Pollock v. Hudgens.

court below in giving said instruction, and also in overruling his motion for a new trial. There are three statutes, the Constable's law, Stat. of Mo. 1835, p. 117, § 8; the Execution law, ibid, p. 260, § 52, and the law regulating Justices' Courts, ibid, p. 368, § 22-providing different remedies, and imposing different penalties on officers delinquent in returning executions, neglecting to levy, &c. The first gives double the amount of the execution; the second the full amount thereof, and the third the full amount thereof, with interest at the rate of one hundred per centum per annum. "Either of these statutes may be put in force without bringing its provisions in conflict with the other. They are not repugnant, as they provide different remedies and impose different penalties. The party injured has the liberty of choosing the nature of his remedy, and the nature of the remedy adopted will show the penalty sought." Hart 68 v. Robinett, 5 Mo. R. 15. Inasmuch, then, as the plaintiff below has

chosen his remedy under the provisions of the Execution law, his recov. ery should be confined to the penalty it provides, which is the amount of the execution.

STRINGFELLOW, for Appellee. The only objection made to the verdict and judgment is, that the plaintiff below recovered one hundred per cent. per annum from the time the execution ought to have been returned. This action is founded upon the 23rd section of an act to establish Justices' Courts, Rev. Code 1835, p. 368, which gives this recovery. Proceedings under 9th section of act respecting Constables, p. 117, are only to be had before a justice of the peace, and the provisions of that act had no reference to this suit, nor are the provisions of that act regulating Executions applicable to remedies against a constable; the provisions of that act apply only to executions issued from a court of record, except those especially made applicable to executions from a justice of the peace, by the 37th section, which has no reference to the remedies against the officers for failing to execute their duty on executions.

MCBRIDE, J. Prince L. Hudgens brought his action of debt in the Holt Circuit Court, in the name of the State of Missouri to his use, against Pollock, the defendant, as principal, and others as his securities, on his constable's bond. The plaintiff obtained judgment below, which the defendant moved to set aside, and for a new trial, which were refused, and he excepted and appealed to this court.

The declaration contained several counts, assigning the usual breaches in such cases. The evidence went to show that the plaintiff, having obtained a judgment before a justice of the peace in said county against one Mitchell, for $25 debt, $4 25 damages, and $2 18 costs, sued out execution thereon, and placed the same in the defendant's hands for collection, and that said defendant levied the same upon a wagon as the property of Mitchell, and after69 wards permitted Mitchell to remove the same out of the county, without sale, and then returned the execution "not satisfied for want of sufficient property to levy on." The wagon was estimated to be worth from $15 to $40. Judgment for $119, being one hundred per cent. per annum. Several instructions were asked of the court which it is not necessary to notice, as but one question is raised in this court for our determination, and that is, the right of the plaintiff to recover the amount of his execution with one hundred per cent. per annum thereon.

The Legislature has given several remedies against a constable for a failure to discharge his duties, either of which a party aggrieved may pursue at his election. The first act on the subject is to be found in the Rev. Code, 1835, p. 117, § 8, which subjects the constable to pay double the amount of the plaintiff's debt, where he fails to pay over when demanded, money received by him, or when he fails to return an execution according to the command thereof, to be recovered by motion before a justice of the peace. The second is at page 260, § 52, and provides that if any officer having an execution in his hands, shall neglect or refuse to execute the same, or, having levied the same, shall fail to sell the property levied upon, or shall not return the writ, or make a false return thereof, he shall pay the whole amount of such execution. The third remedy given by law is at page 368, § 20, which provides that if the con

Bradford v. Pearson.

stable fail to make return of the execution according to the command thereof, or if he make a false return, the justice shall, upon the demand of the party injured, issue a summons against the constable, &c. The twenty-first section prescribes the manner of proceeding before the justice. The twenty-second section provides that if the constable fail to appear, or, appearing, fail to show good cause to the contrary, the justice shall render judgment against him for the amount due by the execution, &c., with interest thereon, at the rate of one hundred per centum per annum, from the time such execution ought to have been returned, &c. Section twenty-three gives the party injured the right to proceed against the constable as above directed, or he may institute a suit against him and his securities on his official bond, and in such suit shall be entitled to the like recovery, as upon a summons against the constable, and suits on the bond may be brought before a justice of the peace, where the amount claimed does not exceed ninety dollars.

