text:
    Ashley, ex. vs. Gunton et al.
    Alter the endorser has become fixed by demand, protest and notice, mere forbearance by the holder, not based on any obligatory contract with the drawer for day, and which does not impair any of the substantial rights or remedies of the endorser, cannot work his discharge.
    ÍTo objection will be heard in this court to the admissibility of evidence on the trial^ on the ground that it was secondary, or not the best that the nature of'the case would admit of) unless sueh specific objection was taken in the court below.
    It is no objection to the final order of the Probate Court, allowing a claim against the estate of a deceased person, that the claimants, endorsees of a bill of exchange, had failed to fill up a blank endorsement at some time previous to the final order of the court.
    The affidavit of one of several joint claimants, is sufficient to authenticate a claim against the estate of a deceased person.

      'To charge the drawer or endorser of a bill, by notice of non-payment and protest left at bis place of business, or residence, it should be delivered to a clerk, if there be one, at the former place, or to some proper person at the latter, if any such there be, or it should be certified .that no one could be found on application at such places. And so, it is not sufficient to charge an endorser, to show that the notary left the usual notice of non-payment at the hotel where the endorser resided, and addressed said notice to him, and left the same at said hotel — it mot appearing whether the endorser was at the hotel when the notary called, whether the notary -enquired for him, or handed the notice to any person to be 'delivered to him,; or whether any person was at the hotel or not.

      Appeal from the Oiremt Oowrt of PulasM Oowity-.

    Hon- William: H. Hemd, Circuit Judge.
    WatKINS & CueeaN, for tbe appellant.
    The facts that Ashley 'was the accommodation endorser or security for Sevier, which Was necessarily known to the plaintiffs; that the note was suffered to remain under protest from IVIarch, 1846, contrary to all banking usage, without any suit or demand -against Asbley, until December, 1848, after bis death and'the insolvency of Sevier; that payments of interest on 'the note were made by- Sevier from time ■to time subsequent to the protest, raise a strong presumption that ’time was extended to Sevier.
    The statute {see. 88, eh. 4, Digest,) providing for the exhibition cf claims against the estates of deceased persons, requires the clcmncmt to make the oath that nothing has been paid or delivered towards the satisfaction of the demand, except what is mentioned or credited thereon, and-that the amount is justly due. The object and policy of this statute are to afford a protection to the estates of deceased persons against unjust claims, and of which the executor or administrator may be wholly ignorant — to purge the conscience of the complainant as to the truth and justness of ■the demand. Here were six persons then holding this claim; it ■did not belong to Mr. Gunton, who alone of the claimants made the affidavit, but to. the others with him. A release by, or payment to, one of several joint payees or holders, is a valid discharge to the debtor. Any one of these trustees might have received payment, or done any act to discharge the security; and yet another, if ignorant of it, might safely swear that the demand was unpaid and justly done. We contend that, under the statute, where there are two or more persons constituting one claimant, to any of whom a valid payment may be made, each competent to discharge the demand in any of the modes known to the law, they must all make the affidavit required.
    We contend that there is not sufficient proof of notice to charge the endorser. If the holder undertook to give the endorser notice in Washington, it must have been a personal notice, and the evidence of the notice having been given, is not sufficient to charge him. The only evidence is the carefully guarded statement of the notary, that he left the usual notice in writing, addressed to the endorser, at Coleman’s hotel, in the City of Washington, where he resided. Did he enquire if the endorser was in, or leave the notice at his room, or with a lodger, or inmate of the hotel, or with any servant of the house? Bank U. S. vs. Hatch, 6 Peters 257/ Miles vs. Ilall, 12 Sm. <& Marsh. 332/ Fortner vs. Pcorham, 2 ib. 163/ Stewa/rt vs. Eden, 2 Cannes 121/ Ogden vs. Gowley, 2 J. P. 274/ Ireland vs. Kf^, 11 J. B. 232/ Blakely vs. Grant, 6 Mass. 386; Woolridge vs. Brigham, 12 ib. 403/ Bradjjy vs. Bamis, 26 Maine 45/ Hyslop vs. Jones, 3 McLean 96/ Foster vs. Senneath, 2 Bichamdson 338/ Holland vs. Turner,) 10 Conn. 308/ 7 Gill & John. 79/ Legan Bank vs. Butler, 3 LAtteTl'349/ 2 Aikin. Yerm. 263.
    The endorsement should have been filled up to show title, and the right to recover on the note. See Edwards vs. Scull, 6 Eng. 326/ Ma/rtin vs. Warren, ib. 286.
    S. H. Hempstead, for the appellees.
    An endorsement in blank, constitutes a complete and perfect transfer of the interest in a bill or note, and vests the right of action, and all other rights, in the subsequent holders. It was not necessary to fill it up. Sterling vs. Bender, 2 Eng. 202/ Jordan vs. Thornton, 2 Eng. 230/
      Ohitty on Bills, 10 Ed. 229 et seg.; 2 Hall 563/ Story on Bills, sec. 207/ Story on Prom. Notes, seo. 137/ 7 Eng. 171.
    The administration law must be beneficially expounded; and scarcely any serious doubt can exist that affidavits, made by the President and Cashier of the Board of Trustees of the Bank of Washington, come within the spirit, if not the letter, of the law.
    Notice of the presentment and non-payment of the bill was given to Ashley by the notary, by delivering such notice at Coleman’s hotel, in the city of Washington, vffiere Ashley then resided, addressed to him on the same day of the protest. The question is, whether the holders of this note have used reasonable diligence, so as to hold the endorser liable; for the law neither contemplates nor requires the utmost and strictest diligence, of which the case is capable. 2 Oai/nds P. 126. The course pursued in this case was regular and legal, and according to the usual practice. At all events, it amounted to reasonable diligence. 15 Wendell 367/ 5 Bimney 543/ 1 J. B. 294/ 6 Peters 297/ 3 Oonn. 497/ 2 S. (& M. 656/ Miles vs. Hall, 12 8. <& M. 332/ 3 ib 250/ 2 ib 638/ 657/ 9 ib. 476/ 10 ib. 542.
    The law of the District of Columbia, requires notice to be left at the residence, lodgings, ^ place of business, of an endorser. A delivery to any particular person, need not be shown. The law merely exacts from the holder that reasonable diligence be used in giving notice; but it is not his business to see that the notice is brought home to the party, and whether the notice reaches the party or not, the holder has done all that the law requires of him if he leaves notice at the house, lodging, or place of business of the endorser, where he resides with the maker in the place where the note fell due, or if he sends notice by mail, if he resides elsewhere. These principles are fully sustained by the decisions of the Supreme Court of the United States. Williams vs. The Bank of the United States, 2 Peters 96/ Bank of Oolumbia vs. Lawrence, 1 Peters 578/ Biokens vs. Beall, 10 Peters 572/ Bank of the United States vs. Hatch, 6 Peters 250/ Ha/rris vs. Robinson,
      4 Howcurd 336; Bcmk of the United States vs. Oarneal, 2 Peters 547.
    By leaving tbe notice at Coleman’s hotel, where Col. Ashley dwelt or lodged, afforded reasonable ground to presume that it would be brought home to him, and that is all the law requires. 1 Peters 578; % S. c& M. 44. But, whether the notice was received by him or not, the holder used due diligence. 3 -Kent 107; Stedma/n vs. Q-ooch, 1 Esp. P. 4; Pcmsom vs. Mack, 2 Hill 590; Bailey on Bills, 224; 1 Maulé <£ Selwyn 545; 6 Peters 257; Miles vs. Hall, 12 8. <& M. 332; Irelcmd vs. Hip, 11 J. B. 231; Hartford Bcmk vs. Stedmcm, 3 Conn. 494.

   Mr. Justice Scott

delivered the opinion of the Court.

This proceeding originated in the Probate Court of Pulasld county. It was for the allowance and classification of a claim against the estate of Chester Ashley, deceased. The application was granted, and a bill of exceptions having been taken on the part of the executrix, setting out all the evidence and the rulings of the court, an appeal was taken by her to the Circuit Court. ’ That court being of opinion that there was no error in the proceedings and judgment of the Probate Court, affirmed that judgment, and the executrix appealed to this court.

It appears that the claim, proceeded for by Gunton and others, as surviving Trustees of the Bank of "Washington, was founded upon an accommodation note, made by A. PI. Sevier, payable to Chester Ashley, or order, and by the latter endorsed in blank, and the proceeds, by virtue of his written directions attached to the note, were placed to the credit of Sevier in the Bank. The note bore date the 18th of March, 1846, was payable sixty days after date; and, on the 20th day of May next following, was protested for non-payment by a notary public. Interest having been computed upon the principal sum, and two partial payments deducted, a balance was claimed to be due on the 24th of March, 1848, of the sum of nine hundred and twenty-seven dollars and fifty-seven cents, with interest from that date. This sum was sworn to by "William Gunton, in an affidavit before a justice of tlie peace, in tlie form prescribed by our statute for authenticating claims, by individual claimants, against the estates of deceased persons: and also by James Adams, Cashier of the Trustees of the Bank of Washington, in the form prescribed by the statute, for authenticating such claims, when in favor of corporations. The official character of the justice of the peace, before whom these affidavits were made, was regularly certified.

