text:
    John T. Gilmer, Administrator of Thornton Wilson, Plaintiff in Error, v. William Eubank, Defendant in Error.
    ERROR TO ADAMS.
    Where words which are actionable in themselves, are not spoken under privileged circumstances, it is no defence, in an action of slander, that the partybelieved the words to be true, and was not actuated by malice in fact towards the plaintiff. The law presumes malice, which cannot be rebutted under the general issue.
    This was an action of slander, commenced by Wilson against Eubank in the Adams Circuit Court. There was a trial by jury, at November term, 1849, of the Adams Circuit Court, Minshall, J., presiding, and a verdict and judgment for defendant. Wilson brought the cause to this court by writ of error. During the pendency of the suit in the Supreme Court, Wilson died, and his administrator was made a party in his stead.
    The words charged to have been spoken in the declaration, were, that the plaintiff had stolen a steer belonging to the defendant. The general issue was filed as the only plea. The words were proved substantially as charged.
    The instruction refused and that given, to which exceptions were taken, are copied at length in the opinion of the court.
    A. Williams, for plaintiff in error.
    It is sufficient to prove the substance of the words charged in the declaration. Miller v. Miller, 8 Johns. R. 74; Orwood v. Barker, 13 E. C. L. R. 424; Robison v. Willis, 3 Id. 310.
    The defendant’s evidence did not even tend to rebut the presumption of malice. When a person falsely charges another with a criminal offence, he does it at his peril, and it is no excuse that he believed, or had reason to believe, the charge was true. He must, in such case, show not only that he had reason to believe what he said, but that the words were spoken, on an occasion that made it proper to speak them. Usher v. Severance, 20 Maine, 9; Wallis v. Waithman, 16 E. C. L. R. 412; Rumsey v. Webb, 41; Id. 63; Wheeler v. Shields, 2 Scam. 351; Regnier v. Cabot, 2 Gilman, 35; 1 Saunders’s R. 130, note 1; White v. Nichols, 3 Howard, U. S. R. 285; Putnam v. Gay et al. 5 Gilman, 189.
    A. Wheat, for defendant in error.
    The instruction asked by the plaintiff and refused by the court, is liable to two objections. 1st. It is too broad. The words in the second count do not of themselves impute a crime, hence the inducement, as well as the words, so far as that count is concerned, should .be proved to the satisfaction of the jury. An instruction which is so general as to embrace all of the counts, when it is applicable to one only, will be refused. Porter v. Nash, 1 Ala. R. 452.
    2d. It asks the opinion of the court upon the weight of the evidence, or assumes that there was no evidence tending to disprove malice. Malice is always the gist of the action for slander, and consequently is always a question for the jury under the plea of the general issue. McKee v. Ingolls, 4 Scam. R. 30.
    The presumption of malice, arising from the speaking of words imputing crime, is only a rule of evidence, and consequently may be rebutted; and proof of the truth of the words, or belief in the truth of the words, rebuts this presumption. This rule is always acknowledged when the plea of justification is in. The rule requiring a plea of justification, in order to authorize proof of the truth of the words, is not therefore because evidence of their truth would be irrelevant under the plea of the general issue, but it is one adopted for the benefit of the plaintiff. The plaintiff may therefore waive his right under it, and in this case he has done so. The defendant’s testimony — which, if it does not prove the truth of the words, at least tends to — was received without objection, and no motion was made to exclude it; and being relevant to the issue, it was proper for the jury to weigh it. An instruction on the part of the court, for the jury to disregard it, would have been improper. Wait v. Maxwell, 5 Pick. Rep. 217; Curtis v. Graves, 5 How. Miss. Rep. 9, 15, 16, 17, 28; Edge v. Keath et al. 13 S. & M. Rep. 299; Russell v. Union Ins. Co. 1 Wash. C. C. Rep. 409, 441; Ganerman v. Wickerly, 17 Serg. & Rawle, Rep. 116.
    If the foregoing views be correct, the instruction given by the court to the jury, on its own motion, as well as those given at the request of the defendant, were correct.
    But supposing the court has committed error in giving or refusing instructions, the rule is that the court will not- disturb a verdict for that reason, if it be sustained by the evidence, and justice has been done. Smith v. Houston, 8 Ala. Rep. 736; Bland v. The People, 3 Scam. 364; Greenup v. Stoker, 3 Gilm. 202, 216.
    The plaintiff did not make out his case. The law is that the substance of the words charged must be proved, and proof of equivalent words is not sufficient. Rex v. Berry, 4 T. R. 217; Watters v. Mace, 4 E. C. L. R. 734; Olmstead, v. Miller, 1 Wend. Rep. 510; Slocumb v. Kuykendall, 1 Scam. Rep. 187; Patterson et al v. Edwards et al. 2 Gilm. 723.
    Browning & Bushnell, in reply.
    The words were sufficiently proven. It is not necessary to prove all, nor the precise, words laid. It is sufficient to prove their substance. If the meaning is not changed, but is the same with the words laid in the declaration, that is all that is required. Robison v. Willis, 3 Eng. C. L. Rep. 310; Orpwood v. Barkes 13 Eng. C. L. Rep. 424.
    The instructions to the jury were clearly and palpably wrong. The case is made to turn upon the question of actual malice — malice ill fact — which was wholly immaterial. It is no answer to an action for words imputing a felony, to say the defendant had no malice against the plaintiff. The law implies malice. It raises a conclusive presumption of it, and it is not a question to be left to the jury.
    It is only in reference to privileged communications — communications made in discharge of a public or private duty, and where the occasion of speaking the words furnishes a legal excuse or justification, that the question of malice in fact can arise, and be submitted, for inquiry, to the jury. In all ordinary actions of slander, the rule is different. The deliberate publication of calumny, which the publisher knows to be false, or has no reason to believe to be true, raises a conclusive presumption of malice. 1 Stark. on Slan. 211 to 223; 2 Stark. on Slan. 55, 86; 1 Greenl. Ev. § 18; Bromage & another v. Prosser, 10 Eng. C. L. R. 321; Haire v. Wilson, 17 Eng. C. L. R. 465; Bodwell v. Osgood, 3 Pick. 384.
   Treat, C. J.

This was an action on the case for slander. The words laid in the declaration amounted to a charge of larceny. Plea, not guilty. The evidence tended to prove the speaking of the words as charged; and it did not appear that they were spoken in the heat of passion, or in the way of privileged or confidential communications. The court refused an instruction asked by the plaintiff, in these words: “ If the jury believe, from the evidence, that the defendant spoke and published the words charged in the declaration, the law presumes that the words were spoken maliciously, with a view to injure and defame the plaintiff; and this presumption of malice is not rebutted or removed, by the evidence given by the defendant in this case.” At the request of the defendant, "the court gave, among other instructions, the following: “ If the defendant charged the plaintiff with a felony, the law presumes malice, but this presumption of malice is not conclusive, but may be rebutted by the defendant; and if, from the whole evidence, the jury shall believe that there was no malice in fact, they should find for the defendant, notwithstanding the legal presumption of malice.” The verdict and judgment were for the defendant.

Malice is the gist of the action of slander. But the term malice has a twofold signification. There is malice in law, as well as malice in fact. In the former and legal sense, it signifies a wrongful act, intentionally done, without any justification or excuse. In the latter and popular sense, it means ill-will towards a particular person; in other words, an actual intention to injure or defame him. This distinction runs through the elementary books, and the reports of adjudged cases. Starkie, in his valuable Treatise on Slander, at page 210, holds this language : “ It seems to be clear, as well upon legal principles as on those of morality and policy, that where the wilful act of publishing defamatory matter derives no excuse or qualification from collateral circumstances, none can arise from a consideration that the author of the mischief was not actuated by any deliberate and malicious intention to injure, beyond that which is necessarily to be inferred from the very act itself. For if a man wilfully does an act likely to occasion mischief to another, and to subject him to disgrace, obloquy, and temporal damage, he must, in point of law as well as in morals, be presumed to have contemplated and intended the evil consequences which were likely to ensue.” And again, on p. 219 : “ It follows that every one who ventures to propagate an unfounded calumny, to the injury of the character of another, does it at his peril, and that, unless he can show some lawful excuse for publishing, that is, some cause for publishing under the particular circumstances which the law recognizes as affording a sufficient excuse, the total absence of an actual intention will not avail as a justification.” In Bromage v. Prosser, 4 B. & C. 247, it was said by Bayley, J., in delivering the judgment of the court: “ If I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not; and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces ? And I apprehend the law recognizes the distinction between these two descriptions of malice, malice in fact and malice in law, in actions of slander. In an ordinary action for words, it is sufficient to charge that the defendant spoke them falsely ; it is not necessary to state that they were spoken maliciously. But in actions for such slander as is primé facie excusable, on account of the cause of speaking or writing it, as in the case of servants’ characters, confidential advice, or communications to persons who ask it, or have a right to expect it, malice in fact must be proved by the plaintiff. But in an ordinary action for libel, or for words, though evidence of malice may be given to increase the damages, it never is considered as essential, nor is there any instance of a verdict for the defendant on the ground of the want of malice.” See also Haire v. Wilson, 9 B. &. C. 643, and Bodwell v. Osgood, 3 Pick. 380.

There is a class of cases, where the occasion of the speaking of the words may, without regard to their truth or falsity, afford an excuse or justification to the party; such, for instance, as the statements of a master respecting the character of a servant; communications addressed to the appointing power, relative to the conduct of a public officer, or concerning the qualifications of an applicant for office; expressions used in the course of a judicial proceeding, by a judge, attorney, witness, juror, or party; and communications made to others in confidence, or in the way of admonition or advice. In such cases, an action cannot be sustained without proof of actual malice. If the party acted from honest motives and for justifiable purposes, the law, from reasons of public policy, excuses him. But he is not permitted, under the pretence of discharging a duty to himself or society, to inflict an injury to the reputation of another. If he makes use of the occasion for the purpose of traducing another, the occasion will not protect him, and he will be answerable for the consequences.

But the reverse is the rule in the case of actionable words, where no excuse or justification can arise from the particular circumstances under which they were uttered. The plaintiff is not bound to prove that the charge was maliciously made; nor can the defendant relieve himself from liability by showing the absence of express malice. He makes the publication at his peril, and, if untrue, he is-responsible for all the consequences naturally flowing from the act. The real motive by which he was actuated is unimportant, except upon the question of damages. The injury to the plaintiff may be as serious where the charge is made without an actual intention to defame, as if it proceeds from the most malignant motives. It would be a great reproach to the law, if a party who had causelessly ruined the reputation of another should be exempted from civil responsibility, merely because he did not design to produce such a result.

