author: Mr. Justice "WalKek

text:
    McMechan vs. Hoyt.
    The defendant in attachment pleaded in abatement, that the plaintiff did not file an attachment bond before suing out his writ; the plaintiff replied, setting out a bond purporting to be executed byS. and 0., the defendant rejoined that the bond was not the deed of said 0.: the proof showed that the bond was the deed of C. alone, but sufficient to indemnify the defendant: Held, That the true issue was, whether a good and sufficient bond had been filed, and not whether it was the bond of S. and C.

      Appeal from the Sebasticm Ovreuit Gov/rt.

    Hon. Felix J. BatsoN, Circuit Judge.
    S. F. ClaeK, for appellant.
    One responsible obligor to the bond is sufficient — the statute does not require two. See Digest, eh. 17, see. o; and a bond is good, executed by securities alone. See Taylor vs. Richards, 4 Eng. 378. The substance of the issue, viz: the sufficiency of the bond, was therefore sustained oy proof of its execution, by one of the obligors; even if the rejoinder was good without being sworn to. But it was objected tbat tbe issue upon tbe traverse of tbe rejoinder excluded such proof, and made it obligatory upon tbe plaintiff to prove its execution bj both tbe obligors; and such was tbe decision of tbe court below; for tbe proof shows, conclusively, tbat tbe bond was executed by one of the obligors, and that he was abundantly responsible. "Whether tbe issue could have been found in accordance with tbe proof, or not, tbe judgment of tbe court was erroneous; for if it could, tbe judgment ought to have been for tbe plaintiff upon tbe evidence, and if not, then it ought, to have been tbat tbe parties replead.
   Mr. Justice "WalKek

delivered tbe opinion of tbe Court.

This is an action of assumpsit by attachment. Tbe defendant pleaded in abatement of tbe suit, tbat it was brought without first having filed a bond to indemnify the defendant against loss or damage, by reason of suing out the writ of attachment, as required by statute. To which, tbe plaintiff filed three replications : tbe first and third of which were stricken out. Tbe second replication set forth a penal bond, conditioned as required by the statute, purporting to be executed by James P. Spring, and Solomon P. Clark, as securities for the plaintiff, and averring tbat it was their deed, accepted and filed by the clerk, before tbe writ issued, and tbat such securities were solvent, and well able to pay tbe penalty of tbe bond, or any damages that might accrue to the defendant by reason of a breach of the conditions thereof. >

To this replication, tbe defendant rejoined, tbat tbe bond set forth in plaintiff’s replication, was net tbe deed of said Clark & Spring, and concluded to tbe country. Tbe issue thus made, was submitted to tbe court, by consent of parties, sitting as a jury, upon tbe following evidence :

Plaintiff offered to read a paper, purporting to be the bond of Clark & Spring, and which in all respects, appeared to be a good statute bond, filed in proper time; but tbe defendant objected to tbe reading of tbe bond, as evidence, until tbe execution thereof was proven. Which motion, the court sustained; and, thereupon, the plaintiff introduced James P. Spring as a witness, who testified, that tbe names of Solomon F. Clark, and James P. Spring, subscribed to the bond, were in the bandwriting of the said Clark; that witness and Clark were partners in tbe practice of law: that he, witness, had given Clark permission to subscribe bis name to attachment bonds, whenever be saw fit, and that be and Clark were in the habit of signing each other’s names to such bonds. That witness and Clark were attorneys in tbe case, and prosecuting tbe suit. That first before tbe suit was commenced, Clark bad stated to witness that this suit was about to be commenced, and that it would be necessary for witness and himself to become bound in such bond, as securities for the plaintiff, and that witness then gave Clark full, express, and legal authority to execute the bond and sign bis name to it. That he, witness, was not present when the bond was executed and filed in the clerk’s office, nor did be see the bond until some time after; that be, at all times since, and yet does recognize it as bis bond, executed in pursuance of tbe authority given to .Clark. That witness and Clark were always abundantly sufficient securities in the bond, and responsible for the whole amount of the penalty of tbe bond: and that Clark alone was abundantly sufficient and responsible for the amount of the penalty of the bond.

Upon this evidence, the Circuit Court decided, that the bond was not tbe deed of Clark & Spring; and, therefore, that the bond could not be received in evidence, and disregarding the same, adjudged that the writ be quashed, and that defendant go hence, with costs, &c.

The plaintiff moved for a new trial, which was overruled; and, thereupon, excepted.

The Circuit Court seems to have decided against the plaintiff upon tbe ground, that inasmuch as the plaintiff bad replied and set up a bond executed by both Spring & Clark, and as tbe defendant bad rejoined, denying the execution of the bond by' them, it devolved upon the plaintiff to produce, and prove, a bond executed by both of them, 40 sustain the issue on their part; and because, in the opinion of the Court, whilst there was abundant and clear proof that it was the deed of Clark, and that he, without Spring, was amply sufficient security, the proof was not sufficient to prove the execution of the bond by Spring also; and, for that reason, that the bond was inadmissible under the issue. In this, we think the Circuit Court was mistaken. The defence was, that the plaintiff had filed no sufficient bond before suing out his writ of attachment. Whether those executing the bond were many or few, or whether, by principal and securities, or by securities alone, was wholly immaterial, if the security was sufficient. Taylor vs. Hoffman, 5 Eng. The sufficiency of the bond, the valid security, was the substance of the matter. And it is very well settled, that in a suit upon the bond, even if it had turned out upon an issue upon a plea of non est faotv/m, by one or more of the defendants, that it was not their deed, and that they were not bound by it; still, judgment in their favor, upon such issue, would not discharge the other defendants. Such was the express decision of this court in Ferguson et al. vs. Bank, 6 Eng. 512. Our statute placing joint contracts, and joint and several contracts, upon the same footing, has changed the common law rule, and makes joint contractors severally liable. If, then, upon a direct suit upon this bond, declaring upon it as the deed of all the parties, the proof, in this case, would have been sufficient to entitle the plaintiff to recover against Clark, and he is shown to be good, can it be said that the same evidence is not sufficient in this case to prove that there was a valid, sufficient bond filed before suit brought? We think not.

When the defendant complained that no bond had been filed, as required by statute, the plaintiff replied that such bond had been filed, and set it forth. The defendant was therefore left no alternative, but to take issue upon the replication, and that, too, according to the defence set up by himself. From that, he could not depart. The true issue was, bond or no bond, and not whether it was executed by Clark & Spring, or by Clark alone. The same strictness in describing the instrument, if sued upon, is not required in replying to a plea, denying the existence of a bond; because, the reasons, which require such strictness, do not apply. The question of former recovery can never arise; but, even if tested by the strictest rules of pleading, the evidence would still have been sufficient; because, the number of the securities in this instance, was not a material matter in the issue.

It is laid down by Ci-iitty, (Pleadings, vol. 1, ¶. 685,) that if the plaintiff vary in his replication from his count, or the defendant in his rejoinder from his plea, in time, place, or other matter, when immaterial, it is not a departure. As if, in a declaration, a promise be stated to have been made twenty years ago, and when the defendant pleads the statute of limitations, the plaintiff replies that the defendant did undertake within six years, it was held not to be a departure; because, in the case stated, time in the declaration was immaterial. So, in the case of a deed, or other instrument, the plaintiff may reply or show in evidence, that it was really made on a day different from the day of the date. And so in this case the whole scope of the rejoinder was to put in issue the existence of a valid statute bond, filed before the writ of attachment issued; and, if such was not its effect, then it tendered an immaterial issue, which, when found by the verdict of the court, would not determine the merits of the controversy, and would leave the court at a loss for which of the parties to give judgment. See 1 OhiM-i/s Pleadings 692.

