted against Trousdale, in Pulaski county, in which the first summons, to June Term, was returned non est. An alias, returnable to December term, was served, but not in .time to obtain judgment at that term. Thus stood the case against Trousdale, at the time the action against his co-promissors, the -present appellants, was tried.

According to statutory regulations, the note in question was several as well as joint, and the plaintiff could sue all the parties liable, or as many of them as he thought proper, so he have but •one satisfaction of the debt. It is not claimed that the appellants did in fact sustain any injury by the omission to sue Trousdale, or any failure to do so, upon request of the surety, from which the law might employ a new contract or agreement, between the creditor and the principal debtor, whereby time was extended to the latter, and which operates as a release to the surety, available to him as a defence at law, to the extent that he could prove a •diminution of the assets of the principal during the delay, and a consequent loss of recourse to the security, if then compelled to pay the debt, (Warner vs. Beardsley, 8 Wend. 194; Huffman vs. Hurlbert, 13 Ib. 377,) so as to bring this case within the principle first established in Pain vs. Packard, (13 John. 174,) and as that was the adoption, by courts of law, of the rule supposed to prevail in courts of equity, (King vs. Baldwin, 17 Ib. 391,) the appellants bare not shown themselves entitled, on that ground, to be relieved in either forum. It is only by virtue of the statute, whereby a security, on any bond, bill, or note, for the payment of money or property, may, by notice in writing, require the person having the right of action upon it, forthwith to commence suit against the principal debtor, and other party liable, and which, substituting presumption for proof of actual damage, absolutely exonerates the security, if suit be not commenced within thirty days after service of the notice, and proceeded in with due diligence, in the ordinary course of law, to judgment and execution, (Digest, Title Securities, sees. 1 and 2,) that they can claim to be discharged. As this statute introduces a new rule in derogation of the common law, and going beyond any principle admitted to prevail in equity, without presuming to debate its-polity, it is not going too far to say, in accordance with established rules of interpretation, that the remedy- afforded ought to be strictly pursued, and the provisions of the statute substantially complied with, where the security claims his discharge upon the-purely legal defence of notice, without any consequent injury to himself by reason of the failure of the creditor to sue an insolvent principal, within the time prescribed. And such was the opinion of this Court in Kelly vs. Matthews, (5 Ark. 230,) holding that where there are several obligees named in the instrument, a security, seeking to bring himself within the statute, must cause the prescribed notice to be served upon the whole of them. So in Adams vs. Roane, (2 Eng. 360,) where notice to bring suit was served on the clerk, at Yan Burén, to the assignees of the Beal Estate Bank, and he informed one of the assignees of it, the Court said: “It certainly cannotbe contended that a service upon the clerk could operate as a notice to the appelleesthe clerk cannot be said to have the right of action. It does not appear that Drennen was served with the notice, in accordance with the statute, as he was only informed by the clerk that he had himself received such notice. The record does not inform us how far the clerk was authorized to waive or , control the rights of the trustees, and we are not at liberty to take judicial notice of any such power.”

That case must be decisive of the present one, unless the legal relation between attorney and client be such as to make the notice effectual.

The statute provides that certain notices, during the progress of a suit, may be served upon the party or his attorney of record. The client is bound by the admission of his attorney in pleading, or evidence connected with the cause and admissible upon the record. But in the absence of any positive regulation of law, there is no authority for holding that notices of this description can be effectually given to the attorney before suit, or during the progress of a suit, so as to be notice to the client, whereby his interest may be injuriously affected, and a corresponding duty and liability imposed upon the attorney, to exercise a discretion about the bringing of a suit, which properly belongs to the client. The attorney is charged with the conduct of a suit, which is presumed to be brought under instructions from the client; if any discretion beyond this be specially delegated to him, he has it as agent or attorney in fact, and that should be made to appear by proof. The security has no reason to complain of hardship in being required to pursue the statute strictly. He may, as he could before its enactment, comply with his contract, and by paying the debt, take into his own hands the remedy against the principal; nor does the omission to give the notice; under a cumulative statute, deprive him of any right to be relieved, whether at law or in chancery, against unconscionable acts of the creditor; such as his refusal to sue upon request, his abandonment or neglect of collateral securities, his valid agreement for extension of time, which do, in fact, or in contemplation of law, occasion loss to the security, and may, without the aid of the statute, operate to release him. The notice here not being in compliance with the statute, because not served upon the person having the right of action, or any agent of his, authorized to bind him in that respect, might have been wholly disregarded.

