Adlum v. Yard

The opinion of the court was delivered by Gibson, C. J. Under the act of 1705, the case of the garnishee was exactly that of any other defendant, the burthen of proof resting exclusively on the plaintiff. But under the act of 1789, his position is entirely changed; being held liable in the first instance, and till he purge himself on oath. His situation, therefore, is not that of a witness, or a respondent in equity; nor is his answer, when used against him, to be used as evidence originally adduced by the plaintiff. Like a deposition which has passed publication in chaneery, it is in evidence before the hearing, but in evidence on the — 170 — part of the garnishee, who could not else sustain himself long enough even to get.before a jury. The plaintiff may, therefore, use it or not at discretion, just as a party may use answers extorted by a cross-examination; and he is consequently not bound, as in the case of a bill of discovery, to take the answer ‘as true, but may discredit it in the same way that, he might discredit the evidence of a witness on the adverse part. Where the' garnishee neglects or refuses to make “full, direct, and true” answers, the matter charged is to be taken joro confesso, an.d judgment rendered against him; so that the governing principle of the act is to hold him chargeable till he discharge himself, at least by his own oath; and, failing to do so, he is to remain fixed. This is expressly his condition before answer put in. But where the answer is prima facie ■ sufficient, its truth may be inquired of by a jury; and the plaintiff makes out his case merely by destroying the effect of the answer, unless the garnishee has maintained the issue by other satisfactory evidence; and this the plaintiff may do by disproving the matter alleged in the answer, or by showing the garnishee to be entirely unworthy of credit. In doing this, he restores the responsibility of the garnishee to the footing on which it was before the exhibition of the answer. On this principle, evidence which falsifies any fact asserted in the answer, goes to the credibility of the garnishee, and is therefore competent. This construction may seem severe; but it is entirely in accordance with the spirit of the act; and it is.not more so than policy has been proved by experience to require. All necessary facts and circumstances are, for the most part, exclusively in the knowledge of the garnishee; and without holding him to a strict account, the remedy by foreign attachment would seldom be effectual. It is not to be understood from this, that every step is necessarily fatal, or that a plaintiff entitles himself to a verdict, where the jury are satisfied from the whole evidence, that the garnishee has in truth no effects of the original debtor. But where the cause goes to the jury with no evidence on the part of the garnishee but his own answer, and that is discredited entirely, or as regards the facts which constitute his title to a verdict, the jury are bound to find against him. How does this bear on the question of evidence? In his answer to the second set of interrogatories, the garnishee had stated, that Doctor Stevens was not originally interested in the cargoes of the Asia and the Dolly, and that no specific payment on account of his interest, was ever made by him; but that he became chargeable by the respondent in a heavy account pending between them; and that the advances made by the respondent would alone have absorbed, to within a trifle', the-amount which Doctor Stevens could have claimed. At the trial the plaintiff-offered the final examination of the garnishee before the commissioners of bankruptcy, “ in order to prove that the same James Yard (the garnishee) was not entitled to claim certain credits stated to be due to him for advances made by him before his bankruptcy for the said .Edward Stevens. ” It is obvious, on the — 171 — principle I have indicated, that the evidence thus offered was competent to contradict a fact distinctly asserted by the garnishee. • The exception- to the charge is not sustained. The clause in the assignment by which the trustees were to be restrained from selling the land for a period of three years, was undoubtedly in delay of creditors, and brought the whole within the puiwiew of the 13 Eliz. The plaintiff might originally have repudiated this assignment, but having taken a dividend under it, he shall not now question its validity. It has been pressed on us, that-a1 contract forbidden by a statute, is incapable of confirmation, except on terms which render it consistent with the statute, and for a new consideration. No one can doubt it. But surely the acceptance of a dividend under a deed of trust, is a new and a .perfect consideration.. Any one may waive the advantage of a law introduced for his owii benefit; and I cannot imagine whj*- creditors may not ratify a contract fraudulent only as to themselves, even in anticipation of a benefit. But where money is actually received, and on an implied condition that the receiver shall not question the title, every principle of natural justice requires that the condition should be performed. The doctrine of election is more analagous to estoppel than confirmation; and- ari estoppel may arise as well from matter in pais, as matter of record. Doctor Stevens might have excluded the plaintiff from thé benefit of the trust altogether; and