The rejoinoder put in issue the existence of a sufficient bond. It denied that Clark & Spring executed such a bond. If the bond of either of them, and sufficient, it was a sufficient bond, and the plaintiff sustained the issue on his part. See 1 Saunders Rep. 312, note 5; Cobb vs. Byrne, 3 Bos. & Pul. 348. The case, when thus considered, presents no difficulty. The issue was fully sustained by the proof, because, although not the bond of both Clark & Spring, it was the bond of Clark; and being formal, and approved by the clerk, and filed in proper time, and he being solvent, and of himself sufficient security, the court should have permitted the bond to be read in ^vidence ; and, under the evidence, there can be no doubt, but that the decision and judgment of the court should have been for the plaintiff.

The Circuit Court, therefore, erred in refusing to set aside the verdict and finding of the court, and to grant the plaintiff a new trial; and, for this error, the judgment must be reversed, and the cause remanded, with instructions to grant a new trial to the plaintiff; and for father proceedings to be had, according to law, and not inconsistent with the opinion herein delivered.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Bizzell vs. Booker et al.
    It; is a general rule, that where a party is doing an illegal act, he is liable to other persons injured thereby, regardless of intention to do the injury, or- care manifested to avoid it.
    Persons encamping and hunting upon the public lands, in a “wilderness” district, are not guilty of such an illegal, mischievous, or wanton act, as would render them liable, at all events, for any injury that may result therefrom to others, regardless of any diligence, care, or prudence, on their part, to prevent such injury.
    Where one is doing a lawful act — or an act not mischievous, rash, reckless, or foolish, and naturally liable to result in injury to others — he is not responsible for damages resulting therefrom by accident or casualty, while he is in the exercise of such care and caution as a prudent man would observe, under the circumstances surrounding him, to avoid injury to others; .but he is answerable for damages resulting from negligence, or a want of such care and caution on his part.
    If parlies fire-hunting, or encamped in the woods or prairies, covered with combustible matter, suffer or permit, otherwise than in consequence of unavoidable accident which,

      could not 6e prevented ly proper care, the fire to communicate to such combnstillo matter, they are liable for all propertj^Jestroyed thereby. •
    If the parties in such case are not guilty of negligence, they are not responsible for the property destroyed: but it is error to instruct the jury that they are not liable if they used ordinary diligence.

    A party is entitled to have the jury pass upon the facts with a correct understanding of the law applicable to them: and, where this is not done, and the jury might, if correctly instructed as to the law, have rendered a different verdict, this court will award a new trial.

      Writ of Error to the Circuit Court of Sevier County.

    Hon. SheltoN Watson, Circuit Judge.
    Pike & Cummins, for the plaintiff.
    This case is **as strong against the defendants as any of those cited below:
    1st. Because the parties were doing an illegal act in encamping upon and making a camp and raising a fire on government land, (as is presumable,) or, at all events, upon other than their own lands : or, were doing a voluntary, unnecessary act, liable to result in injury to plaintiff or others, which inlaw would place them in the same position as if the act were illegal; and, at all events, imposed on them the duty of exercising the utmost diligence and care — extraordinary diligence to prevent injury. -
    2d. Because they chose to use a dangerous element, in a place where it was almost impossible to prevent injury: and this, of itself, imposed the duty of exercising extraordinary care. Chu~ ley vs. Thompson, 3 Sew Samp. 1; Beclcwith vs. ShorcUlce cSi Hatch, 4 Burr. 2092; Dixon vs. Bell, 5 Maulé & Selw. 198 ; Michael vs. Mestree, 2 Lev. 172; Rush vs. .Stieman, 1 Bos. db Pttl. 404; Smith vs. Pelah, Str. 1264; Gregory vs. Piper, 9 B. db C. 591; 3 Kent 229, 230, 231; Yandenlwrg vs. Truax, 4 Denio 464; Gaadner vs. Heartt, 3 Denio 166; Underwood vs. Sewson, 1 Str. 596; Cole vs. Fisher, 11 Mass 137; Moreton vs. Harda/n et al., 4 B. db C. 223; Harlow vs. Sumisión, 6 Cowen 189; 17 Cond. Rep. 288,402; Knight vs. Abut, 6 Perm. State Rep. 472;
      %al/ph. vs. Ferris, 7 WoMs <& Serg. 367; Wakemanvs. Robinson, 1 213/ Vincent vs. StinelMm, 7 Verm. 62.

