text:
    William P. and T. M. Bryan, Plaintiffs in Error, v. Nathaniel Buckmaster, Defendant in Error.
    ERROR TO MADISON.
    A clerk has no right to insert in a fee-bill a charge for sheriff's commissions, when the sheriff himself, in Ms return, makes no such charge—he has no power to supply the omission.
    When a sheriff sells property and realizes a part of the debt, he is entitled to commissions only on the sum made.
    When the sheriff does not sell, if real estate is levied on, the appraisement will furnish an equitable rule by which to calculate the commissions.
    In doubtful cases, if by giving a literal construction to a statute it will be the means of producing great injustice, and lead to consequences that could not have been anticipated by the legislature, courts are bound to presume that the legislature intended no such consequences, and give such a construction as will promote the ends of justice.
    This was a motion made in the circuit court of Madison county, to quash a fee-bill for erroneous and incorrect charges, made by the defendant as sheriff of Madison county, on two executions—one issued under the act of 1819, and the other under the act of 1825. The objection to the fee-bill was, that the sheriff had charged half commission on the whole amount of the first execution, when nothing was made by it, the property not having been sold for want of bidders. The sheriff had also charged half commission on the whole amount of the second alias execution, on which the sum of $1666.66 was made by a sale of real estate. The court overruled the motion, and the plaintiffs sued out their writ of error.
    Semple, for the plaintiffs in error,
    contended that the sheriff was only entitled to his fees for levying the first execution, and no commission; and was only entitled to half commission on the amount made on the second execution, and no commission for the remainder of the execution not satisfied. He cited Laws of 1819, p. 328, and Laws of 1825, p. 142.
    Prickett, contra,
    insisted that the words of the acts of 1819 and 1825 referred to, would authorize the sheriff to charge half commission on the whole amount of both executions.
    Semple, in reply.
   Lockwood, J.,

delivered the opinion of the court This was a motion made in the circuit court of Madison county, to quash a fee-bill issued by the clerk of said court.

The fees complained of were, that the clerk had inserted charges for commissions on two executions issued in the court below, which were not returned by the sheriff on the executions ; and also, for charging commissions on the whole amount of the executions, when only part of the amount had been levied and collected.

The circuit court refused to quash the fee-bill, and the case was brought into this court by writ of error.

The first question presented in this case is, whether the clerk had a right to insert in the fee-bill a charge for commissions, when the sheriff, in his return on the execution, made no such charge ?

On the first execution, the sheriff, in his fee-bill indorsed on the back thereof, fees amounting to two dollars and thirty-three cents, yet the clerk, without any claim on record, charges the plaintiffs with forty-eight dollars and eighty-nine cents, for commissions; and on the second execution, the sheriff returned fees, including commissions of seventy-six dollars and twenty-four cents, to eighty dollars and twenty-four cents, and the clerk charged commissions amounting to one hundred and thirty-seven dollars and thirty-four cents.

By the statute regulating the fees of the several officers, it is made the duty of the clerk to keep a book, in which he shall set down the costs made by both parties, and when any officer shall require it, he is to make out a transcript from his fee-book, and deliver the same to the sheriff.

But how is the clerk to know what fees the sheriff is entitled to ? There is no law on the subject, but the practice of sheriffs always has been to return on the process their fees, and in most cases it is absolutely impossible for the clerk to ascertain their fees in any other way. Should the sheriff not charge fees enough, or not charge any, it is his own loss, and the clerk has no authority to supply the omission. Doubtless the sheriff might, by application to the court, obtain leave to amend his return, but until this is done, the clerk has no power to charge either party with sheriff’s fees.

The court has also been called on in this case, to settle the true construction of the statute regulating fees, passed in 1825. Laws of 1825, page 142. By that act, “a commission is given of five per centum on the first three hundred dollars, and for all above that sum, a commission of 2 1-2 per centum: provided, that in all cases, when the execution shall be settled by the parties, replevied, stopped by injunction, or when the money is paid without sale, or the property levied on is not sold, only one-half of said commissions shall be charged.”

Has a sheriff, under this provision, when an execution for five thousand dollars is levied on property worth but one thousand, a right to charge commissions on the whole amount of the execution, or only on the amount levied on ?

Commissions are usually understood to mean a certain per centage on moneys received and paid over, and the legislature undoubtedly intended to pay sheriffs the value only of the services they rendered, with a reasonable compensation for their risk. Where they sell, and realize a part of the debt, they are only entitled to commissions on the sum made.

But if the sale be stopped by injunction, or the property levied on not sold, what shall be the rule ?

If the sale be made, and only a part of the debt realized, he is only entitled to commissions on the sum made, and shall the sheriff be entitled to greater commissions when no sale takes place, and no money passes through his hands, and consequently, no risk incurred ? This is both unreasonable and unjust, and we can not presume that the legislature intended to give more in a case where the least services were rendered. In doubtful cases, if by giving a literal construction to a statute, it will be the means of producing great injustice, and lead to consequences that could not have been contemplated by the legislature, courts are bound to presume that the legislature intended no such consequences, and give such a construction as will promote the ends of justice.

There can be no doubt that the legislature never intended to give a commission on a greater sum than could have been realized from a sale, in cases where no sale takes place; and taking the whole clause together, this construction can be given to it, without doing violence to the language. Where no sale takes place, difficulties, it is true, may sometimes arise, in ascertaining the value of the property levied on. This difficulty, however, does not exist in the executions mentioned in the fee-bill. These executions were levied on real estate, and by the statutes of this state, in all cases of levies on real estate, the lands levied on must he appraised. This appraisement will furnish an equitable rule by which to calculate the commissions. Where personal property only is taken, it would be more difficult to furnish the rule, and when such a case arises, it will be time enough to decide it.

The fee-bill is therefore illegal in two respects: first, because it contains charges of commissions not returned on the executions by the sheriff, in whose hands they were placed for collection; and secondly, because commissions are charged on the amount of the executions, when the value of the property levied on appears from the appraisement to be less than the sum due on the execution. For these reasons, the judgment below must be reversed with costs, and the fee-bill quashed.

Judgment reversed.

       Justice Smith did not sit in tMs cause.

       In construing statutes, we must be governed by the intention of the legislature, though not by some hidden intention, which the language of the law will not justify; but where the language is plain, and admits of no construction, we must take it as we find it. Foley v. The People, ante, p. 57.
      Where the consequences of a particular construction of a constitution or law would render its operation mischievous, that construction should be avoided, provided it is susceptible of a different one. The People v. Marshall et al., 1 Gilm., 689.


source: Caselaw Access Project

author: Browne, J.,

license: Public Domain

text:
    David G. Bates, Appellant, v. Thomas Jenkins, Appellee.
    APPEAL FROM JO DAVIESS.
    A plea in abatement will lie, in a suit commenced by attachment.
    The effect of a judgment of nonsuit in an attachment case, is nothing more than the quashal of the attachment, and leaves the party to proceed de nooo.

    This suit was commenced in Jo Daviess county, by attachment on the affidavit of Bates, stating that Jenkins, Thomas McCrany and Charles Galloway, partners in trade, are justly indebted to him in the sum of six hundred dollars, for goods, wares and merchandise sold and delivered them, which said sum is now due, and that the said Thomas McCrany, Thomas Jenkins and Charles Galloway, have departed this state, with the intention of having their effects and personal estate removed without the limits of this state, and that the said Thomas McCrany, Thomas Jenkins and Charles Galloway, were considered citizens of this state at the time of contracting said debt. The cause was continued for several terms, until the May term, 1830, when the plaintiff filed a declaration in assumpsit for goods, wares, &c., and for money paid, laid out and expended, money lent and advanced, work and labor, &c. The defendant, Jenkins, came at Nov. term, 1830, and moved the court for leave to enter his appearance and give special bail, which motion the court sustained, and thereupon he executed his bond, and at the same time filed a plea in abatement, setting forth that at the time of the issuing the attachment against him, he had not departed from the state with the intention of having his effects and personal estate removed without the limits of the state, but that he was in the town of Galena, county of Jo Daviess, &c. To this plea there was a demurrer and joinder, which was overruled, and a judgment of respondeas ouster rendered against the plaintiff. The plaintiff then made default, and a nonsuit was entered against him, and a judgment rendered in favor of the defendant, Jenkins, for the costs, from which judgment Bates appealed.

      Davis and Blackwell, for appellant,
    cited 1 Petersdorf, 262, 266, 300. Rev. Laws 1827, pages 45, 72. Am. Dig. of S. and W. Rep., 42. 3 Harris and McHen., 535.

      W. Thomas, contra,
    contended that the appeal was improvidently taken, because the judgment of the court below does not amount to twenty dollars, exclusive of costs, nor relate to a franchise or freehold. Ante, 334.
    The judgment is not final as to the matters in controversy between the parties. It does not bar the plaintiff of his right of action. It is not a judgment in bar.
    The appellant having suffered a nonsuit, can not now take advantage of any error in the judgment or proceedings of the court below. Am. Dig., 205. He also contended that the affidavit was not such as the statute requires, and cited Phelps v. Young, ante, p. 327.

      Blackwell, in reply.
   Browne, J.,

delivered the opinion of the Cowrt. This was an appeal from the circuit court of Jo Daviess, to reverse a judgment rendered in that court. The plaintiff below sued out an attachment against Thomas Jenkins, Thomas McCraney and Charles Galloway, as partners in trade. Thomas Jenkins, one of the defendants, filed his plea in abatement, setting forth that he, one of the said defendants, at the time the said attachment was sued out in this case against him, had not departed from this state, with the intention of having his effects and personal estate removed without the limits of this state, but that this defendant was in the town of Galena, county of Jo Daviess, and state of Illinois. This plea was sworn to, and concluded in the common form. The plaintiff’s counsel demurred to this plea, which demurrer the court overruled.