Examined copies of the resolutions adopted at a meeting of the stockholders of the Bank of Washington, a few days before the expiration of its charter, and in contemplation of that event, and of the deeds of assignment, executed in pursuance of these resolutions, to the trustees; the survivors of whom proceed in the case before us, were proven by depositions. Washington City was, by the same means, proven to be on the Maryland side of the Potomac river, and the provisions of the law of that State, in reference to the protest of bills of exchange and promissory notes, was read in evidence from the statutes of that State, published by authority. It was also proven that Col. Ashley was serving-in the Senate of the United States, at Washington City, in May,. 1846, having been elected a member of that body in November, 1844, and held that post from that time until his death. Pie had resided in Little Bock, Arkansas, for near thirty years, and when absent from home, at Washington, his house was usually kept open by some member of his family, by whom communications addressed to him at Little Bock, during the sitting of Congress, were forwarded to him at Washington City. That, in the Capitol, at Washington City, there was, in the year 1846, a Congressional, postoffice, where members of both Houses of Congress received communications addressed to them, and mailed letters and papers they desired to send out; and also a city postoffice, through which communications would reach them. That the estate of Col. Sevier • was insolvent, and would not pay the privileged debts allowed against it, nor any not secured by deed in trust made in his lifetime. That, at the time the note in question was discounted, the appellees, together with one George Bonaford, since deceased, were the surviving Trustees of the Bant of "Washington, and that, said appellees are the bona fide lawful holders of the note, on which the claim is founded. Besides the protest, read in evidence, in which nothing is stated as to notice, it was proven, by the deposition of the notary, who lhade it, that he made the demand and protest, add “on the same day delivered, at Coleman’s, hotel, in the City of Washington, where Chester Ashley, the endorser of the said note, then resided, the usual notice of nonpayment of the said note, and addressed said notice to the said Chester Asldey, and left the same at said hotel.” It was also-proven by a witness, who testified that he had been long conversant with mercantile and banking transactions, that it was not. customary for Banks, in regular business, to let a note remain, under protest, without renewal or security, for any length of time,, without being put in suit; and it was otherwise shown in evidence' that the partial payments endorsed'on the note, under dates subsequent to the protest, were made by Sevier, and not by Ashley. That Ashley departed this life after the protest; and, about seven months afterwards, Gunton, as President of the Trustees of the-Bank of Washington, advised his executrix of the note having all this time remained under protest, and enquired what arrangements would be made for its discharge, in case it was not soon paid by Col. Sevier.

After the endorser has been fixed by demand, protest and notice, mere forbearance by the holder, not based on any obligatory contract with the drawer for j^y, and which does not impair any of' the substantial rights or remedies, of the endorser’, cannot work his discharge.

Whatever objection might have been urged to the admissibility of some of the evidence, on the^ground that it was secondary, or' not the best, for aught that appears upon the record, that the-nature of the case would admit'of, no such specific objection was-in fact taken in the court below; and, for that reason, cannot now be heard here. And whatever might be in that objection, if the-case was different, which is based upon the failure of the ap* pellees to fill up the blank endorsement at some time previous to the final order of the Probate Court, it can cut no figue in this case, because of the competency of that court to allow, to a bona fide claimant; an equitable, as well as a purely legal, claim.

According to the laws’ of Maryland, read in evidence, the protest was admissible: the deposition of the notary, who made the protest, is also in evidence to the same effect, and makes the question suggested, as to the admissibility of the protest, of no consequence.

We think the claim sufficiently authenticated, under the provisions of our statute, by the affidavit of one of the joint claimants. The facts of this case, as to this point, were considered by us in connection with the cases of Beirne & Burnside vs. Imboden et al., 14 Ark. Rep. 337, and Walker as ad. vs. Byers, id. p. 247, when they were decided, although, in neither of these cases, this precise point was involved. Such an affidavit is within the letter of the statute, in its tenacity for the affidavit of the claimant himself at the peril of perjury; and as it has to be made in positive 1 terms, it could not be true if payment had been in fact made to either of the co - claimants.

A more difficult question, however, is raised in reference to the alleged notice of non-payment, which it will be necessary to examine more at large.

Demand and notice are conditions precedent to the endorser’s liability, and unless he dispenses with them in some way, or by some act of his own prevents them, Instability cannot arise without demand and notice. Notices, which are not personal, must necessarily be given in writing, whether through the channel of the postoffice or some other; but, in common legal parlance, all notices are, in general, deemed personal, except those transmitted through the postoffice; because they are either actually so, or ' regarded as tantamount to personal notice. Hence, the expression, so often found in the books, that when the parties live in the same town, the notice must be personal.

So, of personal notice, it is constantly said in tbe books, that notice in writing, left at tbe place of business, or at tbe residence of the endorser, is tantamount to actual- personal notice. All these, however, are but comprehensive expressions, entirely true in their general scope, but the doctrines they inculcate are qualified by other doctrines, more in detail, and equally well settled, to which these general expressions do not reach.

To .fix the endorser’s liability, the law does not require the strictest and utmost diligence in the holder, but only that fair and reasonable effort, which the law calls due diligence. 2 Caines Rep. 126. Hence, in interpreting the contract between the parties for the conditional liability of the endorser, it requires that the latter shall, within usual business hours, be at his place of business, and during the usual homs of suspension of business,., be at his residence, or else to have some suitable person to represent him at these respective places within'these respective hours. When, therefore, the endorser performs what is thus required of him, due diligence, on the part of the holder, would carry notice home to him; and, consequently, when the parties live in the same town, and the holder uses due diligence, but, in fact, notice does not reach the endorser, the law deems it the endorser’s own fault, and adjudges that he has thereby prevented the holder from performing the condition precedent to his liability.

The true question then, in cases like this before us, is, whether due diligence has been used by the holder; not whether he has given notice, or the endorser has received it. Dickens vs. Beale, 10 Peters Rep. 580. And “this consists in giving notice, if after the usual and propea’ enquiries are made, it is practicable to give it; but if, when this is done, the holder or notary.cannot give the notice personally, when the p'arties reside in the same place, or does not know where to direct it by mail, the inquiry is due diligence, without notice. Id., same page. And the proof of diligence is upon him who asserts it. United States vs. Baker ad., 4 Wash. C. C. R. 465. And it is ,not to be presumed, nor that the notary was negligent, but to-be determined upon the proof. Rives vs. Parmley, 18 Ala. R. 262. A place of business must be understood to be a place actually occupied, either continually or at regular periods, by a person,' or bis clerks, or those in bis employment. 8 Porter's R., Stephenson vs. Primrose, p. 167. And a private boarding bouse where the endorser lodged, must be considered, to all intents and purposes, his dwelling bouse. Bnk. U. S. vs. Hatch, 6 Peters R. 257.

Judge KeNt says, “ Where the bolder and endorser reside in the same town, notice to the latter will be good, if left at bis dwelling bouse, in a way reasonably calculated to bring the knowledge of it home: and if the bouse be shut up by a temporary absence, still the notice may be left there, or at his place of •business.” 3 Kent Com. 107. This latter clause is no doubt true .enough; but if the call was within the proper hours respectively, :and there was no proper person there to receive the notice, all •the authorities on the point show that the leaving of the notice, under such .circumstances, would be a work of supererogation, because the effort to give the notice, under such circumstances, would itself constitute due diligence.. So, Judge Stoky says, of the mode of giving notice, where the parties reside in the same place, *“It may be by a verbal notice to the party personally, or it may be by .a written notice left at his domicil, or place of business. If the notice be written, it is not indispensable to be given to him personally. It is sufficient if it be sent, or delivered to .some suitable person at his place of business, such as Ms clerk or agent, or to some suitable person at his place of residence. If the .call is made at reasonable hours, and no person can be found to whom the notice can be communicated^ the holder, or other party giving the notice, will be excused from further efforts."” Story on Bills, sec. 300, and authorities there cited.

The result is, that when the leaving of notice at the place of business or residence, in his absence, will have the effect to fix the drawer or endorser, it must be delivered to some proper person. If none such be there, within the proper hours, the leaving of the notice is unnecessary, and a work of supererogation, because the effort to give the notice under such circumstances itself constitutes due diligence. When the drawer or endorser is sought to be charged upon the ground of such notice having been left at his place of business or residence, it is incumbent upon the plaintiff to show that it was left under such circumstances as are sufficient to fix his liability ; and of this, he' must make clear proof. Bell vs. The Hagerstown Bank, 7 Gill’s Rep. 231. On this latter ground, the plaintiff was nonsuited in the case of Lawson vs. Sherwood, 1 Stakie 314; where the proof was, that notice was served on'the defendant two or three days after the dishonor of the bill, under circumstances, when notice on the second day would have been good, but not on the third day, Lord ElleN-boeough refusing to go upon “probable evidence without proof of the fact,” because it was upon the plaintiff ‘-‘to show that notice was given in due time.”

The cases of Rives vs. Parmly, 18 Ala. Rep. 256, and Coster Robinson & Co. vs. Thomason, use, &c., 19 Ala. Rep. 717, distinctly -recognize these doctrines, and are full to the point, “that to charge the drawer or endorser of a bill by notice, left at his place of business or residence, it should be delivered to a clerk, if there be one, at the former placp, or to some proper person at the latter, if any such be there, or it should be certified that no one could be found on application at siich places.” 19 Ala. Rep. 721. In the former case, the proof was that “notice of protest left at the boarding house of P. E. Eives, and at the office of L. Parmly — each this day.” In the second case, it was, “Notice of protest left at the offices of the first 'and second endorsers.” In both cases, for want of proof that the notices were left under such circumstances as would charge the endorser, the holder was not permitted to recover.