      We know of no law forbidding fire-bunting, in any manner, or punishing a man for either the act of hunting, or any act connected with it. The above authorities give the reason. If not punishable, it is illegal, by the common law, and upon principles of general morals and policy, for a party to do any act (not impelled thereto by express commands of the law, or duty, or force,) which may result in injury to others. Hunting at all, or camping in the woods for the purpose, falls within the same principle.
    The degree of diligence necessary to free a party from liability, even in discharge of legal duties, varies according to the facts of the case. Tor instance, a person doing business in a cotton gin, or powder magazine, should use extraordinary diligence and prudence, if it were necessary to use fire therein.
    Could a person make any excuse at all, whore he carried fire into such a place merely for sport and amusement? Could he say he used the care usual with those who were compelled to use lire therein? The court would assuredly hear nothing from such party, but the excuse of some extraordinary and unavoidable force, or unusual accident over which he had no control' — as some force by which the lire was driven into the combustible matter.
    From these cases, we insist it is clear that the second instruction asked on the part of plaintiff below, ought to have been given. Indeed, it was not so strong for the plaintiff as the law would have warranted. We doubt whether, as the parties were in the woods unnecessarily with a camp - fire, if the wind or a storm had driven the fire an unusual distance, and the destruction of property was the result, the parties could have set that up as an excuse. But the instruction did not go that length. It gave defendants the full benefit of all unavoidable accidents.
    The third instructions of defendants differ, very immaterially, from each other. They all amount to this: that if defendants used ordinary diligence to prevent injury, defendants were excused. This is in direct conflict with plaintiff’s second instruction. But if ¡there were no conflict, the instructions given for defendants were not the law of the case.
    CuRRAN & Gallagiieb, for the defendants.
    In the first place, the instruction asked for by the plaintiff, and refused by the court, was, in itself, contradictory, and calculated to mislead the jury. It first sets out with the assertion that defendants were liable, unless the destruction of the cotton was by “ unavoidable accident,” and then continues, “ which could not be prevented by proper carey Now, unavoidable accident is one that cannot be guarded against by the utmost or most extrordinary diligence or care ; whereas, proper care would of course be such care as a prudent man would use in preserving his own property, and by which his property could be saved from destruction ; and proper care in itself only means ordinary diligence, as fully defined by Stobt in his Treatise on Bailments, sec. 11, et seq.; and the court thereupon had a right to refuse the same, for, inasmuch as the said instruction was, to say the least, bad in part and contradictory, even admitting that it was good in part, yet it was no error in the court íefusing to give the same. Vide Stanton vs. The State, 13 Ark. Bep. 317. In fine, the whole case turns upon the point, whether the defendants, by being engaged in hunting, were doing an unlawful act, (i.e., were trespassers upon the public lands of the United States, as alleged by plaintiffs,) and whether, under the facts of the case, defendants were bound to use more than ordinary diligence. In the first place, there is no evidence that the land upon which defendants encamped belonged to the United States, or was not the property of the defendants, at all events, it was unenclosed wild land; and, therefore, no matter if the same had htfeig been the property of the plaintiff, (which was not the case,) the defendants would not have been trespassers by merely camping on the same, as the case of Knight vs. Alert, 6 Pen. State Pep. 472, referred to in plaintiff’s brief, sufficiently proves.
    But admitting, for the sake of argument, that the lands upon which the defendants encamped, were public lands of the United States, and that defendants were engaged in bunting, was it an unlawful act on their part ? Clearly not. And all that was required on their part, was to prevent any injury to others by their want of diligence or care.
    But what degree of diligence or care should be taken by them to prevent the fire they have made from spreading and injuring other persons’ property ? We maintain that they were only bound to use ordinary diligence or care, such as a prudent person would use to protect his own property. At this point, the questions naturally arise, what constitutes orclina/ry cdUgenee, and by what rules are we to be governed in coming to the conclusion whether it has been used or not? “Common or ordinary diligence, is that degree of diligence which men in general exert in respect to their own concerns. It may be said to be the common prudence which men of business and heads of families'usually exhibit in affairs which are interesting to them. And, in every community, it must be judged of by the actual state of society, the habits of business, the general usages of life, and the dangers as well as the institutions peculiar to the age.” Story on Sediments, page 15, see. 11. “So that it may happen that the same acts which, in one country, or in one age, may be deemed negligent acts, may, at another time, or in another country, be justly deemed an exercise of ordinary diligence.” Ib.,p. 16, see. 13.
    This is the true rule by which we are to be guided, and by applying this rule to the cases cited by the opposite party, the position we assume will, we think, appear clear, and perfectly tenable.
    In conclusion, we think that unless the position assumed by the opposing counsel is a true and tenable one, to wit: That the defendants were doing an illegal act by camp - huntings•there is not a shadow of a reason why the second instruction prayed for by them and refused, should have been given, and we submit that we have fully shown the fallacy of said position. That a person may be liable for an act committed in one locality or place, when he would not be liable for the same act when committed by him in another place, we have shown to be the law. Thus, the throwing- of a lighted squib in the midst of a crowd of persons, the firing off a gun near a public highway, the sending of ungovernable horses to be broken in a public place, where people are constantly passing to and fro on business, and other cases cited by plaintiffs, were all cases that showed in the person who caused the damage to be done, such a disregard of the life, safety, or personal security of others as made him, in the eyes of the law, a wilful tort - feasor, or as guilty of such gross negligence, as to be almost equivalent thereto, and from the locality and publicity of the place, the person must have known at the time, that there was every probability that some accident would happen through his agency, which knowledge would be calculated to make any prudent man refrain from doing the same; but, in the present case, the defendants were encamped a long distance from the cotton, a creek of running water was between them, and there was nothing in the fact of their encamping and building a fire where they did, to denote that there was any probability that the fire would spread and consume the cotton/ or to excite sueh a suspicion in the breast of a prudent man. We think the said second instruction of plaintiffs was properly refuse^ , and, if so, the in - structions prayed on the part of the defendants, were properly given.
    Fowleb, also, for defendants.
    The refusal of,the plaintiff’s instruction complained of, was no error, but a proper exercise of duty. As a whole, it is utterly unintelligible; and perhaps no two of the jury would have put the same construction upon it. For this reason alone, it was properly refused. It was, therefore,. well calculated not only to mislead, but to confuse the jury: and it is never error to refuse such instructions. See Andrews vs. Pond, 13 Pet. Rep. 80/ Poe ex. vs. Ring's heirs, 3 How. (Miss.) Rep. 143/ Samuel vs. Ormens, 10 Arfe. Rep. 396.
    The defendants’ instructions moved and given, are strictly consistent with both law and reason; but even were it true that the action of tbe court, in refusing plaintiff’s instructions, and giving tboso of the appellees, might be subject to verbal or technical criticism, yet, as the jury could not properly have given any other verdict, and as the verdict and judgment are clearly right, upon the whole record, they should not be disturbed. See Newman vs. Lawless, 0 llisso. Rep. 302; Fimwy vs. Allen, 7 ib. 419; Vwily vs. Qa/mpbell, S ib. 327; ¡Scmders vs. Johnson, 1 Bibb. Rep. 322; Joice vs. Handley, 3 ib. 220; Elliott vs. Bowler, 1 Litt. Rep. 202; ■Qla/rle vs. Boyd, G Mon. Rep. 295; Morton vs. Lawson, 1 Ben Monroe Rep. 40; The State vs. Lcmson, 14 Arle. Rep. 122; Gibbons vs. Dillingham,, 10 Arle. Rep. 17.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was an action of trespass on the case, brought by 'William II. Bizzell, in the Sevier Circuit Court, against Paul 17. Booker, John W. Jones, James II. Walker, jr., and James E. Johnson.

There are eleven counts in the declaration, charging substantially, with variations of form, that on the 9th of November, 1851, the plaintiff was the owner of thirteen bales of cotton, which were deposited under a shed, at Shaw’s Landing, on Bed Biver, in Se-vier county, waiting for a rise in the river, so that they could be shipped to New Orleans for sale. That the defendants knowing' that the cotton was thus stored, on the 5th of November, camped in the woods adjacent to the shed, for the purpose of hunting, and by improper, careless, and negligent management of their camp-fire, fire-pans, and fire-arms, set the woods on fire, which burned up to the shed, fired and consumed the plaintiff’s cotton, which was of the value of $40 per bale.

The cause was submitted to a j ary upon the general issue, and verdict for defendants. No motion for a new trial was made, but the plaintiff brought up the case on exceptions to the charge given by the court to the jury.

It appears from the bill of exceptions, that the plaintiff asked the court for the following instructions to the jury:

1st. That parties, who purposely or negligently set fire to the woods, prairies, or open lands, whether the soil be public or private property, are responsible for the natural consequences produced by such fire, and the destruction of all property caused thereby.

2d. That if parties fire - hunting, or encamped in the woods or prairies, covered with combustible matter, suffer or permit, otherwise than in consequence of unavoidable accident, which could not be prevented by proper care, the fire to communicate to such combustible matter, they are liable for all property destroyed thereby.

3d. That the jury might find any one or more of the defendants guilty, and assess entire damages, and others not guilty.

Two other instructions were asked by the plaintiff, about which there is no controversy here.

The court gave all the instructions moved by the plaintiff, except the second.

At the instance of the defendants, the court instructed the jury as follows:

1st. “That unless the jury believe, from the evidence, that defendants were guilty of negligence, even though the cotton was burned by the fire that started from their camp, they are bound by law to find for the defendants.

2d. That it was not unlawful for defendants to be engaged in hunting, and that if the jury believe they used ordinary diligence to prevent injury to others, and were not guilty of negligence, they must find a verdict for defendants.

3d. The plaintiff must prove, in order to maintain his action, that the burning of the cotton was caused by the negligence and improper conduct of the defendants.”

The plaintiff excepted to the refusal of the court to give the .second instruction asked by him, and to the giving of each and all of those moved by the defendants.

The evidence introduced upon the trial, is set out in the bill of exceptions, but it need not be noticed, further than is necessary to determine whether the instructions in question, if found to be law, were applicable. There being no motion for a new trial, the correctness of the verdict is not impeached. The plaintiff complains only of the action of the court in settling the law of the case for the jury.

The plaintiff introduced evidence conducing to prove his title to the cotton, and its value. That Shaw’s Landing, where the cotton was deposited under a shed, was a public landing, and the usual place of shipment for the neighborhood. The shed was among the forest trees, without enclosure or clearing about it. The ground was covered with dry leaves, grass, &c., extending up to the cotton, and the cotton was subject to be burned if the woods were fired. The plaintiff resided some 8 or 10 miles from the landing. The woods were unusually dry during the fall of 1851, and subject to be burned. The defendants camped about a half mile from the shed in the woods. There was a road and a small creek, with a little water in it, between the camp and the shed. The woods were burned from the camp to the shed, and the cotton consumed. The wind was blowing for several days, about the time the fire occurred, from the direction of the camp to the shed. The plaintiff’s evidence does not show that the fire started from the' camp, but the witnesses seem to have been of that opinion, from the appearance of the burnt woods, and the range of the fire. The woods were not on fire when the defendants came there to camp, but were burning for several days after they decamped, before the cotton was destroyed.