The circuit court decided correctly, in overruling the demurrer to the defendant’s plea in abatement. It is clear, that a plea in abatement will lie, in a suit commenced by attachment.

On the second point, we are of opinion that the effect of a judgment of nonsuit is nothing more than a quashal of the attachment, and leaves the party at liberty to commence de novo. It is no bar to any future proceedings.

Judgment affirmed.

       Chief Justice Wilson did not sit in this cause.

       The statute now in force in relation to pleas in abatement in attachment suits in this state, is this: “In case any plea in abatement traversing the facts in the affidavit shall be filed, and" a trial shall be thereon had, if the issue shall be found for the defendant, the attachment shall be quashed.” Purple's statutes, p. 98, sec. 8. Scates' Comp., 229. And again: “The provisions of chapter one of the Revised Statutes, (entitled Abatement,) shall be applicable as well to proceedings in attachment as to other cases." Purple's statutes, p. 104, sec. 35. Scates’ Comp., 236.
      Pleas in abatement in attachment suits have-frequently been sustained in this state. White v. Wilson, 5 Gilm., 21. Walker v. Welch et al., 13 Ill., 675. Eddy v. Brady, 16 Ill., 306. Ridgway v. Smith, 17 Ill., 33. Boggs v. Bindskoff et al., 23 Ill. In the last case cited the question was raised by the plaintiffs in the attachment, whether a plea traversing the affidavit was a plea in abatement and partook of the incidents of such a plea; and it was held by the court that it did.
      In Ridgway v. Smith, 17 Ill., 33, it was held that such a plea should conclude to the country, and a common similiter forms the issue; the burden of proof is on the plaintiff to maintain the allegations of his affidavit; and if the verdict is for the defendant, the writ is quashed, and he is out of court.


author: Wilson, Chief Justice,

text:
    Ignatius R. Sims, Appellant, v. John Hugsby, Appellee.
    APPEAL FROM MORGAN.
    A copy of a note filed with the declaration is no part of the record; though the clerk may incorporate it into the record, it does not become a part of it.
    To make a note a part of the record, so that the conrt may notice it for any purpose, oyer must be craved of it.
    Hugsby brought his action of debt in the Morgan circuit court, against Sims and others, upon a writing obligatory for the payment of $450. Sims was alone served with process, and on being called, made default. The clerk assessed the damages, and the court rendered judgment for the sum .so reported to be due by the clerk, amounting to $287.3T|-, “ part of the debt in the declaration mentioned.” From this judgment Sims appealed, and assigned for error that the judgment is for more than the debt and interest due on the writing filed, and that there was no jury to inquire of damages, and that there could have been no damages, but only a judgment for the debt, as by the writing filed.

      Hall, for appellant.

      W. Thomas, contra.
   Wilson, Chief Justice,

delivered the opinion of the Court. From the record in this case, and a copy of the note which it contains, and which was the foundation of the original action, it appears that the judgment of the court below was rendered by default, for more than the plaintiff was entitled to recover; the clerk, in ascertaining the amount, having omitted to notice one of the credits indorsed on the note.

For this error, the defendant below asks for a reversal of the judgment.

The copy of the note and indorsement form no part of the record, and they do not become so, merely by the clerk’s having inserted them. To have made the note part of the record, so as to enable the court to notice it for any purpose, the defendant should have craved oyer.

This not having been done, no error is apparent upon the face of the record, and the court can not look beyond it. Littell’s Rep., 225.

If too large a judgment has been rendered against the appellant in the court below, his remedy is by motion there. The error complained of is rather the mistake of the clerk than the error of the court. In a case like the present, the law has assigned to the clerk the duty of assessing the damages, and if, in the discharge of that duty, he should allow either too much or too little, the court, under whose direction it is made, will, upon motion, correct it. To that court then, and not to this, the application should be made. 6 Mass. Rep., 272. 2 Wash. Rep., 173.

The judgment of the court below is affirmed with costs, and the cause remanded.

Judgment affirmed.

       See Browder v. Johnson, ante, 96. Giles v. Shaw, ante, 219. Bogardus v. Trial, 1 Scam., 63, and Harlow v. Boswell, 15 Ill., 56, and note to Reynolds v. Mitchell, ante, p. 177.


author: Caton, J.

text:
    The People of the State of Illinois, ex rel. Albert G. Caldwell, v. John Reynolds.

      Motion for a peremptory Mandamus.

    The General Assembly passed a law providing for the division of a county and the formation of a new county from the same territory, to take effect on a majority of the votes being cast for such division : Held, that the law was not unconstitutional.
    The General Assembly derives its powers from the people, subject only to the limitations and restrictions of the Federal and State Constitutions.
    The Acts of the General Assembly are not necessarily absolute, but may be so framed as to depend upon some future event or contingency for taking effect.
    Although the legislature may not divest itself of its proper functions or delegate its general legislative authority, it may still authorize others to do those things which it might properly, yet cannot understandingly, or advantageously do itself.
    Motion for a peremptory mandamus to John Reynolds, Recorder of Deeds for the county of Gallatin and State of Illinois, to require him to enter upon the records of said county certain deeds tendered to him for that purpose by the Relator in this case. The motion was predicated upon certain facts set forth in the petition of the Relator, which are substantially as follow :
    That on the first Monday of August, 1847, Gallatin coun*> ty was included within certain limits defined by law and so recognized; that by an Act of the General Assembly, approved January 26, 1826, the county seat was located at Equality; that on said first Monday of August, there was an election for public officers of said county, and among them a Recorder; that at such election, one John Reynolds was duly elected for the term of two years, &c., and was subsequently commissioned and qualified, and performed the duties of said office at said Equality ; that by virtue of an Act of the General Assembly, entitled “An Act to divide the county of Gallatin and to form out of the same the county of Saline,” approved Feb. 25, 1847, the electors of said county, by a vote upon the question, cast a majority of their votes in favor of the division of the county, and the said John Reynolds, then being such Recorder, fell within the limits assigned to Gallatin county by the provisions of said Act.
    The petition then went on to allege that said Act was unconstitutional and void, and that said Reynolds continued to be the Recorder of the original county of Gallatin, not having resigned his said commission; that the Relator, believing him to be the proper Recorder of said original county, presented certain deeds (describing them,) to him for record, concerning certain lands lying within the limits of said original county, and within the limits defined by said ■Act as the county of Saline; that said Reynolds refused to receive and record said deeds, as requested.
    The Respondent answered the petition, and Stated that the Relator exhibited to him his petition for a mandamus and notices of his -intention to move for the same, addressed to and served upon the counties of Gallatin and Saline by filing the same with the acting clerks of the County Commissioners’ Court; that he waived all .preliminary process ■in the case, and entered his appearance accordingly, and submitted the question in controversy to the decision of the Court, in the same manner as if an alternative mandamus had been issued.
    The facts stated in the petition were admitted by Respondent, but he further alleged, that on the day of said election, SHawneetown received a majority of the votes for the county seat of Gallatin, as divided; that the Respondent retained his office at Equality, the old county seat, awaiting the direction of the law ; that the County Commissioners of said Gallatin county thus newly formed, on the third day of October, 1848, vacated said Respondent’s office and ordered a new election of Recorder for the county thus formed; that, at such election, he was elected Recorder of such county, but had not as yet qualified, nor acted as such, or resigned his original commission; that the order aforesaid vacating said office was prior to the presentation of the deeds aforesaid for record; and finally, that in consequence of all these proceedings, he was embarrassed and undecided as to what course to pursue, and therefore declined to record said deeds as requested by the Relator.