In this case, the words were actionable in themselves, and they were not published under circumstances that afforded any excuse or justification to the defendant. He was therefore liable for the consequences, unless the plaintiff had committed the crime of larceny. And he did not by his pleadings offer to prove the truth of the charge. The existence of malice in fact was not necessary to maintain the action. The law raised the presumption of malice, and that presumption was conclusive. The court erred in refusing the instruction demanded by the plaintiff, and in giving the one asked by the defendant. The judgment must be reversed, but the cause need not be remanded. The death of the plaintiff, since the judgment was entered, will prevent a further prosecution of the suit.- The cause of action died with the person. The administrator, however, had the right to prosecute this writ of error, to relieve the estate from the payment of an unjust judgment. The judgment is reversed.

Judgment reversed.


source: Caselaw Access Project

author: Caton, J.

license: Public Domain

text:
    Owen B. Tuller, Plaintiff in Error, v. Casper Voght, Defendant in Error.
    ERROR TO JERSEY.
    At common law, a master is not liable for the wilful trespasses of his servant, which are not committed in furtherance of the business of the master.
    By the sixth section of the ninety-third chapter of the Revised Statutes, the owner of a carriage for the conveyance of passengers running on a public highway, is liable in action of trespass for injuries occasioned by the wilful misconduct of the driver. In such an action, the declaration should aver that the carriage was for the conveyance of passengers.
    This was an action of trespass, commenced by Voght in the Greene Circuit Court, and taken, by change of venue, at the instance of Tuller, to Jersey county. The suit was commenced against Tuller, one Alvord, and three others. Tuller and Alvord were the only defendants who were served with- process. They appeared, and pleaded the general issue. At the October term, 1851, of the Jersey Circuit Court, O. C. Skinner,, Judge, presiding, the cause was submitted to a jury, who found the defendant Tuller guilty, and assessed the plaintiff’s damage at §1,000, and the defendant Alvord, not guilty.

      The defendant Tuller then moved for a new trial, on the ground that the verdict was against law and evidence, and was excessive.
    This motion was overruled. Tuller then moved in arrest of judgment. Because the declaration is insufficient to authorize the entering of a judgment thereon ; and because the action in this case ought to have been trespass on the case, and not trespass. This motion was also overruled, and judgment was rendered upon- the verdict. Tuller excepted to the decision of the court, and tendered a bill of exceptions embodying the evidence, and prosecutes a writ of error. The errors assigned are the overruling of the motions for a new trial and in arrest of judgment, and in rendering judgment for the plaintiff.
    The declaration avers, that the defendants on, &c., at, &c., were the owners of a certain coach or carriage and horses, to wit, four horses, drawing the same; and that a certain coachman or servant of the defendants, then had the management, care, and direction of the same, &c.; and that said servant and coachman of the defendants, on, &c., at, &c., while in the employment of the said defendants, as a driver, &e., with force and arms, drove the same along the highway, with great force and violence, against a certain horse on which said plaintiff was riding in the said highway, by means whereof the plaintiff was thrown with great force and violence off the said horse upon the ground; by means of the premises the leg of the said plaintiff was broken, &c.; concluding, contrary to the form of the statute.
    J. M. Palmer, for plaintiff in error.
    The act was wilful and intentional on the part of the driver, and the defendant is therefore not liable. 1 East, 106; 17 Mass. 509; 1 Chitty’s Pleadings, 93; 4 Cond. Rep. 666, 671; 8 Durnford & East, 534; 19 Wend. 343; 1 Smith’s Leading Cases, 310; 9 Wend. 268; 4 B. & A. 490; 1 Stanton, 568.
    The court erred in overruling the motion in arrest of judgment. The action of trespass cannot be maintained. Wright v. Wilcox, 19 Wend. 343; 1 Chitty’s Pleadings, 127, 131, 180, 181; 17 Mass. 244; Id. 479; 11 Mass. 57; 4 Wharton, 143; 1 Smith’s Leading Cases, 413.
    The owner of a carriage is only liable for the negligence or unskilfulness of his servant, and there must be a sufficient allegation. See authorities cited under first point.
    The defendant is not liable under § 6, chap. 93, R. L. 481; Rev. Stats. N. Y. vol. 1, 695, 696, § 6; because there is no such allegation as will bring the case within that statute.
    Not alleged that they -were the owners of a carriage for the transportation of passengers. As to the necessity for such an allegation, 1 Chitty’s Pleading, 290, 291; Id. 416, 417, 418, 423; Id. 383, 384, 385; 12 East, 89, 94; 2 Mass. 444; 4 Pick. 341, 349; 1 Pick. 177; 17 J. Rep. 349, see particularly page 455, 458, overruling the decision of the Supreme Court in same case, in 15 J. R. 250, and also overruling Ouffie v. Hays, 13 J. R. 327, and Bowen v. Morehouse, 1 J. R. 276; Gould’s Pleadings, 503, §§ 22, 23, 24; 1 Day, 186; note, 2d Greenleaf, 230.
    The declaration is not aided by the 7th section of Road Law, as it has no application. The express mention of one thing implies the exclusion of another. Co. Litt. 210. A Statute must be so construed as to give effect to every part. Broom’s Legal Maxims, 515, 516.
    Penal statutes are to be construed strictly. The rule is not confined to penal statutes eo nomine, but extends to those that are penal in their consequences. The defect is not cured by verdict. See Whitcraft v. Vanderver, 12 Ill. 235; and the reasoning upon which that decision proceeds, that the fact stated in the declaration may be true, and still the defendant not be liable, which is understood to express the true rule; and see 5 Monr. 272; 5 B. &. A. 27; 9 Dana, 145. Not cured by an agreed case, 2 Greenleaf, 230. As to the rule upon the subject, 1 Day, 186, note.
    J. Gillespie, on same side.

      First. New trial should have been granted : 1st, because there is no proof that Tuller had any interest in the coach; 2d, there is no proof that the coach was owned by defendants ; 3d, there is no proof that the driver was in the employ of defendants.

      Second. Judgment should have been arrested: 1st, Because the declaration omits to allege that the defendants were the owners of a carriage for the conveyance of passengers. See § 6, Road Law; Rev. Stats. 1845, 481; Chitty’s Pleadings, 382; Drowne v. Stimpson, 2 Mass. 444; Soper v. Harvard College, 1 Pickering, 177, 179; Williams v. Hingham, &c. 4 Pick. 344, 345; Bartlett v. Crozier, 17 J. R. 455, 456; Little v. Thompson, 2 Greenleaf, R. 230. 2d, Because the declaration omits to allege that the act was done wilfully. The allegation, that the act was done with great force and violence, is not equivalent, as it might have been done with great force and violence, and yet not have been done either wilfully or even negligently or unskilfully, as, for instance, when horses were running away and come against the plaintiff; and the plaintiff must be strictly confined to the statutes, in laying his case in his declaration. Stafford v. Ingersoll, 3 Hill, 41; Renwick v. Morris, 7 Hill, 576; Boin v. Wilson, 1 J. J. Marshall, 203, 204; Doggett v. State, 4 Cow. 63; Leonard v. Bosworth, 4 Cow. 423.
    The omission is not cured by verdict. Smith v. Moore, 6 Greenleaf, 274; Wright v. Wilcox, 19 Wend. 344; Gould’s Pleadings, 502, §§ 20, 21, 22, 23, 24; 4 Pickering, 341.
    Master was not responsible at common law for the wilful act of his servant, not done in the immediate presence or by command of the master. 1 East, 105; 5 Munford, 483; 5 Gilman, 430; 2 H. Blackstone, 442.
    Statutes in derogation of the common law must be construed strictly. 1 J. J. Marshall, 203; 2 Mass. 443; 4 Pick. 341.
    R. S. Blackwell, for defendant in error.
    The action of trespass upon the case is founded on the statute of Westminister, 2, c. 24. 1 Com. Dig. 235.
    The distinction which runs throughout the earlier authorities, between trespass and trespass upon the case, invariably, and without a single exception is, that the former is a general, and the latter a special writ. 1 Com. Dig. 235.

      They are both actions upon the case, in the primitive meaning of the term, because in both the plaintiff’s case is set forth; but in the latter it is specially stated, in the former it is generally alleged. 1 Com. Dig. 235.
    The distinctive features between trespass and trespass upon the case, according to the ancient common law were,

      First. A declaration in the former, commences with a positive allegation, “for that,” the latter with a quod cum or recital “for that whereas.” 1 Com. Dig. 235.
    In answer to this, Mr. Day says: “ It strikes me that the words, “for that; whereas,” comprise two distinct parts of a sentence after the manner they are now punctuated; the word “ whereas ” introducing the recitals; the words “for that ” having a prospective to the point of the action; and, indeed, by this mode of construction alone is the sentence, I think, made intelligible.” 1 Com. Dig. 236, 237.
    And the courts hold that the insertion of these words in a declaration in trespass, cannot be reached even by a special demurrer. Coffin v. Coffin, 2 Mass. R. 361.

      Second. The writ was special in both cases, but the cause of action was specially stated in case, generally in trespass. Hence the common appellation of the former, “ special action of trespass upon the case.” 1 Com. Dig. 235.
    Under our laws the writ is still more general than at common law; and the facts are neither set forth generally nor specially. It merely commands the sheriff to summon the defendants to appear at a particular time and place, to answer a particular form of action; and one declaration is used for the purpose of informing the party of the cause of action he is called upon to answer. Rev. St. 413, § 1.

      Third. The declaration in trespass alleged the act complained of to be “vi et a/rmis et contrapacem.” Originally a trespass involved a breach of the peace, and in an action for the injury, besides damages to the injured party, a judgment of capiatur was entered, upon which the defendant was taken, a fine was imposed, and he was imprisoned till he paid both the fine and damages. 1 Com. Dig. 237; 5 Cow. R. 344.
    Under our statute the omission of the words “ with force and arms, and against the peace,” is not even cause for a special demurrer. Rev. St. 51, sec. 10.
    And according to our system of jurisprudence there is no fine to the people, when a trespass involves a breach of the peace.
    ■ Fourth. In trespass vi et armis, a capias ad respondendum issued to seize the person of the defendant, and he was compelled to give bail for his appearance. 1 Com. Dig. 237.
    Under our statute such a writ may be issued, and the defendant held to bail in all actions sounding in tort. Rev. St. 81, §2.