In. the case before us, the proof of due diligence falls equally short. The circumstances under which the notary left the notices at- Coleman’s Hotel, are not shown further than that he delivered, at that hotel, the usual notices of non-payment, and addressed said notices to said Chester Ashley, and left the same at said hotel. It does not appear whether .Ashley was in the hotel when the notary called, no.r whether any enquiry was made for him, nor whether the notices were handted to any person to be delivered to him; or whether any person was at the hotel or not. For aught that has been shown, the notary, when he called, might not have enquired for Ashley at all, or may have seen him, and not given the notice, but gave it to a stranger, who happened to be there in trcmsiUc, or even deposited it in the passage, or some private room, or otherwise left it in a manner, or under circumstances, wholly insufficient to charge an endorser, when he could have delivered it to him in person, had he enquired for him.

■ In the case of the Bank of the United States vs. Hatch, 6 Peters Rep. 256, where it was held that the delivery of the notice at the boarding house, to affellow-boarder, with a request that he would deliver it to Hatch' — 'the notary having first enquired for Hatch, and been informed that he was not within, was sufficient, Judge Stoet remarked that, if the delivery had been to the master of the house, or to a servant of the house, there would have been no doubt of its sufficiency, and he cited the case of Steadman vs. Gooch, 1 Esp. Rep. 4, where the notice, left with the woman who kept the house, at which the party was a lodger, was held good, with no particular stress by the court, that decided the case, upon her character as proprietor, so as to distinguish it from a delivery to any other inmate of the house, whether servant or boarder. So, in the case of Bradley vs. Davis, 26 Maine Rep. 45, the notice was left with the bar-keeper at the Fremont House, in the city of Boston. But in the case before us, it does not appear with whom, if any one, it was left, or even that it was dropped in an urn, kept standing in the bar, as was the arrangement at the Fremont House, from whence letters were taken by persons to whom they were directed; and, if not taken within an hour or two, were sent off to their respective rooms.

Due diligence being the imperative prerequisite of the holders right to recover of the endorser, because of the ¿conditional contract of the latter, and the onus to prove due diligence being upon the bolder, we are compelled to say, in tlie light of tbe authorities we have cited, and others of the same caste, that we have examined, that such diligence as the law requires to charge a drawer or endorser, has not been shown in this case.

Finding this to be so, it is entirely unnecessary to examine the other question raised — which depends upon an alleged local custom of the banks in the District of Columbia — as to whether this note was not prematurely protested.

And although this case has been determined upon a dry point of law, it may not be improper to.$ay that it is not altogether improbable that the result is consistent with its abstract right and justice on the merits, in view of the discrepancy, as to notice, between the protest in evidence and the deposition of the notary, who made it, and the unusual delay of the Trustees of the Bank, shown by the evidence, in taking steps against the endorser.

The judgment must be reversed, and the cause remanded to the Circuit Court, with instructions to reverse the judgment of the Probate Court, and enter up, and certify to that court, such judgment as ought to have been rendered in the Probate Court. Digest, eh. 4, sees. 181,182.


source: Caselaw Access Project

author: Me. Chief Justice ENGlish

license: Public Domain

text:
    Baldwin et al. vs. Scoggin, use, &c.

    'The G-overnor'has the power to-remit fines under the provisions of the Constitution; although the Legislature has failed to regulate the exercise of such power.
    And he may remit a fine, although the act of the Legislature deplare that the fine, when collected, be paid into the county treasury, for the use of common schools.
    A sheriff has no power or discretion to receive a note or property, in payment or satisfaction of a fine adjudged against a defendant in a criminal prosecution;, nor has the county -treasurer and ex officio treasurer of the common school -fund, to whom. such fine is directed to he paid, any such power or discretion; a note so given and received in such case,, being no payment or satisfaction, the fine had not passed beyond the pardoning power of the Governor.

      Appeal from the QircuátPQowrt of Ouachita, Oowity.

    Tbe Hon. Shelton "WatsoN, Circuit Judge.
    Stith, for tbe appellant.
    General construction and effect of pardons. & Eng. 284/ 7 id. 122 / 7 Peters 130/ 3 vol. U. 8. Pig.,p. 78, sec. 14, and case there cited.
    Tbe judgment or conviction wbicb was pardoned by tbe Governor, was in favor of tbe State of Arkansas. Can a promissory note satisfy or destroy a judgment %

    CuRRAN & Gallag-heb, for the appellee.
    By tbe constitution, tbe Governor has tbe power to remit fines, under such rules and regulations as shall Toe prescribed Toy law; and tbe law having prescribed no rules and regulations, and tbe Governor having no such power by “ virtue of bis office alone,” could not remit tbe fine in this case.
    That a note in ordinary cases, is' a payment when so received, is res adjudicaba. See Peal Estate Banh vs. Pcmdon et al., 5 Arh. 559.
    But, in this case, tbe note was a valid and proper mode of payment, because, by law, tbe fine was directed to be paid into tbe county treasury, for tbe use of common schools; and the county treasurer and ex officio treasurer of tbe school fund, was, by law, directed to loan the'same at 10 per cent, interest, and, before tbe pardon by tbe Governor, tbe fine in this case was paid by tbe defendant, and loaned to him according to law, and so intended by tbe parties, without tbe formality of tbe defendant banding the money to tbe county treasurer, and be banding it back.
   Me. Chief Justice ENGlish

delivered tbe opinion of tbe court.

Josiab A. Scoggin, suing for tbe use of John H. Holcomb, bis successor in. office, as comity treasurer, and ex officio treasurer of • the scbool fund of Ouacbita county, brought an action of as-sumpsit in the Ouachita Circuit Court, against G-'eorge W. Baldwin, Nobert E. Armstrong, and John Gr. Banks, upon a promissory note.

The declaration alleged that,_on the 8th day of October, A. D. 1852, the defendants made their promissory note, of that date, and thereby promised to pay, twelve months thereafter, to Scog-gin, as county treasurer, and ex offieio treasurer of the school fund of Ouachita county, the sum of $ 210, with interest at the rate of ten per cent, per annum, payable half yearly in advance, and delivered said note to said Scoggin, &c.

The defendants pleaded non assumpsit, and a special plea, alleging, in substance, as follows:

That the defendant, George W. Baldwin, together with one James Baldwin, were indicted, at the spring term of the Ouachita- Circuit Court, 1852, for -an assault, with intent to murder one 'William H. Wood; and, at the succeeding term of said court, were both tried and convicted of an aggravated assault, and fined in the sum of $ 321 each, and five minutes imprisonment, and ordered into the custody of the sheriff, until said fine and costs were paid. That said fine, in each case, was subsequently, during the same term, reduced by the court, to the sum of $ 200, and final judgment rendered in favor of the State of Arkansas' therefor; as would more fully appear by the record, &c. That, being' in the custody of said sheriff, 'for the payment of said fine and costs, the said defendant, George W. Baldwin, gave the promissoi’y note sued on, which he executed, with the other defendants as his securities, for said fine, and ten dollars as advance interest thereon for six months, at the rate of ten per cent, per annum, and for no other, purpose, and upon no other consideration whatever; and no money, or other valuable thing was passed between the parties.

That, after the execution of the said promissory note, and the delivery thereof to the sheriff of said county, to wit: on the 22d day of October, 1852, Ms excellency, John Selden Roane, tben Governor of tbe State of Arkansas, granted to tbe said defendant, George W. Baldwin, and tbe said James Baldwin, a pardon, in •tbe words and figures following:

Tub State oe Arkansas, to ale to whom these presents shall COME-GREETING:

Whereas j At tbe said term of tbe Circuit Court of tbe county of Ouacbita, George W. Baldwin and James Baldwin, were convicted of an aggravated assault, and sentenced to pay afine of two hundred dollars eacb: and, whereas, many of tbe good citizens of said county bave petitioned for tbe remission of said fine,' not -only on tbe ground of its enormity, but tbe injustice of tbe verdict : Now, therefore, I, John Selden Roane, Governor of tbe State «f Arkansas, in consideration of tbe premises, and by virtue of tbe authority in me vested by tbe constitution of said State, do hereby remit said fine, and freely and fully acquit tbe said George W. Baldwin, and James Baldwin, severally, from tbe payment «of all the pains and penalties thereof. Tbe sheriff of said county, «and all others, are hereby commanded to desist from all proceedings in tbe collection and enforcement of said fine.

[jXi S 3

In testimony whereof, I bave hereunto set my band, anc^ cailse(^ ^ie sea^ State to be affixed, at Little Rock, on tbe 22d day of October, A. D. 1852.

By tbe Governor. JOHN S. ROANE.

David B. Greer,

Secretary of State.

Which said pardon, or letters patent, accepted by said Baldwin, \the plea further alleges,'] are under tbe great seal of tbe State, and shown to tbe court, &c.

Tbe plea was verified by affidavit.

To this special plea, tbe plaintiff demurred, on tbe grounds:

1st. That tbe Goyernor bad no authority, by tbe Constitution and laws of tbe State, to remit said fine. 2d. That tbe fine bad been paid by Baldwin, before tbe granting of tbe pardon or remission of it by tbe Goyernor.

Tbe court sustained tbe demurrer to tbe plea, tbe defendants rested, and suffered final judgment for tbe amount of tbe note-sued on; and appealed to this court. .