      H. W. Moore, for the Relator.
    The Court will entertain and decide this case upon the merits, as it "is presented, without process of law. The People v. Fletcher, 2 Scam. 482; The People v. Wren, 4 Scam. 269.
    The Court will so decide this case, involving as it does the constitutionality of a State law, in a matter wherein the mere recording of deeds is to be required to be done or not done. The first case in whiph the Supreme Court of the United States, after solemn investigation, declared a law of Congress to be unconstitutional, was one upon which arose the propriety of the delivery of a commission to a justice of the peace. Marbury v. Madison, 1 Cranch, 137.
    The facts present the single question, whether John Reynolds, Recorder of Gallatin county, elected under its old organization, and whose commission has not expired, shall continue to act as such Recorder, irrespective of the pretended Act of the General Assembly of Illinois, of February, 1847, for the creation of the county of Saline from a portion of such county of Gallatin.
    From an examination of that Act, the-Recorder of old Gallatin county should so record, as that Act is void.
    I. Because it is in direct conflict with the Constitution existing at the time of its supposed enactment.
    1. By the Constitution, “the legislative authority of this State shall be vested in a General Assembly,” See. By the Act cited, it is sought to be vested in the people of the county of Gallatin. See the parallel cases and Acts of Pennsylvania and Delaware, cited in the Western Law Journal, January and June numbers, 1848, [Rice v. Foster, and Parker v. The Commonwealth,] and the decisions of the Supreme Courts of those States, there reported, declaring those Acts unconstitutional.
    2. By the terms of the Act in question, it is not an expression of the legislative will, but is to be operative only at the will of the people of the county, thereby enabling them to repeal the former solemn and positive Act of the General Assembly, mentioned in the application of the Relator, and is not a municipal law prescribed, Sec. Ibid.; 1 Black. Com. 45-6.
    3. Delegated authority cannot be delegated. 5 Peters, 390; 3 Peters’ Dig., 275.
    II. Because it is against the genius, the nature, and the spirit of the State Government, of our republican institutions, and of the guaranty of the United States’ Constitution, and is revolutionary and destructive. Journals before cited; also, Calder v. Bull, 1 Peters’ Cond. R. 174.
    1. No State shall have other than a republican form of government. Art. IV. § 4, Const. U. S.
    2. Frequent recurrence to fundamental principles of civil government is indispensable to its preservation. Art. VIII of the late Constitution.
    3. Civil liberty requires a surrender of sundry original rights. 1 Black. Com. 6, 125, 261; 1 Story’s Com. 255; Law Journals before cited; Woodeson’s Lectures; 1 Peters’ Cond. R. 174.
    4. To alter the form of government, a mode is authorized in article VII of the late Constitution of Illinois, and to effect the partial reform of government contemplated in the Act in question, would be revolutionary and anarchical, and subversive of the intention “to establish justice, promote the welfare, and secure the blessings of liberty,” expressed in the preamble by the framers of that instrument. See, also, the analogy to be drawn from the example mentioned in 1 Story’s Com. 303; Rice v. Foster, decision in 1848 in Delaware, at the end, and at page 409, of the Law Journal.
    III. Two or three examples of similar Acts of this State, suffered to operate without question before a judicial tribunal, will not suffice to “sanctify error or perpetuate usurpation” in the government of this State; nor, in the language of the Supreme Court of Pennsylvania in 1848, in the case of Parker v. The Commonwealth, would they “justify us in declining to express the conclusion that the Legislature has transcended its authority.” See Story’s Com. 390.
    IV. Nor will the doctrine, that in the creation of private corporations, the assent of the corporators is necessary to effect the organization, furnish an analogy upon which to predicate the necessity, of a like assent subsequent to the enactment, the ease of public corporations, as counties &cAngell & Ames on Corp. 9, 25,-26.
    V. Whatever may be the case in other countries, in this there can be no doubt, that every Act of the Legislature, repugnant to the Constitution, is absolutely void, and it will be the duty of the Court to adhere to the Constitution, and to declare the Act null and void. 3 Peters’ Dig. 555-6; 1 Peters’ Cond. R. 183, 283, 308, 421; 1 ,U. S. Dig. 553, and the cases there cited; 1 Story’s Com. 347, 349; Bacon’s Abr. (“Statute,” H.); Kent’s Com. Lect. 14, p. 277.
    VI. A due regard to the permanence of our State Government, under the New Constitution, and to the tranquility and prosperity of those who live and are to live within its influence, ■ requires that the General Assembly should exer-1 cise the sole legislative power, except as specially permitted in that instrument; lest the practice should at last creep into the Legislature of waiving the exercise of their power, (under proper previous instruction,) to make absolute laws, and submitting every delicate measure, general or special, for the enactment of the people in their primary and aggregate capacity; thus convulsing them with frequent and exciting and angry elections, establishing a “pure democracyr,” by degrees, with all its confusion and violence, and, without the forms newly prescribed, sapping and overthrowing the fabric of republican, representative government which the favored people of this State, with so much care, have recently established.

      R. F. Wingate, for the Respondent.
    1. The Legislature has the power to create, change, modify, or destroy municipal corporations. The People v. Wren, 4 Scam. 269.
    2. That if the section of the Act submitting the division of the county of Gallatin to a vote of the people is unconstitutional, it does not follow that the whole Act is void and unconstitutional. Edwards v. Pope, 4 Scam. 465.
    3. That the County Commissioners’ Court had a right to vacate the office of said defendant, if he neglected or refused to move his office, with the records thereof, to Shawneetown, Shawneetown having been established as per Act, the county seat of Gallatin, according to said Act, see Rev. Stat. 431, § 5.
    4. If defendant was not in office at the time the said deeds were presented to him for record on account of the order of County Commissioners’ Court of Gallatin, vacating his office and ordering a new election, he had no right to receive and record the deeds mentioned.
    5. No officer can hold an office for the discharge of a public duty, except by virtue of the law of the State, and the Act dividing the old county of Gallatin, abolished all county offices unless the same were perpetuated by Act of the Legislature.

      6. That the Supreme Court has not original jurisdiction in cases of this kind, see Constitution, Art. V. § 5.
    7. The Constitution is a limitation on the Acts of the Legislature. Edwards v. Pope, 4 Scam. 469.

      T. G. C. Davis, upon the same side.
    1. The State Legislatures retain all the powers delegated to them by the State Constitutions, not expressly taken away by the Federal Constitution. Calder v. Bull, 1 Peters’ Cond. R. 174. The State Legislature is as omnipotent as Parliament. Mason v. Wait, 4 Scam. 134.
    2. The power of the Legislature to submit an Act incorporating a county to the vote of the people thereof, justified by that provision of the Constitution securing the right of trial by a jury of the vicinage. The People v. Wren, 4 Scam. 277, 281; Constitution of Illinois, 1818, Art. VIII. § 9; Rev. Stat. 38.
    3. Contemporaneous construction. 1 Story’s Com. Constitution, 390, 346; The People v. Marshall, 1 Gilm. 688.
    The Act creating Franklin, Milton, &c., and the Act creating Marquette, submitted organization to the vote of the people. The Act creating Massac submitted the location of seat of justice to a vote of the people. And at the last session of the Legislature, an Act to enable the people of Randolph to locate the county seat, and other Acts of the same Legislature. The Constitution of 1847 was submitted to the people for their sanction.
    The case of Fitch v. Pinckard, 4 Scam. 69, establishes the doctrine that the Legislature may delegate power under the Constitution.

      A. G. Caldwell, pro se, in conclusion.
    The arguments made in defence, aim at establishing the proposition that the powers of our State Government were as unlimited upon the subject of counties, as the powers of Parliament, not only in their nature, but in their object and the manner of their exercise, and thence deriving the validity of the law in controversy. This is the leading feature of the defence, which, with the incidental points thrown out in argument, I propose to examine.
    I. The origin, nature, and efficacy of constitutional governments form a guide to the ascertainment of legislative powers, and the validity of the law in question.
    1. Prior to all government, mankind are drawn together and governed by certain natural relations which, when embodied and expressed in the common will of a State, form the Constitution of that State.
    2. Constitutions are therefore the organic law of a State, fixing the rights of the citizen and the powers of Government. 1 Story’s Com. Con. U. S. 305-7.
    3. As an organic law, it is unchanging, and above the conflicts of passion. 1 Story’s Com. Con. U. S. § 339, (case in Peters’ Digest,) Opinion by Ch. J. Marshall.
    4. It binds all and each by its own force, and its powers can neither be altered or exercised by any part or member of the State, but must be exercised by the agents designated. 1 Story’s Com. U. S. § 337.
    II. The nature and powers of constitutional governments, their objects, and the manner of their exercise.
    1. Constitutional polity in this country recognizes no other than representative governments with limited powers. Con. U. S. Art. —; see the various State Constitutions and Bills of Right.
    2. This representation is employed not only by the State, but county governments. See the history of municipalities in Angelí & Ames.
    3. The State Government derives its existence from the Constitution; the counties derive theirs from the Constitution, and their organization from the State Government.
    4. The counties are public corporations, owing their existence not to the corporation, but to the Constitution and Government.
    III. The powers of the Government, then, are not unlimited upon the subject of the creation of counties.
    1. By the theory of the British Constitution, the Parliament is the sovereignty of the State, creating the organic, and enacting the temporary law.
    2. By the theory of the American Constitution, the people are the source of sovereign power, and the Government comprised of co-ordinate departments, with powers supreme within the spheres prescribed byothe organic law. 1 Peters’ Cond. R. 182.
    3. By the one system, Parliament creates all law; but by the other, there are two kinds of legislation — one organic and the other temporary.
    4. Organic legislation is enacted by the people primarily — temporary legislation is enacted by the agents of the people, secondarily and subordinately to the organic law. The one is a fixed rule of action — the other temporary. The one is prescribed to the Government, and the other by it.
    5. The legislative power of the State is limited by the nature of our State Constitution, and the restrictions thereby imposed.
    1. The legislative powers are vested in a General Assembly and in no other body. Art. II, Sec. -1.
    2. This power is restrained by the express limitations in the Constitution. 2 Scam. 81.
    3. It is limited by the general objects mentioned in the preamble. Preamble of State Const.
    4. It is limited by the spirit and genius of our institutions. 1 Peters’ Cond. R. 174; Delaware decision.
    5. It is limited by the principles of reason and justice and the means employed. 2 Scam. 86.
    6. It is a warrant of power to the representative, beyond which he cannot go.
    7. It is limited by the forms of law. 2 Scam. 86.
    V. The Act repealing the old county organization and creating a new one does not fall within the powers thus delegated and limited.
    1. The power of the Legislature in creation of counties is absolute and confined to itself, and cannot be transferred.
    • 2. The power of the Legislature in passing laws is a unity of power and must be exercised as such; a representative sovereignty cannot be divided.

      3. By the Act in question the creation of the county of Saline is referred to the vote of part of the people, and is not an absolute and perfect law in itself for the purpose of division.
    4. The Act is to take effect upon a contingency, which is to be created by a vote of the people of the county.
    5. Such an Act does not fall within the class of Acts which may call for the assent of corporations.
    6. It is also distinguishable from those laws which create a body corporate, but leave to the corporators the power to prescribe the subordinate relations between themselves.
    VI. The rules of constitutional and statutory construction will support the view presented.
    1. The strict or more extended sense will be adopted, as it may best promote the purposes of government. 1 Story’s Com. Const. U. S. 396.
    2. Every interpretation should relate to the great objects of government. 1 Story, 406.
    3. Inconvenience, not a rule which will be always operarative. 1 Story, 410.
    4. If an Act he repugnant it is void, and will be so declared. Peters’ Dig. 556, §§ 85, 86, 87.
    5. Contemporaneous construction will not be adopted unless in conformity with the sense and spirit, 1 Story, 390; 2 Scam. 79.
   The Opinion of the Court was delivered by

Caton, J.