On the part of the defence, it was proven, that all of the defendants resided in Hempstead county but one, who lived in Sevier county, but remote from Shaw’s Landing. That they came to the vicinity of Shaw’s Landing on a camp-hunt. The evidence conduces to show that they encamped on Sabbath, and left on the following Tuesday, and that the cotton was burned on the succeeding Sabbath. That at the time they pitched their camp, they burnt the leaves around it for some thirty or forty feet, and then extinguished the fire to prevent fire from spreading from the camp. One of the witnesses, wbo was present at the time, says they used great precaution. Another says they burnt the leaves off for three or four steps around the camp, and then extinguished the fire. That he did not think fire could have spread from the camp to the leaves after this precaution. These witnesses hunted with the party one night — they set out no fire, and were cautious to prevent the communication of fire to the woods.

Some of the witnesses speak of the place, where the defendants were encamped, as a wilderness — others, as the woods. There was no testimony as to whether the lands were public or private property. Without stating the testimony of each witness in detail, it is sufficient to remark, upon the entire evidence, that none of the instructions asked by either party could be regarded as abstract, or inapplicable, if correct in other respects.

No case has been cited by the counsel, on either side, like the one at bar. There are several reported cases, however, somewhat analogous, in which general principles of law have been announced, which are applicable to the peculiar features of this case, in some degree.

In Vandenburg vs. Trux, 4 Denio 464, Bronson, Oh. J., delivering the opinion of the court, said : “It may be laid down as a general rule, that when one does an illegal or mischievous act, which is likely to prove injurious to others, and when he does a legal act, in such a careless and improper manner, that injury to third persons may probably ensue, he is answerable in some form of action, for all the consequences which may directly and naturally result from his conduct; and, in many cases, he is answerable criminally, as well as civilly. It is not necessary that he should intend to do the particular injury which follows: nor, indeed, any injury at all. If a man, without a just cause, aim a blow at his enemy, which, missing him, falls upon his friend, it is a trespass upon his friend, &c. Or, if in attempting to steal or destroy the property of another, he unfortunately wound the owner, or a third person, he must answer for the consequences, although he did not intend that particular mischief, And although no mischief of any kind may be intended, yet, if a man do an act, which is dangerous to the persons or property of others, and which evinces a reckless disregard of consequences, he will be answerable civilly; and, in many cases, criminally, for the injuries which may follow : as if he discharge a gun, or let loose a ferocious or mad animal in a multitude of people, or throw a stone from a house top into a street where many are passing; or keep a large quantity of gun powder, near the dwelling of another. In these, and such like cases, he must answer for any injury which may result from his misconduct, to the persons or^J property of others.”

In the following cases, the general rule as above laid down, is recognized. Guille vs. Swan, 19 John R. 381; Vincent vs Stinebour, 7 Vermont R. 62; Vaughan vs. Menlove, 3 Bingham N. C. 468, (32 Eng. Com. L. R. 221;) Phares & Herndon vs. Stewart, 9 Porter R. 336; Wakeman vs. Robinson, 1 Bingham 213; Dolph vs. Ferris, 7 Watts & Serg. 367; Gregory vs. Piper, 9 Barn. & Cres. 593; Jordan vs. Wyatt, 14 Grattan 151; Burton vs. McClellan, 2 Scam. 434; Shrieve vs. Stokes, 5 Ben Monroe 453; Amich vs. O'Hara, 6 Blackf. 258.

Assuming, upon the weight of these authorities, as a general rule, that where a party is doing an illegal act, he is liable to other persons injured thereby, regardless of intention to do the injury, or care manifested to avoid it, it may be first inquired, whether the plaintiff proved in this case that the injury of which he complains, resulted as a consequence of an illegal act on the part of the defendants.

The evidence shows that the defendants encamped in'the wood, or wilderness, as some of the witnesses term it, for the purpose (of hunting wild game, and made afire at their camp, for the purpose of cooking, and for light at night, it may be supposed. The testimony does not show whether the plaintiff, the defendants, or other persons, owned the lands upon which the defendants encamped and hunted. Let it be assumed, however, that the lands were a part of the public domain, as supposed by the counsel of the plaintiff, and was it an illegal act for tlie defendants to go into tlie public forest for the purpose of hunting? Were they trespassers ? Not upon any right of the plaintiff’s, surely. But was the act illegal ? We know of no statute forbidding it. Was it in violation of any rule of the common law, as applicable to the condition and inhabitants of a new country like ours ?

In Broughton vs. Singleton, 2 Nott & McCord's R. 338, Mr. Justice JohNSON said : “Our ideas of those injuries, for which the action of trespass will lie, are principally derived from the English authorities, and I am disposed to think they are followed, without a proper regard to the vast difference between the situation of the two countries, so that in pursuing the letter, we lose sight of the principle. There, almost every foot of soil is appropriated to some specific purpose; here, much the greater part consists in unenclosed and uncultivated forest, and a part in exhausted old fields, which have been abandoned, as unfit for further cultivation, in which the cattle of the citizens feed at will. There, it is as practicable as necessary to protect the occupant against those petty trespasses : here, it is wholly impracticable ; and, I think, unnecessary. The attempt to give this protection , to unenclosed land, would overwhelm us in a sea of petty litigation — destructive of the interest and peace of the community. Upon this principle, it was determined in the case of McConico vs. Singleton, 2 Con. Rep. 244, that hunting on unenclosed lands, was not such a trespass as would sustain an action,” &c.

In Knight vs. Abert, 6 Penn. Rep. 472, Gibson, C. J., said: “ In this, and perhaps every other American State, an owner of cattle is not liable to an action for their browsing on his neighbors’ unenclosed wood land. But it follows not, that because such browsing is excusable as a trepass, it is matter of right. It is an immunity, not a privilege: or, at most, a license revocable at the will of the tenant, who may turn his neighbor’s cattle away from his grounds at pleasure. ' Their entry is, in strictness, a trespass, which, for its insignificance, is not noticed by the law, probably on the foot of the maxim, de minimis •, or, perhaps, because it is better that all waste lands should be treated as common without stint. It certainly saves vexatious litigation. The particular loss from it is unappreciable, even as a subject of nominal damages, and would probably be held so, even in England, where waste land is altogether worthless.”

In the settlement of a new country, hunting with fire-arms is almost indispensably necessary, for the purpose of destroying wild animals, which prey upon such as are domesticated, and endanger the safety of the settler and his family. Drafts upon the forest game, are also often required to supply the wants of the pioneer, under the contingencies and inconveniences of a sparsely inhabited country. After the country is more densely populated, hunting becomes rather an amusement, than a necessity, but is not, on that account, to be condemned where it does not lead to the neglect of more useful employments.

We cannot hold, therefore, that in encamping and hunting upon the public lands, in a “wilderness” district, the defendants were guilty of such an illegal, mischievous, or wanton act, as to render them liable at all events, for any injury that may have resulted therefrom to the plaintiff, regardless of any diligence, care, or prudence on their part, to prevent such injury.

The liability of the defendants to the plaintiff, for the destruction of his cotton, would depend, first, upon the proof whether it resulted from their act; and, secondly, whether it was a consequence of negligence on their part, or a want of that prudence and care which the law required them to observe, while doing an act not strictly illegal.