It is argued by tbe counsel for tbe appellee, that tbe Goyernor bas no power to remit fines, because no regulation for their remission, by him, bas been made by tbe statute.

On the organization of fibiost governments, it bas been deemed' wise and humane to lodge a pardoning power somewhere, in order that tbe innocent may be relieved from punishment, where it is made manifest, after conviction, that they were unjustly condemned ; and in order that, in proper cases, that mercy and clemency might be extended to th§ offender, which cannot be granted to him by tbe administrators of tbe law, under its stern sanctions.

In tbe country from which we have derived our language, our laws, and, to a limited extent, oar forms of government, tbe pardoning power is vested in tbe king. If was exercised by him,, from a remote period, and it was declared, in Parliament, by statute 27 Hen. VIII, c. 24, that no other person bath power to-pardon or remit any treason, or felonies whatsoever; but that tbe king bath tbe whole and sole power thereof, united and knit to tbe imperial crown of tbe realm. 4 Black. Com. 397. There were limitations hpon this power, however, in England. Ib. 398.

By tbe constitution of tbe United States, Article 11, sec. 2, it is declared that tbe President “ sball.bave power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

Stoky, in bis Commenta/ries on tbe Constitution, ml. 2, sec. 1504, treating of this clause, after noticing tbe express exception of cases of impeachment from tbe pardoning power of tbe President, and

tbe implied exception of contempts, says: “Subject to these exceptions, (and perhaps there may be others of a like nature standing on special grounds,) the power of pardon is general and unqualified, reaching from the highest to the lowest offences. The power of remission • of fines, penalties, and forfeitures, is also included in it; and may, in the last resort, be exercised by the executive; although it is, in many cases, by our laws, confided to the treasury department. No law c<m abridge the constitutional powers of the Executive department, or interrupt its rights to interfere by pardon in such cases.”

Thus it seems that this great prerogative of pardoning offences against the Federal Government, has been intrusted to the President, without reserving to Congress the power to abridge or restrict its exercise.

The framers of our State Constitution,, have entrusted the pardoning power to the Governor, but thought proper to reserve to the Legislature the right to regulate its exercise. The clause on the subject, is as follows: “ In all criminal and penal cases, except in those of treason and impeachment, he (the Governor) shall have power to grant pardons, after conviction, and remit fines and forfeitures, under such rules and regulations as shall be prescribed by law. ” Const. Arle., art. V, sec, 20

The Legislature have thought proper, under the power thus given them to regulate the exercise of the pardoning power, to pass an act as follows : “In all cases, in which the Governor is authorized, by the Constitution of the State, to grant pardons for any offences punishable with death, or imprisonment for six months and over, or with corporal punishment, he may grant the same with such conditions, and under such restrictions, as he tnay thmh proper; and he shall have power to commute the prmishment of persons under the sentence of imprisonment of six months and over, or corporal punishment, by substituting banishment in lieu of the sentence of the court.” Sec. 244, chap. 52, Digest, p. 424. The succeeding seven sections, regulate the terms of banishment.

Tbe section above copied, does not touch the remission of fines and forfeitures by the G-overnor, nor- is there any statute regulating their remission; hence, it is argued that he has no power to remit them.

But the above section does not, in truth, regulate the exercise of the pardoning power in cases punishable with death, or imprisonment for sis months or over, or with corporal punishment, but leaves the Governor to the exercise of his own discretion in granting pardons in such cases. That section, and those following, merely regulate commutations, and not pardons.

Tet, the Governor pardoned Edwards, and released him from imprisonment in the penitentiary, on a conviction of manslaughter, absolutely, and without terms; and the power does not appear to have been questioned. See Edwards vs. The State, 7 Eng. R. 122; also Amour Hunt Ex parte, 5 Eng. R. 284.

. If the Legislature had passed no act on the subject of pardons at all, the Governor would thereby hardly be cut off from the exercise of this necessary and humane prerogative, conferred upon •him by the Constitution. The Legislature have the right to regulate the exercise of the power; to throw checks and guards around, it, perhaps, to prevent its abuse; blit theysurely have no right to deprive the Governor of the pardoning power, by neglecting to regulate it, or by passing laws to prohibit it.

The failure of the Legislature to regulate the exercise of the power, would be rather an indication of confidence in' the sound discretion of the executive, than of a disposition to deny to him the right of exercising this humane prerogative.

"We are of opinion, therefore, that the Governor has the power to remit fines under the provision of the Constitution above copied; and, until this power is regulated by law, may exercise it according to his own sound discretion.

The Governor having the power, under the Constitution, to remit the fine in this case, the act, declaring that such fines, when collected, shall be paid into the county treasury, of the proper county, for the use of schools in said county, (see. 48, ehcop. 145, Digest,) does not deprive tbe Governor of the power to remit them, as held in State vs. Simpson, 1 Bailey 378, and State vs. Williams, 1 Nott & McCord 26.

But, it is argued, by the counsel of the appellee, that the execution of the note sued on, for the amount of the fine, prior to the remission of it by Governor, and the delivery of the note to the treasuer of the county and ex officio treasurer of the school fund, was equivalent to a payment of the money into the treasury, and a return of it to Baldwin, as a loan, upon security, and that thereby the treasurer of the school fund acquired a vested right to the fine, which could not be divested by the pardoning power of the Governor.

• The plea alleges that Baldwin was convicted, fined $ 200, and ordered into the custody of the sheriff, until-the fine and costs were paid. That, in order to relieve himself from such custody, he made and delivered to the sheriff, the note in question, for the amount of the fine, including advance interest at ten per cent..for six months, and that, shortly after the execution of the note to the sheriff, the Governor remitted the fine. It does not appear, from the allegations in the plea, that the plaintiff, as county treasurer and ex officio treasurer of the school fund, accepted the note from the sheriff, in lieu of the money, but, in order to put this case in the strongest view for the plaintiff, let it be presumed, from the facts, that the note was made payable to him, and that he afterwards sued upon it, that he did accept it of the sheriff in lieu of money — was the execution of such note a payment of the judgment of the court for the fine ?

It is well settled that the sheriff had no discretion or power to receive any thing but money, in satisfaction of the judgment. Randolph vs. Ringgold et al., 5 Eng. R. 279, and cases there cited.

Had the judgment been in favor of, or the money going to, a private individual, he might have accepted, in satisfaction of it, a note, property, or any thing else, that would have answered bis purposes, and tbe sheriff, under his instructions, might have received such satisfaction.

But the judgment in this case, was not in favor of, or going to, an individual. It was in favor of the State, and the law declares that, when the money is collected, it shall be paid into the treasury of the proper county, for the use of schools in said county, (sec. 46, chap. 145, Digest,) and other acts provide for its employment in purposes of education .by the proper officers. See Acts of 1852, p. 149, sec. 19, c&c.

The sheriff had no right to receive any thing but money, in satisfaction of tne judgment, and the treasurer of Ouachita county, acting not in his private right, but as an officer, for the benefit of the public, had no authority, by law, to receive of the sheriff, anote in lieu of money — no matter whether he acted in the matter, as treasurer of the county, or treasurer of the school fund. The law provides for, nor recognizes any such transactions. See Rout vs. Feemster, 7 J. J. Marsh. 131.

If this court were to decide that, by agreement between the sheriffs and county treasurers, notes might-be taken in payment of fines, doubtless it would soon become a general practice for offenders, after conviction, to relieve .themselves from custody, by executing such notes ; and appeals to the sympathies of the officers might too often induce them to take insufficient security, to the detriment of the school fund and the public interest. However good the note may have been, in this instance, and with whatever good faith the officer may have acted in taking it, we know of no law to sanction it, and cannot indulge in liberal constructions to uphold a precedent which might be followed by bad consequences.

Holding the note not to have been a payment and satisfaction of the judgment, the fine, for which it was executed, had not passed beyond the pardoning power of the Governor; and the demurrer to the special plea of defendants should have been overruled. Rout vs. Feemster, ubi. sup.

Had the fine actually -been paid to the sheriff, in money, and the money paid over to the county treasurer, for the use of public schools, before the remission of it by the Governor, and had Baldwin brought an action to recover back the money, after the pardon, it might have become necessary, in such case, to decide whether the treasurer of the school fund, or the inhabitants of Ouachita county, had acquired any such vested right to the money before the pardon, as could not have been divested by it, but the view that we have taken of this case, renders it unnecessary, and perhaps, improper, to decide this question.

The judgment is reversed, and the cause remanded, with instructions to the court below to overrule the demurrer to the special plea, and that the plaintiff have leave to respond ovér, &c.


author: Mr. Justice Soott

text:
    Lemon’s Heirs vs. Rector et al.
    Tie hoirs or representatives of a deceased person, cannot, as a general rule, regularly maintain a bill in equity for the personal assets due to his estate, and which would descend to or be distributed to them — for the recovery of choses in action, an ad. ministrator or executor, only, can sue at law or in equity.

      Appeal from Pulaski Ci/rovAt Court m Cha/noery.