      Fifth. After judgment a capias pro fine was awarded, and the defendant imprisoned until he paid the fine; nor could he be discharged from confinement until he paid the damages also. 1 Com. Dig. 237.
    We have seen that under our laws no fine can be imposed. And our statute authorizes a capias ad satisfaciendum after judgment in all actions of tort. Rev. St. 301, § 6.
    It will be perceived that it became a matter; of infinite moment to the defendant, whether the words “ with force and arms and against the peace ” were inserted in the writ or omitted; and he would take especial care to object to their addition, in every case where such addition was unauthorized by law. 1 Com. Dig. 237.
    This pertinacity on the part of defendant to avoid the fine,' attendant upon a recovery in trespass, has forced the courts into the technical distinctions between trespass and trespass on the ■case. We have seen that writs of trespass were universally general. 1 Com. Dig. 238. And that writs of trespass on the case were special. 1 Com. Dig. 238. General writs of trespass were for forcible injuries, and therefore contained the words “ vi .et armis et contrapacemP 1 Com. Dig. 238. Whereas writs of trespass on the case were sued out to redress wrongs, with or -without violence, as the case happened to be. 1 Com. Dig. 238. Hence arises a threefold distribution of writs of trespass, viz.: First. General writs of trespass vi et armis; Second. Special ■writs of trespass vi et armis; Third. Special writs of trespass ■without force. 1 Com. Dig. 238.
    And in all actions where the plaintiff in detailing the particulars of his grievance, showed that the defendant had broken the peace, whether his writ was trespass or trespass on the case, the words “ vi et armis et contra pacem ” were by virtue of the old common-law rule, inserted in the writ. 1 Com. Dig. 238.
    And this whether the injury complained of was an immediate, or a remote consequence of the act in breach of the peace. 1 Com. Dig. 238.
    The modern doctrine arranges writs of trespass under two heads only, trespass and trespass on the case. It preserves the old distinction between general and special writs ; but requires the appropriation of the former to the redress of forcible injmies alone, and the latter to injuries without force. 1 Com. Dig. 241.
    “ Whether the act complained of was accompanied with force; whether it was done wilfully; whether by the defendant himself, or through the agency of another; whether act done was law ; these have all been attempted as the criterion by which to determine the form of the action, but have all been abandoned.” 5 Cow. R. 345, per Savage, C. J.
    There is one rule, which has seldom, if every been departed from ; that where the injurious act is the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, trespass vi et armis is the appropriate remedy; and it makes no difference whether the force was applied wilfully, accidently, or negligently.
    Where the defendant in a dark night, being on the wrong side of the highway, accidently drove his carriage against another’s, whereby the latter was injured; trespass was held the proper remedy. Zeame v. Bray, 3 East, R. 593.
    Where a belligerent cruiser chased a neutral vessel, supposing her to be an enemy, and coming up with her ran into and sunk her, and the disaster was the result of gross negligence; trespass was held proper. Percival v. Hickey, 18 Johns. 257.
    So where defendant’s servant wilfully drove against the plaintiff’s carriage, whereby it was damaged. Sevignac v. Roome, 6 T. R. 125.
    So for a collision of carriages occasioned by the “ furious, negligent, and improper driving of the defendant.” Day v. Edwards, 5 T. R. 648.

      Trespass lies for an injury happening to a steamboat by a negligent collison. Case v. Mark, 1, 4 Ohio, 305.
    Where the injury is immediate, but is occasioned by negligence, the plaintiff has an election to sue in case or trespass. Wilson v. Smith, 10 Wend. R. 325; Blin v. Campbell, 14 Johns. 432; M’Allister v. Hammond, 6 Cow. R. 342.
    Is the defendant liable for the wilful trespass of his servant? The statute expressly provides that the master shall be liable for the acts of his servant in the same manner as the servant would be liable. Rev. St. 481, § 6.
    As to the form of action. Where a statute confers a new right or creates a new liability and prescribes a particular remedy, that remedy must be pursued. 1 Chitty, Pl. 143. If a new remedy is prescribed to enforce a common-law right or redress a grievance which gave a cause of action at common-law; the plaintiff has a right to proceed under the statute, or pursue his common-law remedy. Where the statute creates the liability, but gives no remedy, the party has a right to adopt such a form of action, as the common-law would consider appropriate. In this case trespass would lie at common-law against the driver. And it would seem appropriate by analogy to adopt the same form against the master. Debt will not lie, because the cause of action is not a sum certain, or capable of being reduced to certainty by computation. Assumpsit will not lie because there is no contract, express or implied. Case will not lie, because the injury was immediate and the result of wilful force.
    Again, this declaration may be treated as in case; the title given it in the commencement and the use of the words “ vi et a/rmis ” does not make it an action of trespass. The form of the action is to be determined by the matter set forth in the declaration. Cornes v. Harris, 1 Coms. R. 223; Seneca R. C. v. Auburn, &c. R. R. Co. 5 Hill, 176,177.
    This declaration is properly framed upon the statute. Reed v. Northfield, 13 Pick. 99; Lee v. Clark, 2 East, 333.
    A verdict in tort will not be set aside because the damages are excessive, unless outrageously . so. Schlencher v. Risley, 3 Scam. 483; 2 Wils. R. 160, 205, 244, 405; Cowp. R. 230; 4 T. R. 651; 8 Johns. 369; 5 Cow. 106, 351; 8 Cowen, 214; 1 Marsh. 431; 1 Bibb, 248; 2 Id. 591; 9 Johns. 45; 2 Id. 63; 4 Mass. 1; 2 Wend. 352.
   Caton, J.

We look upon the rule of the common law as well settled, that the master is not liable for the wilful trespasses of the servant, which are not committed in furtherance of the business of the master. McMorris v. Crickett, 1 East, 106. This principle has already been adopted by this court, in the case of Johnson v. Barber, 5 Gilman, 425. That action was against the master and servant jointly, and the court said, “ If one of the defendants, while engaged in the prosecution of the business of the other, carelessly or negligently set fire to the prairie, or even purposely, with a view to benefit or protect the interests of the employer, the latter would- be liable for the consequences ; but if he set out the fire from motives of malice or wantonness, the principal would not be liable, for that would be an abandonment of the business of the agency.” Here, the declaration professes to count in trespass; and avers, that the defendant’s servant, “ with force and arms, drove the same [the carriage] along the highway, with great force and violence, against,” &c. The pleader has succeeded in mating what he intended, a declaration in trespass, and not case. 2 Chitty’s Plead. 850. For that act, the master, as we have seen, is not liable at the common law. The effect of our statute will be subsequently considered. Unless the master expressly commanded the servant to commit the trespass, the servant alone is liable in this form of action. The owner of the coach is undoubtedly responsible for injuries resulting from the negligence, carelessness, or unskilfulness of the driver; but then he is only liable in a special action on the case. 2 Chitty’s Plead. 708, and note. In case the declaration in general avers, that the injury resulted from the carelessness or unstilfulness of the agent.

The plaintiff, however, insisted, that he was entitled to maintain this action under the ninety-third chapter of the.Revised Statutes. The sixth section of that chapter is this: “ The owners of any carriage, running upon any turnpike-road or pub-lip highway, for the conveyance of passengers, shall be liable, jointly and severally, to the party injured,' in all cases, for all injuries and damages done by any person in the employment of such owners, as a driver, while driving such carriage, to any person, or to the property of any person; and that, whenever the act occasioning such injury or damage shall be wilful, negligent, or otherwise, in the same manner as such driver would be liable. Any driver of any mail stage-coach, or other vehicle for the conveyance of passengers, wilfully offending against the provisions of this chapter, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be imprisoned not exceeding six months, or fined not exceeding three hundred dollars.” That this statute makes the owner of such carriage liable in an action of trespass, for the wilful misconduct of the driver, there can be no doubt. The extent of the liability, and the form of the action, is the same against the owner as it is against the driver. But, when the owner is sought to be made liable under this statute, the declaration must show affirmatively such a case as the statute describes. This the declaration before us fails to do. It does not show that the carriage or vehicle was “ for the conveyance of passengers.” For aught that appears, it may have been only for the transportation of goods, or for the private use of the owner, without reference to the accommodation of the travelling public. For this reason, the declaration is fatally defective under the statute. The judgment must be reversed, and the cause remanded, with leave to the plaintiff to amend his declaration. Judgment reversed.


author: Treat, C. J.

text:
    The People of the State of Illinois, on the relation of Harrison P. McClintock, v. Onias C. Skinner, Judge of the Adams Circuit Court.
    APPLICATION POE, A MANDAMUS.
    On appeal from a justice of the peace, the jurisdiction of the Circuit Court is no greater than that of the justice.
    A Circuit Court should dismiss a suit on appeal, if it appears that the justice of the peace had not jurisdiction of the subject-matter.
    A plaintiff in appeal, cannot confer jurisdiction on the Circuit Court, by remitting a portion of the verdict.
    On appeal to the Circuit Court from the judgment of a justice, the jury found a verdict for plaintiff exceeding one hundred dollars; the plaintiff offered to remit, and reduce the verdict to that sum:—

      Meld, that the Circuit Court was not hound to enter a judgment for the one hundred dollars; and that plaintiff was not entitled to a judgment. The proper practice in such case, would be for plaintiff to move for a new trial.
    This was an application to this court for a peremptory mandamus, upon the facts set out in the opinion.
    Warren & Edwards, for the relator.
    Browning & Bushnbll, contra;.

   Treat, C. J.

McClintock sued Smith before a justice of the peace, and recovered a judgment for $62.52. On appeal, the jury returned a verdict in favor of McClintock, for $130.62. On the coming in of the verdict, he entered a remittitur for $30.62. Smith made a motion in arrest of judgment, which was overruled ; and the court, on its own motion, set aside the verdict, and continued the case. McClintock then entered a motion for a judgment for $100 and costs, which was denied. He has sued out a mandamus from this court, for the purpose of compelling the circuit judge to enter a judgment on the verdict for $100 ; and, on the foregoing state of facts, a peremptory mandamus must be awarded or refused.

