PRACTICE IN SUPREME COURT-CONTINUED.
7. This court will not enquire whether the Circuit Court rightly sustained a de-
murrer to a plea, where the defendant might have given, and did give in eri-
dence, under another plea, the same facts set up in the plea demurred to. Gul-
ledge vs. Howard, 61.
8. The finding of the court, sitting as a jury, will not be disturbed, unless there
was a total Want of evidence to support it. 16.
9. Where it was the appropriate province of a jury to determine a matter of fact
before them, and their conclusion is not without evidence to sustain it, this
court will not disturb their finding upon the matter, Hirsch ve Patterson, 112.
10. Where judgment is for an excessive amount, it will be affirmed, under the
rule, on a remittur of the excess; otherwise it will be reversed. Ib.
11. 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 ac-
cording to law; and so, notwithstanding conceded errors, the judgment will not
be reversed, if, upon consideration of the whole case, the party was not injured
by them. George ex. vs. Norris, 121.
12. In an action of trespass against the plaintiffs, their attorney and the sheriff,
for levying an execution upon, and selling the property of a third person, if
there be any evidence, though slight, against the attorney as a co-trespasser,
this court could not set aside the verdict against him for not being supported
by evidence. Crump vs. Starke, 131.
13. Where the record states that the suit against a defendant not served with pro-
cells, was discontinued, this court will hold such statement to be true, although
the bill of exceptions presents a different state of facts. Ib.
14. The appellant having been made a witness, and the jury, who heard his state-
ment, having rendered a verdict against him, and the presiding judge who had
an opportunity of observing his manner of testifying, having refused to set aside
the verdict, this court being unable to say that there was a total want of evi.
dence to sustain the verdict, 'affirms the judgment. Thompson vs. Patterson,
159.
15. The failure of the Circuit Court to dispose of a bad plea, is not sufficient cause
to reverse the judgment. Brearly vs. Peay, 172.
16. Where there is a conflict of testimony, the court will not disturb the verdict of
the jury, or the finding of the court below. Mayson vs. Edington, 208.
17. Where the question of damages is fairly left to the jury, this court will not set
aside the verdict for excessive damages, unless there be good ground shown.
McClintock vs. Lary, 215.
18. This court cannot presume, for the purpose of sustaining the judgment of the
Circuit Court, that a plea was stricken out for some good and sufficient cause,
PRACTICE IN SUPREME COURT-CONTINUED.
agaiost the affirmative showing, made by the record, that the court erred. Far.
ish vs. Jones, 323.
19. A wrong instruction, which could not bave injured the party against whom
the judgment was rendered is po cause for reversal. Sessions vs. Hartsook, 619.
20. Whore a creditor sells the property of several tenants in common, as the pro-
perty 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 destruc-
tion 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.
Peterson vs. Manley, 528.
21. And so where the correctness of the verdict depends upon the fact, whether
cotton, ginded by a third person, was still in possession of the gipner-he har.'
ing no lien upon it for ginding, if it was out of his possession—this court might
infer that the evidence sustained the verdict, unleses the bill of exceptions ex-
cluded such inference. Ib.
22. On a motion for a new trial on the ground of newly discovered evidence, this
court will infer that proper diligence was not used, wbere the new witness was
one of the joint owners of the property in litigation. 16.
See, also, Chancery, 10, 26; Recoupment, 2.
1. A principal is responsible for the acts of his agent within the scope of his au-
thority. Brooks vs. Perry, 32.
2. Where an agent, for the sale of property, is acting upon the line of business com-
mitted to him, his principal is chargeable with the false representations made
by him. Morton vs. Scull, 289.
3. Whilo acting upon the matter of his agency a special agent binds his principal as
effectually as a general agent can do. Ib.
4. The principal is liable for the false representations of his agent in the sale of a
slave, where the purchaser buys upon the representations of the agent, without
any previous knowledge of the slave, and with no means of then testing the
correctness of the representations. Ib.
6. Although in an action for goods sold and delivered to a third person for the de-
fendant, the evidence may be taken as tending to establish an agency in the
third person to buy the goods for the defendant, 80 as properly to have submit-
ted the matter to the jury, an instruction which absumes, in the absence of all
proof of the fact, that there was evidence whence the jury might infer that the
agent could buy the goods on credit, is erroneous. Berry vs. Barnes, 411.
6. A more agency to buy goods does not imply such an agency as authorizes a pure
chase on credit; and where a special agent is employed in a single transaction,
those dealing with him must look to his authority, or abide the consequences.
Ib.
1. The failure of the obligee in a bond to probate the claim against the estate of
the deceased obligor, whereby the claim is barred by the statute of non-elaim,
does not discharge the sureties in the bond. Ashby vs. Johnston, 163.
2. 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 bis re-
questo Wright vs. Williams, 530.