The law, the constitutionality of which is questioned by this application, provides for the division of Gallatin county, incorporating a part of its territory into a * new county, called Saline. The Act goes on in detail, with all the various provisions necessary to effect the change, and then, in the tenth section, provides for an election, authorizing the people of that county to say, by their vote, whether they wished the division or not, and that the law should only go into operation in the event that a majority of the voters at such election desired a division.

To establish the unconstitutionality of this Act it is assumed, that instead of being a law finished and obligatory from the hands of the General Assembly, this is merely a bill prepared by that department of the Government, and submitted to the people of Gallatin county, to be by them passed into a law, or defeated at the polls. This assumption is not true in fact. The law, as passed, was complete and! perfect, although its principal provisions were to take effect upon a contingency, the determination of which did not depend upon the exercise of legislative powers by the people; but upon an expression which they were authorized to make, rather in the execution than in the enactment of the law, an expression to be made in a legitimate and an ordinary way. To the General Assembly have the people delegated the legislative powers of the Government, only limited and controlled by the Federal and State Constitutions, and it is insisted that these powers cannot be delegated to any body of men or any portion of the people, upon the principle that delegated powers cannot be delegated. This maxim is true, unless the delegate is empowered to employ others. The extent to which this maxim should be applied to a legislator depends upon a proper understanding of legislative powers; upon a proper determination of what may legitimately be done in the exercise of those powers. It is easy to say that it is the business of the Legislature to make laws : but then we must inquire, what kind of laws may be made ? Must they be full, complete, perfect, absolute, depending upon no contingency and conferring no discretion? This would be absolute legislation, exhausting legislative power on the subject matter of the law. We presume that no where has constitutional learning advanced so far as to assert this doctrine. For. ourselves, in determining what is legitimate and proper legislation, we feel warranted in looking at the past to see what kind of laws legislative bodies have been in the habit of passing. Legislative power is not a new idea only sprung into existence at the formation of this republic, but it has been known and understood since the formation of society and the institution of civil governments; and its meaning is not changed by its introduction into the American Constitutions, although its exercise is there limited, restricted and controlled, as well by their express provisions as by the genius of the governments of which they are the fundamental laws. If we take the action of all past legislators as determining what may and should properly be done in the exercise of legislative powers, we see that while they are bound to make the laws, yet those laws need not be absolute, nor make every provision for doing that which they may authorize to be done. While all must be done under their sanction, yet they need not do all, nor command all. A law |may depend upon a future event or contingency for its taking I effect, and that contingency may arise from the voluntary j act of others. Of this class are all laws creating private corporations, and a very large proportion of the laws creating public or municipal corporations. The former must necessarily be submitted to the corporators for acceptance before they take effect, and this has been very usually done with the latter, especially in the incorporation of towns and cities, and not unfrequently of counties ; and we have never heard it questioned before, that the Legislature might properly submit a law, creating either a private or a public corporation, to the acceptance of the corporators. All such laws are perfect and complete when they leave the hands of the Legislature, although a future event shall determine whether they can take effect or not. If we say that this is an unauthorized delegation of legislative power, we forget what is a proper and legitimate exercise of that power. If the saying be true, that the Legislature cannot delegate its powers, it is only so in its most general sense. We may well admit that the Legislature cannot delegate its general legislative authority; still it may authorize many things to be done by others which it might properly do itself. All power possessed by the Legislature is delegated to it by the people, and yet few will be found to insist, that whatever the Legislature may do, it shall do, or else it shall go undone. To establish such a principle in a large State would be almost to destroy the Government. The Legislature may grant ferry licenses, or it may lay out roads and specify their metes and bounds, and yet, who will doubt that it may delegate this power to others, either by general or special laws P ■ So, also, it may pass all. the laws requisite for the government of a particular city or township, or school district, and who will doubt the propriety of its authorizing this to be done by the people within the limits of the city, town or district, by their local representatives, or even directly. This is making laws, and laws, too, of as binding efficacy as if passed directly by the Legislature. They are dependent upon the legislature for their vitality and force, though the act of incorporation, or law under and by virtue of which they are ,- made. Necessarily, regarding many things especially, affecting local or individual interests the Legislature may act either mediately or immediately. We see, then, that while the Legislature may not divest itself of its proper functions, or delegate its general legislative authority, it may still authorize others to do those things which it might properly, yet cannot understandingly or advantageously do itself. Without this power legislation would become oppressive, and yet imbecile. Local laws almost universally call into action, to a greater or less extent, the agency and discretion, either | of the people or individuals, to accomplish in detail what is J authorized or required in general terms. The object to be | accomplished, or the thing permitted may be specified, and ! the rest left to the agency of others, with better opportunities of accomplishing the object, or doing the thing understandingly. In this way have the seats of justice of most of the counties in the State been located. Indeed, the old county seat of this very county was fixed by five persons named in an Act of the Legislature, and under authority therein delegated to them. Session Laws of 1826, p. 77. If- the Constitution has been violated by the passage of the law now in question, then was that location by the persons named without its sanction. If, by declaring this law in-valid, we restore old Gallatin to her original boundaries, then by the same decision do we unsettle the old county seat, because it was located in pursuance of authority delegated by the Legislature to individuals. We should say, because the Legislature might have named the place, it should have done so, and in no other way could it have been constitutionally selected.

The only cases to which we have been referred in the least countenancing the position assumed by the Relator appear to have been decided by the Supreme Courts of Pennsylvania and Delaware, and noticed in the January and June No’s (1848,) of the Western Law Journal. These we feel called upon to notice, and it is to be regretted that we have not full reports of the cases. They appear to be identical in their facts and decisions, and the same course of reasoning is pursued by both Courts. The first is Parker v. The Commonwealth, noticed in the January No. There it appears that the Supreme Court of Pennsylvania, by a majority of three judges to two, held that an Act entitled “ Jin diet authorizing the citizens of certain counties to decide by ballot whether the sale of vinous and spirituous liquors should be continued in said counties,” was unconstitutional. It appears that by other laws of that State, the sale of such liquors is prohibited, except by persons obtaining a license from the Court of Quarter Sessions. The Legislature then -passed the law complained df, authorizing the people of certain counties to determine by their vote, whether the sale of spirituous liquors should be altogether prohibited in these counties, or in other words, whether any licenses should be granted. In both cases it was admitted that the laws did not. contravene any express provision of their State Constitutions, but then it was said that they were invalid because they palpably violated the principles and spirit of their constitutions and tended to subvert their republican forms of government. And how were their republican governments ■to be subverted ? -By allowing the people of the county to determine by ballot whether or not intoxicating drinks should be sold in the county. Here they perceive an attempt by the Legislature to establish a pure democracy, from which, we are informed, they think greater danger is to be apprehended than from an absolute monarchy. Such an attempt, it is supposed, is revolutionary in its tendency, and subversive of a republican government.

Besides the objection that it is inconsistent with the genius of a republican government to submit such a question to the decision of the people, the maxim before alluded to, that delegated power cannot be delegated, was invoked and relied upon by these Courts. In Delaware, the Court say: “The powers of government are trusts of the highest importance; on the faithful and proper exercise of which depend the welfare and happiness of society. These trusts must be exercised in strict conformity with the spirit and intention of the Constitution by those with whom they are deposited ; and in no case whatever can they be transferred or delegated to any other body or persons; not even to the whole people of the State; and still less to the people of a county. It is a plain proposition of law, that a power or authority vested in one or more persons, to act for others, involving in its exercise judgment and discretion, is a trust and confidence reposed in the party, which cannot be transferred or delegated. The making of laws is the highest act •of sovereignty ^that can be performed in a free nation; and therefore, the legislative power may be truly said to be the supreme power of a State. Its exercise requires superior intellectual faculties, improved by study and experience; although it seems to be a common notion with many pretended advocates of popular rights at the present day, that every man is instinctively fitted to be a member of the Legislature.”

We cannot concur in the application to legislative powers, of the maxim relied upon to the extent asserted by that Court. The apprehension of disastrous consequences which might result from an unwise use of a discretion vested in the people or any portion of them, seems to have led the Court to lay down a principle, which certainly cannot, in our judgment, be maintained. No exception is made to the rule which is asserted, that legislative power is a trust which cannot he transferred or delegated. If this be true, it necessarily follows, that the Legislature can authorize others, either the people, the Courts or individuals tó do nothing which it might do itself. While we may concur with that Court in deprecating and condemning the fulsome effusions and unprincipled conduct of the demagogue, whose only merit consists in an artful ability to deceive the people and flatter the public vanity; ever persuading them that they can do no wrong; approving, defending and advocating every popular prejudice, even at the sacrifice of his own judgment, that he may acquire an influence and use their power for selfish purposes; — who is even willing to ride upon the whirlwind that hastens to destruction, for the giddy pleasure of guiding the storm, we ought not to allow such occasional abuse of the. public confidence or credulity, to impel us to the other extreme, and conclude that the people are not safe repositories of any power — that they cannot judiciously exercise any discretion.

We have before attempted to show that the Legislature may, to a certain extent, authorize others to do that which it might properly do itself; and as its powers are all derivative, it may delegate at least some of its delegated powers, the right to do which is also denied in terms by the Court in Pennsylvania; and yet the authority to do this, we'apprehend, is clearly recognized by the latter Court in the case then before it.