It is sufficient to rest the affirmance of tbe judgment upon that conclusion, without going into an examination of other questions argued; whether one, claiming to be security, and really such, can avail himself of the statute for any purpose, as against an assignee, where the relation of principal and security does not appear on the face of the instrument, and the assignee is not shown to-have taken it with knowledge of that fact; and also, conceding that a security may, at any time after a separate suit brought against himself, well require the creditor, by notice under the statute, to bring suit against the principal, whether if his exoneration depends upon any subsequent want of diligence in the prosecution of the suit against the principal to final judgment and execution, the relief is more properly cognizable in chancery than at law. Affirmed.


author: Mr. Chief Justice WatKINS

text:
    Lefils & Christian vs. Sugg.
    Where no question of law is raised during the progress of the trial, nor motion made for new trial, no question is presented, by an exception overruled to the finding, for the consideration of the appellate court, as decided in The State Bank vs. Conway, 13 Ark. 344.
    An infant is personally responsible for necessaries purchased by him; but his father is not liable in such case, unless upon a contract, express or implied, to pay for them.
    Such contract will not be implied from the fact that the father had given authority to . his son to purchase an article of clothing, and had paid the amount of an account for] goods sold the son, but which was not presented to and approved by him.

      A-jppeal from Union Qi/remt Coivrt.

    Hon. SheltoN "WatsoN, Circuit Judge.
    Hardy and CarletoN, for the appellants,
    contended that the appellee, by allowing bis sons to trade for themselves for the year 1850, and by paying the account so made, constituted them in law his agents, and became liable to pay the account subsequently made by them with the same parties ; and cited Story on Agency, sec. 45 and 55; 2 Kent Com., 614, 615; 2 Greenl. Ev., sec. 65; 17 Mass. 98; 15 East. 34; 4 Conn. 288; and McKenzie vs. Stevens, 19 Ala. (N. S.) 691.
    QuilliN & LyoN, for the appellee,
    contended that the case of McKenzie vs. Stevens, (19 Ala.,) referred to by the appellants, had no bearing on this case, because in that the account made by the son was paid without objeetion;j&nd in this, the account paid by the appellee wras not presented to him, nor was he told what was its character, but it was to have been shown to him subsequently. ^
    That this is not such a case as this Court can review, and the rule in State Bank vs. Conway, 13 Ark. 344, applies.
   Mr. Chief Justice WatKINS

delivered the opinion of the Court.

There are two grounds, upon either of which, the judgment here appealed from will have to be affirmed.

The case was submitted for trial to the Court sitting as a jury, who, after hearing the evidence, found for the defendant, “to which finding,” as the bill of exceptions states, “the plaintiff excepted, but the Court overruled the exception, and gave judgment for the defendant.” As no question of law was raised during the progress of the trial, nor any motion made for new trial, so as to enable this Court to review, in that mode, the verdict of the Court, or jury, if manifestly aghinst the weight of evidence, or without evidence to support it, the case, comes directly within the decision in the State Bank vs. Conway, (13 Ark. 344,) and nothing is presented for the consideration of this Court.

3But as this course may have been adopted before the promulgation of that decision, and while the practice remained in a state of uncertainty, it may be more satisfactory to consider the points argued, and intended to have been saved in the Court below, where, as in the State Bank vs. Conway, it can be done, without reversing the judgment. Supposing, then, the plaintiffs had moved for a new trial, there was a question of fact to be determined, by the Court or jury, upon evidence, which, to say the least of it, left the issue doubtful, and in such case this Court, according to its repeated decisions, will not invade the province of a jury by disturbing the verdict.