The action in this case was brought under the law last above referred to, and therefore it is not important to inquire what would have been the party's rights under the two preceding acts, as no proposition is better settled 70 than that, where a party has two or more remedies given him by law, he may pursue that one which, under all the circumstances of the case, he deems most advantageous to him. The latter clause of the twenty-second section gives to a party injured the right of bringing his action before a justice of the peace on the constable's official bond, where the amount claimed does not exceed the jurisdiction of a justice of the peace, but this does not, I apprehend, divest the Circuit Court of its general jurisdiction in such cases. The language of the provision does not evince such an intention on the part of the law makers, but it is only permissive, giving to the plaintiff the right, if he sees proper, in such case to bring his action before a justice of the peace. We are, therefore, of opinion that the action was properly brought in the Cir. cuit Court, and that the judgment for one hundred per cent. per annum on the amount claimed from the time the same ought to have been paid, is recoverable under the statute. The other Judges concurring, the judgment of the Circuit Court will be affirmed.

SCOTT, J. I concur in affirming the judgment, but dissent from that portion of the foregoing opinion which maintains that for a sum less than fifty dollars, suit may be brought on the constable's bond in the Circuit Court. There is no reason for subjecting constables and their securities to that more expensive mode of procedure than all others; and the statute is express that the circuit and justices' courts shall only have concurrent jurisdiction in actions of debt when the sum in dispute exceeds fifty, and is less that one hundred and fifty dollars. The opinion is moreover opposed by the case of the State of Missouri, to the use of Poor, v. Steel, 11 Mo. R. 553, in which it was decided by a full court, that when the sum claimed of the constable is less than fifty dollars, a suit on his official bond can only be brought in a justice's court.

1. INSTRUCTIONS.-It is not indispensable to the giving of an instruction, that the evidence should establish conclusively the hypothesis stated in it; if there be any evidence conducing to establish the assumption; it is sufficient to authorize the giving of the instruction, and it is for the jury to find whether the facts stated are made out by the evidence. 2. PRACTICE IN THE SUPREME COURT.-Where the Circuit Court permitted a party to give in evidence his own declarations to prove a fact, the judgment will not be disturbed for that reason, if the same fact was established by other and legal evidence.

ERROR TO SALINE CIRCUIT COURT.

HAYDEN, for Plaintiff. 1st. The court erred in giving to the jury the said instructions prayed for by plaintiff. 2nd. The Circuit Court erred in refusing to give to the jury said several instructions of defendant which were rejected

Bradford v. Pearson.

by the court. 3rd. The court ought to have granted the defendant a new trial of the cause for the reasons set forth in his said motion therefor.

STRINGFELLOW, for Defendant. The only question presented by the record is the sufficiency of the evidence to sustain the plaintiff's declaration. The question was fairly presented to the jury by the instructions and was found by them. The instructions refused, assumed that plaintiff did not complain of his discharge, and that having uttered no complaint, he is to be considered as consenting to his discharge. If there be error in the instruction which authorized the finding interest for plaintiff, it is cured by the remittitur of plaintiff. It was not necessary for plaintiff to offer to perform the contract after his discharge.

MCBRIDE, J. This was an action of assumpsit brought by Pearson against Bradford in the Saline Circuit Court. The declaration contained a common count for work and labor, and a special count alleging that the defendant employed the plaintiff as a pill-peddler and collector for one year at the sum of $300, and that the plaintiff entered the service of the defendant and continued therein for the space of six months, at the expiration of which time, and without any sufficient cause therefor, the defendant discharged him from his employment, &c. The defendant pleaded the general issue under the statute of the last General Assembly. A trial was had and a verdict found for the plaintiff; whereupon the defendant moved for a new trial, which the court refused, and he excepted, and has brought the case here by writ of

error.