What constitutes such negligence or want of care and prudence as will render a party liable for an injury resulting to another from an act not unlawful in itself, depends upon the circumstances surrounding the party at the time. Greater care and prudence, of course, are required under some circumstances than under others. The following are cases in which the question of negligence has been discussed and adjudicated, in various aspects :

In Jordan vs. Wyatt, 4 Grattan R. 151, tbe facts were, that the plaintiff cut wood upon the land of defendant, with his consent, and, while it was lying thereon, the defendant, with the view of clearing another part of the land, set fire to the rubbish, which spread to, and burned the plaintiff’s wood, and he brought trespass against the defendant therefor. On the trial, the defendant moved the court to instruct the jury as follows: “If the jury should believe, from the evidence, that the plaintiff’s wood was cut off the defendant’s land with his consent, and was lying thereon, and the defendant, with a view of clearing another part of the land, set fire to the rubbish on the last mentioned part of his land, and not with the intention of burning the plaintiff’s wood, and the fire escaped from him, and passed on to the part of the land where the plaintiff’s wood was lying, and consumed it, that this action will not lie, and the jury must find for the defendant.”

This instruction, the court refused to give, and the defendant excepted. The plaintiff obtained judgment, and the defendant appealed to the court of appeals of Yirginia. Baldwin] J., delivering the opinion of the court, said: “It wall be seen, that the proposed instruction did not assert that the fire was kindled with due precaution and circumspection, or that it escaped from the defendant without his default, or- that he made the proper efforts to arrest it. It cannot be doubted, therefore, in the case supposed, that the plaintiff is entitled to redress,” &c.

After commenting upon the proper form of the action to be brought in such case, the judge further remarks, that “It is no ground of defence to this action, that the defendant was engaged in a lawful pursuit, and intended no harm, and that his act would have been harmless, but for his carelessness or negligence. He was not the less a trespasser : and, in truth, his only ground of defence, in this or any proper form of action, would have been that he was, in no wise careless or negligent, but had proceeded with due caution and circumspection, and that the injury done by his act, was occasioned by unavoidable accident. A man is bound so to conduct himself, as to avoid doing damage to the person or property of another, and slight default will render him responsible; as where he is uncocking a gun, and it goes off, and accidentally wounds a by-stander; or, if turning around suddenly, he were to knock another down, whom he did not see, without intending it; or, where he accidentally drives a carriage against that of another, though no otherwise blamable than in driving on the wrong side of the road on a dark night; or, in driving a horse too spirited ; or, in pulling the wrong rein; or, using imperfect harness. Wakeman vs. Robinson, 8 Eng. Com. L. R. 300.” The judgment was affirmed.

In Burton vs. McClellan, 2 Scammon 434, the facts seem to have been, that a prairie was on fire, which was approaching the defendant’s premises. lie, at a time when the statute of Illinois did not authorize him to fire the prairie, set a fire in the prairie around his enclosure, burning a strip of land around it for the purpose of protecting it and his fences from the approaching prairie fire, and the fire thus set by the defendant perhaps spread over the intervening prairie, and extended to and destroyed the plaintiff’s stacks of grain, which were surrounded by grass, and exposed to be burnt by such fires.

Mr. Justice Smith delivering the opinion of the Supreme Court, said :

“First, if an illegal act be done, the party doing, or causing the act to be done, is responsible for all consequences resulting from the act. /Secondly, If an act be done from evident necessity, and justified by such necessity, but which, without such necessity, would otherwise be illegal, it must appear that such necessity existed at the time, and that every possible diligence and care were taken in the manner of the execution of the act, to avoid injury being done to others, or their property.”

It is argued for the plaintiff, that the defendants, in encamping in the woods for the purpose of hunting, were doing an unnecessary and voluntary act, and were therefore liable to the plaintiff for any injury he may have sustained thereby, resulting from carelesness or accident; and in support of this proposition Vincent vs. Stinbour, 7 Vermont Rep. 66, is cited: where Williams, ^ Chief Justice, says: “Whore a person is doing a voluntary act, I which he is under no obligation to do, he is held answerable for jl any injury which may happen to another, either by carelesness* or accident

Taking this sentence apart from the contest, it is liable to misapprehension and a wrong application, but when considered in connexion with the whole opinion, it is unobjectionable. It is a vohmtary act, for example,, for a man to ride out in a carriage for pleasure, amusement, or exercise — he is under no particular | obligation to do so — but it is, nevertheless, lawful, and while he Jj would be answerable for any injury resulting therefrom to another, by any negligence, imprudence, or want of proper care on his part, yet, as Chief Justice Williams himself held in the above case, he would not be responsible for any inj ary, occurring unavoidably, or without blame or fault on his part.

The facts in the case of Guille vs. Swan, 19 John. Rep. 381, were, that the defendant ascended in a balloon, which descended into the plaintiff garden, near where it had gone up, and a crowd of people seeing the deAndant hanging out of the car in great peril, rushed into tlie garden to i^lieve him, treading down the plaintiff’s vegetables and flowers. The balloon also dragged along over his potatoes and radishes, in descending. The plaintiff brought trespass against the defendant, for damages thus occasioned to his garden. Spenoer, Chief Justice, said : “I will not say that ascending in a balloon is an unlawful act, for it is not so; but it is certain that the aeronaut has no control over its motion horizontally; he is at the sport of the winds, and is to descend when and how he can; his reaching the earth, is a matter of haz-zard. ITe did descend upon the premises of the plaintiff. Now, if his descent, under such circumstances, would ordinarily and naturally draw a crowd of people about him, either from curiosity or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for.”

Chief Justice BboNSON, in commenting on this case, in Vandenburg vs. Trux, says: “For the wrong done by fhe crowd, as well as for the injury done by himself, the defendant was held answerable as a tresjaasser. Although the ascent was not illegal, it was a foolish act, and the defendant ought to have^foreseen that injurious consequences might follow.”

In Vaughan vs. Menlove, 3 Bingham's N. C. 468; 32 Eng. Com. L. R. 219, the defendant made a hay rick on, but near the boundary of, his own premises. The hay was in such a state when put together, as to give, rise to discussion on the probability of fire, though there were conflicting opinions on the subject; yet, during a period of five weeks, the defendant was repeatedly warned of his peril. His stock was insured ; and upon one occasion, being advised to take the rick down to avoid all danger, he said “he would chance it.” He made an aperture or chimney through the rick, but in spite, or perhaps inconsequence of this precaution, the rick at length burst into flames, from the spontaneous heating of its materials; the flames communicated to the defendant’s barn and stables, and thence to the plaintiff’s cottages, which were entirely destroyed, and he-brought case. ^

PatteesoN, J., before whom the cau^je was tried, told the jury that the question for them to consider, was whether the fire had been occasioned by gross negligence, on the part of the defendant : adding that he was bound to proceed with such reasonable caution, as a prudent man would have exercised, under such cir-^ cumstances.

The verdict being for the plaintiff, a new trial was moved for, on the ground that the jury should have been directed to consider, not whether the defendant had been guilty of gross negligence, with reference to the standard of ordinary prudence— standard too uncertain to afford any criterion — but whether he had acted tona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence.