The maximum of the justice’s jurisdiction was, one hundred dollars. The result of the first trial showed, primé facie, that he had jurisdiction of the case. The jurisdiction of the Circuit Court was no greater than that of the justice. It is the duty of a Circuit Court to dismiss a suit, which is before it by appeal, whenever it appears that the justice had no jurisdiction of the subject-matter. Rev. Stat. ch. 59, § 67. The verdict on the second trial showed, primd facie, that the case was not within the jurisdiction of the justice. If more than one hundred dollars was really due on the claim in controversy, the justice was without jurisdiction, and the Circuit Court should have dismissed the casé. It is very clear, that the plaintiff could not confer jurisdiction, by remitting a portion of the verdict. The remittitur did not determine that but one hundred dollars were actually due. The circuit judge was probably satisfied, from the evidence, that not more than one hundred dollars was due to the plaintiff; and he, therefore, declined to regard the verdict as a conclusive test of jurisdiction, and dismiss the case. He had no authority to determine the amount of the indebtedness, except on the question of jurisdiction. For every other purpose, the parties had a right to have that fact ascertained by a jury. We cannot say that the Circuit Court has committed any error to the prejudice of the plaintiff. He was not entitled to judgment on the verdict; for, so long as it was permitted to stand, the j urisdiction of the court was, primd facie, avoided. Admit, that the court possessed no authority to set aside the verdict on its mere motion, it does not help the plaintiff’s case. If the verdict should be reinstated, the court could not be compelled to enter a judgment on it in his favor. This is all that need be decided on this application. We purposely leave open the questions, whether the court should have sustained the motion in arrest of judgment, and whether it had any power to grant a new trial, except at the instance of a party to the case. It may be added, that the plaintiff might have obviated all difficulty in the case, by asking and obtaining a new trial.

The application for a peremptory mandamus is refused.

Application denied.


text:
    Paschal Magee, Plaintiff in Error, v. J. C. D. Carmack, Defendant in Error.
    error to McDonough.
    A received of B, in payment of a debt, the bill of a broken bank, which had been valueless for years: —

      Held, that A might recover the amount in an action against B.
    The bill so received should be returned within a reasonable time after its receipt; but as to the reasonableness of time, the jury are the proper judges.
    Carmacic su'ed Magee before a justice of the peace to recover ten dollars, the amount of a ten-dollar bill of the Bank of St. Clair, in the State of Michigan, which Magee had paid to Car-mack for flour. Carmack recovered a judgment before the justice, and Magee appealed to the Circuit Court of McDonough county. In the Circuit Court, Minshall, Judge, presiding, at April term, 1851, the cause was submitted to a jury for trial, and a verdict was again found for Carmack, and a judgment was rendered accordingly. Magee entered a motion for a new trial, which was overruled.
    The bill was paid to Cormack the last of April or first of May, 1850, and was returned to Magee two or three months after. The parties resided seven miles apart. The St. Clair Bank had been broken ten or twelve years, and the bill had been worthless for some years.
    Magee requested that the following instructions should be given to the jury, which the court refused:
    “ That if the jury believe, from the evidence, that the bill is the same passed by the defendant'to the plaintiff, and that it was at the time a bill of a bank not paying specie, and the bill therefore not current, and at a discount more or less; that even in this case, if the defendant did not at the time know the facts, they will find for the defendant, unless they further believe, from the evidence, that the plaintiff, in a reasonable time after he ascertained the bill to be on a broken bank, tendered or offered to. return the bill to the defendant.” “ That if the bill was on a broken bank the plaintiff cannot recover the amount of the same, nor for the value of the things given therefor, unless the plaintiff in a reasonable time offered to return the bill to the defendant.”
    Warren & Edmonds, for plaintiff in error,
    Cited 2 Port. 280 to 284; 1 Gratt. 361; 1 Watts & Serg. 92 et seq.; 13 Eng. Com. Law Rep. 203; 6 Mass. 185; 11 Johns. 414; 7 Mass. 290; 2 Harr. 259; 1 Burr. 452; 1 Salk. 126; 13 East, 137; 3 T. R. 554; 4 Conn. 452; 11 Ill. 140; 6 Hill, 341; 2 Comyn on Contracts, 77.
    R. S. Blackwell, for defendant in error,
    Cited 22 Maine, 88; 11 Wend. 9, and same case reported in 13 Wend. 101; 11 Verm. 517; 2 Eng. Com. Law Rep. 282; 1 Starkie’s Ev. 450.
   Caton, J.

The question whether a payment made in the notes of a broken bank, when such notes are current at the time and place of payment, both parties being ignorant of the failure of the bank, is one upon which the courts of several of the States have disagreed; and as it does not necessarily arise in the decision of this case, we reserve an opinion upon it for the present. In this case the bill was not current at the time and place of payment, nor had it been for many years. The bank had failed some twelve years before; its notes did not circulate as money in McDonough county, and were of no value there or elsewhere. We have no hesitation in saying, that a payment made in such notes cannot be considered as a payment in money. In all the cases where payments made in the notes of insolvent banks have been held good, a knowledge of the failure of the bank had not reached the place of payment, or at least had not become general in the community, and the bills were generally received and treated as money in business transactions. It was only upon the ground that such notes were received and considered by the community as' money that the payment was upheld. Here the bill paid was not money either in fact or in the estimation of the conventional laws of the business community where the payment was made. We are certainly not disposed to extend the doctrine of the cases where payments in the notes of broken banks have been upheld. To allow a party to pálm off a worthless thing as money, which possesses none of its attributes except the bare semblance of a paper currency, would be to introduce a new element into the conventional law of trade. It is only by force of this conventional rule, and not by virtue of the common or statute law, that bank-notes are treated as money anywhere; and when any particular class of them ceases to be regarded and treated as money by the community, which makes, by its habits and practice, this conventional law, then there would be no more propriety in holding a payment made in such uncurrent paper valid, than there would a payment made in the notes of an insolvent individual, both parties supposing him to be solvent, which had never been regarded as money. There is no doubt, then, that the plaintiff had a right to return this note to the defendant and demand the amount thereof in good money. He had as much right to do so as if the note had been counterfeit. But then it is equally clear that he was bound to return it within a reasonable time after the note was discovered to be worthless. This the defendant had a right to expect, that he might avail himself of his right to recur to the person of whom he received it. Every day’s delay tended to diminish the probability of his being able to fix it upon the person of whom he received it. There is certainly as much propriety in requiring the party to return an uncurrent note within a reasonable time, as there is in case of a forged note; and in the latter case it has been held by this court that the party must return the note within a reasonable time after it is discovered to be spurious, or he loses his recourse upon the person of whom he received it. Sims v. Clark, 11 Ill. 137. The refusal of the court to give the instruction declaring this principle, was attempted to be sustained upon the ground, as it was insisted, that, what constitutes a reasonable time is a question of law for the court, and not of fact for the jury, and hence that it would have been improper to have submitted that question to them. This position certainly was not well considered. When, from the nature of the subject, a general rule can be applied to all cases, then what constitutes reasonable notice may be a question of law for the court, as notice to the indorser of a bill or note. But when, as in this case, the question of what would constitute a reasonable time must depend upon the peculiar circumstances of each case, and cannot reasonably be subjected to any general rule, then it is a question of fact for the jury, to be determined from all the circumstances. The court erred in refusing to instruct the jury that the plaintiff could not recover if he had neglected to return the bill to the defendant within a reasonable time after he discovered the bill to be worthless; and for that error the judgment must be reversed, and the cause remanded.

Judgment reversed.


author: Per Curiam.

text:
    John C. Hagar, Appellant, v. Richard Phillips, Appellee.
    APPEAL PROM MORGAN.
    The appellant files the record, and enters a motion that the appellee join in error. The appeal was prayed within thirty days of the commencement of this term.
    M. McConnel, for the motion.
    W. Brown & D. A. Smith, contra.

   Per Curiam.

The motion is refused. The appellant was not bound to file the record before the next term, and the appellee ought not to be compelled to appear before that time. The rights of the parties should be reciprocal.

Motion denied.


text:
    Thomas Rogers, Plaintiff in Error, v. John Holden, Defendant in Error.
    ERROR TO ADAMS.
    A valid award has the force of an adjudication, and effectually concludes the parties from litigating the same matters anew.
    An appeal is allowed from the judgment of a justice of the peace, founded on an award, not for the purpose of allowing a party to go behind the award, but any legal defence to it may be insisted upon, and if it is invalid, the parties will be remitted to their original rights.
    The case of Van Winkle u. Beck, 2 Scammon, 488, overruled.
    The judgment in this cause was first rendered before a justice of the peace in Adams county, in October, 1850, in favor of Holden, for fifteen dollars and costs, from which Rogers appealed to the Circuit Court of Adams county. In the Circuit Court, Holden entered a motion to dismiss the appeal, for want of jurisdiction in the court to entertain the same, and because an appeal does not lie, the judgment before the justice having been rendered on an award of arbitrators. Rogers entered a cross-motion to dismiss the suit.
    Upon the hearing of these motions, Rogers read the transcript of the justice, which recited that the parties appeared, and agreed to refer the difference between them to three individuals, as arbitrators, making a certain lease, executed by Nathan Ward to said Rogers, filed in the court, the basis, and all other matters existing between them, having any reference to said leased land, whereupon the cause was continued. The arbitrators were sworn, and proceeded to a conclusion, upon which the judgment in question was rendered.
    The arbitration bond and award, which were filed in the Circuit Court by the justice, as the papers on which his proceedings and judgment were found, were also read. By the arbitration bond, the parties bound themselves to each other in the sum of one hundred dollars, to abide the award of said arbitrators. The award was signed by only two of the arbitrators. This was all the evidence and papers. The court, O. C. Skinner, J., presiding, at June term, 1851, sustained the motion to dismiss the appeal, on the ground that an appeal was not allowable in such cases. Rogers excepted, and brings the case here by writ of error.
    Williams & Lawrence, for plaintiff in error,
    cited R. L. 1845, p. 57, § 13; p. 321, §§ 42 and 43; p. 323, § 58; 2 Scam. 489; 6 Johns. R. 39.
    Warren & Edmonds, for defendant in error,
    cited 2 Scam. 489; 3 Blackf. 141; Rev. Sts. of 1833, p. 395.
   Treat, C. J.

