Duncans in Washington Co. MS Court Records

genebug.gif

Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised February 9, 2004

WASHINGTON CO. MS
COURT RECORDS
 

"Reports of cases argued and determined in the High Court of Errors and appeals for the state of Mississippi" by W.C. Smedes and T.A. Marshall of Vicksburg, Reporters to the State, Vol.VIII, Cases for January 1847; ("Mississippi Reports") Vol.16, pgs.456 to 461 (California State Law Library 12/2003) (MAD: ?? see Hinds Co. MS)
      HORACE GRIDLEY v. JOHN DUNCAN and EDWARD DUNCAN; Supreme Court of Mississippi; 16 Miss. 456; 8 S. & M. 456; January, 1847, Decided.
      On appeal from the circuit court of Adams county.
      The record in this case shows the following facts, to wit: That on the 24th day of February, 1838, John Duncan and Edward Duncan, copartners, under the name and firm of John Duncan & Co., recovered a judgment in the circuit court of Adams county, against Horace Gridley, for the sum of $121.90, besides costs of suit. That on the 20th day of February, 1843, Gridley was declared a bankrupt, and obtained his discharge as such, by a decree of the district court of the United States, in and for the southern district of Mississippi. That on the 19th January, 1844, Thomas Barrett and wife, for the consideration of $750, conveyed to Gridley a tract of land in Washington county, in this state, containing 198 15/100 acres.
      That on the 16th day of November, 1844, John Duncan & Co. sued out an execution from the office of the clerk of the circuit court of Adams county, on said judgment, directed to the sheriff of Washington county, and made returnable to the May term of said court, in the year 1845; which execution was received on the 6th January, 1845, and levied on said land. And on the 14th day of April, 1845, the sheriff of Washington county sold the same, and John Duncan became the purchaser of the whole tract, for the sum of ten dollars. At the May term, 1845, being the return term of said execution, Gridley entered the following motion in said cause: "Motion by defendant to quash the levy and sale made by the sheriff of Washington county, because that, before said levy and sale, and after the judgment under which said execution issued, the said defendant became a bankrupt, under the act of congress, in such case made and provided, and because the said land was acquired by said defendant after his said bankruptcy, and because of the inadequacy of price, and other causes set forth in affidavit and exhibits." Notice was given to the attorney of record of John Duncan & Co., who, declining to defend the motion, it was continued, and actual service of notice of the pendency of the motion was made on the plaintiff in execution. At the May term, 1846, the motion came on to be heard, and was opposed by John Duncan & Co. on the ground that the court could not set aside said sale, or quash said execution, levy, and sale, by so summary a proceeding as that of a motion, which opposition was sustained by the court, and the motion overruled, and judgment rendered in favor of John Duncan & Co. and against Gridley, for costs. To which decision of the court Gridley excepted, and prayed an appeal to this court.
      The appellant assigns the following errors:
      1. The court below erred in overruling the motion of appellant.
      2. The circuit court erred in rendering judgment for costs against appellant.
      3. The circuit court erred in refusing to entertain jurisdiction of the motion made by appellant, for the causes assigned.
      Sanders and Price, for appellant. ... In this case it appears that the plaintiffs are the purchasers, after notice of discharge of defendant under the bankrupt law, of a property worth near $2000, for the sum of ten dollars. The motion is made at the return term of the process, whilst the court has control over it. Had a stranger purchased without notice the law might have been different. The parties are duly notified of the motion, appear to it, and resist it, not upon its merits, or the controverting any fact alleged, but because the court could not set aside said sale, or quash said execution, levy and sale, by so summary a proceeding as that of a motion, and the court sustains the opposition, and refuses the motion, with cost. (MAD: more arguments of counsel omitted here)
      Mr. Justice THACHER delivered the opinion of the court.
      This was a motion in the circuit court of Adams county, "to quash the levy and sale made by the sheriff of Washington county, because that before said levy and sale, and after the judgment under which said execution issued, the said defendant became a bankrupt, under the act of congress, in such case made and provided, and because the said land was acquired by said defendant, after his said bankruptcy, and because of the inadequacy of price, and other causes set forth in affidavits and exhibits."