Neally, no question of law is presented by the record. The! one argued may be understood from the following state of facts,1 extracted from the testimony, set out in the bill of exceptions: Two minor sons of the defendant took up goods on a credit, to the amount of $47, from the store of the plaintiffs, in the year 1851, the same being, at the request of the boys, charged to account of their father. During the previous year, 1850, they had, in like manner, bought goods to the amount of $35, including a blanket coat, which one of the sons had bought there by direction of his father; and one of the plaintiffs, meeting with the defendant in New Orleans, called upon him for payment, without exhibiting the account, or telling him what it was for, or who got the goods, and he paid it with an assurance that the plaintiffs would show him the account on his return home, and make it right. That account was never shown to the defendant, and he did not call for it. He never gave the plaintiffs any order to let I his sons have goods on his account, or any notice not to do so.

It does not appear whether the sons of the defendant were living with him, or away from home, or whether he knew that they had used, or worn the articles, from which any assent, on his part, to the purchase of them, could be inferred. There is no attempt to prove that the articles in the then situation, whatever it might have been, of the youths, were necessary for their subsistence or comfort, nor is there any evidence, as to the condition in life of the defendant, or conducing to show that the articles purchased by his sons were such as his means would afford, and suitable to the style in which he lived. Adjudged cases are to be met with, the decisions in which appear to have been influenced by such /circumstances.

on examination, all those cases are found to be based upon ) contract, express or implied, and are referable to the doctrine of agency, either by means of a prior authority, from the parent, or his subsequent ratification, notwithstanding some dicta favoring ¡I the idea that he may be sued, upon his implied obligation for ;/ necessaries, which any person may choose to furnish to the child :: in want of them. The father, if of sufficient ability, may be required to maintain his children, (Rev. Statute, Title Apprentices, sec. 4; Ib. Title Insane Persons, sec. 48,) and if not of sufficient ability, they are to be bound out; but, up to the time, when his refusal or neglect to do so justifies the supervision of the Probate Court, having jurisdiction of such matters, the manner of discharging this important duty, “So well secured by the strength of natural affection, that it seldom requires to be enforced by human laws,” is left to his own discretion. TJnder ever varying circumstances, there can be no legal standard for necessaries, and it would be subversive of parental authority and dominion if interested third persons could assume to judge for the parent, and subject him to liability for their unauthorized interference in supplying the supposed wants of the child. See Mortimore vs. Wright, 6 Mees. & Welsby 482; Gordon vs. Potter, 17 Vern. 350; Raymond vs. Loyl, 10 Barb. Sup. Ct. Rep. 484.

1 Conceding that the fact of paying a previous account, without objection or further enquiry, is admissible in evidence against the defendant, to prove a course of dealing, and a circumstance from fjwhich might be inferred a continuing authority to pursue it, still tit is only a circumstance, and by no means a conclusive one. It is true the liability of the infant, being only for necessaries, as against him, that is the essential enquiry; while the liability of \ ¡the parent, being upon the contract, that alone needs to be estab-Í lished. But when the authority of the infant, acting as agent, to bind the parent, has to be implied from a previous course of dealing, it may become important to understand what that was, in order to ascertain whether the transactions be consistent. Because the infant has some authority, it is not necessarily unlimited in the amount or description of the goods, which he may take upon the parent’s account. If the person supplying the infant must conform to an express authority,. so he should endeavor to pursue an implied one, else there would be no protection for the principal. A direction to supply articles, which may be super- \ fluous and extravagant, could not be inferred from the fact of ! paying previous accounts for such as may have been necessary or useful. Looking at the bill of particulars of the demand in suit, and in the absence of any proof to the contrary, it is not to be presumed that the bulk of the articles, for example, kid gloves, cologne, fiddle-strings, bridles and spurs, walking-canes, and powder-flask and caps, a silk cravat, and a silk and linen coat, f> were such as the boys needed, or their father would have ordered ! for them.