The parties originally appeared before a justice of the peace, and agreed to refer certain matters in difference between them to the arbitrament of three persons, two of whom heard the case, and made an award in favor of Holden for $15. The justice spread the award on his docket, and entered a judgment thereon against Rogers. The latter prosecuted an appeal, which was dismissed by the Circuit Court, on the ground that an appeal did not lie in such a’ case.

Parties to a suit before a justice may refer the matter in controversy to arbitrators, who are to hear the case, and deliver their award in writing to the justice ; and he is to enter the same on his docket, and give judgment thereon. Rev. St. chap. 59, § 43. Appeals from judgments of justices of the peace are allowed in all cases, except on judgments confessed. Rev. St. chap. 59, § 58. This provision is broad enough to embrace the present case. But we are referred to the case of Van Winkle v. Beck, 2 Scam. 488, as settling the question that an appeal cannot be prosecuted from the judgment of a justice upon an award of arbitrators. That case was substantially like the present, and a judgment of the Circuit Court, dismissing the appeal, was affirmed. The court said: “ The parties in this case thought proper to select their mode of trial by arbitrators. It was an act purely voluntary. The parties submitted their controversy to a tribunal of their own choosing, and by its decision they must stand. We rare of opinion that the Circuit Court decided correctly in dismissing the appeal, as we think no appeal lies in such a case.” 'This reasoning as to the effect of an award is unquestionably correct. A valid award has the force of an adjudication, and effectually concludes the parties from litigating anew the same matters. But it by no means follows, that an appeal may not be prosecuted from the judgment of a justice, founded on an award. An appeal is granted in such a case for the purpose of reviewing the action of the justice, and not for the purpose of allowing a party to go behind the ayard, and reinvestigate the matters passed upon by the arbitrators. A justice may enter a larger judgment than the award authorizes. Shall not the defendant be permitted to have it modified in the Circuit Court ? The award may be invalid, and form no proper basis for the judgment. Shall not the party be allowed to prosecute an appeal for the reversal of such a judgment? A contrary rule might be productive of gross injustice. We are clearly satisfied that the statute authorizes an appeal from the judgment of a justice on an award; and that the decision in "Van Winkle v. Beck was erroneous, and ought now to be overruled. The effect of such an appeal may not be the same as in ordinary cases. If the award is binding on the parties, any inquiry into the matters originally controverted is forever closed. And the only question, then, is as to the correctness of the decision of the justice. The appeal brings up the award for judgment, and any legal defence to it may be insisted on. Any objection that might properly have been taken to it before the justice, may be made in the Circuit Court. If the award is free from objection, and no error has been committed by the justice, the judgment must be affirmed. But if the award is invalid, the parties are remitted to then.' original rights, and may investigate the matters in difference, as if the same had not been referred to arbitration.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    James Brown, Plaintiff in Error, v. William Keirns, Defendant in Error.
    ERROR TO FULTON.
    On an appeal from the judgment of a justice, the bond must be, at least, in twice the amount of that judgment; if not, the appeal should be dismissed, but the appellant may avoid the difficulty by executing a sufficient bond.
    This was an action commenced by Keirns against Brown, before a justice of the peace, in Fulton county. Keirns took an appeal to the Circuit Court of Fulton county. The penal part of the appeal-bond is as follows: “ Know all men by these presents, that we, William Keirns and John Boyd, are held and firmly unto James Brown in the penal sum of fifty-four and sixty-two cents, dollars lawful money,” &e. In the condition of the bond it is recited, “ That whereas the said James Brown did, on the 26th day of May, 1849, before me, A. T. Robertson, a justice of the peace for the county of Fulton, recover a judgment against the above-bounden William Keirns for the sum of twenty-seven Tf0 dollars, from which judgment the said William Keirns has taken an appeal to the Circuit Court of Fulton county,” &c.
    In the Circuit Court of Fulton county, Kellogg, Judge, presiding, at March term, 1850, Brown entered a motion to dismiss the appeal on several grounds, one of which was that the appeal-bond was insufficient. The court denied the motion to dismiss, and the cause proceeded. Brown excepted to the ruling of the court in overruling his motion to dismiss, and brings the cause to this court by writ of error. . There was not any cross-motion made to amend the appeal-bond. Keirns recovered a judgment against Brown in the Circuit Court.
    The error assigned, was the decision of the Circuit Court in overruling the motion to dismiss the appeal.
    Browning & Busiinell, for plaintiff in error,
    Cited Rev. St. p. 323, § 58; Young v. Mason et al. 3 Gilm. 58; Sharp v. Bedell, 5 Gilm. 94; Brooks et al. v. Jacksonville, 1 Scam. 568.
    H. M. Wead, for defendant in error.
    A party cannot assign for error an erroneous decision which does not prejudice his rights. 1 Scam. 340; 5 Gilm. 26.
   Treat, C. J.

The court should have dismissed the appeal. The bond was in the penalty of $54.62, and* it recited a judgment for $27.62. The penalty was, therefore, less than twice the amount of the judgment appealed from. We understand the statute as requiring an appeal-bond to be in the penalty of at least double the amount of the judgment. Rev. St. ch. 59, § 59. The deficit in this case may seem trifling, but the bond is nevertheless not a statutory obligation. 1 If a departure from the statute could be tolerated in the present case, it would have to be allowed in cases of more substantial defect, and the result would be to vest clerks and justices with a mere discretion as to what should be the penalty of an appeal-bond. It was decided in Smith v. Whittaker, 11 Ill. 417, that a penalty in a larger sum than twice the amount of the judgment will not vitiate an appeal-bond; and it was intimated, in that case, that a penalty in more than double the judgment may properly be required where it is necessary for the full indemnity of the appellee. The report of that case should have stated that the bond in question was more than twice the amount of the judgment appealed from; and what was there said must be understood with reference to such a bond. But there is no authority for holding that an appeal-bond is a less penalty than double the judgment, can be regarded as a compliance with the statute. On the contrary, this court has often expressed the opinion, that the appellee has a right to insist that the bond shall strictly conform to the statute. Young v. Mason, 3 Gilm. 55; Sharp v. Bedell, 5 Id. 88. The rule cannot operate harshly upon an appellant, for he is permitted to avoid the effect of a motion to dismiss his appeal for the insufficiency of the bond, by the execution of a new bond. If he will not thus perfect the appeal when the objection is made, he must suffer the consequences resulting from his negligence.

The judgment is reversed.

Judgment reversed.


text:
    Stephen Abrams, Plaintiff in Error, v. George Pomeroy et al., Defendants in Error.
    ERROR TO SCOTT.
    A party is not compelled to try a cause on writ of error, until the return term of the writ.
    This was a writ of error sued out during the present term, returnable to the next. The errors were assigned upon the record for the purpose of making the writ a supersedeas. The defendants in error entered their appearance, and join in enjor, and enter a motion that the plaintiff in error file abstracts, with a view to the trial of this case at this term.
    J. Grimshaw, for the motion.
    M. McConnel, contra.

   Per Curiam.

The motion must be refused. The plaintiff in error cannot be compelled to submit the case at this term. He has until the return term to file abstracts.


text:
    Benjamin G. Hopkins, Appellant, v. David B. Watt, Appellee.
    APPEAL EROM SCOTT.
    Where a managing partner in the settlement of the partnership accounts, with a view to a sale of his interest, makes a representation relative to the extent of the liabilities of the firm, upon the faith of which his copartner, who has no actual knowledge of the partnership affairs, pm-chases out his interest in the concern, and assumes the payment of the debts due by the firm, which representation turns . out to he untrue, whereby his copartner sustains a loss; the latter may have relief in chancery; and it is immaterial whether the representation was intentionally or innocently made.
    Where partners deal with each other touching the partnership affairs, and their means of knowledge relative to the situation of the firm is not equal, he who has the superior information must not make any representations which are untrue; if he does, a court of chancery will interfere and relieve the injured party, although the partner making the representation was not guilty of fraud in fact.
    The decree was entered in this cause, at September term, 1850, by Woodson, Judge, in Scott Circuit Court.
    The facts of the case are stated in the opinion of the court.
    D. A. Smith, for appellant.
    Brown & Yates, for appellee.
   Treat, C. J.

Hopkins and Watt were merchants, and partners in trade. The business was conducted by Hopkins and his son, a clerk in the store, although Watt was occasionally in the store, and had access to the books of the concern. While the partnership was progressing, Hopkins paid $128 to Bennett, a creditor of the firm, and charged him on the books with $138. He also transmitted funds to Greely & Gale, creditors and factors of the firm, who therewith paid for the firm $80.25 to Bennett, and $56.20 to E. A. and R. Filley. He charged Greely & Gale with the gross amount, but omitted to credit them with the sums paid Bennett and the Filleys. He charged the latter with the amounts received from Greely & Gale. The books, therefore, showed that the firm owed Greely & Gale and Bennett $146.45 less than was actually due them. With a view to a dissolution, Hopkins and his son, aided by Watt, made an inventory of the stock, debts, and credits of the concern; and Watt purchased the entire interest of Hopkins for $900, and agreed to pay all the debts against the firm. The parties then executed a written agreement embodying the terms of the dissolution. While this agreement was in preparation, and the books and invoice were before the parties, Watt desired that the agreement should- only bind him to discharge the debts appearing to be due by the invoice; but Hopkins insisted that it should be general, and embrace all the debts. Watt gave as a reason, that he was not acquainted with the liabilities of the firm, as Hopkins had managed its affairs ; and Hopkins replied, that he knew of no other debts than those on the books and invoice. Watt then remarked to Hopkins, that he had transacted all the business, and contracted all the debts, and must know whether there were any other liabilities than those mentioned in the invoice ; to which Hopkins answered, that there were no other debts than those on the invoice; that they were all. After paying the $900 to Hopldns, and the debts of the firm, Watt filed a bill in chancery against Hopkins, and obtained a decree for $73, one half of the excess due to Bennett, and Greely & Gale, above what the books and invoice showed. The propriety of that decree is the only question in the case.