    The Hon. "William: H. Eeild, Circuit Judge.
    Fowler, for the appellant.
    Even where there is an executor or administrator, who will not sue, or assent for the distributees to sue for chattels, to which they are entitled, such distributees ma j file a bill in equity to enforce their rights. Thomas vs. White, 3 Htt. Rep. 180/ Wood/uoa/rd vs. Threlheld, 1 A. K. Ma/rsh Rep. 10/ Deatley, áse., vs. Mwphey, dke., il>. 480.
    A sole heir and distributee may recover possession of the estate, by suit, without an administration — the personal as well as real . — and where there are no debts, and.the entire balance of the estate has been long settled, as in this case, it would be an idle ceremony to take out letters of administration. Hyde vs. Stone, 7 Wend. Rep. 358/ Frazier vs. Wallace, 1 Rieha/rdson Eg. Rep. 23/ Dcmley vs. Edma/rds et al, 1 Arle. R. 437/ 4 Smedes <& Ma/rsh. Rep. 711/ 4 How. (Miss.) Rep. 458.
    BbetbaND and OubeaN, contra. ,
    We venture the assertion, that no case can be found authorizing the heirs to sue for the enforcement of a decree for money recovered by the administrator, or to enforce the collection of any chose in action. The cases cited from 7 Wend. 358, 1 Arh. 437, 4 8m. c& Ma/rsh. 71, and 4 How. (Miss.) 458, are suits by heirs for the recovery oí property. See the case oiDa/vis vs. Rhone, 1 MeGordls Oh. 191,195.
    The decree could be enforced only in the name of an ad. d. K n., (Dig., eh. 93, see. 20/ eh. 4, see. 37.
   Mr. Justice Soott

delivered the opinion of the Court.

The appellants allege, in their bill, that they are the heirs at law of James Lemon, who died may years ago. That, on the 28th of April, A. D. 1832, their ancestor filed his bill in chancery, against the appellees, (on whom process was served,) but died intestate before final decree. That, after his death, the cause was revived by Thomas Mathers, as administrator, and a final decree obtained for the sum of $250 principal, $127 interest then accrued, together with 6 per cent, interest from that date upon the principal sum, besides costs. That, soon afterwards, Mathers died, and J ames DeBaun succeeded him as administrator de horns non, an d the decree was revived, in his name, on the 25th of November, 1841. That a partof the money decreed was made under execution, and the balance remained unpaid at the time of the death of DeBaun, who has also departed this life. ' That, since the death of DeBaun, no person whomsoever lias administered on their ancestor’s estate, which, with the exception of the balance due upon the decree, was fully administered before DeBaun’s death, or was wasted by gross negligence of his several and successive administrators. That his debts and liabilities, however, were all fully paid and satisfied, so that the complainants, as his heirs and distributees, are, exclusively, entitled to the balance of the proceeds of this decree, and that the adult heirs at law are all non-residents of this State, and unable to give the security prerequisite for obtaining letters of administration. The prayer of the bill is for a decree enforcing the original decree in their own names, and for their own benefit. Noland demurred to the bill, and it was taken as confessed against the other two defendants. The demurrer was sustained, and the bill dismissed, and an appeal taken to this court.

It is a general rule of well settled law, that there can be, regularly, no suit for the recovery of the personal assets of an estate, but by the executor or administrator, who has the right to sue both at law and in equity.

This is in harmony with the doctrine, that the personalty does not, technically, descend like the fealty, but vests in the executor or administrator, for the payment of debts, and for distribution, under the provisions of the statute. Thus, the executor or administrator becomes a trustee for creditors and distributees, and this general rule makes him the only regular organ through whom their rights can be ascertained, when asserted by a suit, and the law requires the formality of an administration, as necessary for the security of these rights.

Special cases, however, have been allowed, both in England and in this country, which form exceptions to this rule. The most common of these, in England, were cases of bankruptcy, or insolvency of the executor, or of collusion by him with the debtor of the estate, or with any one who improperly withheld any of the personal assets. In this country, where bond and security are, in general, required, as a prerequisite for administration, it may be doubted -whether mere insolvency-or bankruptcy, where the executor or administrator lias complied with these terms, would now constitute such a case, unless coupled with some abuse of his trust, and even, in that case, the Probate Court, in this State, has ample power to afford the most prompt ánd complete remedy. Special cases, however, predicated upon collusion, are referable to the chancellor’s jurisdiction, in cases of fraud and trust; and, like fraud in general, collusion is not to be precisely defined, since it necessarily varies, in its aspect, with the circumstances of the almost infinite variety of cases, that might occur, in which it might be perceived. If to this general head of collusion, all abuses of the representative trust, whether active or passive, could be referred, it would embrace a very large proportion of thé special-eases that have been allowed, whether-at the suit of a creditor of the estate, or of a distributee, or whether to recover a chose in action or a personal chattel. But it would not embrace them all; because, in some few cases, where there is no pretence of abuse, personal property has been allowed to be recovered at the suit of the distributee, when the executor or administrator has, in express terms, given his assent, upon the idea that the property descended to the heir, sub modo, through the statute of distributions, and that the express assent of the executor or administrator, to the prosecution of-the suit, was analogous, and equivalent to the executor’s assent to a special legacy.

If these special cases are much indulged in this State, it is manifest that our administration system cannot fail to be seriously disturbed by them. And although presenting themselves in the specious-garb of simplicity and directness, their tendency will far more likely be to complicate and entangle both the rights of creditors and distributees, as well as the accounts of executors and administrators.

Policy will, perhaps, tolerate- a wider departure from the rule in cases of personal property, than of choses in action, for the double reason that the latter is more directly and emphatically a fund for tbe payment of debts than tbe former, and tbe rights, both of creditors and distributees, would be less jeopardised, because property could be more readily identified and reclaimed, when it might pass into improper bands, than money. But, in. ■either class of cases, tbe considerations we have urged strongly urge that tbe rule should be seldom relaxed.

“Whether, according to the weight of authority, the rule would be more readily relaxed in cases of personal property, than of choses in action, it is not necessary now to determine. It is sufficient to ascertain, whether it can be relaxed so much as to authorize us to sustain this bill. Its only material feature, to distinguish it from bills that might be filed by distributees in good faith, in a very great number of cases, soon after the death of the intestaté, is, that, from the lapse of time, which apjaears upon its face, the period fixed by our statute for the presentation of claims .■against the estate, has long since expired; and, hence, there is no ■probability that any claim now unknown, recoverable against the representative of an estate, can ever be, hereafter, brought to light. If this feature could be regarded as equivalent to the answer of an executor or administrator, admitting the truth of the allegations of a like bill filed against him, as a joint defendant with the ■debtor proceeded against, there might be found, in some of the special cases, that have been allowed, some precedents going to ■favor the idea that it might be retained as one of these; but it is impossible that'it can be so regarded, because, although no valid ■claim against the estate, recoverable against its representative, can in future be brought to light, that does not, in the least, sustain the allegation that the debts and liabilities, heretofore known, have all been paid and satisfied. So far as the rights of creditors are concerned, who may have heretofore had their claims allowed in the Probate Court, in the progress of the administration, there is no guaranty at all in a bill like this, where neither they themselves, nor any executor or administrator, are parties defendant, to call in question the truth of the allegations of the bill touching their interests; and hence, as to such rights the bill is, in substance, purely ex ypcvrte, the debtor proceeded, against being indifferent as to whom he may make payment under the sanction of the chancellor. And, aside from, this objection, in no case whatever should a recovery be allowed, although a regular executor or administrator might be a party defendant, unless upon the terms •that the money should be broiight into court, and then distributed according to the statute: .otherwise, there would be no security ' for the rights of distributees among themselves, especially for such of them as might be minors, as .some of those are in the case before us.

And no special case, where either a creditor or distributee has proceeded for the recovery of .a chose in action, has been cited, or is known to us, which comes up to the full support of this bill; while, on the other hand, besides the general considerations against it, which we have presented, there are authorities, both English and American, entitled to high respect, which repudiate it.

In the case of Humphry vs. Humphry, 3 P. Williams 347, which was a bill filed for an account of the personal estate, by the party entitled to it as distributee, and who had the right of administration, the Lord Chancellor sustained a demurrer to the bill upon the ground that it could not be maintained, even by such a partyf without administration actually taken out. And afterwards, upon application, leave was given to take out administration, and charge this by way of amendment.

The case of Bradford vs. Felder, 2 McCord's Ch. R. 170, was like it, and was disposed of in the same manner.

In the previous cases, in South Carolina, of Farley vs. Farley, 1 McCord’s Ch. Rep. 506, and of Forester vs. Forester, id. 325, where the whole subject seems to have been well considered, and the authorities fully examined, the bills werb dismissed, on the .ground that administration had not been taken out.

And, before “that time, in the case of Elder vs. Vanters, 4 Desau. Ch. Rep. 155, the chancellor had, upon the same ground of want of administration, in a case wheré a slave was in controversy, refused to permit the complainant to retain the slave, which he had bought from the nest of kin, though it was admitted that the debts were all paid, and although he held under a bill of sale, purporting to be for a valuable consideration, and had been in possession for ten years.

And these cases are all in harmony with the rule, that, in any proper case, where the chancellor may interpose, and restrain an executor from obtaining the possession of assets, and appoint a receiver to do so, the name of the ex.ecutor must, nevertheless, be used, and he will be compelled to allow it. Utterson vs. Muir, 2 Versey J. 98, and notes to Sumner’s Edition; Taylor vs. Allen, 2 Atkins Rep. 213.