had he supposed the latter would not have agreed to every part of the arrangement, he ■ would certainly have done it: so that the plaintiff having accepted a dividend on the only terms on which it was offered, is as effectually concluded from claiming in repugnant rights, as if he had asserted the validity of the deed of trust in a court of record. But it is supposed that the doctrine of election is inapplicable to creditors. There is no adjudication in support of this, hut Kidney v. Coussmaker, (12 Ves. 154,) which cannot be cited here as an authority for any thing whatsoever, and from which, in the broad terms in which the principle is predicated, I entirely dissent. That was the ease of a devise of part of the estate to trustees for payment of debts; and it was- held that the creditors having obtained from the trust fund, satisfaction only in part, were not precluded from recourse to other parts of the estate which passed by the same will.. To this I entirely assent, because the creditors could not be viewed as legatees, and the setting apart of a portion of the estate for the sake of convenience, indicated ho intention that the creditors should not be paid in the event of its falling short. The law, therefore, would not imply a condition that the creditors should relinquish their rights on the rest of the estate. But the unqualified assertion of the Master of the Rolls that the doctrine of election is utterly inapplicable to creditors, seems to be received with many grains of allowance even in England. (1 Hovenden’s notes to Vesey, 172.) In Irvine v. Tab, decided at the last term for the Western Circuit, we applied it to creditors claiming different debts under the same mortgage. In the case at bar, the debtor — 172 — might prescribe the terms; and the plaintiff having received his dividend on an inherent condition to permit the whole arrangement to take effect, it seems clear that, subsequent to the period of acceptance, the debt attached as due to Doctor. Stevens, was to every intent vested in his assignees. ■ But it is supposed the court erred in charging that’no presumption arose from lapse of time, that the objects' of the trust had been accomplished or-abandoned; in either of which eyénts, the.contingent resulting trust in favour of the 'debtor, would have taken effect in possession.. There..was, it seems however, a lapse of but seventeen years from, a time when the business of the trust, was in full activity; a period which without coi’roborating circumstances, is too short to raise a legal presumption that the debts were paid, or, that Mr., Yard’s estate had within the prescribed period been found sufficient to discharge all his debts for which Doctor Stevens had become responsible. Beside, the delay is satisfactorily accounted for by the fact that the effects on which the attachment is laid,, were received but a short time before; and it does not appear whether there was, in the mean time, any other property in hand. In the absence, then, of all circumstances but such as tended to rebut the supposed presumption, the court did not err in charging that the lapse of time was insufficient to revest the property in the assignor. The following opinion was delivered by Huston, J. It has been said, that one or more questions arise in this case which are entirely new—have never been raised in - any case, or decided by any court. Perhaps this is true. But it does not follow, that these questions are all of them difficult.. The first act about attachments, passed in 1705, (Purd. Dig. 37, 1 Sm. Laws, 45,) contemplates a trial by jury throughout, and expressly mentions, in the fourth section, “ If the plaintiff in the attachment obtain á verdict, judgment, and execution,” &c. And, in the fifth section, expressly provides for a trial by jury, when the garnishee denies that he has goods, &c., and directs the course of proceeding after the verdict.- This act, however, made no provision for compelling the garnishee to disclose what goods, chattels, monies, and credits of the defendant were iri his custody and possession, or due and owing by him to the defendant. To obtain this disclosure, an act was passed the.28th of September, 1789, (Purd. Dig. 38, 2 Sm. Laws, 502,) called a supplement to the'several laws about attachments; by the second section of which it is provided, that the plaintiff, after having obtained judgment against the defendant, may prepare-in writing, and-file in the court out of which the attachment issued, such interrogatories, upon which the said plaintiff is or shall be- desirous to obtain and compel- the answers, of any and every garnishee, in whose hands the said writ ór writs of attachment hath or have been of shall be respectively-laid and served, touching the goods, chattels, monies, effects,, and credits of the said defendant or — 173 — defendants, in 1ns or their possession, custody, and charge, or from him or them respectively due at the time of the-service of the writ of attachment, or at any other time. Section third provides, “Each and every such garnishee or garnishees to whom a copy of such interrogatories shall be delivered, is and are required and enjoined to appear, &c., and exhibit, under oath or affirmation, full, direct, and true answers to all interrogatories by the said plaintiff prepared and filed; and, if any garnishee or garnishees shall neglect or refuse so to do, then