In the most favorable view of the case for the appellants, the judgment ought to be affirmed.


author: Mr. Justice Scott

text:
    Danley vs Pike.
    The notes of the Bank of the State of Arkansas, issnedin the years 1838 and 1839, are receivable for taxes due to the State of Arkansas.

      Appeal from Pulaski Gwcwit Gowrt.

    Hon. William; H. Peild, Circuit Judge.

      Joedaf, for tbe appellant.
    Pike, contra,
    cited Woodruff vs. TrapnaU, 10 Sow. S. O. B. 203.
   Mr. Justice Scott

delivered tbe opinion of tbe Court.

At tbe June term, 1851, Pike filed bis petition in tbe Pulaski Circuit Court, setting out tbe amount of tbe State and county taxes assessed against bimfor tbat year. Tbat tbe tax-books, witb tbe proper warrant annexed for tbeir collection, were in tbe bands of Danley, as sheriff and collector; tbat, on tbe 26th of July, of tbat 3rear, he bad tendered to the sheriff certain funds, sufficient to pay tbe whole amount, among which were certain Bank notes, issued by tbe Bank of the State of Arkansas, in tbe years 1838 and 1839, amounting to tbe sum of forty-five dollars, which be bad tendered towards the payment of bis State tax, which exceeded tbat amount; that Danley received all tbe funds tendered except tbe Bank notes, which be refused to receive, and would levy, and sell the relator’s property to make tbat amount unless prevented: and as tbe relator bad no other adequate and complete remedy, be prayed for an alternative writ of mandamus. This was issued in pursuance of bis prayer, which Danley returned into Court, admitting tbe truth of the matters recited therein, and for cause of refusal showed tbat be was advised tbat tbe Bank notes in question were not by law receivable for taxes due tbe State of Arkansas, and tbat if be should receive them, and give tbe relator acquittal, be would violate bis duty as sheriff and collector of taxes, and subject himself to grievous loss and penalties. To this a demurrer was interposed by tbe relator, and joined in by tbe respondent, and, upon tbe bearing, the Court ordered a peremptory mandamus, and Danley appealed to this Court.

Tbe question of law involved was decided by tbe Supreme Court of tbe United States in tbe case of Woodruff vs. Trapnall, taken, up by writ of error from this Court, and reported in 10 How. R. p. 203. And in accordance witb tbat decision, the judgment of the Court below in the case at bar will be affirmed.


text:
    Woodruff vs Sanders ad. of Pettit.
    The true construction of the act of 5th March, 1838, in force 20th March, 1839, {Bov. Stat., ch, 51,) is, that as to judgments rendered after the passage of that act, the presumption of payment was conclusive, after the expiration of ten years, unless repelled by part payment or a written acknowledgment; while, as to judgments rendered prior to the passage of that act, the presumption should he repelled, not only by those means, but by all the other means allowed at common law.

      jError to the Circuit Cowrt of Pulaski Coimty.

    Hon. ¥m. H. Feild, Circuit Judge, presiding.. 1
    TkapNAll, for tbe plaintiff,
    contended that, under the plea of payment, the defendant was bound to prove actual payment; and that he could not take advantage of the presumption of payment from lapse of time, under the statute, except upon special plea.
    Pike & CuMMrtsrs, for the defendant,,
    relied upon the statute of 5th March, 1838. JEt&o. /Stat., ch. XOl, secs. 29 md 31.
   Mr. Justice Scott

delivered the opinion of the Court.