The decree was clearly right. Hopkins had the management of the partnership business, made the entries in the books, and ought to have known the extent and nature of the liabilities. Watt had no knowledge of the liabilities, except what he derived from the books, and what he learned from Hopkins. There was, therefore, an inequality in the situation of the parties. Their means of knowledge were not the same. Hopkins had the superior information. In this state of things, Hopkins was called upon to give the true condition of the partnership indebtedness. The response was a positive assertion, that the books and inventory disclosed all the liabilities. On the faith-' of this assurance, Watt purchased the interest of Hopldns, and undertook to discharge all of the debts. Under these circumstances, he had a clear right to rely on the representation, and if untrue, and he was injured thereby, to hold Hopkins responsible. And it is immaterial, whether the misrepresentation was intentionally or innocently made. The consequences to Watt are the same in either case. If the books had correctly stated the liabilities, and there had been no actual fraud on the part of Hopkins, the case would be different. Watt might then be charged with negligence, iri not examining them, and ascertaining the extent of the indebtedness.

The decree is aifintied.

Decree affirmed.


author: Catón, J.

text:
    Caleb Jones, Plaintiff in Error, v. Marshall Smith et al., Defendant in Error.
    ERROR TO SCOTT.
    A plea in bar to a bill in chancery, showing a final decree in a former suit, where the same rights between the same parties were litigated, is conclusive.
    The bill filed in this case avers that Felton, in the year 1843, obtained a judgment against Jones, the plaintiff in error, and one Smith, who was his security for $886.67, and costs, upon which an execution issued, which was levied upon certain premises described. At the same term, Gilham obtained a judgment against the same parties, and in the same relation, for $328.87 and costs, upon which an execution issued, which was levied upon one of the same lots, and upon other premises described. The land was levied upon as the property of Jones, whose title was good, except that there was a defective acknowledgment to a deed; that in January, 1844, Jones paid Felton’s judgment, by paying the costs to the sheriff in cash, and giving a note to Felton, payable two years from date, for $393.24, with ten per cent, interest, which was secured by a mortgage executed by Jones upon the same land upon which his execution had been levied, which note and mortgage Felton still holds ; that he also paid the Gil-ham judgment at the same time, and in the same way; that said notes and mortgages were received in full satisfaction of the judgments, of all which Smith had knowledge. Afterwards, by order of the plaintiff in those judgments, those executions were returned without a sale of the premises levied upon. Afterwards Felton and Gilham caused alias executions to be issued upon their judgments; and Felton caused his execution to be levied upon both the tracts of land, upon which the two first executions had been levied, and also, upon certain premises, as the property of Smith. That Gilham caused his alias execution to be levied upon the same two tracts of land upon which both of the first executions were levied, and also upon another tract belonging to Jones ; that the sheriff’, acting under the direction of Felton and Smith, who had conspired with Gilham, proceeded to sell under Felton’s alias execution, one of the tracts upon which it was levied, without having properly advertised the same, of which Smith became the purchaser, for the sum of $409.58; that both tracts were sold together, although they did not lie contiguous to each other; that under Gilham’s alias execution, the sheriff sold the same tracts of land to Smith for the sum of $349.15; that Smith received a sheriff’s deed for the same two tracts of land, under the sale made on the Felton execution, which contained false recitals of the mode of sale; that he also received a sheriff’s deed, purporting to be made under the sale in virtue of Gilham’s execution, to one of the same tracts, and also to another tract, the deed reciting falsely, that that other tract had been sold on said execution; that Smith subsequently took possession of the premises, and has been in receipt of the rents and profits.
    The reason assigned by Felton and Gilham for issuing the alias executions was, that they pretended to have discovered some defect in the title of Jones to the premises which he had mortgaged as security for the debts, but they had not offered to surrender the notes and mortgages, but retained the same. The bill avers that there was no such defect in the titles as was pretended.
    The bill also contains averments in relation to the defective acknowledgment of one of the deeds of Jones, and' of a bill filed by Smith against him and others, which it is unnecessary to state.
    The bill also shows, that the property sold was worth vastly more than the amount for which it was sold.
    The bill prays that the agreement made by Jones with Felton and Gilham, to secure the judgments in their favor, may be enforced ;' that the notes and mortgages given for that purpose be established and declared to be valid; that the sales made by the sheriff and the deeds given by him be set aside. For an account of the rents and profits; and that Jones may be allowed to redeem under the mortgages; and that Smith deliver to him the possession of the premises.
    To this bill the defendants each filed a separate plea in bar. The plea filed by Smith avers a former adjudication of the matters set up in the bill in a suit in chancery, in which Smith was complainant, and Jones, with one Armatage and wife, and others, were respondents. The plea sets out the pleadings and decree in that case; from which it appears, that the bill in that suit avers the recovery of the judgments, which are stated in the bill in the case now presented for discussion; the issuing of the same alias executions; the levy upon the land; that it was duly advertised for sale, and that Smith became the purchaser; stating the amount which he gave for each tract, and the making of the sheriff’s deeds to him. The bill set out in the plea avers, that there was a mistake made in the date of one of the alias executions, and prays that the mistake may be corrected. This latter bill avers, that Jones and wife had, before the rendition of the judgments, conveyed to Mrs. Armatage, who was their daughter, in fraud of creditors, a part of the same premises; that Armatage and wife had attempted to reconvey to Jones, but that the conveyance was not properly acknowledged to carry the estate of the wife; that Armatage had got a tax-title to the premises, which was void. The prayer of the bill was, that the date of the alias fi. fa. may be corrected; that the conveyance from Jones and wife, to their daughter, may be declared fraudulent and void; and that they may be decreed to convey to Smith. This bill, set out in the plea, was taken for confessed as to all the defendants, except Jones, who answered, and set up the payments of the judgments by the notes and mortgage, as is set up by his bill in the present suit. The bill set up in the plea was brought to a hearing, and the court decreed, that Smith was the bond fide purchaser of the lands at sheriff’s sale, and that he had received a deed therefor; that Felton and Gil-ham did not accept the notes and mortgages in satisfaction of theh- judgments, and that there was no such contract in relation thereto as could, or ought to, affect Smith’s title, acquired at the sale by the sheriff; that the conveyance from Jones and wife to their daughter was without consideration, fraudulent and void as to creditors; and that the tax-title of Armatage was for the benefit of Jones; and corrected the mistake in the date of the alias execution. Similar pleas were filed by Felton and Gil-ham.

      These pleas were set for hearing, and, upon argument at May Term, 1850, the court, (Woodson, Judge, presiding,) held that the pleas were good and sufficient, and Jones saying nothing further in answer to the pleas, his bill was dismissed. Whereupon he brought the cause to this court by writ of error. The error assigned was, the sustaining of the several pleas in bar by the Circuit Court.
    M. Mo Conned, for plaintiff in error.
    D. A. Smith, for defendant in error.
   Catón, J.

This bill avers the recovery of two judgments against the complainant and Smith,— one by Felton, and the other by Gilham ; that Jones was principal and Smith security in the debts upon which the judgments were rendered; that, in January, 1844, Jones paid those judgments by executing notes and a mortgage, which Felton and Gilham, by an agreement, accepted in full satisfaction of their judgments, of all which Smith had notice; that, afterwards, they caused executions to be issued upon then judgments, which were levied upon several tracts of land, as the property of Jones, as well as upon certain premises belonging to Smith. Under Felton’s execution, the sheriff sold one of the tracts levied upon, and another not levied upon, both of which belonged to Jones, without having properly advertised the same, and that Smith became the purchaser. That the two lots were sold together, although they did not lie contiguous. The premises levied upon by Gilham’s execution were also sold, and Smith became the purchaser, and in due time received a sheriff’s deeds for all of the property thus bought; that Smith had taken possession, and was in receipt of the rents and profits. The reason assigned by Felton and Gilham for issuing executions was, that they pretended to have discovered some defect of title to the mortgaged premises, although they had not offered to surrender the notes and mortgage, but still retain the same ; that there was no such defect in the title; that the land was of vastly more value than the amount for which it sold. The bill prays that the agreement to satisfy the judgment may be enforced, and that the notes and mortgage may be declared to be valid; that the sales and sheriff’s deeds may be set aside; for an account of the rents and profits;. and that the complainant may be allowed to redeem the mortgage, and be let into the possession of the premises.

To this bill, each of the defendants filed a separate plea in bar, of which it is only necessary to notice that filed by Smith. That is a plea of a former decree, rendered in a suit commenced by Smith against Jones and others, in which it is claimed that the same questions were adjudicated and settled which are again sought to be litigated in this suit. The plea sets out the pleadings and decree in the former suit, from which it appears that the bill there avers the recovery of the judgments stated in this bill, the issuing of the executions, the levy upon the land, and that it was duly advertised and sold by the sheriff, and that Smith became the purchaser, stating the amount for which each tract was sold; that the land was not redeemed, and that he received sheriff’s deeds therefor. The bill also avers that a mistake was made in the date of one of the executions, showing wherein. That bill further avers that Jones and wife had fraudulently conveyed a part of the premises to then: daughter, Mrs. Armatage; that Armatage and wife had attempted to re-convey to Jones, but that the conveyance was not properly acknowledged to convey the wife’s estate. The bill also avers that Armatage had procured a tax-title upon the premises, which was void. That bill prays that the date of the fi. fa. may be corrected, and that the conveyance from Jones and wife to their daughter may be declared void, &c.

That bill was taken for confessed as to all of the defendants, except Jones, who answered, and set up the payment of those judgments by the execution of the notes and mortgage. He admitted the judgments, executions, and the sale to Smith, as was stated in the bill.

The suit was heard upon the pleadings and proofs, and a decree was rendered establishing that Smith was a bond fide purchaser at the sheriff’s sale; that Fulton and Gilham did not accept the notes and mortgage in satisfaction of their judgment, and that there was no such contract in relation thereto as could or ought to affect Smith’s title acquired under the sheriff’s sale. The decree also finds that the conveyance from Jones and wife to their daughter Elizabeth was void; that the tax-bill was acquired by and for the benefit of Jones. The decree also corrects the date of the execution.

This plea was set for hearing, and held to be sufficient by the Circuit Court, and a decree was entered dismissing the bill..