and in such case it shall and may be .lawful for the justices of the proper court, and they are hereby required to adjudge, that such garnishee or garnishees, so neglecting or refusing as aforesaid, hath or have in his or their possession, custody, or charge, goods, chattels, monies, and effects of the said defendant or defendants, in such writ or writs of attachment respectively named, o.r is and are indebted to such defendant or defendants, to an amount and value sufficient to pay and satisfy the debt, claim, or. demand of the said plaintiff, together with legal costs and' charges of suit. And shall award execution against the persons or goods, &c., of the said garnishee or garnishees, and proceed in the same manner as if judgment had been obtained or pronounced in pursuance of the verdict of a .jury or by virtue of the confession of the party.” It is now contended, the court, and the court alone, are to decide whether the answers are full, direct, and true; and, more, that the court is to decide on the answers themselves, without any evidence whatever to contradict the answers. . It may be conceded, that the court could decide, without going out of the questions and answers, whether the answer was direct; and, in one sense of the word, whether the answer was full; but in another, and in such case more material sense of the word, the court could not decide. For example—to the question what goods and effects of the defendant the garnishee had in his hauds, the garnishee might answer as to part of the goods, and say nothing as to other goods. It máy be said this would come under the word true. Be it so: my construction of the phrase is, that each answer must be full, and direct, and true—exactly tantamount to an oath to a witness, “ to testify the truth, the whole truth, and nothing but the truth.” ■ The witness, whose testimony is not correct in all these particulars, is perjured, and may be indicted and punished, if the aberration from truth was intentional and material. . So, perhaps, could the garnishee. This punishment, however, does produce justice to the party whose cause is trying; and he is permitted, by other testimony, to explain or contradict any testimony which would destroy his cause of action or his defence. Admit, however, for a moment, that the court alone were to-judge of and decide on these answers, how they could determine whether they vvere full and true, without hearing other testimony, is for those to explain who advocate this position. But it is perhaps only contended, that the — 174 — answers are conclusive as to their fulness and truth when the plaintiff-reads them; and that when he has read, them, he shall not be permitted to contradict or vary -them in any particular. I am of opinion that he may read them,'-and afterwards show that they are neither full nor true. As respects the plaintiff’s demand against the defendant, in the attachment, let it be remembered that is .already established, and a judgment entered. The Scire Facias and interrogatories are not to make out a case as between the plaintiff and defendant; but to enable the plaintiff to recover the amount of his judgment from goods, &c. of the defendant, alleged to be in the possession of the garnishee, and, further, the interrogatories are not, and need not be, resorted to where the garnishee has at all times disclosed what goods, credits, &c. of the debtor were in his hands. It is only where the garnishee denies that he has any goods, or the plaintiff supposes him to have more than he admits, that this proceeding is necessary. The first act is not repealed, and you may proceed under it, if it will answer the purpose. The matter then in dispute On this Scire Facias, and the interrogatories; is a matter between the plaintiff and the garnishee, and in which, but for this act of; assembly, the plaintiff could not obtain the answer of the garnishee. It is not the case of a plaintiff, calling-a witness, and afterwards discrediting his testimony, which I shall leave as it is in the decisions of our own courts in the 'cases cited. ' • . • It is much more analogous to a bill in' chancerjr, and the answer of a trustee who is called upon to state on oath, whether he has effects liable to pay, and in consequence is liable to pay, the debt of the plaintiff; in which case, if the cause is tried on bill and answer, the answer is taken to be true; that is, where it is, on the face of it, full arid direct. But the plaintiff may deny the truth of it, and if its truth is put in issue, may disprove all or any part of it. Now, in.this case, an issue was regularly formed. I do not, however, admit that we are to go to the practice of Courts of Chancery for our direction as to the mode of proceeding under our acts of assembly. It may be referred.to, but it is not conclusive. -This act of 1789 was intended to'be carried into effect by a Court of Common Law, and by the process of our Common Law Court. A chancellor might commit, for refusing to answer, or to - give a full and direct answer; but he would not sell the goods -of the party refusing, and. collect the debt of the .plaintiff. - • I have shown the first act contemplated, nay, provided for, a trial by jqry, where the garnishee pleaded that he had no goods, &c. of the defendant. ' That act is not-repealed by the supplement: it is left in full force; and an additional mode of obtaining