On the 29th of August, 1849, "Woodruff sued out a sci. fa. from the Pulaski Circuit Court, to revive a judgment recovered in bis favor in tbat Court, on tbe 26th day of July, 1833, against Pettit. Several pleas were interposed, upon which issues -were joined, among them the plea of payment. Subsequently, all of these were withdrawn, except the last named, upon which alone the case was heard and determined by the Court, without the intervention of a jury; and, upon the issue joined upon this plea, having been found for the defendant, judgment was rendered accordingly. A motion for a new trial was made upon the ground that the finding and judgment were against law and evidence, and that the deposition of Tunstall, which proved the payment, as plead, ought to have been excluded on the objection taken, “ that the interrogatories,” which appear in the deposition to have been written out, to be propounded to him, “were not answered,” although it does appear that the witness was sworn “to testify the truth, the whole truth, and nothing but the truth, in regard to the matters in controversy,” and accordingly made a connected and minute statement of all that he professed to know.

It is insisted, on the part of Pettit, without conceding the validity of this objection to the deposition of Tunstall, that the finding and judgment of the Court are sustained without regard to this deposition. ' And this, upon either of two distinct grounds, to wit: First, If the provisions of our statute regulating the common law rule, as to the presumptions of payment, does not reduce the period for a conclusive presumption of payment down to ten years, as to judgments rendered prior to the passage of that act, (which was the 5th of March, 1838,) but leaves it at twenty years, as at common law, then that the efflux of upwards of sixteen years, in combination with the facts in proof, that Pettit, from the day of the rendition of the judgment henceforward, resided in the county of Chicot, and -was, during the whole time, in good circumstances, and amply able to pay all his debts, and that an execution, to that county, was issued in the year 1833, soon after the rendition of the judgment, which could not now be found in the clerk’s office, fully authorized the Court below, sitting as a jury, in the absence of all rebutting testimony, of which, none was offered, to find in favor of the plea of payment, as was done. Secondly, If, on the contrary, the statute did reduce the period for a conclusive presumption to ten years, as to judgments rendered previous to its passage, then the Court was authorized to find as it did, in the absence of all rebutting testimony, upon the ground of the mere efflux of time alone, without any aid from the other facts in proof, much less any aid from the deposition of Tunstall.

At common, law, a debt was presumed to be paid if unclaimed and without recognition for the space of twenty years, in the absence of any explanatory evidence; this rule was applied, not only to bonds for the payment of money, but to mortgages, judgments, warrants of attorney to confess judgment, decrees, statutes, recognizances, and other matters of record. Before the expiration of twenty years, the law did not mate the presumption; nevertheless, the jury, upon an issue of payment, might infer the fact of payment from a lapse of time, short of twenty years, in combination with other circumstances in evidence, such as the settlement of an account in the intermediate time, or the obligee being poor and the obligor independent, or the parties residing in the neighborhood of each other, without any demand being made, and other like circumstances — the evidence to be more or less strong, in aid of the presumption from lapse of time, as the time is more or less short of twenty years. But although the full period of twenty years had elapsed, the law would not conclude that the debt had been paid, if the presumption was rebutted by evidence, such as proof of the defendant’s recent acknowledgment of the debt, or of payment of interest within twenty years, or of demand made within that time, or of suit brought and the writ returned non est inventus, or that, during part of the time, the plaintiff was an alien enemy, and disabled to sue, or that the courts of justice were closed, and the country in the tumult and confusion of war and revolution.

Thus stood the law, until our statute of the 5th March, 1838, in force March 20th, 1839, {Ghaf. XOl, Rev. Stat. of 1839, %>. 531,) wbicb cut down, tbe period, for this presumption of law from-twenty to ten years, upon judgments and decrees to be rendered after tbe passage of that act, and also provided that, that presumption should only be repelled by proof of part payment or of a written acknowledgment made within that period (30,) and which put all rights of action, upon emery instrumentfor the paymmt of money on property, upon the same footing (31). Thus regulating this common law doctrine so as to make it approach more nearly to the rule given by the statute of limitations, which perhaps- first suggested it, and in the wake of which it has followed. (See observations, as to this, in Brian vs. Tims, 6 Eng. R., p. 600, 1 and 2.) These provisions of the statute (both repealed by the act of the 14th December, 1844,) are easily enough understood, but there was a further one, as to judgments render edprior to the passage of the act, that the presumption of payment should apply to these in the same manner as such presumption applies to sealed instruments, ’’that is not altogether so clear (sec. 2 9 retained in Eng. Dig., Ch. 100, see. 32). These several provisions doubtless should be construed together, and, if possible, some meaning extracted which would give them all operation. And as judgments rendered prior to the passage of the act, are the express subject matter of the last cited section, it would seem to'authorize the assumption that it was the design of the Legislature to place these, as well as judgments rendered afterwards, and all instruments for the payment of money or property, which are provided for in the other two sections, 'upon some footing different from that upon which they stood at common law.

