on the books of Hicks, Arrington & Co., on that day, for services rendered by him for the firm of Hicks & Wyatt, in the months of November and December, 1857, as clerk, and that by virtue of the covenant above referred to, the firm of Wyatt & Thompson became liable to pay that debt, as well as all other debts of the firm of Hicks & Wyatt. But if this be conceded to be true, it does not follow that the firm of Hicks, Arrington & Co. had the right of action for the $66 66, or any part of it, against the firm of Wyatt & Thompson. There was no privity of contract between these two firms. Wyatt & Thompson covenanted with Hicks to pay all of the debts of the firm of Hicks & Wyatt, and to save him harmless on account of said debts; and if they failed to pay the debt in question, Hicks had his remedy against them for breach of their covenant; but Hicks, Arrington & Co., who were not parties to the covenant, had no right of action against the firm of Wyatt & Thompson. Their remedy was against the firm of Hicks & Wyatt, and Hicks being a member of both firms, the remedy was in equity, and not at law.

Hicks, Arrington & Co. having failed to show any right of action against Wyatt & Thompson, it is unnecessary to state the evidence introduced in the defence, or to decide the questions growing out of it.

The judgment must be affirmed.

If on appeal from the judgment of a justice of the peace, the appellee recovers any amount, though less than the amount appealed from, the appellant must pay the cost, unless he shall have tendered as much or more than the amount recovered in the Circuit Court-the case of Hicks vs. Maness, 19 Ark., 707, overruled as to this point.

Appeal from Washington Circuit Court.

Hon. J. M. WILSON, Circuit Judge.

THOMASON for appellant.

Mr. Justice COMPTON delivered the opinion of the court. Latta recovered judgment against Dodd, before a justice of the peace, for $84 61. On appeal to the Circuit Court, prosecuted by Dodd, and trial de novo, Latta recovered judgment for $20 40 only; and the court, thereupon, rendered judgment against Latta for the costs in the Circuit Court.

The only question is, whether the court erred in adjudging costs against Latta.

The ruling of the court below was in accordance with the decision in Hicks vs. Maness, 19 Ark., 707. But we concur with the counsel for Latta, that the decision in that case is erroneous, and ought not to be adhered to. The statute provides that, "when an appeal shall be taken from the judgment of the Probate Court, or a justice of the peace, in favor of the appellee, costs shall be adjudged in the following cases: first, if, on the trial de novo, the appellee shall recover as much or more than the amount of the judgment, or, if judgment be affirmed, the appellant shall pay all the costs; second, if the judgment in the

Circuit Court shall be in favor of the appellant, the appellee shall pay the costs of both courts; third, if the appellant shall, at any time before his appeal is perfected, tender, and offer to pay to the appellee, any portion of the judgment, which shall not be accepted in satisfaction, and the appellee shall not, in the appellate court, recover more than the amount so tendered and refused, he shall pay the costs of the appellate court; fourth, if no such tender shall have been made, and the appellee recover any sum in the appellate court, or if, after such tender and refusal, the appellee shall recover more than the amount tendered, the appellant shall pay the costs in both courts." Gould's Dig.

ch. 40, sec. 26.

Now, if the first clause in the section above quoted, stood alone, the decision in Hicks vs. Maness might be sustained; because, from the language there employed, it might be implied that if the appellee recovered less than the amount of the judgment appealed from, the appellant should not pay all the costs; but then, this implication is repugnant to, and cannot prevail over the spirit as well as the express letter of the third and fourth clauses of the same section. Nor is this construction of the statute likely to work injustice to the appellant in such cases; for, by tendering to the appellee, according to the third clause of the section, the amount really due and recoverable, he can avoid the payment of costs in the appellate court.

Let the judgment be reversed and the cause remanded for further proceedings.

By ENGLISH, C. J.-It is frankly to be confessed that Bro. Hanly and myself fell into an error in Hicks vs. Maness, by not carefully construing the first clause of the statute in connection with the others.

TERM, 1861.]

Gulledge vs. Howard and wife.

GULLEDGE VS. HOWARD AND WIFE.

A count upon a written instrument-being a receipt for money to be paid over for particular purposes-for the recovery of damages arising from a failure to pay over the money, is subject to the limitation of five years, not three years. This court will not enquire whether the Circuit Court rightly sustained a demurrer to a plea, where the defendant might have given, and did give in evidence, under another plea, the same facts set up in the plea demurred to.

The liability of a mandatory, or bailee without reward, for the loss of the goods entrusted to him, depends on whether he was guilty of gross negligence.

The finding of the court, sitting as a jury, will not be disturbed, unless there was a total want of evidence to support it.

Appeal from Drew Circuit Court.

Hon. JOHN C. MURRAY, Circuit Judge.

HARRISON, for the appellant.

The action was not founded on the receipt, but on the implied contract to refund the money: and the period of limitation was three years. Sec. 10, ch. 106, Dig. The receipt is not a contract, but only evidence of one. Beebe et al. vs. R. E. Bank, 4 Ark. 127; 4 T. R. 151; 2 Ld. Raym. 758.

The loss of the money was a good defence to the action, unless lost by the defendant's negligence: and if so, that fact should have been put in issue by replication. Story on Bail. secs. 212, 213, 278, 339, 410; 3 East. R. 192; Ch. Pl. 213; Gould's Pl. 14.

WINTER for the appellees.

There was no total want of evidence to sustain the material allegations in the declaration, and therefore the finding of the

Gulledge vs. Howard and wife.

[JANUARY

court will not be disturbed. 2 Ark. 360, 392. 4 Ark. 312; 15 Ark. 403.

The defendant was bound to keep and appropriate the money with due care and diligence; and if it was lost he was bound for it, unless it clearly appeared that he was free from fault or negligence. Story on Bail. 173, 175; Jones on Bail. 1046; 11Wend. 25.

The defendant was not prejudiced by the demurrer to his 3d plea being sustained. 1 Eng. 536.

Mr. Justice COMPTON delivered the opinion of the court.

Henry B. Howard and wife (formerly Mrs. Nelson,) brought an action of assumpsit against Thomas W. Gulledge, founded on the following instrument:

"Received of Mrs. F. plied to entering land in

Nelson, two hundred dollars, to be apher name, in Drew county, Arkansas,

and ten dollars to give to Wm. J. Carter, of Drew county, Arkansas, and ten 75-100 dollars to be given to J. B. Erwin, of Drew county, Arkansas. January 1st, 1855."

(Signed.).

THOMAS GULLEDGE.

The defendant pleaded 1st: non assumpsit; 2d, that the cause of action did not accrue within commencement of the suit; and money, etc.

three years next before the 3d, that he casually lost the The second and third pleas were held bad on demurrer; issue was joined to the first plea, and the cause being submitted to the court, sitting as a jury, the finding was for the plaintiff, and judgment accordingly. The defendant then moved for a new trial, which was overruled, and he appealed.

not err.

In sustaining the demurrer to the second plea, the court did The first count in the declaration, though inartistically drawn, was designed to be, and may be treated as founded on the written instrument for the recovery of damages arising from a failure on the part of the defendant, to appropriate the money as by his undertaking he had agreed to do; consequently, the