information' as to debtors’ effects is given to him. But, even where the garnishee answers, that he has no goods, &c. he is not done;' he is not discharged; he must-plead to the Scire Facias, and the plaintiff may take issue on his plea, and a trial be had. We have several acts-of — 175 — assembly, which, from the letter- of them,’ would seem to give to the court alone the power of determining facts as well as law. For example, the twelfth and fifteenth sections of the act for opening, repairing, &c. roads; which gives to. justices of the peace a power of' proceeding against supervisors neglecting their duty, or against individuals obstructing a road^ with the right of appeal, in each case, to the Court of Quarter Sessions, who shall take such order thereon as to them shall appear just and reasonable; and the same shall be conclusive. Under this act, so far as I know;, the practice has been, where the fact of .neglect of duty, or of obstructing the road, is denied, not for the' court to decide it; but a bill of indictment is sent up, and the facts decided by a jury, and I know of. no other mode of proceeding in use. , There are similar acts in more than one of civil cases; in all -of which, so far as I know; where facts are contested, an issue is formed'in the cause, or a feigned issue, to settle the. facts. If the. defendant’s construction is right, the act of 1789 would produce one of two effects: it would leave the plaintiff’s-rights and •recovery perfectly at the mercy of the opposite party; for I have •shown that the garnishee has, where the truth of his answer is contested, become the real party, or it would be of no advantage to the plaintiff at all. That the practice has been, to go on to trial after the answers of the garnishee,.and to prove, if it can be proved, fhat his ansvvers are not full and. true, seems to me to be fully proved by 2 Dali. 113, where the court establish a rule as to costs in such cases. A garnishee may appear before the court and jury in situations very dissimilar. He may have no claim to any-part of the funds,— may bé perfectly indifferent between the different claimánts of the fund, or he may allege a.right to retain a part or the whole of it, on some contract or for some debt to himself. A factor may retain for the balance due’him, or a consignee may retain goods consigned to him, to pay a debt due to himself, or a debt due to himself from the consignee, though the goods were not consigned expressly for that purpose. I Dali. 3. But where a foreign attachment is laid on-.such goods, the garnishee must show that there is a debt due to him from the consignee by other evidence than his own oath. The act directs interrogatories as to goods, &c. in his hands.'and custody, or debts due from himself, and to such interrogatories he .is compelled to answer. If. he goes beyond this, and states any. debt due to himself from the absent debtor, his oath is no evidence of such debt. If he goes still further, and states particulars of how it became due, and when and to what precise amount; his answer in this particular is beyond the intention of the act; and, if such part of his answer could be separated from the rest, in my opinion it ought not to go to the jury at all. If it be so mingled and interwoven with the disclosure of what is in his hands as not to be separated, the jury ought to be told, it is no evidence of the-facts stated. It can, at best, be only considered as notice of what'he intends to prove, .and which ought to be — 176 — disregarded, unless proved; and, as to .all such parts of the answer a? go tó show a right of retainer by the .garnishee, the plaintiff may disprove it by any legal evidence which he can adduce. It has been ' said that part of more than one of these answers was argument—matter stated hypothetically. If so, such part clearly was not evidence, and ought to have been rejected. . But the plaintiff did riot consider it so, nor did the court; nor do I,think it was so intended by the garnishee. His> counsel .did not put it on that ground at the trial. The expressions,,“ The respondent has a just claim upon the said Edward Stevens, for the balance of an account current settled in Dec. 1824, to the amount of four thousand six hundred and eleven dollars and three cents,” in,No. 6, of the first interrogatories; and the expression, that after Stevens became interested in the Jlsia and Dolly, “ he became chargeable by the respondent in a very heavy account pending between him and the said Stevens,” in the latter part of the first answer to the second set of interrogatories, are not, and were not, intended as arguments.' The fact that he had a contract with Stevens under which he claimed half the money recovered, was no argument. ■ But there is another view of this matter: if the money received under the Florida treaty, above twelve thousand dollars, would be the right of Stevens as part owner, and above twenty-eight thousand would go to the assignees of James Yard, to be distributed among. his creditors; that is, creditors before his bankruptcy, was Stevens one of such creditors, and to what amount? If he was, he is entitled to a dividend, and.that dividend, for any thing we see in this cause, is as much in the hands and possession of James Yard, and as much liable to this attachment, as the part allotted to Edward Stevens by name. I say for any thing we See. I understand the