Totdal, Chief Justice: “There is a rule of law which says you must enjoy ypur own property so as not to injure that of another; and, according to that rule, the defendant is liable for the consequence of his own neglect; and though the defendant did not himself light the fire, yet, mediately, he is as much the cause of it as if he had put a candle to the rick; for it is well known that hay will ferment and take fire if it be not carefully stacked. It has been decided that if an occupier burns weeds so near the boundary of his own land, that damage ensues to the property of his neighbor, he is liable to an action for the amount of injury done, unless the accident were occasioned by a sudden blast which , he could not foresee. Turberville vs. Stamp, 1 Salk. 13. But, put the case of a chemist making experiments with ingredients, singly innocent, but when combined, liable to ignite; if he leaves them together, and injury is thereby occasioned to the property of his neighbor, can any one doubt that an action on the case would lie? It is contended, however, that the learned judge was wrong in leaving this to the jury as a case of gross negligence, and that the question of negligence was so mixed up with reference to what would be the conduct of a man of ordinary prudence, that the jury mi§iit have thought the latter the rule by which they were to decide ; that such a rule would be top uncertain to act upon, and that the question ought to have been whether the defendant had acted honestly and bona fide to the best of his own judgment. That, however, would leave so vague a line as to afford no rule at all; the degree of judgment belonging to each individual being infinitely various; and though it has been urged that the care, which a prudent man would take, is not an intelli-ble proposition as a rule of law; yet, such has always been the rule adopted in cases of bailment, as laid down in Coggs vs. Bernard, 2 L. Raym. 909, though in some cases, a greater degree of care is exacted than in others, «fee., &c. The care taken by a prudent man, has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say, whether taking that rule as their guide, there has been negligence on the occasion in question. Instead, therefore, of saying that the liability for negligence should be coextensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, wo ought rather to adhere to the rule which requires, in all cases, a regard to caution, such as a man of ordinary prudence would observe. That was, in substance, the criterion presented to the jury in this case, and therefore the rule [ for new triaU\ must be discharged.

Pabic, Judge, said: “I entirely concur in what has fallen from his lordship. Although the facts in the case are new in specie, they fall within a principle long established, that a man must so use^his own property, as not to injure that of others.” And after citing the case of Turberville vs. Stamp, as applicable, he further remarks: “As to the direction of the learned judge, it was perfectly correct. Under the circumstances of the case, it was proper to leave it to the jury, whether with reference to the caution, which would have been observed by a man of ordinary prudence, the defendant had not been guilty of gross negligence. After he had been warned repeatedly, during five weeks, as to the consequences likely to happen, there is no color for altering the verdict, unless it were to increase the damages.

YauguaN, Judgo, concurring, said: “It was, if anything, too favorable to the defendant to leave it to the jury, whether he had been guilty of gross negligence, for when the defendant, upon being warned as to the consequences likely to ensue from the condition of the rick, said he “would chance it,” it was manifest he adverted to his interest in the insurance office. The conduct of a prudent man has always been the criterion for the jury, in such cases, but it is by no means confined to them,” &c.

Prom the above authorities, it may be safely stated as a general rule, that where one is doing a lawful act, or an act not mischievous, rash, reckless, or foolish, and naturally liable to result in injury to others, he is not responsible for damages resulting therefrom by accident or casualty, while he is in the exercise of such care and caution as a prudent man would observe, under the circumstances surrounding him, to avoid injury to others; but that he is answerable for damages resulting from negligence, or a want of sucli care and caution on his part. The degree of care and caution which a prudent man would observe, as above indicated, would naturally vary with the circumstances surrounding him — • would be greater in some situations than in others. Such a man, for example, going into a place with fire, or a light, where there are combustible materials, would of course observe great care,' and proceed with much more caution than he would find necessary in places where there are no such materials; or driving a carriage, or riding a horse through a public street where people are constantly passing, he would move with greater care than if driving or riding in places not so much frequented by others. Other examples might be put, but these are sufficient to illustrate the..-, principle.

Fire, though a dangerous element, is necessarily used for domestic purposes, and in almost every branch of business. It is made available, as a useful and powerful agent, in all the industrial pursuits of life. Every man has a right to use it, for necessary or convenient purposes, but in the exercise of this light, he is responsible fof*injuries resulting to others from negligence or fault on bis part, and we know of no better standard by which to determine such negligence or fault, than that furnished in the case of Vaughan vs. Menlove.

By the general rules, which we have endeavored to deduce from the authorities above cited, the questions presented in the case at bar, may be tested.

The second instruction asked by the plaintiff, and refused by the court, “That if parties fire-hunting, or encamped in the woods or prairies, covered with combustible matter, suffer or permit, otherwise than in consequence of unavoidable accident, which could not be prevented by proper care, the fire to communicate to such combustible matter, they are liable for all property destroyed thereby in its evident sense and import, we think was substantially correct, and should have been given, though subject to verbal criticism.

The word “unavoidable,” taken in its strict sense, though, used in several of the cases from which we have quoted above, is a strong expression, but when qualified by the words “wMc7i could not b& prevented by proper care,” and understood as it is ordinarily used, was not so objectionable, as to render the instruction, taken as an entire proposition, objectionable. The first instruction given for the defendants — “unless the jury believe, from the evidence, that defendants were guilty of negligence, even though the cotton were burned by fire that started from the camp, they are bound by law to find for defendants,” was right. Where a party is using fire for any lawful purpose, and is guilty of no negligence, he is not responsible for accidents occurring without fault on his part.

The second instruction — “that it was not unlawful for defendants to be engaged in hunting; and if the jury believed they used ordina/ry diligence, even though the cotton were burned by fire that started from the camp, they are bound by law to find for defendants,” was improperly given in that form. The words '■'■ordina/ry diligence,” were too general and indefinite, and may have misled the jury. The instruction furnished the jury with no standard by which to determine what was meant by ordinary diligence. The diligence to be observed by a party in doing a lawful act, as we have seen, is to be greater or less, according to the circumstances surrounding him, and the nature of the agents which he is using at the time; fire being a dangerous agent, when employed in a place where there is combustible materials, and where it may escape from the party, and do damage to others, without great care, much greater diligence is required of him under such circumstances, than in situations where the danger from the use of fire would not be so great. The court should have told the jury that such diligence or care was required of the defendants, as a prudent man, in such a situation and under the circumstances surrounding them, using fire, would have observed to prevent its getting into the woods and doing damage to others.

The third instruction — “that plaintiff must prove the burning of the cotton, was caused by tbe negligence, and improper conduct of tbe defendants,” was, perhaps, right enough. Of course, if they were guilty of no negligence or improper conduct, they were not responsible for an accident occurring without fault on their part.

But it is argued for the defendants, that even if the court erred in. refusing or giving instructions, the judgment should not be reversed, because the plaintiff was not entitled to the verdict upon the evidence; that upon the whole record, there is no error. Conceding that the authorities cited sustain the legal proposition submitted, yet, we think it is not applicable in a case like this; We cannot tell what influence the action of the court had upon the minds of the jury in coming to the conclusion which they did., Possibly, the jury would have come to the same conclusion, had ' the court charged them correctly, as to the law of the case, but we cannot undertake to say that they might not have rendered a different verdict. The plaintiff was entitled to have them pass upon the facts with a correct understanding of the law applicable to them, and when this is done, their decision is final.

The case made by the plaintiff against the defendants, is by no means a clear one, and but for one feature in it the judgment might be affirmed, under the rule referred to above. The proof does not show that defendants knew that the plaintiff’s cotton was deposited in the vicinity of their camp. It appears, however, that they encamped about half a mile from it, in a wilderness country, that there was a road running between their camp and the cotton, also a small creek, with some running water in it, but a good deal of drift-wood. The evidence conduces to show proper care on their part in removing the leaves from around the camp, before they kindled their fire, to prevent the communication of it to the woods. Also, 'as far as the witnesses had any knowledge, that defendants set out no fire, and were cautious to permit none to get into the woods when hunting.

But, perhaps after they left their camp, the woods got on fire' — ■ they burned for several days, and finally, reached and destroyed the cotton. Whether the fire occurred from the camp, was a question for the jury. If it did,perhaps the defendants might have left the camp without extinguishing their fire; and the wind may have blown sparks or coals into the leaves; or it being the fall of the year, and the leaves falling, as the witnesses state, the ground around the camp, from which the defendants had burnt the leaves, might have been re-covered and taken fire. If so, it would be a question for the jury to determine, whether proper diligence on the part of defendants — such as a prudent man would have observed under the circumstances — would not have required them to extinguish the camp-fire before they decamped and returned to their homes.