1. The 19th section, chapter 154, Gould's Digest, Acts of 1854, page 109, Acts of
1852, page 42, are public acts in their character and subject matter, though
local in their application, and the courts are bound to take judicial notice of
them, Bevens vs. Baxter, 387.
1. The court conclude, with much hesitation that, potwithstanding the execution of
a special administration bood in each estate taken by the public administrator,
the “sheriff and his securities shall be responsible on his official bond, for mis-
conduct in discharging his duties as public administrator,” State use, etc. 88
Watts, 304.
2. The office of public administrator continues with the person to whom it was com-
mitted, unless a regular administrator be appointed, and the responsibility of
the securities in the bond existing when the possession of the estate was taken,
continues until the public administrator shall be discharged, whether he be re-
elected and give a new bond, or another person be elected sheriff. 10.
3. The authority of the Probate Court to make an order requiring the sheriff to take
charge of the estate of a deceased person, is not to be questioned: nor need
Buch order state the reason that moved the court to make it. 16.
4. If the breach in a declaration upon the official bond of the sheriff, as public
administrator, charge that he did not deliver bonds, choses in action and
agsets, belonging to the estate, and in his band, to his successor, it is suffi.
cient-ouch successor is not an administrator de bonis non. Ib.
1. Where a person enters the lands of the United States, he becomes the owner
of everything then attached to the freehold—such as growing crops and fences.
Graham v8. Rourk, 19.
1. Where parties voluntarily enter into a recognizance before a person acting as
a justice of the peace, they will not be permitted, on a scire facias on the recog.
nizance, to deny, by plea, bis right to execute the office of justice of the peace.
Pack vs. State, 235.
2. To a scire facias on a recognizance to appear at the next term of the Circu
Court to answer to the state upon an indictment for an assault and battery, etc.,
and not depart from the court without leave thereof, a plea denying the exist-
ence of any indictment for assault and battery, either when the recognizance was
made or when the plea was filed, is no defence-unless the principal appeared
when called, his recognizance was forfeited. 16.
3. Instead of being a defence to a scire facias on a forfeited recognizance, the fact
that the principal, instead of being indicted for an assault and battery,
for which offence he was recognized to appear, was indicted for murder, it is a
stronger reason why his securities should have him before the court until dis-
charged by the direct order of court. 16.
4. A recognizance or bail bond taken without authority, is void. Cooper vs.
State, 278.
5. A scire facias upon a forfeited recognizance must show that the recognizance
was entered into before a court or officer authorized to take it. (Darby et al.
us. State, 21 Ark.) State vs. Sartain, 641. Hogan et al vs. Slate, 636.
1. A bill of sale of negroes containing a warranty of soundness, and providing a
particular mode of compensation in case of unsoundness—as that the unsound
negroes shall be returned and others substituted—the purchaser cannot, in a buit
for the purchase money, recoup the damages suffered on account of the unsound.
Dess of any of the negroes, without showing a return of, or offer to return the
' unsound negroes—the mode of compensation uoder such a contract being exclu-
sively and mutually binding upon the parties: por is the non-residence of the
vendor a sufficient excuse for pot returning or offering to return the unsoand ne-
groes—the vendee having the means of knowing where to return them. Ses
sions vs. Hartsook, 619.
2. Waiving the question, whether, in a suit upon a note given for the purchase
money of negroes, the defendant could recoup the damages sustained by such
negroes communicating disease to bis other negroes, the facts must be shown by
uncontradicted and legal evidence to entitle him to the defence here, after an ad.
verse finding by the jury.
REPLEVIN.
1. No demand is necessary before the commencement of a suit in Replorin, where
the defendant has treated the property as his own and exereised acts of owner.
ship over it. (17 Ark., 172-4.) Henry vs. Hine, 417.
1. On the trial of an indictment against an overseer of a road, for beglect of
duty, if the State fails to prove that the road is a public road, as defined by the
statute, the jury must acquit. State vs. Moore, 550.
2. An order of the county court appointing an overseer for a particular road or
district, is evidence that, during the term of the appointment, the road described
is a public road. 16.
3. Although, if a private person cut a ditch across a public road and bridge it,
he may be liable for not keeping it id repair, that would not excuse an overseer
for allowing a dangerous bridge over the ditch to remain in the road. B.
4. On an indictment against an overseer, although the State may prove that he
was appointed overseer, she must also prove that he received notice of his ap-
pointm.ent: and if he worked on the road, it is a circumstance from which it
may be ioferred that he had notice. 16.
5. An order of the county court appointing an overseer for a particnlar road or
district, is evidence that, during the term of the appointment, the road described
is a public road. State vs. Hagood, 563.
6. On the trial of an indictment against an overseer of a public road, the State
having shown, by record evidence, that a particular road, by a name other than
that given to the one in the indictment, was duly establisbed by order of the
county court, may show by paroi evidence the identity of the two roads. Ib.
See Chancery, 1, 8; Contracts, 6.
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