Where a creditor sells the property of several tenants in common as the property of one, buys it all, and asserts, on a trial, his right to the whole, the other tenant in common may recover his interest without proof of the sale or destruction of the property by the purchaser: But this court might infer that such proof was made where such inference is not excluded by the bill of exceptions. And so where the correctness of the verdict depends upon the fact whether cotton, ginned by a third person, was still in possession of the ginner-he having no lien upon it for ginning, if it was out of his possession-this court might infer that the evidence sustained the verdict, unless the bill of exceptions excluded such infer

ence.

On a motion for a new trial on the ground of newly discovered evidence, this court will infer that proper diligence was not used, where the new witness was one of the joint owners of the property in litigation.

Appeal from the Circuit Court of Union County.

Hon. LEN B. GREEN, Circuit, Judge.

CARLETON, for appellant.

Mr. Justice FAIRCHILD delivered the opinion of the court. Peterson attached nine bales of cotton as the property of McClendon, and at a sale made under the order of the Circuit Court, bought it, when Manley, claiming the entire interest of three bales of the cotton, and one-fourth part of the remaining six bales, brought this suit, an action of trespass, in the Union Circuit Court, against Peterson, and recovered judgment for a sum that the cotton he claimed would produce at the price at which the whole cotton was sold. Peterson's motion for a new trial was overruled, and he appealed to this court.

When the cotton was taken to the gin, it was there deposited by Manley and McClendon as their property, and as that of one Ridgell: that is, three bales were left as the exclusive property of Manley, and the other six bales as the property of all three-Ridgell being admitted by them to be the owner of one half, while Manley and Peterson owned the other half. This was sufficient to show Manley's interest in the cotton; and entitled him to a recovery against Peterson for its value, if the latter appropriated the cotton to his own use. And that Peterson intended, and perhaps that he effectuated this, might be inferred from his attachment and purchase of the cotton.

But Peterson insists here, as he did in the Circuit Court, that until he had sold or destroyed the cotton, he was not liable to be sued for Manley's interest in it, as that interest was a tenancy in common with Peterson, and was in existence till the sale or destruction of the cotton. Peterson attached the cotton as all belonging to McClendon, bought it all, and on the trial asserted his right to the whole, but a more precise and technical answer may be given to his objection by saying that the bill of exceptions does not show that it contains all the testimony adduced upon the trial, whence it must be inferred that evidence may have been given showing the sale or destruction of the cotton by Peterson.

This also disposes of the objection that no abatement was made from the value of Manley's interest in the cotton for the one twelfth part of it that was due or belonged to the ginner as his toll for ginning the cotton. Without doubt, as the Circuit Court instructed the jury, Manley was liable to the ginner for toll, yet it would not thence follow that the ginner could not exact toll in kind for the nine bales of cotton; and if the cotton had still been in his possession, it would have been wrong for the court to have directed the jury to include the one-twelfth of the cotton in the verdict they might find for Manley, on the ground of his continuing liability to the ginner

23 530 57 514

Hill et al. vs. Wright, Williams & Co.

[DECEMBER

for the toll cotton. But the ginner had no lien upon the cotton after it was out of his possession; this possession may have ceased, and the bill of exceptions, in failing to show that it recited all the testimony, does not exclude the possibility of such a conclusion having been reached by other evidence.

Another ground for a new trial insisted on for Peterson, was the discovery of new evidence. Why this was not known to Peterson before the trial, we are not informed, and as the new witness was the person with whom Manley and McClendon owned the six bales of cotton, it might well be inferred that proper diligence was not used by Peterson to discover the testimony before the trial. This part of the appellant's case does not fulfill the exactions of the law as declared in Burriss vs. Wise, 2 Ark. 42, and other decisions of this court.

The judgment of the Circuit Court of Union county is affirmed.

HILL ET AL. vs. WRIGHT, WILLIAMS & Co.

Any question that could be raised upon the overruling of a demurrer to some of the counts of a declaration, is waived by afterwards pleading to the whole declaration.

The obligation of principals to reimburse to securities the money paid by them, is not founded on the bonds which securities give for their principals, but on the express contracts of indemnity which the parties make, or upon the implied promises raised by the law upon the payment of money for another at his request.

TERM, 1861]

Hill et al. vs. Wright, Williams & Co.

To refuse an instruction asked for soon after the court had refused one deemed deficient in form but containing the same legal principle, because tendered after the time fixed by the court for the presentation of instructions, is not a proper exercise of the discretion of the court, where the giving it could not injure the opposite party, and refusing to give it was to deprive the party of the application of a legal principle to which he was entitled by the facts of the case.

Appeal from Ouachita Circuit Court.

Hon. LEN B. GREEN, Circuit Judge.

GALLAGHER and KNIGHT, for the appellant.

FARRELLY & FINLEY, for appellees.

Mr. Justice FAIRCHILD delivered the opinion of the court.

In 1853, the steamboat D. S. Stacy was attached in New Orleans in several suits for violation of contracts of affreightment, and to relieve her from seizure, Ezra Hill and James Vaughan, part owners of the boat, procured Wright, Williams & Co. and Frellson to enter into the bonds required by the Louisiana laws. Judgments were entered against the boat and owners, in the district courts of New Orleans, and upon appeal bonds being given by the same sureties, suspensive appeals were allowed against the judgments, which, in due course of legal proceeding, were affirmed in the Supreme Court of Louisiana. The result of the whole litigation to Wright, Williams & Co. and to Frellson was, that they became liable to pay, and did pay the large sums that were adjudged against the boat and owners; Wright, Williams & Co. paying one half, and Frellson the other half of these liabilities.

To recover the amount that Wright, Williams & Co. had thus paid for the liabilities of the steamboat D. S. Stacy, the surviving members of the firm brought this suit, an action of assumpsit, against Hill, Vaughan, Lovetzer and Austin, owners of the boat, in the Circuit Court of Ouachita county.

Hill et al. vs. Wright, Williams & Co.

[DECEMBER

The declaration contained as many special counts as there were alleged judgments, and payments thereof by the plaintiffs as securities for the owners of the boat, and common counts for moneys paid to the use of the defendants.

Hill and Vaughan defended the suit by separate pleas of non-assumpsit, and judgment was rendered against them upon the verdict of the jury, a discontinuance having been taken as to Lovetzer and Austin, who were not served with process. Vaughan alone appealed, and having died during the pendency of the suit here, it has been revived in the name of his administrator.

We pass by the arguments that the special counts of the declaration are insufficient, and that a recovery cannot be sussustained upon the common counts, because we dissent from the latter conclusion, and because any questions that could be raised upon the demurrer to the special counts were waived by pleading to the entire declaration after the demurrer was overruled.

Wright, Williams & Co. and Frellson were each liable for the whole amount of the several judgments rendered in the Louisiana courts, because such was the effect of their bonds; and if there were no other evidence than the records of those judgments and of their satisfaction by the securities, it would be inferred that the principals, that is, the owners of the D. S. Stacy, would each be liable to the several securities for the sums respectively paid by them. But the obligation of principals to re-imburse to securities the money paid by them, is not founded on the bonds which securities give for their principals, but on the express contracts of indemnity which the parties make, or upon the implied promise raised by the law upon the payment of money for another at his request.

It is fully established by the testimony in this case, that Wright, Williams & Co. became securities upon the different bonds in the litigation about the steamboat D. S. Stacy, at the instance, for the benefit and upon the responsibility of Ezra