72 On the trial in the court below, evidence was given tending to prove that in the spring of 1846 the defendant hired the plaintiff to vend pills and collect money for him in the State of Illinois; that the plaintiff prior to his setting out for Illinois, served the defendant twenty days, at fifty cents a day, in manufacturing pills; that on the 1st of August, 1846, the plaintiff proceeded to the State of Illinois for the purpose of peddling pills and collecting money due the defendant in that State, and continued in said service until the 1st of October next following, when he returned to defendant's house; that in consideration of his services to be performed, the defendant was to pay him $300 per annum, to be paid at the expiration of the year; that a day or two after the plaintiff returned from Illinois, the defendant informed the plaintiff's father that he had discharged the plaintiff from his service, because the plaintiff had, whilst in his service, expended more of his money than his wages amounted to. The witness, on cross-examination, stated that the plaintiff did not complain to him of the conduct of the defendant in discharging him, nor that the discharge was against his consent, or that he objected thereto.

The defendant then offered evidence of the contents of a letter from the plaintiff, whilst in Illinois, to the witness, in which he complained of the service which he had to perform, and that he would not undertake such another trip for any consideration: also evidence that whilst plaintiff was in his service, in Illinois, he expended more of defendant's money than another agent engaged in the same service, and that plaintiff was not in his employ after his return home on the 1st of October, 1846.

The plaintiff thereupon asked, and the court gave to the jury the following instructions: 1st. If the jury find from the evidence that the defendant hired the plaintiff for twelve months at the price of $300, and that the plaintiff entered into his service under said hire, and was ready and willing to perform the services, and was discharged therefrom by the defendant without his (the plaintiff's) consent, then the plaintiff is entitled to recover the whole amount of the $300, with interest at six per cent. per annum from the time it became due, after deducting what the plaintiff may be entitled to by way of offset. 2nd. That it was no sufficient cause for discharging the plaintiff, that the plaintiff's expenses, whilst engaged in defendant's business, amounted to more than his salary for the current time.

The defendant then asked thirteen instructions; seven were given 73 and six refused. The defendant excepted to the opinion of the court in giving the instructions asked by plaintiff, as well as in refusing those asked by him.

Wood v. Harris.

There can be no serious objection urged against the instructions given by the court at the instance of the plaintiff; and the only one relied on is that the evidence did not warrant the court in giving them. It is not however, indispensable to the giving of an instruction that the evidence should establish conclusively the hypothesis stated therein; if there be any evidence conducing to establish the assumption, it is sufficient to authorize the giving of the instruction, and it will be for the jury to find whether the facts stated are made out by the evidence. But if it were that there was no evidence upon which to found the instruction, still this court would not reverse the judgment for that reason, unless it was apparent that the jury had been misled by the instruction. We are of opinion however that the evidence warranted the instructions given, and that the instructions contain correct legal principles (a)

We do not conceive it necessary to incorporate, at length, in this opinion, the thirteen instructions asked by the defendant, seven of which were given. The substance of those given, omitting the tautology, is as follows: To entitle the plaintiff to recover upon the special court in the declaration, it devolved upon him to prove the contract declared upon, and that he performed the services or was ready and willing to perform, but was prevented from the performance by the defendant without sufficient cause; and that he was discharged from his service against the consent of the plaintiff. That the plaintiff cannot recover if the jury find that he collected money due the defendant, and improperly spent, wasted or failed to account for the same, or acted unfaithful in the discharge of his duties to the defendant; or if the plaintiff' was indebted to the defendant in an equal or larger amount than that sued for by the plaintiff.

The instructions given embrace every conceivable or possible phase which the case could be tortured to present, and there was, therefore, no necessity for giving the other instructions asked by the plaintiff even if they had contained correct law; except the sixth asked and refused. It was not competent for the plaintiff to give in evidence his own declarations or statements that he had been discharged by the defendant, for the purpose of establishing the fact of such discharge. But as this point in his case was established by other and legal evidence, the judgment will not be disturbed for that 74 reason. Before the judgment was entered, the plaintiff remitted the amount of interest found for him by the verdict of the jury.(b) Where fore, the judgment of the Circuit Court ought to be affirmed, and, the other Judges concurring, the same is affirmed.

