Steamboat Farmer v. McCraw

NICE, G. J. — The case of Richardson v. Cleaveland, 5 Porter, 251, furnishes a complete answer'to the argument here made for appellant against the constitutionality of the act of 17th January, 1844, under which the present suit was instituted. If the statutes passed upon in that case were constitutional, as we think they were correctly held to be, the act of 17th January, 1844, is also constitutional ; and upon the authority of that case we hold the act last mentioned free from conflict, either with the constitution of this State, or of the United States. A common carrier, who has received goods for the purpose of conveying them from one place to another, is not absolved from his liability to the owner, by the torts of third persons. Not only he, but also the owner, in virtue of his general ownership and right of possession, may maintain a suit against a stranger, for an injury to the goods. The general rule is, that either the bailor or the bailee may, in such a case, maintain a suit for redress ; and a recovery and satisfaction by either may be pleaded in bar of any subsequent suit by the other, for the damages or loss from the same injury. — Story on Bailm. (5th ed.) § 94; Owners of Steamboat Farmer v. McCraw, 26 Ala. R. 189. But the suit by the general owner, for the injury to his goods, cannot be barred by a recovery and satisfaction by the bailee, in a suit commenced after the suit by the general owner. To impart to the recovery and satisfaction by the bailee the efficacy of a bar to the suit by the general owner, it is essential that the recovery and satisfaction be had in a suit commenced by the bailee before the commencement of the suit by the bailor. — Een665 nerv. Marshal, 1 Wheaton, 216; Boune v. Joy, 9 Johns. 221; Morton v. Webb, 7 Vermont, 123 ; Combe v. Pitt, 3 Barrow, 1423; Haight v. Holley, 3Wench 258; Jenkins v. Pepoon, 2 Johns. Cases, 312 ; Everett v. Saltus, 15 Wend. 474; 1 Bacon’s Abr. (edition of 1846,) 28, 30, 32; Brake v. Reddington, 9 New Hamp. Rep. 243; Nicolls v. Bastard, 2 Cromp., Mees. & Rosc. 659; Wood v. Newton, 1 Wilson’s R. 141; Fishburn v. Saunders, 1 Nott & McCord, 242. In the special pleas to which, in this case, demurrers were sustained, the day on which the suit by the bailee was commenced is stated; but the day on which the present suit was commenced is not stated; nor is there any averment that the suit by the bailee was commenced before the present suit was commenced; nor is there any fact stated in the declaration, or in either of those special pleas, from which the court can say that the suit by the bailee was commenced before the present suit was commenced. On demurrer to those pleas, the court cannot, in aid of them, look back to the date of the writ in this case, but must decide upon the matters appearing on the face of the declaration and the several pleas. — Roberts v. Burke, 6 Ala. R. 348. The demurrer does not admit more than is alleged in the declaration and pleas. — 7 Bacon’s Abr. (edition of 1846,) 662. And as they do not show, on their face, that the' suit by the bailee was commenced before the present suit was commenced, each of the pleas to which a demurrer was sustained, was bad; and therefore there was no error in. sustaining the demurrers to them, even if in other respects they were unobjectionable, — as to which we do not decide. If the defendant was not bound to allege in his pleas that the suit by the bailee was commenced before this suit was commenced, he would not have been bound to prove that fact, if the plaintiff had taken issue on the pleas. But it is very certain that he ought not to be relieved from proof of that fact. Even the date of the writ is not conclusive evidence of the time when the action was commenced. — 1 Chitty’s Pl. (edition of 1844,) 259 a, 260, and notes. And on a demurrer to pleas, the court cannet try matters of fact — for [666] instance, whether one suit was really commenced before another. — Mansel on Demurrer, 96. When, as here, the suit was commenced before the Code, the law of force at the commencement of the suit, and not the Code, furnishes the rale for determining the competency of the witnesses. — Frankenheimer v. Slocum, 24 Ala. R. 373; Doe, ex dem. Kennedy, v. Reynolds, 27 ib. 364; Hiscox v. Hendree, ib. 216; Chaney v. The State, at this term. As the witness Shields, offered by the defendant, was one of the owners of the steamboat Farmer, and was directly interested in the event of this suit; and as his interest was against the plaintiff, (see Hunter v. McCraw, at this term,) there was no error in holding him to he an incompetent witness for the defendant. After (Hidden had been allowed to intervene as an owner of the said steamboat, and had filed the plea of not guilty to the amended declaration, it was too late for him to make the motion to quash the attachment, or to dismiss it. — Hazard v. Jordan, 12 Ala. R. 180 ; Byrd v. McDaniel, 26 ib. 582; Burt v. Parish, 9 ib. 211; Burroughs v. Wright, 3 ib. 43. If it be couceded, that on this record, we can revise the action of the court below on the motion made at the term the amended declaration was filed, by Shields, Jacob and Daniel Walker, for judgment in their favor against the plaintiff for their costs in defending, and on the motion made at the same term by Waring, Hunter and Twelves to quash the replevy bond; our opinion is, that there was no error in that action. — See Hunter v. McCraw, at the. present term. No right to a reversal is shown; and the judgment of the court below must be affirmed.