      The facts of this case, as presented by the record, are different from those in Flournoy v. Smith et al. 3 Howard 62, and probably present a much stronger case; but it must be observed that the decision in Flournoy v. Smith et al. was not made upon the merits in that case; but upon the question of law, whether a motion could be entertained whereby to determine the merits, that is, whether a motion were the appropriate remedy. In that case, this court said: "But it is conceived that the court below had no power to determine these questions, under a mere suggestion or motion. The constitutional law of this country provides, that no man shall be deprived of his liberty, life, or property, except by due course of law. Is it according to any of the forms of proceeding, known to the common law or statute law of this state, for the presiding judge, in a court of common law, to divest another of his title to the freehold in land, upon a naked motion? A law which should confer such a power, would be an infringement of the right of trial by jury, so cautiously guaranteed by our fundamental law to every citizen. What is the effect of the judgment in this case? It is to dispossess Flournoy of the land in question. But how is the court to enforce its judgment? Can it order a writ of habere facias possessionem? Can it order the sheriff's deed to Flournoy to be delivered up to be cancelled? Has the judgment that effect? Surely not. It can then have no effect whatever, and is, therefore, totally void. For this reason, the judgment of the court below must be reversed, and the motion dismissed." It will be thus clearly seen, that a motion is not the remedy compatible for the end sought to be obtained, and that the circuit court did not err in overruling the motion.
      Judgment affirmed.
 

"Reports of cases argued and decided in the Supreme Court of Mississippi" Vol.III, by J.S. Morris; ("Mississippi Reports") Vol.45, pgs.48 to 57 (California State Law Library, Sacramento, 1/2004)
      TOOF, PHILLIPS & CIRODE v. J. J. DUNCAN; Supreme Court of Mississippi; 45 Miss. 48; April, 1871, Decided.
      Error to the circuit court of Washington county. Trimble, J.
      COUNSEL: Harris & Withers, for plaintiffs in error. It is manifest that there was no sufficient ground for a judgment against plaintiffs in error. The evidence not only fails to establish the fact that Frazier, to whom the money was loaned by defendant in error, was a partner in the commercial firm of Toof, Phillips & Cirode, but establishes exactly the reverse. The firm of Toof, Phillips & Cirode only agreed to take an interest in a certain specific adventure with Frazier. No authority is given in the articles of agreement to either party to borrow money, but the plaintiffs in error and Frazier were each to contribute "an equal amount of capital." The whole object and scope of the adventure was for the purpose "of shipping and selling cotton" and the purchase of a boat for that purpose.
      It is distinctly proven by Moses Johnson, a witness for the defendant in error, that the order for the money was given to Frazier and "that Frazier told Duncan if cotton did not raise before he got back to Memphis he would like to have the use of the money until the first of April," and that Duncan (the defendant in error) told Frazier "yes, he could use the money if he would return it as promised," and that nothing was said by Frazier about his being a partner of plaintiffs in error. This proof introduced by defendant in error on the trial is conclusive against his recovery of plaintiffs in error. The loan was negotiated by Frazier in his own name and for his own benefit. The deposition of Mahan and Walter Scott, bookkeeper for plaintiffs in error, show that the money was merely collected by Mahan for Frazier, who was then sick, and was paid over to him on his recovery. The order of the defendant in error on Campbell, Norrel & Shepherd, is to pay the money to Alexander Frazier, not to plaintiffs in error. This order shows that the loan was to Frazier as an individual. Even had Frazier been a partner in the commercial firm of Toof, Phillips & Cirode, his borrowing money on his individual account would not have bound the firm. But he was not a partner, but had he been, the order is to him as an individual and as he received the money as an individual and so used it, the firm having no benefit from it, they could not be held responsible.
      1. War was raging between the north and south at the time, and the contract between Frazier, who came from the north and from a point in possession of the United States forces, and Duncan who was in Mississippi, was illegal and void by the law of nations, and especially by the acts of congress.
      2. The demurrer to the declaration should have been sustained, for if Alexander Frazier was a partner of the firm of Toof, Phillips & Cirode, he should have been made a party defendant.
      3. The demurrer should have been disposed of in some way before defendants below were forced to plead. The record fails to show what action the court took on the demurrer.
      4. The verdict of the jury was contrary to the evidence. There was really no evidence that plaintiffs in error were liable for Frazier's debt.
      5. It was error to permit the introduction of the written agreement under the circumstances of the case.
      No counsel for defendant in error.