In passing upon all these facts, it would also be proper for the jury to take into consideration the conduct of the plaintiff in taking care of his property. He resided, it seems, some eight or ten miles from the landing where the cotton was placed. Though it appears from the evidence, that there were some persons residing within a "mile or two of the landing, there is no proof that the cotton was placed under the care of any one. It was put under a shed, in the forest, surrounded by leaves, &c., and subject to be burned if the woods were fired. The woods were seen on fire for several days before the cotton was burned, but no one it seems was charged with the protection of it. Did the plaintiff take such care of his property as a prudent man would take under such circumstances? Whether he did or not, is a question for the jury, and if he did not, how far that would affect his right to ‘hold the defendants liable for any negligence on their part, resulting in the destruction of the cotton, is a question of law which we-are not now called upon to determine. It would be a hardship upon the plaintiff to lose his cotton, and equally hard upon •the defendants to have to pay for it, but such hardships are of 'frequent occurrence.

The remarks which we have thought proper to make in reference to the evidence, have been made in response to the argu-iment that .the judgment should be affirmed, regardless of any error committed by the court, and not to intimate any impression, as to what verdict the jury should have rendered upon the facts. We think, however, that a jury should pass upon the evidence, with a correct understanding of the law, and therefore reverse and remand the cause for a new trial.


author: Mr. Justice WalKee

text:
    Vandever vs. Clare et al.
    A roleaso of one of sevoral obligors, is a release of all. Frazier vs. State Bank, 4 Arle. ¡310; Ferguson vs. State Bank, 6 Eng. 513.
    Wlioro a note sued upon, is described as bearing interest at a certain per cent par mnwn; and a reloaso pleaded in wlnoli the note is copied as bearing the same per cent, per amount, but the note is described in the release as bearing the interest per annum; thore is no such variance as will render the release inoperative.
    In copying a note and an assignment endorsed upon it, Hiere is no variance if the copy omit calculations of interest endorsed upon it.

      Writ of Error to Sebastian Oircuit Gourt.

    Hon. Felix J. BatsoN, Circuit Judge.
    Walker and Green, for plaintiff.
    Upon the subject of variance, a distinction is now fully established between allegations of matter of substance, and allegations of matter of description. The former require to be substantially proved — the latter must be proved literally. Phil. Ev., vol. 5, p. 2/ Rossiter vs. Marsh, 4 Con. R. 196/ Saxon et al. vs. Johnson, 10 J. R. 419/ 71I). 223/ 4 Piole. 508/ see note 3, p. 1, Ooioen <& Hill’s Notes to Phill. Ev., vol '. 5, and authorities cited.

    The note sued upon calls for interest at 8 per cent, per cwmwn; tbe note released, calls for 8 per cent, per amoimt. Here is such a substantial variance as will make it fatal in all cases of description. Adams vs. Brown, 4 Litt. R. 7, 8/ 3 J. J. Marsh. 590/ Thomas ad. vs. Thomas, 1 Gh. PI. 306, 307/ 7 Nerger 526/ 3 Wend. 374/ 5 Hill’s N. 7. Rep. 143/ 1 Smith’s Leading cases 464.
    S. H. Hempstead and S. F. ClabK, contra.
    In this case, no question has been made or reserved, and it falls within the rule laid down in State Bank vs. Oomway, 13 Ark. 344.
    A release to one of several obligors, is a release to all. 2 Eng. 328/ 2 Saund. 48 a/ 7 John 207/ 8 Term Rep. 168.
   Mr. Justice WalKee

delivered the opinion of the Court.

This was an action of debt upon a writing obligatory, executed by the defendants to "William H. Norton, and by him, on the 1st day of April, 1854, endorsed to' Joseph W. Yandever, (the plaintiff.)

The defendant pleaded payment and release, upon which issue was taken; and upon the trial of the case, which was by consent submitted to the court in place of a jury, the defendants offered in evidence the following, which purports to be a copy of the writing obligatory sued upon, 'with the endorsements thereon; the latter of which was executed under the seal of said Norton, on the 19th day of January, 1854.

“$400.
One year after the date hereof, we, or either of us, promise to pay to William H. Norton or bearer, the sum of four hundred dollars, with interest on the same, at the rate of eight per cent. per amount from date, for value received. Given under our bands and seals, this 18tb day of July, A. D. 1851, at the city of Fort Smith.
S. F. GLARE, [seal.]
G. E. BUMFORD, [seal.]
G. G. SHUMARD, [seal.]
J. R. KENNEDY, [seal.]
S. D. MoDONALD.” [seal.]

Upon wbicb is endorsed :

“NOVEMBER 17th, 1852.
Received of S. F. Clark, two hundred dollars of the principal of the within note, and twenty dollars and fifty cents as interest. ’ ’ And also : “ Received of G. E. Bumford, and Geo.G. Shumard, by the hands of Aaron Clark, the sum of two hundred dollars, the balance of principal due, on the annexed and foregoing bond made to me or bearer, on the 18th day of July, 1851, by S. F. Clark, G. E. Bumford, George G. Shumard, J. R. Kennedy, and S. D. McDonald, for the sum of four hundred dollars, with interest on the same at the rate of eight per cent, per annum from date, and upon which suit has been instituted upon said bond against the said G. E. Bumford and George G. Shumard, to the August term, 1853, of the Circuit hurt of the county of Sebastian, and is still pending in said court. Now therefore, I, William H. Norton, do release, for and in consideration of the sum of two hundred dollars, so paid by the said Aaron Clark as aforesaid, the said G. E. Bumford, and George G. Shumard, from the said sum of two hundred dollars, and do order and direct the clerk of the Circuit Court of Sebastian county to dismiss said suit, and enter this release as a satisfaction upon the record of said court, upon the said Bumford and Shumard, paying all costs of suit herein. Given under my hand and seal, this 19th day of January, 1854.
WM. D. NORTON.” [seal.]
Endorsed — filed in my office, January 19th,.1854.
JOHN CARNALL, Chris.

Tbe foregoing instrument was offered in evidence by tbe defendants, to sustain tbe issue upon tbe plea of release, but tbe plaintiff, after admitting tbe due execution thereof, objected in general terms to tbe introduction of said instrument as evidence, but tbe court overruled tbe objection, and permitted it to be read in evidence; and thereupon, found tbe issue for tbe defendants, and rendered judgment accordingly.

The plaintiff moved tbe court for a new trial, which was overruled, and be excepted, and now relies upon bis objection to tbe introduction of tbe paper purporting to be a release as evidence. Indeed, this is tbe only question presented or argued by the counsel.

Tbe plaintiff pointed out no specific objection to tbe evidence at tbe time it was offered, but giving him tbe fullest benefit of bis objection, and allowing him to show any available grounds of exception, as fully as if pointed out and relied upon at tbe time when the objection was made, we will proceed to determine whether there is such material variance between tbe bond declared upon and that released, as contended for. Tbat tbe release, if a good defence for defendants, Bumford and Shumard, is also, under tbe issue formed, good for all of tbe defendants, is a question definitely settled by tbe repeated decisions of this court. Frazier vs. State Bank, 4 Ark. Rep. 510, Ferguson vs. State Bank, 6 Fng. 513. Indeed, tbe counsel for tbe plaintiff have not insisted upon a different rule, but they rely upon several discrepancies between the deed of release in the description of debt released, and tbat declared upon, which they contend, amounts to substantial and fatal variance.