To determine the sufficiency of this plea, it is necessary to inquire whether the issues formed in the former suit involved the same rights and grounds of equity which are presented by this bill, and whether that decree determined and settled those rights. That such was the case, it seems to us admits of no question. There Smith averred that he was a bond fide purchaser, and substantially that he purchased the lots in separate parcels, for he states the amount which he bid for each. Jones, in his answer, admitted the purchase by Smith as stated in his ■bill, and made no pretence that the sale was irregular, by reason ■of the property having been sold en masse, as he now pretends. The question of the regularity of the sale was there presented; and the irregularity now complained of, had it been then set up and established, would have defeated the relief there sought and •obtained. But, substantially admitting the regularity of the sale, he went further back and claimed that the judgments had been paid in the same mode; that he insists in this bill that they had been satisfied. In that suit we see that the validity of the sale was presented, and the continuing force of the judgments involved. It is entirely manifest that the same issues were presented and the same rights involved in that suit as in this; and there, too, were those rights settled and determined. The court there passed upon the validity of that sale, in a suit where the question was directly presented, and determined that Smith was a bond fide purchaser. That was a matter adjudged between the parties; and while that decree remains unreversed, it must ■ever conclude them on that question. That decree also expressly adjudged that those judgments had not been satisfied, as Jones then insisted, and as he now insists. How is it that he ■should be again allowed to litigate that question with Smith ? If one solemn decree of a court of chancery, in a suit where the parties are before the court, and present and litigate the question or admit the facts, will not conclude the rights of the parties, how many will? That the judgments had not been satisfied, and that Smith was a bond fide purchaser, being conclusively established against Jones, his entire case is gone; strike those claims for relief out of his bill, and there is nothing left.

It is true that that decree concludes no question of right between Jones, and Felton and Gilham, because they were not parties to that suit, and hence they cannot insist upon that decree as a bar in their favor, nor have they done so. It may be that the pleas which they filed constitute no bar in their favor; but as the relief sought against them is entirely dependent upon the granting of the relief sought against Smith, that being denied, of course no decree can be entered against them. No beneficial decree for the complainant can be entered establishing the mortgage and authorizing a redemption under it, without destroying Smith’s title, which, as we have already seen, has been judicially and conclusively established in his favor. Felton and Gilham are but nominal parties, while Smith alone is really interested in resisting the relief sought by this bill.

We may readily imagine a case in which Jones might obtain relief against Felton and Gilham. Had he shown that the consideration for which the notes and mortgage were given had failed, and that they refused to give them up when requested, claiming the right to enforce them, it may be that the court would decree them to be delivered up and cancelled. But such relief now would be utterly inconsistent with the frame and objects of the bill, which expressly insists that the notes and mortgage are still subsisting and valid. The complainant cannot obtain relief which falsifies every statement and every principle of his bill.

The decree of the Circuit Court is affirmed.

Decree affirmed.


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    Uri Manly et al., Plaintiffs in Error, v. Benjamin N. Gibson, Defendant in Error.
    ERROR TO MENARD.
    In order to ascertain the location of a town lot, it is not necessary to produce the plat of the town, but it may be established by other satisfactory proof.
    The public may have an interest in streets and alleys, although the ground has not been dedicated in the manner prescribed by statute.
    A dedication of ground to public uses, may be made in other ways than by making and recording a town plat.
    A town plat is not a necessary muniment of title.
    This was an action of ejectment, commenced by the plaintiffs in the Menard Circuit Court. Gibson’s tenant was in possession of the premises claimed in the plaintiff’s declaration, lots 1 and 2 in Block 66, in Taylor’s Addition to the town of Peters-burg. Gibson came in and was made defendant, and filed his plea of not guilty. A jury was called, sworn, &e., and the plaintiffs introduced in evidence the certificate of the Register of the land-office at Springfield, Illinois, for east one half, of northeast one fourth, section fourteen, town eighteen, range seven west, to which said certificate there were no objections, and the same was read. The plaintiffs then offered in evidence the certificate of the Recorder of Sangamon county, that lots number one and two aforesaid lay in the above piece of land, as appeared on record in his office, which was objected to, because it was not a perfect and complete plat of the Addition of Taylor, which said objections were sustained by the court, for the reason that it was not a complete record of the plat; to which rulings the plaintiffs excepted at the term. The said plaintiffs then offered a report of, and plat from, the Surveyor of Menard county, with his certificate thereon of the survey of the above piece of land, or a part of it, which survey and plat were made to show on what piece of land the lots aforesaid were situated. This evidence was excluded by the court. The plaintiffs then called the surveyor of Menard county, and offered to prove, in connection with his plat and certificate, the exact location of said lots, their boundaries, &c., which testimony was also ex-eluded by the court, unless the complete plat of said Addition should first be produced.
    The jury found a verdict for the defendant. The cause was tried before Woodson, J., at November term, 1851, of the Menard Circuit Court.
    Lincoln & Herndon, for plaintiffs in error.
    A plat or map of a town is no part or parcel of a man’s title, except he claim by virtue of a gift or donation by virtue of the plat. The sole object of recording the plat is to prevent disputes in dedications or sizes of lots. R. S. p. 115, §§ 17, 18, 19, 20, 21; 11 Illinois, 554; 2 Douglas, Mich. 269; Wright, 749; 9 Ohio, 201.
    It is not the best evidence of which the nature of the case admits. An actual survey — positive demonstration as to the locality or situation of the lot — is the best evidence, and this, too, by our statute. R. S. p. 524, § 7; 1 Scam. 184.
    The court excluded this positive, this demonstrative evidence, and according to our laws he erred. Ibid.; 1 S. & M. 494; 13 Peters, 97.
    The court excluded the survey, and excluded parol evidence in connection with the survey. Reputation alone is good evidence to prove boundaries or localities of land. There was better evidence offered than reputation; there was absolute evidence—the surveyor and an eye-witness. 6 Peters, 328; 1 Missouri, 484; 3 Wash. C. C. R. 199; 7 Porter, 58; 1 Scam. 184; 1 Bibb, 115; Wright, 694; 5 Littell, 34.
    T. L. Harris and W. I. Ferguson, for defendants in error.
    The second error assigned is, “ that the court excluded the recorder’s certificate.”
    It was not “ the best evidence of which the case in its nature was susceptible,” and was properly excluded. 3 Stark. 390; 1 Phil. Ev. 217; 1 Gilbert, 13; 1 Greenl. 82.
    The best evidence was the original plat. Towns are required to be surveyed and platted and recorded. R. L. 1833, p. 599; R. L. 1845,115.

      If the original plat could not be had, on that fact being shown a copy might have been introduced; but proof of loss is first'necessary. 2 Gilm. 125.
    When secondary evidence is proposed, the best kind of that is required. 14 Johns. 181; 1 Greenl. 107; 5 Gilm. 113.
    The statement of a recorder is not as high evidence as an exemplification from his records. R. L. 108; 2 Scam. 502; 15 Maine, 147; 22 Maine, 230; 1 South. 76.
    The law requires acknowledgment of plat, &c. R. L. 1833, p. 599; 1845, p. 115. This certificate does not show that fact. Breese, 160. The original could not have been introduced without it. A recorder might certify, on the same principle, any opinion drawn from his record, and exemplifications would never be required. His opinions would supersede all else. The plaintiffs had proof by original plat and certified copy, and why should he not be required to resort to them ?
    If the recorder had been produced as a witness, he could not have told the contents of his record. 2 Missouri, 200. How, then, can this certificate be evidence ?
    The third error assigned questions the exclusion of the surveyor’s plat and certificate.
    There is no principle upon which a naked certificate like this can be evidence. It states that Block 66, in Taylor’s Addition, is located on 11 S. \ S. E., N. E. Sec. 14, T. 18, R. 7,” which, if true, could have been proved by higher evidence, to wit, the plat or lay-out of said addition; and if not true, it had no relevancy.
    It was correctly excluded, because, if any such survey ever was made, we were not a party to it, but strangers. We should have had notice. 1 Lord Ray. 734; 2 Wash. (Va.) R. 551; 4 Hen. & Munf. 194.
    It was also correctly excluded until a chain of title was proved) or proposed to be proved, to the lots, from the patentee of the land in question to the plaintiffs; all of which could, if true, have been proved by the register’s certificate, the deeds of conveyance, and the deed of lay-out of said Addition. No such certificate could be admitted. 14 Pick. 128; 1 Missouri, 334; 2 Yeates, 446; 3 Yeates, 587; 1 Cox, 379.
    The fourth and fifth errors assigned question the exclusion of the parol testimony of the surveyor, in connection with the plat, and the parol testimony of the surveyor, disconnected with the plat.
    I have already shown that the surveyor’s plat was not legal evidence. Could it, when combined with the parol evidence of the surveyor, become legal ? It was not proposed to prove a fact of which there was not higher evidence. What could a surveyor know of lots one and two, Block 66, but what he had learned from deeds, records, or hearsay ? If from deeds and records, let them be produced; if from hearsay, his knowledge was not wanted.
    Besides, the plaintiff did not propose to prove by this means that the grantors of plaintiffs ever had title to “ S. |, E. S. E. Sec. 14,” on which it is pretended the lots were located; nor did plaintiffs before or subsequently show that fact, or offer to show it. The evidence was therefore irrelevant, incompetent, and rightly excluded.
    If such evidence had been admitted at the time it was offered, it would have been, on motion of defendant, excluded after plaintiff’s evidence had closed, and because neither the deeds nor any evidence offered, or proposed to be offered, make title in the plaintiffs. 1 Scam. 505; 5 Gilm. 186.
    But another reason why this survey, and the testimony concerning it, should have been excluded, is, that the defendant had no notice of it. It was ex parte •— res inter alios acta. 3 Bibb, 235.
   Treat, C. J.

This was an action of ejectment brought by the trustees of the State Bank of Illinois against Gibson, to recover the possession of lots one and two, in block sixty-six, in Taylor’s Addition to the town of Petersburg. It appeared, in evidence, that the defendant had possession of the premises when the suit was commenced; and that James Estep entered the east half of the north-east quarter of section fourteen, in township eighteen, north of range seven west. The plaintiffs offered in succession the following evidence: A certificate of the county surveyor, showing that he had surveyed twenty acres from the south end of the tract entered by Estep, and that the lots in question were situated thereon; the oral testimony of the surveyor, that the twenty acres embraced the lots; a deed from the patentee to Elijah Estep, for the twenty acres ; a deed from the latter to Taylor, for the same premises; and a deed from Taylor to the State Bank of Illinois, for the lots described in the declaration. The court rejected this evidence, and the defendant had judgment.