In the absence of all legislation on the subject, the right of all persons to sell spirituous liquors is undoubted. A law was then passed, prohibiting the sale of such liquors by all, except such persons as should obtain a license from the Court of Quarter Sessions. Now the Legislature might, had it seen fit, have exempted certain persons by name from the operation of the law by authorizing them still to sell liquor, but instead of doing so, it delegated that power to the Court of Quarter Sessions by authorizing it to grant licenses, upon terms prescribed by the law, or by its discretion, or without terms, which it is immaterial for our present purpose. This delegation of authority is not censured by the Court, nor is its propriety questioned. We do not know whether it is left to the discretion of that Court to determine whether it would grant any licenses or not. At any rate, that might have been done with equal propriety; and if that had been done, then had the Legislature delegated the very power to one man or a few men, which it was determined could not be delegated to many men, — to the voters of the county. The same power might with equal propriety have been delegated to — or, if the expression is preferred, the same jurisdiction might have been conferred upon some individual by name, which was given to the Court, and if they could confer it upon one man, why not upon more — the voters of the county? Had this authority been given to the Court instead of the voters, we are compelled to believe that no complaint of its constitutionality would have been entertained, and yet there would have been as much a delegation of powers in one case as in the others. To prove this needs no argument. If, by leaving this question to the people, the republican form of government is to be overturned, and its principles subverted by a miniature democracy, may not the same awful calamities be apprehended from a miniature monarchy ? If, by giving this power to the people, the one is created, then by conferring it upon one individual, we have the other. It seems to us that the latter is quite as inconsistent with the genius of a republic as the former and as subversive of its principles, although it is manifest that there is a wide difference of opinion upon the political question, as to which of these extremes we should first incline.

It is the substance of the thing which we should look at, more than the form. It matters not whether this question is submitted to the people, the Court or indivicljuals, by a separate Act or by the original law prohibiting the sale, and authorizing the granting of licenses, and we repeat that we apprehend the constitutionality of a clause would never have been questioned, authorizing the Court of Quarter Sessions to determine by its vote or order, whether any licenses should be granted in the county or not. The answer is, that in the case supposed^ the Court would only have been executing a law, vesting it with a discretion, and this we conceive is the true answer to the objection which was urged against the laws in question. We are unable to appreciate the danger or impropriety, either ih a political or a legal view, of allowing the Legislature to vest a discretion of this kind depending upon many local circumstances for its proper exercise, either in the people or a Court, either of whom may, in truth, be much better qualified to exercise it understandingly, than the Legislature itself. The application made of the maxim that delegated power cannot be delegated, would lead to most embarrassing results, and would have a much more certain tendency to despotism, than the action complained of. How those Courts reconciled their use of this maxim, with the powers universally conferred upon municipal corporations, we are not fully advised. Such corporations are always delegated with authority to pass laws, local in their character, it is true, but universal in their application within their jurisdictions; — laws precisely such as those in question. If in Pennsylvania and Delaware, there are no incorporated towns or Cities, authorized to pass and enforce laws prohibiting the sale of spirituous liquors, and many other acts lawful in themselves, within their limits, we venture the assertion, that those States stand alone in this respect; and in other States, at least we imagine it has never been questioned, that such powers may well be conferred. It may be true, that this authority is usually conferred upon a board of trustees or city council, but that does not affect the question so far as a delegation of authority is concerned. This authority might as rightfully be conferred upon the mayor alone, or upon the voters of the city, as upon a common council. It is presumed that there is no constitutional provision, determining upon how many or upon how few, the Legislature may confer this power-. That must be. left to legislative discretion. If the voters of a city or town maybe authorized to determine, either directly by their vote, or by their local representatives whether spirituous liquors shall be sold within their precincts, then surely the voters of a county may be allowed to do the same. Upon the question of authority it can matter little, whether the te'rritory be greater or less, or whether it be densely or sparsely populated. Both counties and cities are municipal corporations and vested with greater or less powers, according to the discretion of the Legislature. Both of these as well as other less important, perhaps, but similar corporations, are usually vested with power to levy taxes, often by a direct vote of the people, and collect them, which has been well said to be one of the highest acts of sovereignty, and yet this authority is admitted to be legitimate by the Court in Delaware, in the very case, because it is said to be not the making, but merely the execution of a law. If to say that a certain tax shall or shall not be assessed and collected, is not legislation, then we are unable to see how it is the making of a law to say that spirituous liquors shall or shall not be sold. And yet hew variously different men may look upon the same thing. The Supreme Court of Delaware says : “No ingenuity can discover the shadow of a similitude between the Act of the 19th of January, 1847, (the unconstitutional law,) and any part of the school law. To say that the authority given to the school voters — to members of a corporation, to determine whether a tax shall be laid or not, is a grant of legislative power, is an abuse of language.” Pardon our simplicity when we inquire where they get that authority if it is not granted them by the Legislature P Who else gives it them ? The majority may vote this tax upon the minority against their consent. This we had supposed was not an inherent and natural right, but could only be delegated by the sovereign power of the State. This, the same Court says, is vested in the Legislature, which might have imposed the tax specifically by a direct law. If all of this be true, we are unable to perceive the abuse of language anticipated; nor do we think it requires any extraordinary degree of ingenuity not only to “discover the shadow of a similitude between the” two laws, but a very striking resemblance in their principles.

Without pursuing the subject further, we think enough has already been said, to show that the Legislature may delegate authority, either to individuals cr to bodies of people, to do many important legislative acts, not only similar to that authorized by the law, the validity of which is here questioned, but also others of a more important, and, upon principle, of a much more questionable propriety; but in doing this it does not divest itself of any of its original powers. It still possesses all the authority it ever had. It is still the repository of .the legislative power of the State.

Entertaining no doubt of the constitutionality of the law authorizing the division of Gallatin county, this application for a mandamus will have to be denied.

However clear this may appear to us, and however novel the principle contended for may have been, still two decisions made by tribunals of as great respectability as the Supreme Courts of Pennsylvania and Delaware, and upon questions so very like this, may well have justified those whose interests and judgments inclined them to disapprove of the Act complained of, in doubting, or denying its constitutionality. The question, however, is now settled, and we entertain no doubt that all will cheerfully submit to the provisions and operation of the law.

•Application denied.


author: Per Curiam.

text:
    William B. Hickman, plaintiff in error, v. Robert H. Haines et al., defendants in error.

      Error to Hardin.

    Whenever a non-resident commences an action, either in the Circuit or Supreme Court without filing security for the costs, the Court is required to dismiss the same.
    In this case an affidavit was filed showing the fact that the plaintiff in error was not a resident of this State. A motion to dismiss the writ of error was then made, because no bond for costs had been filed in the case.

      JD. J. Balter, and JR. F. Wingate, for the defendants in error, in support of the motion.

      TV. B. Scales, and A. G. Caldwell, for the plaintiff in error, contra.

   Per Curiam.

The case of Ripley v. Morris, 2 Gilm. 381, is decisive of the motion. The Court there held that a writ' of error was a new action, and that whenever a non-resident commences an action either in the Circuit or Supreme Court, without filing security for the costs, the Court is required to dismiss the same.

The case is dismissed at the costs of the plaintiff in error.

Motion allowed.


author: Trumbull, J.

text:
    Leonard White et al., plaintiffs in error, v. By Wilson, defendant in error.

      Error to Hardin.

    An affidavit in an attachment suit set forth “that the said White and Sloo were about to remove their-property from this State to the injury of Wilson.” This fact was traversed by plea in abatement, and under this issue, the defendant offered to prove that one of them had sufficient unincumbered personal property in the State to discharge the plaintiff’s demand. The evidence was objected to and excluded by the Court: Held, that the Court erred in excluding the evidence.
    To sustain an attachment on the ground that the debtor, “is about to remove his property from this State to the injury of such creditor,” two things must concur: first, the debtor must be about to remove his property from the State, and second, such removal, if effected, must be to the injury of the creditor. The single fact that-he is about to remove his property from the State will not not justify a creditor in seizing it by attachment.
    Attachment, in the Hardin Circuit Court, brought by the defendant in error against the plaintiffs in error, and heard before the Hon. William A. Denning and a jury, at the May term, 1848, when a verdict and judgment were rendered for the plaintiff below for $208-573.
    The facts material to the issue are adverted to by the Court in their Opinion.

      TV. 3. Scates, for the plaintiffs in error,
    1. The, statute predicating an attachment 'Upon the removal of property to the injury of another does not contemplate nor intend that every removal of property in the fair and regular course of commerce and trade is to the injury of creditors.
    2. It being in proof that plaintiffs' had been for some time previous in a regular course of trade with the company to whom the iron was sold, and this iron, even if belonging to them, being about to be removed in such regular course of trade — any evidence tending to show the individual solvency, within the jurisdiction, of one of the partners, whose property would be liable upon failure of partnership effects, would rebut and disprove the allegation of injury in the .affidavit and issue.
    3. They were material allegations in the affidavit, and traversed by the plea, that the property belonged to plaintiffs ; that it was about to be removed; and that that remo-. val was injurious to the defendant. He cannot select any particular property and maintain that its removal will injure him so as to sustain an attachment, whilst other property, partnership or individual, remains within the jurisdiction, which maybe reached by a general judgment upon personal service, and which could have been had in this case.
    This is a new clause in the attachment law and ought to receive a sound and equitable construction, which will not interrupt the fair course of trade, and so work injustice. Rev. Stat. 63, § 1.

      T. G. C. Davis, for the defendant in error.
   The Opinion of the Court was delivered by

Trumbull, J.