      (Opinion:) In December, 1864, Toof, Phillips & Co., and Alexander Frazier, residents of Memphis, Tenn., entered into a written agreement, beginning thus: "This article of agreement made and entered into by and between John S. Toof, Charles I. Phillips, W. T. Cirode, and Frank M. Mahan, composing the firm of Toof, Phillips & Cirode, of the first part, and Alex. Frazier of the second part." The object of this contract is stated therein to be, "for the purpose of shipping and selling cotton as per regulations of United States purchasing agent." It is then recited, "that the party of the first part agrees to furnish an equal amount of capital with the party of the second part, in goods and supplies not contraband of war, or of such a character as the authorities may permit to be shipped to parties that may furnish cotton in this adventure." It is also provided, that "the boat furnished by either party in this adventure to be paid for by each party equally, and to be owned and controlled in the same way. All expenses incurred in getting cotton, shipping and selling the same, to be borne equally alike, and all profits and losses in this adventure to be shared alike by and between both the above-named parties." The cotton obtained under this contract was to be shipped to the place of contract, and "reported to the United States purchasing agent," and to be sold to him, or sent to the loyal states for sale. "The party of the first part not to be liable for any cotton until the same has been delivered on board the boat used in this adventure." Just and true accounts were to be kept, and neither party was to "do anything whereby the rules and regulations of the United States authorities shall in any manner be infringed or violated." This contract was to continue for three months, subject to cancellation by either party on two weeks' prior notice.
      In December, 1864, or January, 1865, Frazier being in Washington county, Miss., on a trading expedition under the foregoing contract, J. J. Duncan, a resident of Greenville, in that county, the plaintiff in this action, "asked him (Frazier) to take up a draft on Campbell, Norville & Co., to Memphis, and collect for me (Duncan), and bring the money down."
      Duncan then, under date of January 31, 1865, gave to Frazier a check, or draft, on Campbell, Norville & Shepherd, directing them to pay to Alex. Frazier $1,500.
      Frazier, being sick and unable to attend to the collection of this draft, indorsed it, payable to Toof, Phillips & Cirode, and, at the request of Frazier, one of the firm of Toof, Phillips & Co., collected thereon of Campbell, Norville & Shepherd, $1,492 50, which sum was placed to the credit of Frazier on the books of Toof, Phillips & Co., and by Frazier subsequently withdrawn from deposit. Frazier falling to pay the money to Duncan, the latter, in August, 1865, sued Frazier to recover the amount, but withdrew the suit, and in 1867 brought this action against Toof, Phillips & Co., commencing by attachment, against Toof, Phillips & Cirode, as composing the firm of Toof, Phillips & Co., seeking to charge them with the payment of the sum collected of Campbell, Norville & Shepherd. The record is somewhat confused. The following papers appear in the order named:
      1. Affidavit of Duncan for attachment against Toof, Phillips & Cirode, under date of November 2, 1867.
      2. Bond for attachment against same parties.
      3. Attachment against same parties, and sheriff's return of service upon debtors of Toof, Phillips & Co.
      4. Declaration in circuit court of Washington county, May term, 1868, against Toof, Phillips, Cirode and Mahan, as partners in trade, under the firm name of Toof, Phillips & Cirode, alleging the draft on Campbell, Norville & Shepherd, and its payment to defendants "or to their partner, Alex. Frazier, who was authorized and empowered, as such partner, to receive payment of the same." With the declaration is a bill of particulars of plaintiff's claim, to wit: "Toof, Phillips & Cirode, To Jesse J. Duncan, Dr. 1865. January. To amount of draft, drawn by me in your favor on the house of Campbell, Norville & Co., and by them paid you. . . . $1,492 50."
      5. May term, 1869, another declaration, not stated to be filed as an amended declaration, yet, in fact, varying from the former, in this, that it declares against Toof, Phillips, Cirode and Mahan, as partners, and omits all mention of Frazier. This declaration contains the usual money counts in assumpsit.
      6. Plea, special plea, and replication between these parties in the courts of Memphis, 1865.
      7. Washington county, Mississippi circuit, May term, 1869; plea, special plea, and replication in this action.
      8. November circuit, 1868, a general demurrer to the declaration.
      9. May term, 1869, demurrer to the declaration, on the ground that the declaration states Frazier to be a partner in the firm of Toof, Phillips & Co., yet he is not made a party to the suit.
      10. An agreement of counsel to read depositions taken in a suit in Tennessee between these parties for the recovery of the same money claimed herein.
      11. May term, 1869. Proceedings on the trial in Washington county.
      It will be seen that the parties went to trial with the demurrer undisposed of as far as the record shows, the issue being made up and the demurrer filed, and a trial had at the same term of the court.
      Our conclusion from the record is, that the demurrer, if not disposed of by the court, was waived by the parties. It, at least, deserves no consideration in this case.