It appears, from the bill of exceptions, that the evidence was excluded because the plaintiffs did not introduce the original plat of the addition, or a certified copy from the record. This position cannot be maintained. The various provisions of the statute respecting the laying out of town lots, do not make it necessary to produce the plat in every controversy concerning the title to a town lot. The design of the statute in requiring a plat to be made and recorded, is to render the rights of individuals and the public definite and certain; and to accomplish this object, penalties are imposed on proprietors and surveyors for failing to pursue the directions of the statute. But a party may establish a title to a piece of ground described in his deed as a town lot, although no plat has ever been made and recorded. He is not to be prejudiced by the omission of his grantor to comply with the requisitions of the statute, if he can give locality to the premises intended to be conveyed. The plat is not a necessary muniment of his title. Where the corporate authority of a town claim the fee to the streets and alleys within its limits, it must appear that a plat has been regularly made and recorded. In such a case, it is the acknowledgment and recording of the plat, that vests the fee in the corporation. The plat operates as a grant to the corporation of the grounds designated thereon for public purposes. Canal Trustees v. Havens, 11 Ills. 554. But the public may have an interest in streets and alleys, although the ground has not been set apart for the purpose, in the manner prescribed by statute. A dedication of ground to public uses, may be made in other ways than by the making and recording of a town plat. In the case of a valid plat, the title to the ground set apart for public purposes, is held by the corporation for the use and benefit of the public; in the case of a dedication by a different mode, the fee continues in the proprietor, burdened with the public easement After a party has made proof of title to a tract of land, the question whether the tract includes the premises in controversy, is purely one of fact. And any evidence which tends to solve this question is properly admissible. The certified copy of a survey made by the county surveyor is competent. It is made primé facie evidence by the statute. He is supposed to consult the public record, and such other sources of information, as may serve to aid him in locating the land. His survey, however, is not conclusive, but may be shown to be erroneous. He may also be called as a witness. And so may any other person who has any information respecting the locality of the land. It is a common practice in the trial of actions of ejectment, to call witnesses for the purpose of showing the boundaries and precise location of a tract of land in dispute. The court erred in rejecting the evidence.

The judgment is reversed, and the cause remanded.

Judgment reversed.


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    James M. Campbell, Plaintiff in Error, v. William H. Randolph, Defendant in Error.
    ERROR TO McDOROUGH.
    The admission of a party, in an action before a justice of the peace, that a claim produced against him is correct, is not a confession of judgment; he may prove payment, a set-off, &c., and such admission will not deprive him of his right to appeal.
    This action was commenced by Randolph against Campbell before a justice of the peace. Campbell appeared before the justice and filed a set-off; and by his counsel admitted the correctness of the account filed by Randolph. No evidence was offered, and the justice gave judgment against Campbell. Campbell appealed to McDonough Circuit Court. In the Circuit Court, Randolph moved to dismiss the appeal. The Circuit Court, Minshall, Judge, presiding, at April term, 1851, sustained the motion and dismissed the appeal.

      Campbell filed his bill of exceptions, showing that the appeal was dismissed for the reason that the judgment appealed from was by confession. Campbell offered to prove, by the justice who rendered the judgment against him and by another witness, that there was no confession of judgment, and that the judgment rendered was not by confession. The circuit court refused to hear such proof and sustained the motion to dismiss. Campbell sued out the writ of error from this court, and assigns for error,— the rendition of the judgment against Campbell, and the dismissal of the appeal; the refusal to try the cause on the merits, by hearing testimony, that the judgment before the justice was not by confession.
    Warren & Edmonds, for plaintiff in error.
    R. S. Blackwell, for defendant in error.
   Treat, C. J.

Randolph recovered a judgment against Campbell before a justice of the peace. The entry of judgment was in these words : “ This day being set for trial, and the parties appeared, and the defendant filed his set-off, but nó proof being before the court, and the defendant, by his counsel, admitting the plaintiff’s account, judgment is, therefore, rendered in favor of the plaintiff, and against the defendant, for the sum of seventeen dollars and twenty cents, principal and interest, and costs of suit.” Campbell prosecuted an appeal, which was dismissed by the Circuit Court, on the ground that an appeal did not lie from such a judgment.

The statute reads thus: “Appeals from judgments of justices of the peace to the Circuit Court shall be granted in all cases except on judgments confessed.” Rev. Stat. ch. 59, § 58. The present case is not within this exception. There was no judgment by confession. The defendant admitted the plaintiff’s account. He dispensed with proof of its correctness. But he did not thereby conclude himself from insisting that the claim had been paid, or that he had just demands against the plaintiff. The admission left him at full liberty to make proof of his set-off ; and, failing to establish it to the satisfaction of the justice, to remove the case into the Circuit Court. If a party goes before a justice, and consents that judgment may be entered against him for a particular amount, he is not permitted to prosecute an appeal from the judgment. He thereby solemnly admits that he is justly indebted to the plaintiff to that extent, and the law, for wise reasons, estops him from afterwards conr troverting it. But no such effect follows from the simple admission of a party, made before a justice of the peace or elsewhere, that a particular claim produced against him is correct. The statement may be used as evidence against him, but it will not preclude him from showing that he has just demands against the other party.

The judgment is reversed, and the cause remanded.

Judgment reversed.


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    Darius Ingalls, Appellant, v. Aristarchus Bulkley, Appellee.
    APPEAL PROM MORGAN.
    In replevin in the detinet, it is necessary to prove a demand and refusal, in order to a recovery.
    If a demand of property is made, it must be by an authorized agent; and unless the defendant has such evidence of the authority to make the demand, as would satisfy a prudent man, he is not bound to notice it.
    In an action of replevin in the detinet alone, the same proof is required, as in action for trover and conversion.
    The question of authority in the agent to demand the property, is one proper to be submitted to the jury.
    An intention manifested to retain the property, would not make the detention unlawful, until after a refusal to deliver upon a proper demand.
    This was an action of replevin, brought in the Morgan Circuit Court by Bulkley against Ingalls. The declaration alleged that Ingalls, against sureties and pledges, &c., unjustly detained the horse of the said Bulkley, to wit, &c. The plea denied the detention, upon which there was an issue to the country. At March term, 1850, Woodson, Judge, presiding, the cause was submitted to a jury, and resulted in a verdict and judgment for Bulkley, the plaintiff below.
    The bill of exceptions shows, that Bulkley proved, by the officer who executed the writ, that, when he went to take the horse, Ingalls did not want to give him up; but, when he was informed that the officer had a writ, he gave him up; and said that Bulkley had sent a colored or negro boy down after the horse, and also a white boy, by the name of Whittle, but he would not let either of the boys have the horse; but, if Bulkley - would come himself after the horse, and pay all damages, he should “ have had” him; for he did not consider the demand by those boys legal or good; that he did not know any thing about the boys; these boys were both minors. Ingalls said, that the way the horse came into his possession, that he was a very breachy horse, and that he had often broken into his inclosure over the fence belonging to Bulkley, and this time he had found the horse in his field, and had taken him up and put him in the stable, to prevent the horse from trespassing upon him farther. Another person, who was with the officer, proved the same facts. It was in proof, by the admission of Ingalls, that the horse was demanded by the boys before the institution of the suit.
    A motion for a new trial was overruled, and Ingalls prayed for and obtained an appeal.
    M. McConnel, for appellant.
    A demand was necessary; and where trover and conversion will not lie, this suit will not. Sevier v. Dingle, 4 Greenl. Rep. 306; Beebe v. Bunn, 3 Eng. (Ark.) Rep. 510.
    An absolute refusal is necessary in an action of trover and conversion. 5 Stewart & Porter, 383.
    Where a demand Was made by an agent, it must appear that he is duly authorized, or the property may be refused, if the party is not reasonably satisfied that the application is made by one duly authorized. The agent should have a written authority. Watts v. Porter, 2 Mason’s Rep. 77; 1 Chitty’s Plead. 180, 181, 183, 184; 2 Saunders’s Rep. 472, 474, note (m); 2 Bos. & Pul. 403, 404, note (a) (b.)

      A demand and refusal must be absolute, not evasive merely. It must be an unqualified refusal. J. Bouvier’s Bacon’s Ab. 637, 639.
    D. A. Smith, for appellee.
   Catón, J.

This was an action of replevin in the detinet alone, and it was undoubtedly necessary for the plaintiff to prove a demand and refusal, in order to establish an unlawful detention by the defendant. The officer testified that, at the time he executed the writ, the defendant told him that the plaintiff had sent a negro boy and another boy down after the horse, but that he would let neither of them have him; but that, if Bulkley had come himself after him, and paid all damages, he should have had him ; that he did not consider the demand of the boys legal or good; that he did not know any thing about the boys; that these boys were mere minors. The second instruction given for the plaintiff was as follows: “ That the age or color of the plaintiff’s agent, or the doubts of the defendant as to the authority of the agent, can have no legal influence in the decision of this case.” This instruction, we have no doubt, was erroneous. It took from the jury the decision of the question, whether the defendant refused to deliver the horse to the boys because he reasonably doubted their authority to receive him for the' plaintiff. Unless he was reasonably convinced that they had such authority to demand the horse, he iwas not bound to deliver him to them, and his refusal to do so would not make the detention unlawful. In this action, for the unlawful detention alone, the same proof was required which would have been necessary had the action been for trover and conversion. Beebe v. Bunn, 3 Eng. (Ark.) Rep. 565.

Notwithstanding the case of Watts v. Porter, (2 Mason, 77,) we will not say that the authority of the agent should have been in writing; but then, the, circumstances showing their authority should have been such as a prudent man would have acted upon, knowing that he would have been responsible for the horse, if delivered to a person who had not authority to receive him. That was a question for the jury to determine, and should have been, submitted to their consideration. The doubts of the defendant, as to that authority, certainly had something to do with the case. It is true that, at the time of the service of the writ, the defendant admits that the plaintiff had sent the boys for the horse; but that does not show that he was convinced of that fact at the time of the demand. It is also true, that the defendant seems to have entertained in his own mind an intention to retain the horse till his damages were paid; but such intention, of itself, would not make the detention unlawful, until he refused to deliver him upon a demand made by the plaintiff himself, or by an agent, whom the defendant believed was authorized to receive him; and that he had doubts on that subject seems to be indicated from his remark, — that he did not know any thing about the boys. At all events, there was evidence on that subject which should have been submitted' to the jury for their consideration.

The judgment of the Circuit Court is reversed, and the cause remanded. Judgment reversed.