Wilson commenced an action of assumpsit by attachment against White & Sloo, as partners. The attachment was levied upon a quantity of pig iron. The affidavit upon which the writ of attachment issued, after setting forth the nature and amount of the indebtedness, alleged, “that the said White & Sloo were about to remove their property from this State to the injury of Wilson.” The plaintiffs in error filed a plea in abatement traversing the fact of their being about to remove their property from the State to Wilson’s injury. The issue upon this plea was found against the plea, and judgment entered that plaintiffs in error answer over, which they did, by filing a plea of non assumpsit, the issue upon which being determined against them, judgment was rendered in favor of the defendant in error for $208-57á.

All the evidence before the jury upon the trial of the issue in abatement is preserved by bill of exceptions. This evidence shows that the plaintiffs, previous to the commencement of this suit, had been engaged in making pig iron in the county of Hardin, and in trading with a firm in Cincinnati or Louisville. Some fifty tons of pig iron, being all the personal property which the plaintiffs owned in said county at that time, was attached. The plaintiffs'in error offered to prove by one Robinson, that one of them owned a large amount of personal property in this State free from any incumbrance, and more than sufficient to discharge’ said Wilson’s demand, which testimony was objected to by the defendant in error, and excluded by the Court as improper. This decision of the Court is assigned for error, and it is the only question before us, the other errors having been abandoned upon the argument.

Admitting that the plaintiffs were about to remove the property attached from the State, the question is, whether the testimony of Robinson should not have been permitted to go to the jury as tending to show that such removal would not operate to the injury of Wilson.

The provision to the eighth section of the Attachment Act authorizes a plea in abatement traversing the facts in the affidavit, and the issue in this case was proper. In determining npon the relevancy of the testimony offered, it becomes necessary to put a construction upon that clause of the statute permitting a creditor to sue out an attachment when his. debtor “is about to remove his property from this State to the injury of such creditor.” To sustain an attachment under this provision of the statute, two things must concur: first, the debtor must be about to remove his property from the State, and second, such removal, if effected, must be to the injury of the creditor.

The single fact that a debtor is about removing his property from the State will not justify a creditor in seizing it by attachment; if it would, dealers in the produce of the country, and who are engaged in forwarding it to markets out of the State, would hold their property at all times and while engaged in their ordinary business, liable to be seized by attachment to the great embarrassment of the trade and commerce of the country. It cannot be supposed that the Legislature intended to put into the hands of every creditor the means of so greatly annoying his debtor, and interrupting the ordinary business of the country, unless the acts of the debtor were calculated in some way to prove injurious to the creditor’s rights. Why should a creditor be permitted to harass his debtor by a proceeding that can do the creditor no good, while it may do the debtor great harm ? The process by attachment was never designed to be used where the creditor could reach the person and property of his debtor by the ordinary Common Law process, but only in cases where the debtor resides out of the State; or is about placing his property beyond the reach of his creditor proceeding in the ordinary way. It became, then, material to inquire in this case whether, if the property about to be removed by the plaintiff, had been taken out of the State, such removal would have operated to the injury of the creditor. How was this to be ascertained? We answer, from the circumstances of the case. Another provision of the statute authorizes an attachment to issue when a debtor is about to depart from the State, with the intention of having his effects removed from the State. How is this intention to be made to appear? By the acts and declarations of the debtor, and all the various circumstances by which men judge each others’ intentions. So in this case, any facts or circumstances tending to show that the attaching creditor would not be injured in the collection of his claim, by the removal from the State ©f the property which the plaintiffs were about to remove, were proper to be given in evidence upon the issue in abatement-Such were the facts which the plaintiffs proposed to prove by Robinson. If Sloo, one of the plaintiffs, had an abundance of unincumbered" property within the State to satisfy the claim of Wilson, and out of which he could make his debt, it was surely a circumstance tending to show that the removal from the State of the particular property attached, in the regular course of business, was not to the injury of the attaching creditor. The joint property of the firm of White & Sloo, and the individual property of the members of said firm were both liable to be taken in satisfaction of the defendant’s claim, %nd the plaintiffs offered to show that the individual property of Sloo was more than sufficient for that purpose. This they should have been permitted to do in support of the plea in abatement, and because they were not, the judgment of the Circuit Court is reversed and the cause remanded for a new trial upon the issue in abatement.

Judgment reversed.


text:
    Leonard White et al., plaintiffs in error, v. Joseph B. Williams, defendant in error.

      Error to Hardin.

    This case depended upon a state of facts similar to the preceding, and the same pleadings were filed.

      W. B. Scales, for the plaintiffs in error.

      T. G. C. Davis, for the defendant in error.
   The Opinion of the Court was delivered by

Trumbull, J.

The record in this case presents .the same question upon a plea in abatement as has already been passed upon by the Court at the present term in the case of White & Sloo v. By Wilson, and the judgment of the Circuit Court is reversed and the cause remanded for another trial upon the plea in abatement for the same reasons as are stated in the Opinion filed in that case.

Judgment reversed.


text:
    William B. Thorn, plaintiff in error, v. Joel F. Watson, administrator of James Ham, deceased, defendant in error.

      Error to Jefferson.

    An account was filed against ap estate after the expiration of two years from the time of granting letters of administration upon the estate. The claim was established before the Probate Court, and an order of allowance entered-directing it to be satisfied from assets which might be subsequently discovered. The plaintiff took an appeal to the Circuit Court, where a judgment was rendered for the defendant. It appeared that the estate was solvent and that there would be a large surplus for distribution among the children of the iptestate : Held, that the order of the Probate Court was substantially correct; that the creditor had the right to have his claim passed upon by the Circuit Court, and a judgment presently for the amount due, to be satisfied pro rata out of any estate thatmight afterwardsbe found, not inventoried or accounted for by the administrator.
    It is a well settled principle, that a party can never avail himself of an error to reverse a judgment which does him no wrong.
    There is no conflict between the 102d and 115th sections of the Statute of Wills.
    The facts of this case were substantially as follow: A little more than two years after the letters of administration were issued to the defendant, the plaintiff filed his account in the office of the Probate Justice of the Peace, The defendant entered his appearance, and by consent the cause was tried without process. The defendant pleaded the Statute of Limitations and a set-off. Evidence was adduced, and the Court found for the plaintiff, $19-62; but decided that it was barred by the Statute of Limitations from sharing in the effects accounted for in the inventory,. but that it would be allowed and satisfied pro rata out of any future discovered estate.
    The cause was taken by appeal to the Circuit Court, where the same defences were set up. The cause was submitted to the Court, and the Court decided that the account was barred by the Statute of Limitations, and refused to adjudicate upon the accounts between the parties, and to enter a judgment in favor of the plaintiff, quando acciderint, but entered a judgment against the plaintiff for costs.

      W. B. Scales, for the plaintiff in error.
    There are two limitations in the Statute of Wills, one general, (Rev. Stat., p. 558, § 102,) the other special among creditors, in the classification of claims, (p. 561, § 115.)
    The spirit of our law is to subject all property to pay debts; ibid. 545, § 46; ib. 558, § 103; ib. 550; § 110; and that all creditors of each class shall have a fair proportion ; Ibid. 561, §§ 115-20; and to hold administrator to annual settlements until all are paid, or estate gone. Ibid. 562, §§■ 122-6. For which purpose, legatees, &c., shall refund. Ib. 563, §§ 129-30.
    If there be two affirmative statutes or sections in the same statute, the rule of construction is,, that one does not repeal the other, if both may consist together. Bruce v. Schuyler, 4 Gilm. 221.
    The plaintiff was entitled to a judgment of assets quando acciderint, at all events. Toilet on Ex’rs, top page, 469; Noel v. Nelson, 3 Saund. 226; .2 Tidd’s Pr. 1038, 1039, 1041; 8 Law Library, top page, 199. For analogous cases on the Statute of Limitations, see 8 Law Library, 301, top page. As to proof of tradesmen’s accounts, Boyer v. Sweet, 3 Scam. 120.

      B. Baugh, for the defendant in error,
    cited and commented upon the 102d and 115th sections of the Statute of Wills.
   The Opinion of the Court was delivered by

Trumbull, J.

The plaintiff .filed an account against the estate of Ham in the office of the Probate Justice after the expiration of two years from the time of granting letters of administration upon said estate. The defendant entered his appearance and went to trial before the Probate Justice,, who decided that the plaintiff’s claim was just, and would be allowed, if assets were found not inventoried or accounted for by the administrator, otherwise not, the claim not having been exhibited within two years from the granting of letters of administration. From this order the plaintiff appealed to the Circuit Court, where the cause was tried by the Court by consent of parties, and judgment rendered in defendant’s favor for costs.

A bill of exceptions taken in the cause contains an agreement of the parties, admitting that the estate of Ham was solvent, and that there would be a large surplus to distribute among his children; that the account sued on by plaintiff was not sued upon until a few days after the expiration of two years from the issuing of letters of administration to the defendant, and that there had not been a final settlement of the estate.of said deceased. The bill of exceptions further states, that “the Court found for the defendant under the Statute of Wills and Testaments, that the plaintiff’s claim was barred by § 115 of said Act, and thereupon refused to ascertain the balance due said plaintiff, and to render a judgment therefor to be collected out of future discovered assets.” To all of which decisions the plaintiff excepted, and said judgment and decisions are now assigned for error.