Tbe only ground for variance, tbat has^the semblance of substance, is tbe second, in which it is insisted, that tbe instrument described in tbe deed of release, differs from tbe bond declared upon, in this; tbat in tbe deed of release,.it is described as a bond for four hundred dollars, with eight per cent, per amomvt, whilst tbat sued upon is for eight per cent, per annum. These words, when written in baste, and when tbe letters are imperfectly formed, much resemble each other, except perhaps the last letter in amount/ and when taken in connection with the balance of the sentence, no one can doubt what was intended to be written. The sense of the sentence requires such understanding, but we are not left to inference upon this point, because, in the afterpart of the deed of release, the rate of interest is referred to, and repeated, in connection with a full description and reference to the bond, from the payment of which the defendants were released, and it is there described as a debt for four hundred dollars, with eight per cent, per annum, fully corresponding with the bond sued upon, and it is very evident that this being in the same instrument, and part of it enters into, and forms a part of, the description of the bond. This is the only matter of substance pointed out. and insisted upon.

As to the figures and calculations of interest, found upon the back of the bond, they were merely private memorandums, and formed no part of the bond or material endorsement upon it. Concede, as argued, that it was unnecessary to copy the endorse-. ment on the deed of release, and notwithstanding that if copied, it must be done correctly, or the variance will be fatal; still, it does not follow that because those attempted to be copied must be correctly copied, that if one is so copied, every other letter or figure on the bond must also be copied; and that is the ground of objection in this instance. That the instrument was or not in suit, formed no part of the instrument itself.

These are the grounds relied upon to exclude the release from the court as evidence, and we are satisfied none of them are well, taken, and scarcely one of them worthy of serious consideration. Let the judgment of the Circuit Court be affirmed.


author: Mr. Justice 'W’alKbe

text:
    Jones vs. Austin.
    A writ made returnable at a time other than that fixed by law, is irregular, and may be abated. Murphy vs. Williams, 1 Arle. R. 333; Featherston vs. Wilson, 3 Arle. 38Í; Ferguson vs. Ross, 5 Arh. 518.
    All original writs must be made returnable to the first regular term thereafter, unless they be issued within fifteen days of the first term; and not to a term held under sec. 5, ch. 4?, Digest.

    The act (sec. 5, ch.át, Digest,) authorizing the judge to hold court'at a subsequent day, on failure at the regular term, is a general law, and applies as well to courts whose terms may be subsequently prescribed, as to those whose terms were fixed at the passage of the act.

      Appeal from the Cvrewit Court of Drew County.

    Hon. JohN C. Murray, Circuit Judge.
    PiKE & CuMMiNS, for appellant.
    The court erred in sustaining the demurrer to tbe plea:
    1st. Because act of December 28th, 1840, {seo. 5, chap. 47, Rev. St.,)-is not a general law. It only warrants terms 8 weeks after regular terms, on failures at the times fixed in that act — not where failures occur under subsequent acts.
    2d. There can be but two return terms in the year. Chap. 47, Rev. Stat., p. 302/ seo. 4, eh. 126, Rev. Stat./ see. 9, chap. 67, Rev. Stat.

      2>d. Section 5 eh. 47, declares the judge shall hold court 8 weeks after regular terms in certain cases; and, in other cases, the judge shall fix the-time himself. It is the same in both cases as if the judge had met at regular terms and adjourned to a particular day, under seo. 20, eh. 50, Bern. Stab. Dwm vs. [State, 2 Ark. 229/ 2 How. Miss. Bep. 422 / 2 Mass. 435 / 6 Yerg. 395.
    Fowlbe, for appellee.
    For Austin, it is insisted, that the demurrer was rightfully sustained; and there is no other question presented by the record.
   Mr. Justice 'W’alKbe

delivered the opinion of the Court.

This was an action of assumpsit, commenced in the Drew Circuit Court, by Austin against Jones. The writ issued on the 30th oí March, 1854, and was made returnable at the court-house, in the town of Monticello, in the county of Drew, on the first day of the next May term of the Circuit Court for said county, it being the 22d day of May, A. D. 1854. It appears that there was no May term of the court held in that county ; but, at the September term, 1854, the defendant appeared and filed a plea in abatement, upon the ground, that by law, there was no May term of the Circuit Court appointed to be held in said county, but that the true and regular terms for holding court in said county, were the fourth Mondays in March and September. To this plea, the plaintiff demurred, and the court sustained the demurrer, and rendered final judgment in favor of the plaintiff, from which the defendant appealed.

That a writ made returnable at a time, other than that fixed 'by law, is irregular, and may be abated, is a question well settled by this"court. Murphy vs. Williams, 1 Ark. Rep. 383; Featherston vs. Wilson, 3 Ark. R. 387; Ferguson vs. Ross, 5 Ark. R. 518.

The only question is one of fact: was the writ in this case made returnable to a term of the court prescribed by law. See. 4, oh. 126, Digest Statutes, provides, that “Every original writ shall be dated on the day it issues, and shall be made returnable to the first term of the court thereafter, unless such first term be within fifteen days thereafter ; then such writ shall be made returnable to the first day of the second term.” And by the act of the 8th of January, 1849, the Circuit Courts of Drew county were directed to be hold on the fourth Mondays in March and September. This act was in force when this writ issued, and as these are the only regular return terms fixed by law, it follows, that the writ in this case made returnable to the May term, was not made returnable at the time prescribed by law; unless the plaintiff could claim the benefit of the 5th see. of the chap., Digest, which provides, “That whenever, for any cause, any judge of the Circuit Court shall fail to hold any of his courts, at the terms here-inbefore provided for, he shall hold a term of said court to commence on the eighth Monday thereafter, unless the term of some other court, in the same circuit, shall fall on said eighth Monday; and then, and in that case, said judge shall fix upon some convenient time for holding a term of said court,” &c.

The writ in this case, seems to have been made returnable to a time, eight weeks after the time fixed by law, and perhaps for the reason that there was no regular term of the Drew Circuit Court, held on the fourth Monday in March, 1854.

It is contended by counsel, that this section has direct reference to the act of 1846, 1847, fixing the time for holding courts in Drew county, which has since been repealed by the act of 1849, which fixes a different time for holding said courts. In this, we think the counsel mistaken. This is a general provision applicable to all the courts, and might well stand, notwithstanding a change in the time of holding the courts in said county. But giving to this section full effect, and conceding that the court was not held in that county at its regular term, (of which we are uninformed) and that the writ in this case was made returnable eight week thereafter; the question is, did the Legislature intend, by this section, to establish another regular return term for the court, or was this adjourned term only intended to try the cases then on the docket; and which, by reason of such failure, remained undetermined. That such was the intention of the Legislature, we think most probable. It was not for the purpose of affording an opportunity to hear and determine new suits, but to dispose of those already brought, the trial of which-liad been, delayed by some unavoidable occurrence, and to perform the other necessary business incident to the regular term.

A different construction would- not harmonize with several other provisions of the statute, which provide for the return of writs, and in case the writ should be issued within fifteen days of any regular term, that it should be made returnable to the second term of the court.

In view, therefore, of the several sections of the statute, and the probable intention of the Legislature, we are of opinion that the writ in this case should have been made returnable to the next regular term of the Circuit Court, and not the special term, (if indeed there was any failure to hold the court at the regular term, and if there was no conflict between such special term, and some other regular term of another of the courts in that circuit,) and should have been abated.

The Circuit Court, therefore, erred in sustaining the Semuri’er of the plaintiff to the defendant’s plea in abatement; and for this error, the judgment must be reversed, and the cause remanded for further proceedings therein to be had, according to law, and not inconsistent with this opinion.