      Upon the trial the first witness sworn was the plaintiff in the action, who testified that in the fall of 1864 he was at the office of Toof, Phillips & Co., in Memphis, when he was shown the written agreement between that firm and Frazier, and was asked to use his influence to get them cotton. He did not read the contract, but the arrangement was the subject of conversation between himself and one of the firm. On his return to Washington county, the witness says, "I met with Frazier sometime in the month of December, 1864, or January, 1865, and asked him to take up a draft on Campbell, Norville & Co. to Memphis and collect for me and bring the money down. Frazier there represented himself as a partner of Toof, Phillips & Co., and said, that if they did not sell the cotton then on hand, they would like to use the money in the purchase of other cotton, and would pay ten per cent interest on it for the time they used it, as cotton was low at the time and they might not want to sell, but that if they sold said cotton they would not use it. Frazier said that Toof, Phillips & Co. were good for it, and I loaned the money on the credit of the firm of Toof, Phillips & Co. I gave Frazier a check on Campbell, Norville & Co. Just after the surrender witness demanded this money of Toof, Phillips & Co., which they refused to pay." The articles of agreement between Toof, Phillips & Co. and Frazier were then offered in evidence, but were objected to on several grounds. The objections being overruled, the defendant excepted, and the contract was read to the jury.
      The testimony of several witnesses was then submitted to the jury, by deposition, or in person, in order to establish a general partnership between Toof, Phillips & Co. and Frazier. This proof consisted of the acts and declarations of Frazier in Washington county, mainly in reporting that he was interested in the best house in Memphis. No proof appears showing that Toof, Phillips & Co. held out Frazier as their partner, or that his acts or declarations were ever brought to their knowledge. In fact, the evidence not only fails to show Frazier a general partner of Toof, Phillips & Co., but establishes conclusively that their transactions were confined to and limited by the written agreement between them. It also appears that Toof, Phillips & Co. derived no benefit from the money sued for, nor did it enter into their business, but was held by them as the money of Frazier, and paid over to him on his demand. It also appears that Toof, Phillips & Co. were possessed of ample means, and were not borrowers.
      The instructions of the court to the jury, for the plaintiff, are not given in the record.
      The instructions asked by defendants were modified by the court, to which they excepted. The jury rendered a verdict for plaintiff, for $1,492 50, and judgment was entered against Toof, Phillips, Cirode and Mahan.
      The defendants asked to have a new trial, on the following grounds: 1. Because the court erred in giving instructions asked by plaintiff; 2. Because the court erred in refusing the first instruction asked by defend ants, and in modifying the others asked by them; 3. Because the court erred in permitting the written agreement between Frazier and defendants to be admitted as evidence; 4. The jury found contrary to the evidence; 5. The jury found contrary to the instructions of the court; and, 6. For other causes to be stated on the argument. The defendants' attorney also submitted an affidavit of surprise on the trial, by the introduction of the written agreement aforesaid.
      The motion for a new trial was overruled, and defendants excepted, whereupon they prosecuted a writ of error, and the following causes are assigned here for a reversal of the judgment and verdict: 1. The court erred in overruling the demurrers to the declarations; 2. Neither the declaration nor amended declaration make Alexander Frazier a party, and no recovery could be had against a firm of which he was a member, for obligations incurred by him, without making him a party; 3. The verdict of the jury is contrary to the evidence; 4. The evidence shows that the verdict should have been for defendants below; 5. The court erred in permitting the introduction of the written contract or agreement between plaintiffs in error and Frazier, as evidence for the jury; 6. The court erred in refusing the instructions asked by plaintiffs in error; 7. The court erred in modifying the charges asked by plaintiffs in error; 8. The court erred in granting the instructions asked by defendant in error; 9. The court erred in overruling the motion for a new trial.
      Our view of this case renders it wholly unnecessary to discuss but a single point, and that quite briefly. The written agreement between defendants and Frazier, which plaintiff saw, or might have seen, limited their transactions to a single article of merchandise, for the period of three months. While it was to a certain extent a partnership, it was, nevertheless, only an "adventure." Such an enterprise, though a partnership, gives to the respective partners no such ample powers to bind the firm as in cases of permanent and general mercantile transactions. In this case there was no power to borrow money, and it could not be implied, except in a case of clear emergency, and in the direct and proper conduct of the enterprise. No such necessity is presented. In fact no occasion whatever for borrowing money is shown.
      Neither does the contract permit of any transactions outside of the special adventure, and one of the partners could not bind the firm except in the legitimate prosecution of the enterprise and necessary to its success.