(4) Craighead v. Wells, 21 Mo. R. 404. See Flournoy v. Andrews, 5 Mo. R. 513; Atkins v. Nicholson, 31 Mo. R. 488; Kennedy v. North Mo. R. R. Co., 36 Mo. R. 351. (b) See Curr v. Edwards, 1 Mo. R. 137, and note.

WOOD v. HARRIS.

1. PLEADING-VARIANCE -Should the true intent and meaning of a deed be mis-stated in the declaration, the variance is cured, if the deed be set out in the plea on oyer and non est factum be pleaded. 2. SAME.-On such issue the only question at trial is, whether the deed, as set out in the plea, was executed by the defendant or not.

ERROR TO SALINE CIRCUIT COURT.

HAYDEN, for Plaintiff. 1st. That the court erred in rejecting, upon the trial of the cause, the said writing obligatory as evidence in proof of the issue upon the plea of non est factum. The instrument being set out by defendant on oyer, became a part of the declaration, and the proof offered corresponded therewith and with the declaration as prepared by plaintiff. See 1 Chitty, 467, 468. 2nd. The court erred in not granting the plaintiff a new trial upon his said motion therefor. The writing obligatory offered in evidence ought not to have been excluded as evidence upon the issue taken on the plea of non est factum. It was competent and relevant upon both counts

Wood v. Harris.

of the declaration. The counts of the declaration are inartificially framed, and are informal yet they are in substance good and such as opened a door for the proof offered. But if defective that defect was and is cured by the defendant having set the bond out on oyer, as being the same instrument on which the two counts are framed, thereby making the instrument as set out part and parcel of each count of the declaration. See 1 Chitty, 467, 468. The question then presents itself, does the instrument offered in evidence correspond with the counts or either of them as thus amended by defendant in his said specification upon his oyer thereof in his plea; surely nothing could have been better evidence, for the instrument set out in the plea and in the declaration, are exact copies of the one offered in evidence. The only advantage which defendant could have taken or availed himself of was one which a demurrer perhaps might have reached, but he did not embrace it, and I hold that he could not object to the proof offered by plaintiff which was literally and legally the proof demanded by the issue.

75 MCBRIDE, J. Wood, the plaintiff, brought an action of debt against the defendant, Harris, and Howell O'Neal in the Saline Circuit Court. The declaration contained two counts. The first count declared upon a writing obligatory executed by the defendants to the plaintiff,setting the same out substantially. The second count copies the writing sued on in extenso, and assigns breaches thereon. The defendant craved oyer of the writing sued on, set the same out, and plead non est factum without affidavit. He also filed a plea of offset. Issues were taken by the plaintiff, and the cause was submitted to the court, sitting as a jury, when the plaintiff offered to read the instrument sued upon as evidence in the case, to which the defendants objected, and their objection was sustained by the court. Whereupon the plaintiff took a non-suit, and subsequently moved to set the same aside for the reason that his evidence was rejected by the court, but the court overruled his motion, and he excepted, and has brought the case here by writ of error. It is not now necessary to inquire whether the declaration be sufficient in law to authorize the instrument of writing sued on to be read in evidence. The defendant is precluded by the pleadings in the cause, from now raising that question. Chitty, in his Pleadings, vol. 1, p. 467, lays down the rule as follows: "If the deed be set out on oyer, it becomes parcel of the reeord, and the court will adjudge upon it accordingly, though it were not strictly demandable when granted. Should the true fact and meaning of the deed be mis-stated in the declaration, the variance is cured and becomes immaterial, if the deed be set out on the plea on oyer and non est factum be pleaded; for on that issue the only question at the trial is, whether the deed, as set out in the plea, was executed by the defendant or not, and the jury are not competent to decide what is the legal effect of the deed." The plea not having been verified by affidavit, the plaintiff had the right therefore to read the bond in evidence. The other Judges concurring, the judgment of the Circuit Court is reversed, and the cause remanded.

(a) Summers et al. v. Tice, 1 Mo. R. 349.