whole of this money to have been in the hands of James Yard when the attachment was laid. Whether this dividend, if there is any due, can be recovered from the garnishee, in this proceeding, or must be sought for from the assignees of James Yard, or is due to the assignees of Stevens; or whether Stevens has any assignees, must depend on matters not known to this court, and I give no opinion about them.' It will appear from what has been said, that in my opinion the plaintiff ought to have been permitted to prove more in the hands of the garnishee, than was admitted, if he could so prove; that, as to any claim of the garnishee to the property or money in his hands, he was bound to prove his right to it by other testimony than his own oath; and that the plaintiff had - a right to rebut that proof or any statement on that subject, by the garnishee himself, by any legal proof admissible in any other cause between contending parties; for I repeat, that where the garnishee admits the receipt of goods or money, but sets up a right to retain it, the suit is from thenceforth one between the plaintiff and garnishee, in substance and'almost in form. — 177 — The act of 1789 contemplates a judgment against the ‘ garnishee, if he refuses to answer, or his answers as to what is in his hands are not full,, direct, and true; and I have said, whether they are so, may, and often must be, decided by a jury. Whether the jury ought or can give a verdict against him for the whole of the plaintiff’s demand, if they find.that his' answers are not full, direct, and true, has not been discussed, and I do not wish' to give :a binding opinion on this. T should suppose there were cases in which they might and ought to do so, but that, this would only be where they jound a plain intention to conceal or mislead as to the amount in the hands of the garnishee, but by no means on account of .the garnishee failing to Support his oyrn claim of retaining for himself. It is for concealing the goods in his possession that this penalty is inflicted; not for setting up an unsupported' claim to those goods.- A'nother, and most important question, arises in another part of ■this cause. The deed of assignment by Stevens has some unusual clauses; no sales are fo be made of the real estate for three years from the date of the instrument. It also appears, by this instrument and the indorsement, that Stevens was liable for above.ninety thousand dollars on James Yard’s account; and it provides that if James Yard or his assigns, paid or discharged this debt within three years, the assignment was not to have' effect; but Stevens’ estate w'as to be ■restored to him in the same manner he held it before the assignment. " - As I understand the law, either, and a fortiori both these clauses render this deed, in the words of the law, utterly void, frustrate, and of no effect. -If this is not-to delay and hinder creditors, to-drive them to compromises, to releases, to defeat their claims, and prostrate their rights, I do not see what would have those effects. Assignments fay debtors have been supported in this state, under circumstances, and containing clauses, which would avoid them in any other country governed by the same laws, and as' I believe; clearly against both, the letter and spirit of the law. An unwillingness to disturb and unsettle many assignments made and acted upon before'any of those cases were brought before the court, led to those decisions. The decided cases have given á sanction as far as they have gone. I do not. agree to go one jot further. If assignments have been made not sanctioned by decision, I do not agree to give them my sanction; for we must-stop somewhere: we must at some point and at some time say, no matter how many have violated the law or how long it has been acquiesced in; ihe'law has said the deed is utterly vpid,- and wé must say so also;-and if á debtor can assign his property—keep his creditors from touehing'it'for three years, he may.for thirty; there is in fact little difference; the creditor, in most instances, will be ruined or prevented in some way from getting his debt, as effectually in the one case as in the other. ' - " But it has been argued that this deed-has been confirmed or rather — 178 — tendered valid.by some acts of the plaintiff in this cause; at least valid as to him; and a case has been cited where a deed of a married woman which was void, had been rendered valid .by a. delivery, after she became, sóle. It would be more correct to say that a new deed after she became sole, conveyed the land. A deed takes effect from the delivery;, before the second delivery it was no deed; after the-second delivery, it was a deed fro.m that time. If there'is-any case where a deed made void by a positive law has ever- been held valid, it has not been cited, and among the many decisions on'the law in question, I can find no dictum that such a,deed can ever become valid. Who can give it validity? All the creditors, it is .'said, may agree beforehand to . such a deed. Be it so.: but then the case of a contract with creditors is-presented, and not a deed to delay and defraud: then it would be .a stay of" execution by .creditors; notone imposed on them. But they may agree afterwards. They may, I admit,'agree not to object to it; but they must all agree. If one-does not, he, m.ay treat the deed as void, and take the property. ,In such a case, what is to become of those who had agreed or were willing-to agree?