Wallace v. Collins

By the Court, Paschal, J. There are three points in this case which the Court will notice. And we may first remark, that the record shows a good deal of irregularity. Leave was given to withdraw the special pleas, and to file amended pleas. It does not appear, however, that any pleas were withdrawn; or, if so, what amendments were made. It is unnecessary to consider the connection of Burney, as defendant, because the plaintiff elected to enter a nolle prosequi as to him, and to proceed against Wallace, alone. Wallace filed a special plea, attempting to justify, under an execution, sued out on a judgment obtained by him before Hosea Card-well, a justice of (he peace of Washington county; which execution, he alleges, was placed in the hands of Burney, a constable of the proper township, and that the horse was, therefore, properly sold, as the property of the defendant. The plea is, in substance, as follows: “ That, on the 6th day of February, 1841, he (Wallace,) obtained judgment, before Hosea Gr. Cardwell, an acting justice of the peace, in and for the township and county aforesaid, against the plaintiff, for the sum of $35 84 cents, debt, 40 cents damages, and $1 50 cents for costs of suit; and, on this judgment, and while the same was in full force and virtue, to wit, on the 19th day of February, 1841, he, said defendant, Wallace, sued out a writ of execution, and placed the same in the hands of said defendant, Burney, who was then and there constable of said Prairie township, duly authorized to act as such.” The plea then goes on to aver a levy and sale, by virtue of this execution, of the property in question. The authority, commission, and jurisdiction of the justice, are not averred with that particularity necessary at common law; nor is the execution, under which the constable acted, very artificially described. But as the jurisdiction of justices is defined, under our constitution, and as the plea necessarily implies that the judgment was rendered on a debt or contract, we do not deem this so material. If any ob-jeclions existed to the plea, the defendant should have pointed them out by demurrer; otherwise, there being sufficient facts on the record to constitute a jurisdiction, the omissions, if any, are amended by the replication; and when the demurrer to the replication was filed, the Court could not look back to any objection to the plea, which ought to have been specially pointed out by the plaintiff. See Davies vs. Gibson, 2 Ark. Rep. 115. Buckner et al. vs. Real Estate Bank. Sims vs. Whillock & Newman, decided at the present term of this Court. Such defects are amended, unless specially pointed out. The plaintiff below raised no objection on account of any insufficiency in the plea, but filed a special replication thereto. In this replication he brings on the record, as new matter, “ that the plaintiff, long before, and at the time when, &c., was, and still is, a mechanic, carrying on his trade of tanning, to wit: in the county aforesaid; and that the property, to wit: the horse, in said plea mentioned, was, then and there, a necessary implement of trade of said plaintiff, while carrying on his trade of tanning,” See.; concluding, that the “ defendant, with force and arms, seized, <&c.” This is, clearly, an attempt to claim the property in question as exempt from sale, under the 6th division of 20th sec. Rev. St., Ch. LX., p. 377. This Court would not hold a horse “ an implement of trade of a mechanic.” The statute certainly only contemplates the exemption of “one horse, mule, or yoke of oxen,” when owned by “ a farmer.” And even in that case, in pleading such exemption, the farmer should certainly aver that the horse in question was the only horse owned by him. But the horse of a mechanic would no more be exempt from sale than would the steam-engine by which his machinery was propelled. The demurrer to the replication ought, therefore, to have been sustained. This would be sufficient error to reverse the judgment. Nevertheless, we will proceed to consider a question of practice, raised in the Circuit Court, and insisted on here. The bill of exceptions shows that, after the jury were sworn, “ the defendant moved to rule the plaintiff to security for costs, and offered to prove the insolvency and inability of the plaintiff to pay the costs of suit, which motion the Court overruled, and refused to hear.” The 3d sec. of Ch. XXXIV., Rev. St., p. 202, provides that, “if, at any time after the commencement of anj suit, by a resident of this State, he shall become non-resident; or, in any case where the Court shall be satisfied that the plaintiff is unable to pay the costs of suit; or, that he is so unsettled as to endanger the officers of Court, with respect to their legal demands, the Court shall, on motion of the defendanl, or any officer of Court, rule the plaintiff, on or before a day in such rule named, to give security for the payment of the costs of such suit.” The language of this statute is general, but we must give it such construction as not to render it too great a burden to the courts, whose business requires that they should not be too much impeded with motions which might have been made before the swearing of the jury. Were the Circuit Court compelled to hear motions relative to the insolvency of suitors, after the jury are sworn, we can see how there would be not only inconvenience to the courts, but often real prejudice to the parties. There would frequently be unnecessary delay of the time of the Court; causes would be continued, which might have been tried, had the plaintiff had notice of the defendant’s intention; and suitors might, sometimes, be seriously prejudiced by the agitation of such a question before the jury who are to determine on their rights. Besides, if the motion may properly be made after the jury are sworn, we can see no good reason why such motion may not be made after they have retired from the box, and before they render their verdict. The question is one of practice, left to the sound, but not arbitrary, discretion of the Court. We hold the better rule to be, to hear evidence on such motion, at any time before the jury are summoned in the case. Such a rule would, doubtless, be more in conformity with the intention of the Legislature. In our opinion, therefore, the Circuit Court did right in overruling the motion of the defendant below, to rule the plaintiff to security for costs. Our decision in relation to the replication would, perhaps, render unnecessary any expression of opinion in relation to the instructions asked. Nevertheless, we will consider the case, as disclosed by the evidence embodied in the bill of exceptions. The principle involved, to be understood, must be considered with some accuracy. The defendant in error himself, introduced a constable, who swore that he levied an execution of Wallace vs. Collins, on the horse; that Collins at first said the horse was under mortgage, (which the witness found to be untrue); that he advertised the horse for sale; that, on the day of sale, Collins delivered the horse to the constable, and came with the witness to town; that, after he got to town, Collins forbade the sale; that Wallace told witness to sell the property; and that, if witness did not make the money, he would hold witness responsible. Taking the strongest view of this case, here is the first actual connection of Wallace with the trespass. But it must here be borne in mind, that the plaintiff below voluntarily introduces evidence of an execution, levy by a constable, the delivery of property by the defendant to the officer of the law, and a subsequent sale, against his will. The plaintiff himself having proven a levy, we are clearly of opinion that the property of Collins was immediately divested, and that he could no longer forbid the sale, unless by satisfying the execution in some other way. His control over the property ceased, the' moment of the levy. And although the evidence adduced at the trial is not of the highest grade which might have been produced, yet, as the party himself offered it, he has no right to complain. Were the suit between a third person and Wallace, a person who alleged that Wallace had illegally taken his goods to pay Collins’ debt, the rule would be different. In that case, the execution, under any state of case, would not amount to a justification. But, in this case, the plaintiff below voluntarily introduces evidence to show, that he delivered his own property to the officer, whom he recognizes as such, to pay his own debt. And the trespass, of which he complains, and which formed the basis of the improper instructions of the Court, is, that he afterwards dissented from the sale. Taking the execution wholly out of the case, and allowing Burney to be the mere agent of Wallace, are we certain that Collins has any just cause of complaint? Of this queere, see Hunt vs. Rousmanier’s adm’r, 5 Pet. Rep. 401. 8 Wheat. 174. We are, therefore, of opinion that the Circuit Court erred: 1st, in overruling Wallace’s demurrer to Collins’ replication; 2d, in giving the instructions asked by the plaintiff below. Judgment reversed.