The leading ideas, to be extracted from this legislation, when considered in gross, is the cutting down of the common law period of twenty years, and the narrowing of the ground for repelling the presumption when thus cut down, both tending to points of policy, which the practical operation of the statutes of limitation have commended to the Legislature. If it be supposed that both of these objects were designed to have been attained by the Legislature, in reference to judgments rendered^wr to the passage of tbe act, as is plain was tbe design as to judgments rendered aft&rwarcls, and as to all instruments for tbe payment of money or property, tben there would bare been no occasion at all for discriminating between judgments rendered prior, and tliose rendered subsequent, to tbe passage of tbe act, as is expressly done in emphatic terms. On tbe other band, if it be supposed that it was tbe design to apply tbe presumption of law in question to these judgments, in all respects, as it was applied to sealed instruments at common law, tben tbe whole of section 29 amounts to nothing at all; because that was precisely tbe common law in its full length and breadth. If, however, it be supposed that'it was tbe design of tbe Legislature to discriminate in fmor of tbe rights of tbe plaintiff, as to judgments rendered prior to tbe passage of tbe act, each of tbe provisions of tbe three sections will be effective and sensible, and be in harmony with each other; and such a discrimination would be reasonable, because these statutory regulations of tbe common law doctrine of presumption ofpayment, are, in their terms, prospective as to judgments rendered after tbe passage of tbe act, and retrospective as to those rendered prior to its passage. Tbe Legislature might, therefore, with much reason, while cutting down tbe period for a conclusive presumption of law, as to both classes of judgments, from twenty to ten years, prescribe that, as to judgments rendered after tbe passage of tbe act, this presumption should reipam, conclmsi/oe, unless repelled by part payment, or a written acknowledgment of indebtedness, within tbe ten years, in analogy to a like provision in reference to tbe limitation of actions prescribed in Lord Tehtek-deN’s act, which they bad adopted as to this; while, at tbe same time, as to judgments rendered prior to tbe passage of tbe act, tbe presumption should be repelled, not only by these means, but by all tbe other means allowed at common law. As this construction allows all tbe provisions of tbe statute on this subject to be effective and sensible, and is reasonable, and no other, that has been suggested, comes up to this standard, we adopt it as tbe true interpretation of tbe legislative will. And when applied to tbe facts of tbe case at bar, tbe finding and judgment of tbe Court below are doubly sustained, although tbe plaintiff in error might be allowed tbe fullest benefit of every exception to tbe deposition of Tunstall, either taken in tbe Court below, or tbe additional one made here in argument; because not only is there no evidence in tbe record tending, in any way, to repel tbe conclusive presumption, of law, which attached after ten years, which tbe defendant bad tbe right to rely upon in support of tbe issue upon bis plea of payment in, but, in addition to this, be made proof of facts, and circumstances to fortify this presumption, bad it been attacked.

Putting tbe case then upon this point, tbe judgment must be affirmed, without reference to tbe other points raised.


author: Mr. Justice Soott

text:
    Fowler vs. Lawson.
    A plaintiff in the Circuit Court has the right to take a non-suit, at any time before the jury retires from the bar, or his cause is submitted to the Court for decision; though the defendant file and offer to prove a set-off to an amount larger than tho plaintiff’s claim.

