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The defendant could not ask for a new trial, but to be relieved from an injurious verdict, and such an one has not been inflicted upon him. Judgment affirmed.
WATERS VS. GRACE & MURRAY.
The plaintiff, in an action for money had and received, having introduced evidence
conducing to show the receipt of the money by the defendants, and his right to it at the time of the receipt, the court erred in exoluding it from the considera.
tion of the jury. An attorney has a lien apon the funds of his client in his hands for labor and
money expended about the business of that fund, but not for any services or costs about other business of his client.
Appeal from Jefferson Circuit Court.
Hon. J. Gould, Special Judge.
BELL & CARLTON, for appellant.
GALLAGHER, for appellees.
Mr. Justice FAIRCHILD delivered the opinion of the Court.
In 1856, Grace & Murray, partners in the practice of the law, had in their hands for collection, a demand of M. Greenwood & Co., upon Rayburn & Atkins, which was afterwards collected. From some dealing between Greenwood & Co., and Waters, the
latter claimed the proceeds of the demand from Grace & Murray, as belonging to himself.
A part of the money collected was paid to Waters, and this snit was brought for the residue. The defence is that Waters has no legal right to the money upon which the suit can be sustained, and that the money is properly retained by Grace & Murray, in payment of a debt Greenwood & Co. owo to them.
By the deposition of Thomas E. Adams, one of the firm of M. Greenwood & Co., Waters proved facts that abundantly show his right to the money, as between himself and Greenwood & Co., and the charge of Grace and Murray, for previous business performed for Greenwood & Co., was not proper to be taken out of the money sned for; as it had been embraced in a settlement made between Grace & Murray and Greenwood & Co.
But as the deposition of Adams was objected to on account of his interest, as one of the firm of Greenwood & Co., it may be seen what other testimony tends to support the cause of action.
D. W. Carroll testifies that, by the authority of Murray, he made out the accounts of Grace & Murray, with Greenwood & Co., in which the former firm was charged with the amount of the money collected from Atkins & Rayburn, and credited with the commission for collecting it, with six 15-100 dollars for costs paid for Greenwood & Co., and with two hundred and fifty dollars for a fee in a case of Bell, administrator of Byrd, against Greenwood & Co., leaving a balance due from Grace & Murray of one hundred and eighty 55-100 dollars, and that this was paid to Waters. This testimony shows an acknowledgment of the receipt of the money which is the object of this suit, and that Grace & Murray recognized the right of Waters to receive, but whether as his own or for Greenwood & Co., is not made known. There is other testimony in the case in the shape of admissions made in court, and in the evidence of Bell, to the same effect as Carroll's testimony, but showing that Grace & Murray paid the money to Waters on his represen
tation, that it belonged to him, and that they did not assent to his right legally to demand it of them.
Although our opinion might be that there was evidence enough without the deposition of Adams, to make Grace & Murray liable to Waters for the two hundred and fifty-six 15100 dollars, which they retained as due to them from Greenwood, that is a question for the proper tribunal and not for us to decide. But the evidence of Carroll and Bell, and of the admissions made in court by the defendants, was proper to be given to the jury for their consideration. The alleged incompetency of Adams to be a witness did not affect this evidence; it was not dependent upon his deposition; and it has not been explained to us why all the evidence of Waters should have been excluded, though the court below supposed that of Adams to be incompetent, as the testimony of an interested witness. A charge was made upon Grace & Murray, by the evidence of the plaintiff, that was entirely disconnected from the evidence contained in the deposition of Adams; while the claim made by Grace & Murray to relieve themselves from the charge, was but a simple indebtedness from Greenwood & Co., to them, which was no lien upon the money collected from Rayburn, or Atkins & Rayburn, whether the money belonged to Greenwood & Co., or to Waters. Grace & Murray could well retain out of that money their charges for collection, but the other charges were mere demands against Greenwood & Co., which, however just they may have been, could not be retained out of this fund in controversy. If Greenwood & Co. owed Grace & Murray for services in the suit charged for in the account which Carroll stated, they could resort to the law to collect the debt, or set it off in any demand Greenwood & Co. should prosecute against them; but an attorney's lien is not a charge upon a fund for any services or costs, but those that relate to labor and money expended about the business of that fund.
Without deciding the question of Adams' incompetency, which is not properly before us, we are clearly of the opinion
that the court erred in excluding all of the testimony adduced by Waters, and for so doing, its judgment is reversed.
Where no motion for a new trial was made in the court below, the propriety of the
verdict upon the admitted evidence, is not to be questioned in this court. But when no question, tending to infringe upon the province of the jury, is involved, when the case presents simply leading points upon the pleadings, and upon the instructions and rulings of the court, it is the established practice of this court to disregard a particular error, if the judgment upon the whole record is according to law; and so, potwithstanding conceded errors, the judgment will not be reversed, if, upon consideration of the whole case, the party was not injured by
them. When the execution of a bill of sale bas been proved by the subscribing witness,
and the witness interrogated as to the fairness of the sale, the opposite party may interrogate him as to such facts as tend to show fraud ; both, because fraud may be enquired into, and because the vendee had opened the door to such enquiry by proof of the fairness of the sale. But evidence cannot be introduced to show that the transaction witnessed by the bill of sale was other than it recited: whether intended to be an absolute or conditional sale, a mortgage or a pledge, must be determined by the written contract. Where the question and answer, in the examination of a witness, are entire, in.
cluding some matter that might be legal and some that was illegal, the entire
answer should be excluded. The Probate Court being a court of constitutional jurisdiction, and having autho
rity to order the sale of slaves belonging to the estate of a deceased person, the Circuit Court cannot judge of the propriety or legality of such an order, upon its
introduction as evidence in a collateral proceeding, Judgment and execution against an administrator-delivery bond given and for
feited—execution on the delivery bond judgment; Held, that the return of the
sheriff on the latter execution, showing a seizure and sale of the property of the intestate, was not competent evidence for him—the acts being without legal au
thority. Where evidence has been erroneously admitted, and excepted to, the court may
well refuse to give an instruction that such evidence was not legal, and could not be considered by the jury—the party must rest upon his exception to the admission of the evidence.
Error to Ashley Circuit Court.
Hon. John C. MURRAY, Circuit Judge.
WADDELL, for the plaintiff.
On the trial, the plaintiff read an absolute bill of sale from Elmyra Hundley, to said Hosea George, for the negroes in question, dated 13th September, 1855, and proved the due execution of the same, and that at the time Elmyra Hundley had actual possession of the slaves; but there was no formal delivery of them to George, and in fact, they were left in the said Elmyra Hundley's possession, but for no fraudulent or improper purpose ; and that the sale was a fair and honest one. This was sufficient prima facie proof of the title to the negroes. 2 Eng. 200; Story on Sales, sec. 311, and note 3, and authorities cited; 17 Ark., 176.
The court erred in rejecting, as evidence, the transcript of the order of the Probate Court directing a sale of the negroes. The order was by a superior court of competent jurisdiction, and not void if erroneous.
The court clearly erred in admitting evidence of the seizure and sale of the negroes under the delivery bond execution against Mrs. Hundley and her surety. These executions were not liens upon the slaves. Biscoe vs. Sandefur, 14 Ark., 592.
There was error in admitting proof that the bill of sale, absolute on its face, was intended as a mortgage. Parol evidence cannot be given to vary a writing, and it was not material, whether the bill of sale was intended as a mortgage or not; for though it were a mortgage, still the plaintiff was entitled to recover, un