—They get nothing) But did they agree to this?—You mustiet the court see their agreement before the extent and effect of it can be decided on. If the. agreement is written, the-court .decide on' it; if by parol, a jury must decide whether such agreement was made, and what- it was, before a court can say what the effect of it is. '■ But it'is said the' plaintiff, who has received money, a part’of his debt, cannot now/say the deed is'void; and his receipts show that • he received money from these assignees. A creditor to whom three thousand dollars is due, may be and often is glád to get a part of it from any source: he may. be in 'want, at the door of a jail, or his family starving. (I do not speak of this case, for I do not know the facts.) -He may be deceived, misinformed: he may not have seen the deed :—is his receipt of money in all cases, under all circumstances,, to bind him?—If not, and there-may-be any case in which he would not be bound, the court were wrong in taking- this matter from the jury. But-it is said a man cannot affirm and disaffirm the same thing. I admit he cannot do so at the same time; but he may at one time, under a mistake, treat a deed or will as valid, and- not be bound- to admit it to be so at all times and with other information. A man -who accepts a small legacy, much less than what would be'his distributive share of an ’estate, and does so because he-has been told there is a will, is.not precluded-from, claiming more, when he finds there was no wiilfor that it was void because the testator was insane when it was made, or an infant, or that it was' inoperative, because only one witness could- be found who could prove it. A person cannot hokf what he has got-under a deed or will, and. which he would not have gotten but for such deed or'will, and — 179 — .still recover what he would be entitled to, independent, of such in» strument. But on accounting for what he has received under á mistake, and admitting it to have been received under a mistake, he may get what by law he is entitled to, in addition. This generally— length of time, or other circumstances, may form exceptions. . If a creditor under a. mistake, or from misrepresentation, has signed a, release, he may be relieved from it. • I do not see, then, how he can be absolutely precluded by an act in pais, the. most equivocal of all possible ratifications. And I dp not agree that creditors who have a right independent of the deed or will, are put to their election. They may take what is devised or conveyed for payment of debts, and, if not satisfied, resort to other property for the balance. ■ To them the doGtrine of election does not apply, as it does to volunteers, or persons who but for the instrument would have no claim. 1 would say, then, that- this deed was totally void,- and not validated by any act done, taking it- in the strongest sense against the plaintiff; but, if it- could be validated, that the act of receiving part of his debt was not such an act,—at least, that being a matter in pais, it must be left to a jury, and not decided at once by the court. •I think, also, the question whether the sums for which Dr. Stevens was responsible for James Yard were discharged, was open to investigation, if the deed was ever good"; 'and that it was. proper to inquire whether the supposed assignees of Stevens ever acted; and, if they did, when they ceased to act; and how far they have abandoned the trust, .a.nd the trust property might be material in this case: I know nothing of the circumstances of this case; but I conceive it possible, that a case may exist where the assignees have totally abandoned the property, or never intermeddled with it;—in which ease it would be great injustice to interpose their names, and use their neglected or abandoned title to defeat a creditor- pursuing his right according to law. It is not enough that a man has executed a deed of trust without consideration, and has acted as if it was accepted by- them in some particulars, or has done some acts in their names, or procured, some one to do so. Where a trust has .really been created for a good and lawful purpose, chancery will not suffer it to fail for want of a trustee; but I suspect we have many trusts'of a kind unknown to any chancellor; and this court has decided, that a conveyance to trustees .for payment of debts, of personal property, of which no possession was delivered, and where the debtor went on to act for many months, as before the conveyance, was totally void, and the goods were as subject to the execution of a creditor as before the conveyance. I would then permit an inquiry whether such acts have been done as prove whether there was an acceptance of.the trust; and that it is, or is not, and has not been treated both by Dr. Stevens, and the assignees as at an end—rand how long;—for where there is no Court — 180 — of Chancery to compel a discovery or a reconveyance, we must attain the object in some other way, and not lock up an estate for ever by a conveyance not operative. All this, however, would not be necessary, if—as I hold—the conveyance was void in its creation. Tod, J., concurred with Huston, J., except as to the deed not being rendered valid by the subsequent acts of the creditors. Smith, J., was absent. . Judgment reversed, and a venire facias de novo awarded.