There are two other reported cases, in South Carolina, subsequently decided- — -the one upon the authority of the other — apparently without any examination of authority, and without any reference to the cases we have mentioned, where the question was, whether or not the marital rights' of the husband had attached. The decision was to the effect that, when a feme sole, being the only dis-tributee, takes the possession of the- personal property, without any administration had, and subsequently marries, the marital rights of the husband attach to the property. In one of these cases, the chancellor said, “James hi. Spann was entitled to the administration in right of his wife. But to what purpose should he have administered? There were no debts to pay, and no distribution to make. Was it simply that he might get possession of his own rights ? That would have been going through a nugatory ceremony. Or, if any other person had administered, could the property have been recovered from him? No. By going into equity, and showing there was no debt, and that his wife was exclusively entitled, a recovery at law would have been restrained.” IJpon these observations, the reporter appends the following remark, in'a notej to wit: “If another administering, could recover the property at law from the husband, unless 'restrained by injunction, (which seems to be admitted,) does this not prove that the legal estate has- not vested in the husband; and, consequently, that the marital rights had not attached?” 1 Richardson's Eq. R. 23, Haiser vs. Wallace.

But, irrespective of the objection suggested in this note, the case is not a parallel one, to say nothing of its conflict, in principle, with the other cases cited from that State, because, in that case, the party was sole distributee, upon which circumstance stress is distinctly laid, while, in the case before us, after recovery, distribution among the several distributees would have to be made.

The other cases, cited in support of the bill, were all bills for the recovery of personal property, and not for choses in action, and may be referred either to the general head of collusion, in the comprehensive sense which we have suggested, or to the express assent of the executor or administrator.

By an act of our Legislature, passed in December, 1846, (Digest, eh. 4, p. 110, secs. 3 and 4,).providing that when one shall die, leaving a widow or children, and' an estate not exceeding in value the stun of three hundred dollars, that the Probate Court shall make an order vesting such estate absolutely in such widow, or children, there was the further provision that it should not be the duty of the .clerk or judge to issue letters of administration on the estates of any deceased persons, unless it should be necessary to preserve the same from waste or damage, or to protect the rights of creditors. But, these provisions can have no bearing upon the.principles of law we have been considering, unless it could be concluded that the Legislature 'designed, in this indirect way, to abolish the rule that the personal estate does not technically descend, but vests in the representative for the payment of debts and for distribution. Por which conclusion, there would seem to be but little foundation in these - provisions, manifestly designed only for particular cases, and to tolerate the want of administration in those particular cases, when the parties, in effect, agree to dispense with the aid of the law at their own peril.

Prom the refusal to entertain such bills as this, no possible hardship-chn arise, because, our statute has made, in its various enactments, the moát ample and complete provisions for all sucb cases; and there is, therefore,, less reason for admitting these special cases here than in England,, or some of the sister States.

We think that the decree of the court below, dismissing the bill, was correct, and that it ought to be affirmed.


author: Mr. Justice WalKER,

text:
    Wright vs. Morris, as ad.
    W. and T. entered into a contract, some time in the month of January, that Twas to oversee for W. that year, at the rates of five hundred dollars per annum: Held, That'this was not a special contract for a definite time, and at a feed price, the complete performance of which was a condition precedent to a right to compensation; and that the contract being- performed though, in some respects, differently from the terms of the agreement, indebitatus assumpsit will lie for such, compensation as the overseer is entitled to.
    A contract, that the overseer shall not cany a horse, or dogs upon the plantation of his employer, and if he does, that he shall forfeit his wages: the penalty is waived by the employer, if upon the horses and dogs being carried there, he agrees to receive compensation for keeping the horse, and merely requests that the dogs be taken off, instead of promptly discharging- the overseer.-
    A contract, under such employment, that the overseer shall make a “fair average crop," means that the crop should be a fair average one, making- due allowance for the season and unforeseen events beyond the control of a prudent, faithful overseer; and not that the crop shall be an average one, at all events.
    Upon ascertaining the compensation due, in such case, to the overseer, the jury may, in then- discretion, allow interest.

      Appeal from, the, Circuit Court of Lafayette Comity.

    Hod. SheltoN WatsoN, Circuit Judge.
    WatKINS & CubbaN, for the appellaut.

      S. H. Hempstead, contra.
   Mr. Justice WalKER,

delivered tbe opinion of tbe Court.

Josbua Morrison, tbe administrator of tbe estate of Tbomas Trulove, deceased, brought bis action in assumpsit, in tbe Lafayette Circuit Court, against Morehead "Wright, charging him in a common indebitatus count for services rendered by Tru-love, as overseer, for Wright.

From tbe evidence preserved upon tbe record in tbe bill of exceptions, tbe contract, under which tbe services were rendered, in tbe language of one, who was called to witness it, was, “That Trulove was to oversee for Wright that year, at tbe rates of five hundred dollars per annum. That Trulove was to malte a fair-average crop; and, if be failed to do this, be was to forfeit bis. wages. That be was not to carry dogs on tbe plantation of Wright, that year, and if be did, that be should forfeit bis wages. And also, that be would not carry a horse on tbe plantation, and if ha did, that be should forfeit bis wages.

It appears, from tbe evidence, that this contract was entered into some time during tbe month of January, 1841. Wright,, not long after this, left tbe State on a visit, leaving bis plantation to tbe management of Trulove, and did not return home until some time in October or November.

Tbe season for making a crop is shown to have been unusually bad. That Wright’s plantation is situated on Ned Niver, and although better protected from overflow than most of tbe farms on tbe river, that about one hundred acres of it was overflowed in April or May. Tbe crop, however, was re-planted by Trulove, and cultivated until some time after tbe crops were usually laid by. It was in evidence, also, that between 50 and 100 acres of tbe cotton crop were seriously injured by the worms.

In tbe Opinion of some of tbe witnesses, tbe crop was not well tended. One witness, who formed bis opinion from observations made as be passed by tbe plantation, thought tbe management of tbe farm bad, observed that the fields -were grassy, and thought the crop short or indifferent. Another witness, who was overseer on an adjoining plantation, stated, “that the year 1844 was abad year for making a crop, and that he thought Trulove made as good a crop as his neighbors generally did. That crops were not, generally, good that year.”

Other witnesses were examined, all of whom concurred in representing the season as unusually bad for making a crop, and that the crops were generally more indifferent that year than they usually were. There was also evidence that Trulove kept dogs and a horse on the farm, and hunted with them occasionally. That "Wright was apprised of this, and agreed with Trulove to receive compensation for keeping the horse, and requested Tru-love to send the dogs off, which he promised Wright he would do; and which, according to the statement of one of the witnesses, was done at the time agreed upon; but, by another, that the dogs remained until Wright discharged Trulove, which was soon after his return home, for the alleged cause that Trulove had broken his contract.

This is, in substance, the testimony upon the trial before the jury. Whereupon, the defendant moved the court to instruct the jury: “That if there was a special contract, the parties were bound by it, and that plaintiff could only recover by showing performance on his part, unless discharged by Wright without cause. That if Trulove violated his contract, he could not recover upon the contract, or otherwise.”

Which instructions the court refused to give; but instructed, in effect, that if there was a contract, the plaintiff should sue upon it, and could not recover in indebitatus assumpsit. But that if the defendant dismissed Trulove before his term of service expired, no matter whether for sufficient cause or not, the plaintiff was entitled to recover for the work done; and that if the defendant was injured by the misconduct of Trulove, they might assess the damages for such injury, and deduct it from the amount found to be due Trulove for bis wages, even tbougb it went to tbe whole amount thereof.

These instructions were, evidently, given under a misapprehension of the nature of the contract in this case. This was not a special contract for a definite time, and at a fixed price, the complete performance of-which was a condition precedent to a right to compensation. It was a contract to oversee at the rates of $500,. not for $500. There was no agreement as to the length of time Trulove'was to oversee; and the terms, which fix the rates, instead of a definite sum to be paid, tend to show that there was no time definitely agreed upon. From the nature of Trulove’s undertaking, it must necessarily have been intended that the engage-»ment should continue until after the crop was made. The contract was, in fact, to make a fair average crop. Upon that, depended Trulove’s right to any compensation whatever. "Where that was done, however, we apprehend that his right to demand compensation for his services at the rates agreed upon was perfect, and as it was not known, at4he time of making the contract, how long it would take to make it, it may be fairly inferred, that it was for this reason that the rates alone were agreed upon.- At all events, there is enough in the express agreement to repel- the1 idea that the services were intended to continue for a year.. For if it had been the understanding, it is presumed that they would have so expressed it, in terms equally easy to express, and more-significant of the real contract.

Under this view of the case, it becomes unnecessary to discuss the very intricate and doubtful'questions, which arise upqn special executory contracts, for the performance of labor, where the performance of the entire service is a condition precedent to the right to recover the sum agreed to be paid upon its performance. What acts or circumstances will amount to an excuse for the- non-performance of such conditions, or whether under any, or what circumstances, the party contracting to perform a condition precedent, may abandon his contract,- and sue in indebitatus assumpsit for the value of the services rendered under the contract and in part performance thereof, we are not now called upon to decide, •and in regard to which there are conflicting opinions by jurists •of distinguished ability. Thus, the Supreme^pourts of New York, Massachusetts, Alabama, and several others,' where the contract is entire and executory, hold that it must be declared upon; because, whilst in force, the parties are bound by it, and there is no ground for implying a promise upon which a recovery may be had in indebitatus assumpsit. Stark vs. Parker, 2 Pick. 275; Roberts vs. Brownrigg, 9 Ala. 108; Ladue vs. Seymor, 24 Wend. 60.