In determining the correctness of the decisions excepted to, it will be necessary to put a construction upon the latter portion,of the 115th section of the Act relating to Wills, and upon the 102d section of the same Act, which latter section it is insisted, is inconsistent with the 115th section, if the decision of the Circuit Court be correct. That part of the 115th section limiting the time within which creditors may exhibit their claims against the estates of deceased persons, is as follows : “All demands not exhibited within two years as aforesaid, (that is, from the time of granting letters,) shall be forever barred, unless such creditor shall find other estate of the deceased not inventoried or accounted for by the executor or administrator ; in which case, his claim shall be paid, pro rata, out of such subsequently discovered estate; saving, however, to femes covert, infants, persons of unsound mind, or imprisoned, or beyond the seas, the term of two years after their respective disabilities be removed, to exhibit their claims.” We see no difficulty in construing this provision of the statute. The language used is too plain to admit of doubt, and expressly prohibits all creditors who neglect to exhibit their claims against an estate within two years from the time of the granting of letters testamentary or of administration thereon from doing so afterwards, unless they can find other estate of the deceased not inventoried or accounted for; or unless they fall within some saving .clause of the statute. Nor do we perceive that this construction at all conflicts with the 102d section, which is as follows : “No suit shall be brought against any executor or administrator, for or on account of any claim or demand against the testator or intestate, unless such suit shall be brought within one year next after such executor or administrator shall have settled his accounts with the Court of Probate.” The 115th section does not prevent the bringing of an action at any distance of time, provided the creditor can discover property not inventoried or accounted for by the administrator, but the 102d section comes in and prevents the bringing of a suit in any event after the expiration of one year from the time of the settling of his accounts by the executor or administrator with the Court of Probate. The 123d section of the Statute of Wills requires executors and administrators to exhibit accounts of their administration for settlement, at the first term of the Probate Court which shall happen after the expiration of one year from the date of their letters, so that the one year limitation provided for by the 102d section can never expire before the two years from the time of granting letters. The object of these various limitations, — and we tliink it a commendable one, — was, no doubt, to compel the speedy settlement of estates ; and in our opinion, the Circuit Court did not err in deciding that the plaintiff’s claim was barred by that provision of the 115th section before referred to.

It is, however, insisted that the Circuit Court erred in the form of its judgment, and that the plaintiff would be forever barred by the judgment rendered from any future recovery, should he hereafter find other estate of the intestate not inventoried or accounted for by the administrator. Such may be the effect of the judgment as entered. This case having been commenced before the Probate Justice, the pleadings were oral and the defendant was at liberty upon the trial to interposejany defence which the law would permit. The bill of exceptions shows that he insisted as well upon the pleas of non-assumpsit and set-off, as upon the Statute of Limitations of two years. Under the issues of non-assumpsit and set-off, the plaintiff had the right to have his claim passed upon by the Court, and a judgment presently for the amount due, if anything, to be satisfied out of any estate that might afterwards be found not inventoried or accounted for by the administrator. Tidd’s Pr. 1017, 1018; Ram on Assets, 301, ch. 25. ,

The only effect of such a judgment would be to ascertain the amount of the plaintiff’s claim, and upon this judgment he might either bring an action of debt, or take further proceedings before the Probate Justice, in case he should ever afterwards be able to find other estate, not inventoried or accounted for.

The order of the Probate Justice was substantially correct, and the refusal of the Cirbuit Court to investigate the plaintiff’s account and ascertain the amount due would constitute error, if the record did not show that the plaintiff was in no respect injured by shell refusal. It is a well settled principle, that a party can never avail himself of an error to reverse a judgment, which does him no wrong. The bill of ■exceptions in this case contains all the evidence, and the introduction of his account by the plaintiff was the only proof to sustain his claim, except as .to a few items which were more than overbalanced by the set-off of the defendant, which the plaintiff admitted. An attempt seems to have been made in the Circuit Court to lay a foundation for the introduction in evidence of the plaintiff’s book of account, and for that purpose, various witnesses were called; but it is unnecessary to determine whether the proper foundation for that purpose was laid or not, as the bill of exceptions no where shows that said book was offered in evidence ; and it was only the original book, and not a copy from it that would have been admissible. So far as the bill of exceptions shows, the plaintiff did not offer his account book in evidence, and there was no testimony before the Court which would have justified a judgment in the plaintiff’s favor; hence the plaintiff suffered no injury by the refusal of the Court to examine the testimony.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


author: Caton J.

text:
    Benajar Neely, impleaded, &c., appellant, v. James G. Lewis, appellee.

      Jlppeal from Pope.

      A. holding a sealed note against B. as principal, and two others as sureties, it was agreed that the same might be renewed. A new note was drawn, executed by the principal and one of the sureties, and left with A. for execution by the other surety. When so executed it was to be in lieu of the old note: Held, that the note could not be delivered to the obligee as an escrow.
    Debt, in the Pope Circuit Court, brought by the appellee against the appellant, and John G. Neely, and heard before the Hon. ’William A. Denning at the October term, 1848, upon a demurrer to pleas, which are stated in the Opinion of this Court. The demurrer was sustained, and judgment rendered for the plaintiff below for $123, debt, and $12-03 damages. From this judgment, Benajar Neely took an appeal.

      W B. Scales, for the appellant, cited

      Pawling v. The United States, 2 Peters’ Cond. R. 92.

      T. G. C. Davis, for the appellee,
    relied upon the case of Moss v. Riddle, 2 Peters’ Cond. R. 277.
   The Opinion of the Court was delivered by

Caton J.

This declaration is in the usual form in debt on a sealed note or obligation against the appellant and John G. Neely. The appellant pleaded, substantially, that previous to the making of the instrument declared on, the plaintiff held another note executed by the defendants and one William H. Neely, in ‘which John G. Neely was principal and the others were sureties; that it was agreed between the plaintiff and the makers of that note that the same should be renewed by their giving a new note, and that, in pursuance of such agreement, the note now in suit was made by the defendants below, and William H. Neely not being present, the note was left with the plaintiff to obtain its execution by William H. Neely, and when thus executed, it was to be in lieu of the former note; that this note was never executed by the other surety, and hence is of no effect.

A demurrer was sustained to these pleas, which is here assigned for error, and in determining the propriety of this decision, we have only to ascertain whether in law this obligation was delivered to Lewis as an escrow, or whether it became operative at that time.

It» was admitted upon the argument, that it is a settled rule of the Common Law, that a deed cannot be delivered to the grantee as an escrow, but it was insisted that this rule ought not to be applied to a sealed instrument for the payment of money, which may be negotiated. But it seems to us, that that question is determined by the Supreme Court of the United States in the case of Moss v. Riddle, 2 Peters’ Cond. R. 277. There the suit was upon a joint bond for the payment of money, executed by Welch and Moss. The latter pleaded that he signed and sealed the bond, and delivered it to Joseph Riddle, one of the plaintiffs, as an escrow, to be his act and deed on condition that it should be afterwards signed, sealed, and delivered by some other friend, of Welsh, which was not done, and so the said writing was void as to him, the said Moss. This plea was held to constitute no defence, upon the ground solely that a bond cannot be delivered to an obligee as an escrow. That case was precisely analogous to the one before us. That was a specialty or deed for the payment of money only, and so is this. Whether in that case the instrument was negotiable or not, we have no means of determining, but we can perceive no reason why its negotiability should exempt it from the operation of the rule; but if that circumstance should have any influence, it would rather seem to be the other way.

The jugment is aifirmed with costs.

Judgment affirmed.


author: Treat, C. J.

text:
    Joseph Hayes, impleaded, &c. plaintiff in error, v. Albert G. Caldwell et al., defendants in error.

      Error to Gallatin.

    An appeal or writ of error does not lie from an interlocutory judgment or decree, but there must be a final decision of the case before either party can have it reviewed in the Supreme Court; such a decision as settles the rights of the parties respecting the subject matter of the suit, and which concludes them until it is reversed or set aside.
    A defendant in a bill of discovery may claim his privilege, and decline answering such allegations of the bill as may have’ a tendency to subject himself to a criminal prosecution.
    Bill of Discovery in aid of a suit at law, in the Gallatin Circuit Court, filed by the defendants in error against the plaintiff in error and others. The cause came on to be heard before the Hon. William A. Denning, at the October term, 1847, on the demurrer of the present plaintiff in error, when the same was overruled. There was no final judgment in the Circuit Court.

      Jl. G. Caldwell, for the defendants in error,
    moved to dismiss the writ of error for the following reasons :
    1. The writ is sued out upon an interlocutory decree of the Gallatin Circuit Court against one of the parties therein ;
    2. There was no final decree by the Circuit Court in said cause; and
    3- The proceeding was otherwise irregular.
    In support of the motion, he cited the following authorities: Pentecost v. Magahee, 4 Scam. 326; Cornelius v. Coons, Bre. 15; Dunham v. Braiman, 1 Root, 551; Carpenter v. Childs, Ib. 181; Ray v. Fitch, 290; Drowne v. Stimpson, 2 Mass. 445; McLaren v. Allen, Minor, 117; Harris v. Kreps, Ib. 184.