      Error to PulasM Qircmt Oomt.

    Hon. ¥h. H. Feild, Cfficuit Judge.
    Fowlee. A set-off is not merely a defence, but a cross-action, in which a defendant becomes plaintiff, and may recover against tbe original plaintiff as a defendant. (See Bern. Stat.,p. 726, 727, oh. 139.) Whenever tbe defendant filed bis plea of set-off, showing an excess due from the plaintiff to him, it became in fact a cross-action, in which, the other party wag defendant, and had no more right to take a non-suit than any other defendant. See Riley dk White vs. Garter, 3 IRtmjph. Rep. 231.
    CuRRAN, for defendant.
    A plaintiff may, as a matter of right, become non-suit in any action at any time before the jury retire, or the case is submitted to the Court. Rig. 813, see. Ill; 3 Mc-Cord R. 559; 4 Watt’s R. 308; Wooster vs. Bwrr, 2 Wend. R. 295.
   Mr. Justice Soott

delivered the opinion of the Court.

Lawson sued Fowler in assumpsit, who interposed a plea of set-off for a larger amount than was claimed by Lawson. Issues were joined, a jury sworn, and some evidence produced, when, by leave of the Court, Lawson took a non-suit against the objection of Fowler, who offered to give evidence to sustain his plea of set-off, and claimed the right to have a judgment over against Lawson. But the Court overruled him, and permitting the non-suit to be taken, rendered judgment accordingly. To which Fowler excepted, and brought his case here on error; and to sustain his position, insists that the provision of our statute, (Dig., ch. 150,) allowing the defendant to recover a judgment over against the plaintiff, if his set-off be found to exceed the plaintiff’s demand, works such a change in the English doctrine on this point that, after the filing of a plea showing an excess in favor of the defendant, the plaintiff has no longer the right to take a non-suit without the consent of the defendant. The case cited from Tennessee (Riley & White vs. Carter, 3 Humphrey R. 230,) is in terms to this effect. That case, however,' originated before a justice of the peace, who not only found, upon the trial, a balance due the defendant, but rendered a judgment for it in his favor, which was appealed from to the Circuit Court, where the plaintiff was refused leave to take a non-suit, and that refusal was affirmed by the Supreme Court of Tennessee. There is a case, however, reported in tbe 3d -volume of Texas Reports (Thomas vs. Hill admr.) 270, which fully sustains the doctrine contended for. On the other hand, there are reported cases to the contrary in New York, (Wooster vs. Burr, 2 Wend. Rep. 295,) Pennsylvania, (McCredy vs. Fry, 7 Watts R. 496,) Massachusetts, (Cummins vs. Pruder, 11 Mass. R. 206,) Maine, (Sawyer vs. Tarbox, 30 Maine R. 27,) South Carolina, (Usher vs. Sibley, 2 Brevard R. 32; Wilson vs. Murphey, 3 Brevard R. 387; Bremham vs. Brown, 1 Bailey R. 262,) and Kentucky, (McCann vs. Boyer, 8 B. Mon. R. 285.)

In some of these cases where, like in the case at bar, the non-suit was taken before the jury had retired to consider of their verdict, the courts rest their judgment upon the ground that the defendant could claim a judgment only in accordance with the provision of the statute, and, consequently, as no balance had been “found” by the jury, no judgment could be claimed.

In other cases, however, where the non-suit was not taken until after the jury had returned into court and announced themselves ready to deliver their verdict, (and in one case had made known to the bar that the verdict was for the defendant, Usher vs. Sibley, 2 Bre. R. 22,) the judgment was put upon the higher, and, we think, better ground, that the set-off law is not to be construed to limit or deprive the plaintiff of his general right to take a non-suit, which, under our statute, he may do at any time before the jury retires from the bar, or his cause is submitted to the Court for decision, (Dig., ch. 126, sec. 10.) The judgment is affirmed.

Mr. Chief Justice WateiNS not sitting in this case.