Opposed to these decisions, is 'the decision of the Supreme 'Court of New Hampshire, in the case of Britton vs. Turner, 6 New Hamp. Rep. 481, in which it is held that, even in case a •special contract should be voluntarily abandoned by the party, whose duty it was to perform services, which were a condition precedent to his right to compensation under the contract, yet still, if the party contracted with actually receives such services (although performed under, and in part performance of, such special contract), and thereby derives a benefit and advantage, over and above the damages, which have resulted from the breach of the contract by the other party, the labor actually done, and the value received, furnish a new consideration; and the law thereupon, raises a promise to pay, to the extent of the reasonable worth of such excess; for the recovery of which an action may be •sustained; not upon the contract, but in indebitatus assumpsit. It may also be remarked, that South Carolina and Mississippi would seem to favor the rule laid down in the case of Britton vs. Turner, when the contract is made with overseers for their services ; but the opinions of the courts in these States, are mainly predicated upon a custom or common understanding prevailing there in regard to overseers’ wages. 6 S. & M. Rep. 639; 4 McCord 246.

The state of case before us, may be considered as coming more properly under the rule in regard to executed, than executory contracts. Which is, that when the contract has been fully performed, according to'its terms, and in some cases where it has been performed, but, in some respects, differently from the terms of the agreement, as nothing further remains to be done, under the contract, on the part of the party thus performing it, a duty is raised, for which a' general indebitatus assumpsit will lie. 1 Watts & Serg. 304; 4 Blackf. 493; 4 Cow. 566.

Under these authorities, there can be no objection to the form of the action in this case, if the facts entitle the plaintiff to recover. The question then is, was this contract executed? Did Trulove make for Wright a fair average crop? If he did, he was entitled to recover the value of his services, rendered for the time he was employed, at the rates agreed upon. If not, he was, by his express agreement, entitled to no compensation whatever. There is certainly no illegality in the contract itself which forbids its enforcement.

The agreement, relating to the dogs and horse, when considered in connection with the testimony in regard to Trulove’s hahits, was evidently intended to remove from him temptations to misspend his time in hunting, for which he is said, by the witnesses, •to be passionately fond. Thus understood, these are minor con•siderations, but in any event, if, as appears in evidence, Wright agreed to receive from Trulove a compensation for keeping the horse, or upon finding the dogs there, instead of promptly discharging Trulove for a breach of contract, requested him to take them off the plantation, which Trulove agreed to do, and as, according to the testimony of one witness, was done, such acts amounted to a waiver of all objection to Trulove’s conduct in that respect. If it had been Wright’s intention to claim the penalty for the violation of his contract, it was his duty, at once, to have discharged Trulove, and not to have permited him to perform services upon the faith of payment under the contract.

We come now to consider the main question in the case, the making an average crop. And first: How shall we understand the terms “fair average crop?,” We cannot believe, that the crop •should be such, at all events, and notwithstanding the occurrence of events unusual in their occurrence, and over which the overseer could bave no control, even with, the most skilful and faithful conduct on his part: for this would have amounted to an express warranty, at all events. The negroes, the teams, and the farm were committed to the care and control of the overseer, for the purpose of making the crop, and as well might it be supposed, that there was a warranty against cholera, that might have swept off every negro from the farm’, as against unusual overflows: and yet, had the cholera visited the plantation and caused the death of the slaves, so as to prevent the cultivation of the crop, it could scarcely be said the overseer, who had demeaned himself well, should receive no compensation for his services, or that he ever intended, when contracting, to warrant a fair average crop under such circumstances. And, for the very same reason, he would not contract against overflow, or an extraordinarily bad season. But the obvious meaning of the parties must have been that the crop should be a fair average crop, making due allowance for the season, and unforeseen events, beyond the control of a prudent, faithful overseer.

Whether Trulove did this or not, was a question of fact, to be determined by the jury: and the extraordinary season,’and like circumstances before them in evidence, as well as the crop raised, and the conduct and deportment of Trulove, should be considered in determining the question. And, when so considered, if they should find that Trulove did make a fair average crop, the plaintiff was entitled to a verdict for the value of his services for the time he was employed. If not, then, under his contract, he was entitled to nothing. It is unnecessary to discuss the questions, which would arise in case Wright had turned Trulove off, before the crop was made, as the evidence clearly shows a different state of case.

Under this view of the case, it is evident that the Circuit Court correctly refused to give the instructions moved by the defendant; and that, although the court erred in the instruction given to the jury, inasmuch as the verdict is such as the jury might well have found, under the evidence, had proper instructions been given, it is evident that, if we were to reverse tbe judgment, and remand tbe case witb instructions to grant a new trial, under proper instructions, tbe same verdict, under tke evidence, might be sustained. Tbe motion for new trial presented this question broadly before tbe court below, and tbe rule, as repeatedly beld by this court, is that, although there may be error in tbe ruling of tbe court, upon some question of law, yet still, if such decision (although erroneous) did not tend to withhold material facts from their consideration, and if the verdict was correct in view of the whole case, and such as might have been rendered under proper instructions, it is not error, in the Circuit Court, to refuse to grant a new tidal.

The only other question is, whether the damages are excessive. It is true, that the amount of the verdict exceeds the amount due the plaintiff’s intestate for his services, for the time he was engaged at overseeing, at the rates agreed upon. But, allowing the plaintiff interest from the time the work wa¡3 completed, which (under the statute, Digest, eh. 90, see. 1, if they believed that there had been vexatious delay), they might in their discretion do, the verdict will be found to be less than might have been found. And that the jury did allow interest, in this case, there can be no doubt, upon comparing the amount of the verdict with the amount of the services rendered and the interest thereon.

Upon consideration of the whole case, we are of opinion that the Circuit Court did not err in refusing to grant a new trial. Judgment affirmed.


author: Mr. Chief Justice Eyglish

text:
    Clark et al. vs. Bales.
    The defendant will he made liable for trespass, if it is proved that he came in aid of tho person, who committed it, though he took no further part in it; and whore there are circumstances in proof, connecting- a defendant with the trespass, and the jury find a verdict against him, and the judge, who heard tho testimony, refuse to grant a new trial, this court will not disturb the verdict.
    "When a joint trespass is proved, the jury are to estimate the damages against all the defendants, according to the amount which they think the most culpable of tho defendants ought to pay : and whore tho trespass is an aggravated one, they are not confined to tho actual damage, hut may give exemplary damages.

      Quere: "Will the affidavit of a juror, after verdict rendered, that he was induced to consent to the verdict from a misapprehension of tho instruction of the court, ho admitted as cause for a now trial ?

      Writ of Error to the Circuit Gov/rt of Independence Comity.
    Hon. B. H. Neely, Circuit Judge.
    Pairohild, for the plaintiff.
    "W. Byres, contra.
   Mr. Chief Justice Eyglish

delivered the opinion of the Court.

Henry Bales brought an action of trespass, in the Independence Circuit Court, against Johnson Clark, John Clark, Sarah Clark, Jonathan Clark and Bobert A. Patterson, alleging, in the declaration, in substance, as follows:

1st. Count: That, on the 20th December, 1851, the defendants broke, and entered the close of the plaintiff, and drove away, and converted to their own use, a sow and nine shoats, of the value of $ 200, the property of the plaintiff.

2d. Count, for breaking and entering tbe close of tbe plaintiff, pulling down bis fence, and carrying away bis rails.

3d. Count: That tbe defendants seized, took, and drove away, tbe bogs of tbe plaintiff, to wit: one sow, and nine sboats, of tbe value of $200.

Tbe defendants pleaded not guilty, tbe case was submitted to a jury, and a verdict returned for tbe plaintiff, assessing bis damages at $ 10(5.

-Tbe defendants moved for a new trial, on tbe grounds following :

1st. Tbe damages assessed by tbe jury are excessive, and unwarranted by tbe evidence, and law of the case.

2d. Tbe verdict is against tbe evidence, and, entirely without, evidenee, as to defendant, Robert Ratterson.

3d. Tlie verdict was given on a misapprehension of tbe law of tbe case, as declared in tbe'affidavit of Jemes Ga/rson, one of tbe jurors.

4tk. Tbe verdict is against tbe law and evidence.

To support tbe motion for a new trial, tbe defendants filed the affidavit of Carson, one of tbe jurors, made before a justice of the peace, stating, that affiant misunderstood the charge of tbe court to tb e jury, in this: that be understood tbe judge to charge tbe jury, “that if they, by tbe law and testimony, find one of tbe defendants guilty of tbe charge alleged in tbe declaration, all must be so-found, and damages awarded accordingly, as to tbe parties charged, and that tbe jury bad no right, or power, under tbe instructions of tbe court, as understood by affiant, to discharge any one of tbe defendants, without discharging all of them — that be understood tbe court to charge, that if any one were guilty of tbe trespass, all were guilty, and that damages must be found against all, or all must be acquitted. That, under this misapprehension of said charge, as understood by affiant, be acquiesced in tbe verdict of tbe jury. That be now understands tbe charge of tbe court to have beelt, that tbe jury bad tbe right, under tbe law, to discharge one or more of tbe defendants in said cause, provided they believed tbe testimony, as to any one of tbe defendants, was deficient, and did not sustain tbe charge alleged as to him. or them. That, under such an understanding of tbe law and charge of tbe court, be could not, -under bis oath, as a juror in said cause, have consented to tbe verdict rendered, and, under such state of facts, be mates this affidavit.”

Tbe corn’t overruled tbe motion for a new trial; tbe defendants excepted, toot a bill of exceptions setting out tbe evidence, and brought error.