      TV. B. Scales, for the plaintiff in error,
    resisted the motion, contending that Hayes was not bound to answer, because it might tend to criminate himself.
    A witness is not bound to answer questions which might subject him to punishment. 3 Black. Com. top p. 287, note 31; 4Ti R. 440; 8 East, 77; 1 Salk. 153; 4 Esp. 225, 242; 4 State Tr. 6; 6 do. 649; 16 Vesey, 242; 2 Lord Raym. 1088; Mitford’s PI. 157, 159; 1 Strange, 444; 3 Taunt. 424.
    As to mere disgracing a witness, see Starkie’s Ev. part II, 139. Yet he is competent to disgrace himself. 2 Starkie, 116; 8 East, 78; 11 do. 309; and may impeach his own solemn acts. 5 M. & S. 244; 7 T. R. 604.
    A particeps criminis may be examined. Cowper, 197. A defendant to a bill of discovery is not only protected from answering the broad and leading fact, but any fact, the answer to which may furnish a step in a prosecution, if any person should choose to indict him. 1 Maddock’s Ch. 214; 2 do. 320, 321; see, also, 14 Vesey, 65, 59; 8 do. 408; 2 do. 243, 246.
    Where two have equal claims to protection, the Court will- not interpose. 2 Maddock’s Ch. 321; Mitford’s PI. 222, 3d Ed.; nor can he be made to answer what is a matter of scandal. 3 Vesey, 370; 1 Maddock’s Ch. 214; 2 do. 492; nor what may lead to a legal accusation, or may subject him

      to a penalty, and not merely what must; or in the nature of a penalty, or forfeiture. 1 Mad. Ch. 214; 1 Bro. C. C. 98; 11 Vesey, 525; 8 do. 405; 1 Atk. 529, 539; 2 Vesey, 389 245,„ 109.'.
    A demurrer to a bill for the discovery of several distinct matters, against several distinct defendants, would hold. 1 Mad. Ch. 215; Mitf. PI. 163.
    Demurrer sustainable for immateriality. 1 Mad. Ch. 19S Mitf. Pl. 155-6, 3d Ed.; see 1 Bro. C. C. 96, said to be the first instance of a demurrer for immateriality. See 2 Atk. 387, 394; 2 Vesey, Jr., 396; 1 Anstr. 82; 2 Bro. C. C. 154; Finch, 36, 44; Mitf. PL 151.
    Caldwell, in reply, contended that after a demurrer is overruled, the party is compelled to answer.
   The Opinion of the Court was delivered by

Treat, C. J.

Caldwell and Ryan brought a suit at Law against Hayes, Guard and Siddall, and also exhibited a bill in Chancery for the discovery of facts to aid in the prosecution of the action. Hayes filed a demurrer to the bill, which the Court overruled. He then sued out a writ of error, which the defendants in error now move to dismiss. An appeal or writ of error does not lie from an interlocutory judgment or decree, but there must be a final decision of the case before either party can have it reviewed in this Court; such a decision as settles the rights of the parties respecting the subject matter of the suit, and which concludes them until it is reversed or set aside. Pentecost v. Magahee, 4 Scam. 326. The present case is not within this principle. The order of the Court on the demurrer was not a final disposition of the case. The rights of the parties were not thereby ascertained and determined. The case is still pending for the further action of the Circuit Court. The defendants have still to plead to or answer the allegations of the bill, and the Court has yet to decide upon the sufficiency'of the pl.ea or answer. Not until these subsequent proceedings are had, and the suit is at an end, can the case if ever, be removed into this Court for revision.

It was insisted on the argument, that the effect of dismissing the writ of error will be to compel the defendant, Hayes, to make discovery as to all of the allegations of the bill, although he may, by so doing, subject himself to prosecution for a criminal offence. No such result can follow. He can insist upon his rights in this respect, as well in his answer as by demurrer. He can answer the allegations that have no such tendency, and as to those, the response to which may tend to criminate him, he may claim his privilege and decline to answer; and the Court, if satisfied that he cannot safely make the discovery, will certainly protect him in refusing to do it.

The writ of error is dismissed with costs.

Writ dismissed.


text:
    Meredith Hawkins, plaintiff in error, v. Silas N. Berry, defendant in error.

      Error to Franklin.

    To constitute a warranty, the term warrant need not be used, nor is any precise form of expression required; but there must be an affirmation as to the quality, or condition of the thing sold, (not asserted as a matter of opinion oi belief,) made by the seller at the time of the sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to malie the purchase, which is so received and relied on by the purchaser.
    Assumpsit, in the Franklin Circuit Court, brought by the defendant in error, against the plaintiff in error, and finally heard before the Hon. William A. Denning and a jnry.
    The declaration alleged that Berry, at the instance and request of Hawkins, agreed to buy of him a certain horse for $85, and that Hawkins, by then and there fully warranting the horse to be sound, sold him to Berry for that sum which was paid; whereas, the horse was, at and after the time of the sale and warranty, unsound, and in consequence of that unsoundness, was wholly lost to Berry.
    The defendant pleaded non assumpsit, upon which issue was joined. Verdict for the defendant at September term, 1846. The plaintiff moved for a new trial, and at the March term, 1847, filed his affidavit, stating that since the trial he was informed that he could prove that defendant had acknowledged that he traded the horse to plaintiff for a sound horse; that he proved at the former trial that the horse was unsound at the time of sale, and in consequence was valueless; that this suit was instituted for the damages he had sustained, and for money laid out for said horse; that he was unable to prove at the trial that defendant traded him the horse for a sound horse, and it was only since the trial he has learned he could prove the same. The Court granted a new trial, to which the defendant excepted.
    At the September term, 1847, the Court ordered that an appeal, in which Hawkins was plaintiff and Berry was defendant, be consolidated with this cause, and that they be tried together. The two causes were then submitted to a jury, and a verdict rendered in favor of the plaintiff for $50. The defendant moved.for a new trial, which was Overruled and the defendant excepted.
    By the bill of exceptions it appeared that Berry proved by E. H. Foster, that he was present at the time of the sale and heard the contract between the parties. The horse was sold by defendant to the plaintiff for $85; all but $7 of which was paid down. During the time of making the contract, defendant told plaintiff that the horse had always been considered a sound horse, except that he had had an attack of the colic once. The horse was about twenty years, old; that at this part of the- conversation between the parties, the plaintiff interrupted the defendant by saying, “you need not tell me anything about it, for I know all about that better than you do.” Witness had owned the horse a year immediately preceding the sale to the plaintiff. The defendant had spent the night with witness preceding the sale to the plaintiff, and purchased the horse of him the next morning. Witness had kept the horse for mares that season, and a part of the time he was kept in like manner by Berry, who lived on witness’ farm within, half a mile of his stable where the horse was kept. He was brought home poor after the season, but had become fat, and had been well taken care of, and thrived well; that nothing had been the matter with the horse, except a little lameness a time or two in one hind leg, which he took to be a spavin; witness believed, at the time of the sale, and still believes, that the horse was sound. The defendant had not seen the horse for six months previous to the sale. The plaintiff had watered and fed him after the season was out, in witness’ absence. The defendant did not warrant the horse. The plaintiff did not require any such thing. Witness was the only person present at the sale except the parties. The horse remaining in witness’ stable three or four weeks after the sale, he discovered that the horse had the big jaw, and assisted the plaintiff in doctoring it. Not long after, the plaintiff took the horse home and turned him into an open lot, exposed to the weather and mud, when he continued to grow worse until June, when he died apparently of that disease, not being treated by the plaintiff as he had been in the habit of being treated.
    S. M. Williams stated that he was acquainted with the diseases of horses, and with the big jaw, which comes on by degrees, and is sometimes two or three weeks seated in the system before it makes its appearance on the jaws, and it frequently manifested itself in one of the hind legs, though the horse will sometimes thrive if kept in a stable.
    William Baxter stated that a year ago, when coming to this Court in company with the defendant, he heard him say that he sold the horse to the plaintiff for a sound horse, -but recollected nothing else said in that conversation.
    William Whitington stated, that after the horse had become poor, the plaintiff made an effort to trade him to witness’ father, and to an inquiry by his father how the horse became so poor, he said that it was occasioned by his being kept in the weather, he not having a stable for him.
    This was all the evidence in the case.
    Assignment of errors.
    1. The declaration is not sufficient in law to authorize the Court to give judgment against the defendant below;
    2. In granting a new trial to the plaintiff below;
    3. In consolidating with this cause an appeal case where Hawkins was plaintiff, and Berry was defendant, and in trying them together without thé consent of both parties;
    4. In refusing a new trial to the defendant below; and
    5. In giving judgment for the plaintiff below.
   The Opinion of the Court was delivered by

Treat, C. J.

The only question necessary to be decided in this case is, whether the evidence authorized the verdict of the jury. To sustain this finding, it must appear that Hawkins warranted the horse to be sound. To constitute a warranty, the term warrant need not be used, nor is any precise form of expression required ; but there must be an affirmation as to the quality or condition of the thing sold, (not asserted as a matter of opinion or belief,) made by the seller at the time of the sale, for the purpose of assuring the buyer of the- truth of the fact affirmed, and inducing him to make the purchase, which is so received and relied on by the purchaser. 2 Kent’s Com. 485; Chitty on Con. 135 ; Osgood v. Lewis, 2 Harris & Gill, 495. The facts detailed by the witness who was present when the contract was made, clearly show that Berry knew much more about the horse than Hawkins ; and that in making the purchase, the former-relied solely on this superior knowledge, and not on any representations made by the latter. When told by Hawkins that the horse had always been considered as sound, and was of a certain age, he replied that it was unnecessary to tell him any thing, for he knew all about the horse. The only testimony in the least conflicting with this view of the case is the naked declaration of -Hawkins that he sold the horse for a sound one. This admission was made some time after the sale, and under' circumstances not calculated to impress us with the conviction .that there was any warranty as to the soundness of the horse. The witness can state nothing else in connection with the transaction. It is most reasonable to conclude that this declaration in fact corresponded with those made at the sale, and that the witness did not understand or recollect its real import. Declarations of this character, although evidence against the party making them, are entitled to but little consideration when in consistent with the well established facts of the case. But taking the admission in its broadest sense and without reference to the other testimony, it does not make out a case of warranty. It must appear in addition that the purchaser relied on a warranty; and that the rest of the evidence fails not only to establish this, but on the contrary, shows that not the least reliance was placed on the assertions of the seller respecting the condition of the horse. In our opinion, a new trial should have been granted.

The judgment of the Circuit Court is reversed with costs, and the cause remanded for further proceedings.

Judgment reversed.