Tbe substance of tbe testimony, as it appears in tbe bill of exceptions, is as follows:

B. Henderson, a witness for tbe plaintiff, testified that be lived in tbe neighborhood of tbe parties to tbe suit; that, in December, 1851, a short time before tbe commencement of tbe suit, be was at tbe bouse of plaintiff, who lived upon an improvement upon tbe public land, which be bad bought and claimed —the improvement consisted of a log-house, field, a lot around a stable and corn crib, and a bog-pen in tbe yard. Tbe plaintiff bad a large spotted sow, which be bought a year before that time, of one Henderson. Witness knew tbe sow well, when Henderson owned her, and saw her frequently in tbe plaintiff’s possession, after be bought her of Henderson; and after which, she bad nine pigs, which, in December, 1851, were quite large shoats. Plaintiff, at that time, bad bad tbe sow up in a pen, fattening for bis pork — tbe shoats were running about tbe yard, stable and crib. When witness went to plaintiff’s bouse, as above stated, be was told that tbe sow bad been let out of tbe pen, tbe night before, by some person, and that tbe Ciarles bad driven her, and a part of tbe shoats, off, that morning; and, while witness was there, Jaoleson Glm% and two or three of tbe sons of tbe defendant, Johnson Clark; and Jonathan Ciarle and Bobert A. Patterson, came up to tbe plaintiff’s bouse, and said they were going to drive off tbe balance of tbe shoats. Plaintiff told them not to do so- — that they could not drive or take them away, without legal antboi’ity. Jaclcson Ciarle replied that be bad authority enough. — that they were Ms mother’s hogs (Scvrcch Glcvrk, one of the defendants,) and that he would take them; and he, and Jonathan Olark, and the sons of Johnson Clark, commenced driving them off, against the order-of plaintiff, and, to get them away, they had to run some of them into the hog-pen, and catch them; and that they drove them off, and took them to said Sarah Clark’s. Witness did not not recollect of seeing JBobert A. Patterson doing any thing particular about said hogs, only he come with the others, and went away with them. Before they could get the skoats away, they had to run them around in the yard and lot of plaintiff, &c.

Witness was at the house of plaintiff, some eight or ten days before this; and Jolmson Glcvrk and John Glcvrk, two of the defendants, came there, and said the sow and shoats belonged to their mother, or the estate of James Clark, deceased' — witness did not remember which, and that they would have them. Plaintiff told them they could not have them without legal authority ; and they said they had authority enough. On the next day, after the hogs were taken, as aforesaid, plaintiff got the constable, and a writ to take the hogs, and the plaintiff, the constable, and witness and some others, went to Mrs. Sarah Clark’s, one of the defendants, and mother of the defendants, Johnson Glcvrk, John, Glcvrk, and Ja/natha/n Glcvrk, and there found said sow and pigs in a pen. The defendants, Johnson Olark, John Glcvrk and Jonathan Olark, were there. The constable and plaintiff demanded the hogs, and the said Johnson and John came out to the pen, and told the constable and the plaintiff not to take the hogs. The constable told them his writ commanded him take them; and Johnson Olark told him if he attempted to lay down the pen, and take the hogs, if he were to knock him in the head and kill him, he could not be hurt for it. The constable and the plaintiff did not take the hogs. Witness passed there on the next day and saw the hogs — 'they had all been killed. Did not see who killed them — 'they were killed and dressed, but witness knew them., "Witness tbongbt the sow and sboats were worth about $20 — were worth from $15 to $25.

James W. Henderson, witness for plaintiff, testified, that he was one of the executors of James Clark, deceased, the husband of Sarah Clark, and father of said Jolmson, John, and Jonathan Ciarle; and that Robert A. Patterson, the other defendant, was a son-in-law of said Jolmson Cla/rle,. That, at a sale of the personal property of said James Ciarle, deceased, by his executors, the sow in question was sold, as part of his estate, purchased, and paid for, by one Jolm P. Henderson, who afterwards sold her to the plaintiff.

Holland, witness for plaintiff, was with the constable when he went to Mrs. Clark’s to demand the hogs for the plaintiff, and as to what occurred there, at that time, testified substantially as the witness Beiyjamvn P. Henderson. He also saw the hogs at Mrs. Piarle's, after they were killed.

Jaeleson Ciarle, witness for the defendants, testified, that one of the hogs running out was not sold at the executor’s sale; and that his mother Sarah Cla/rle, claimed the sow and pigs which plaintiff had in possession, and asked witness to go and get them for her. She told Johnson Clark’s children to help witness drive them to her house. Johnson Ciarle was not present, and witness never heard him give the children any directions about the matter. Early in the morning, Sarah Ciarle, witness, the children of Johnson Ciarle, and Jonathan Ciarle, went up to the plaintiff’s house, which was about a quarter of a mile from the house of the mother of the witness, to get the said sow and shoats, and found them near the house, running out near the road. The plaintiff forbid their taking them, but Mrs. Clark said they were hers, and told.,witness to drive them home; and she, Jonatha/n, Johnson’s children, and witness, attempted to drive them to Mrs. Clark’s, and did drive the sow and a part of the shoats, but a part of the shoats they did not get that time; but Jonathan, Robert A. Patterson, and Jolmson’s children, returned to the plaintiff’s, and witness, Jonatha/n and Jolmson’s boys, drove the balance of them to Mrs. Clark’s, said Kobert A. Patterson, returning with them. Tliey put them all in a pen at Mrs. Clark’s, and witness afterwards killed and dressed them for bis mother, at her direction. Neither John nor Johnson Clark was present when the hogs were killed, nor had any thing to do with the killing of them. Neither of them was present when the hogs were taken from the plaintiff. They were both present, however, when the constable and plaintiff came to Mrs. Clark’s after the hogs.

The counsel of the plaintiffs in error, has not claimed, in his brief, that the court below should have regarded, or granted a new trial tipon the affidavit of the juror, Carson, stating that he agreed to the verdict under a misapprehensien of the charge of the court. It need only be remarked, therefore, on this point, that we are inclined to place this affidavit with the class held to be inadmissible in Pleasants vs. Heard; and, even if allowed, the court below could best judge whether its charge was given in terms likely to mislead the juror, or whether the affidavit was not without just foundation. The charge of the court is not put upon the record, and we have no means of determining whether the .juror could, have mistaken it.

It is urged, by the counsel for the plaintiffs in error, that a new trial should have been granted, because there was no evidence to sustain the verdict, as against the defendant Patterson, and that the damages assessed were excessive.

The proof is clear that the hogs belonged to the plaintiff, that they were driven from his premises to Mrs. Clark’s, and killed.

The defendants, John and Johnson Clark, were not present, it ■seems, when the hogs were driven off, nor when they were killed, but they were at Mrs. Clark’s, when the plaintiff and constable went there for the hogs, and forbid their taking them from the pen. The defendant, Patterson, was the son-in-law of Johnson Clark, whose mother claimed the hogs. He went to the house ■of the plaintiff, it appears, with Jonathan Clark, and Johnson Clark’s children; was present when they were chasing a portion of the hogs about the premises, and returned with them to Mrs. Clark’s, where they drove and penned the hogs.

The defendant will be made liable for a trespass, if it is proved that he came in aid of the person who committed it, though he took no further part in it. 3 Phill. Ev. 187.

It cannot be said that there was a total want of evidence to sustain the verdict as against any one of the defendants; and it was the peculiar province of the jury to pass upon the importance to be attached to the circumstances connecting each, and all of the defendants, with the trespass upon the property of the plaintiff, as detailed in evidence, in making up their verdict. Upon these circumstances they found all of the defendants guilty of a common cause; and the judge, who also heard the testimony of the witnesses, refused to set their verdict aside. We shall not, therefore, disturb it. See Drennen vs. Brown, 5 Eng. R. 138; Bowen vs. Cook, ib. 309; Hubbard vs. State, ib. 378; Spratt et al. vs. Vaughan, &c., Ib. 474; State Bank vs. Wooddy et al., ib. 638; Bivens vs. State, 6 Eng. R. 455; Sparks vs. Beaver, ib. 630; Mains vs. State, 13 Ark. R. 285; Funkhouser and wife vs. Pogue, ib. 295; Hendrix vs. Sharp, ib. 306.

Nor are we disposed to set aside the verdict on the grounds of excessive damages.

When a joint trespass is proved, the jury are to estimate the damages against all the defendants, according to the amount which they think the most culpable of the defendants ought to pay. 3 Phill. Ev.

The trespass in this case, was rather a flagrant one. The plaintiff’s premises were invaded, his close broken, entered, his hogs driven off, killed and converted; and on the trial, the defendants proved no color of title to the property. True, the value of the hogs was proven not to exceed $25, but the jury were not confined exclusively to the value of the hogs, in determining the amount of damages to be awarded the plaintiff. They had the right to take into consideration the invasion of the plaintiff’s premises, the' •■vexation to his feeling, the inconvenience to him arising from the deprivation of his property, as well .as its value, and then to add something by way of “ smart money,” or exemplary damages.

Under all the circumstances of this case, we cannot conclude, that the verdict for one hundred dollars, was so exorbitant as to indicate corruption, or bad faith on the part of the jury, and shall not therefore, disturb it. See Major vs. Pulliam, 3 Dana 582; Wort vs. Jenkins, 14 John, R. 352; 3 Starkie Ev. 1451. The judgment is affirmed.