      In the case at bar, Duncan swears he "loaned the money on the credit of the firm of Toof, Phillips & Co.," but in fact he gave the check or draft on his merchant for money payable to the order of Frazier, and not to Toof, Phillips & Co., which Frazier was to collect and "bring down" to the plaintiff. Had the latter taken the precaution to have drawn the draft payable to the order of Toof, Phillips & Co., it might have changed the whole aspect of the case. But he dealt with Frazier alone; he made the draft payable to Frazier's order, and the latter was to collect and bring the money to Duncan. We regard the former as the mere agent of the latter in a mere accommodation transaction, outside of, and wholly unauthorized by, the agreement between Frazier and Toof, Phillips & Co. The credit, the party testifies, he gave to the firm, and that in his own mind he did so need not be doubted, but by the actual transaction it was given in fact and in law to Frazier. Very likely the credit extended to Frazier was the reflected credit of the firm through their association with him in the adventure and by his further unauthorized representations; but we cannot perceive that they were in any way, morally or legally, involved in the transaction. Frazier, we judge, was willing to defraud either Duncan or Toof, Phillips & Co. The loss might have been avoided by the simple precaution of drawing the check payable to the order of the well-known firm of Toof, Phillips & Co., and we think the consequences ought to fall upon Duncan rather than upon these defendants. In short, we think the proof so clearly exonerates the defendants, and so positively establishes the sole responsibility of Frazier for the money in controversy, as to leave us no discretion. The law and the facts appear to be plain.
      The judgment is reversed and the cause remanded.
 

"Reports of cases in the Supreme Court for the State of Mississippi" Vol.XLIX by Harris & Simrall, Vol.1, containing cases decided at the October term 1873 and April term 1874; Vol.49, pgs.331 to 342 (California State Law Library, Sacramento, 1/2004)
      JESSE J. DUNCAN v. THE STATE; Supreme Court of Mississippi; 49 Miss. 331; October, 1873, Decided.
      Error to the circuit court of Washington county. Hon. C. C. Shackleford, Judge.
      The opinion of the court contains a full statement of the facts in the case.
      COUNSEL: W. T. Deason and Nugent & Yerger, for plaintiff in error:
      1. The errors complained of in this case are manifestly well taken. The motion to quash the indictment should have been sustained, if for no other purpose than to promote that reasonable certainty which should always attend the pleadings in a criminal case. The charge against the plaintiff in error is, that he unlawfully, willfully and maliciously, and out of a spirit of wanton cruelty, did kill, maim and wound a hog belonging to Tobe Clay. The malicious killing of the hog, out of a spirit of wanton cruelty, is not the crime, nor is the trespass attendant upon the unlawful killing, nor yet the mischievous killing.
      2. If we are mistaken in this, the motion in arrest of Judgment ought to have been sustained, especially as under the instructions of the court, the jury were directed to find a verdict of guilty, if they believed, from the evidence, that the plaintiff In error either willfully or maliciously killed the hog. The jury seemed to have had a better appreciation of the law than the court, for they failed to find a verdict of guilty, as charged, but did find a verdict that the accused was guilty of the "unlawful killing of the hog"; the willful or unlawful killing of the hog was not a crime at all; at most it was but a trespass, not indictable under the statute.
      The verdict of the jury was not, therefore, a verdict of guilty at all, and the motion in arrest of judgment was well taken in point of law.
      3. The motion for a new trial in any event, should have been sustained. The indictment was fatally defective. The verdict of the jury was not that of guilty. The evidence was not sufficient to sustain the charge, and the instructions given for the State were evidently improper.
      If the indictment be held substantially good, as charging the killing of a hog, it was certainly wrong to instruct the jury that the willful killing of Tobe Clay's hog would subject the plaintiff in error to the penalty demanded by the statute for a mischievous killing.
      J. S. Morris, attorney-general: 1. The addition of the words "and out of a spirit of wanton cruelty," in charging the offense, does not constitute duplicity sufficient to vitiate the indictment. If an indictment describe one offense and then add such words as are in part sufficient to describe another, it is not, therefore, double. To be so, it must set out each of the offenses In adequate terms. These superfluous words, therefore, must be treated as surplusage. This disposes of the chief grounds for the motion in arrest of judgment.
      2. As to the other ground of error in giving and receiving instructions, being properly no part of the record, cannot afford a predicate for the motion.
      3. The verdict, if not a literal response to the indictment, was sufficient to authorize the court in pronouncing judgment.
      (Opinion:) TARBELL, J., delivered the opinion of the court: At the October term, 1871, of the Washington county circuit court, the grand jurors of that county presented a bill of indictment against the plaintiff in error in the following terms: "That Jesse J. Duncan, late of the county aforesaid, laborer, on the 1st day of October, in the year of our Lord 1871, with force and arms at the county aforesaid, a certain hog, of the value of $20.00, of the personal property, goods and chattels of Tobe Clay, then and there being found, unlawfully, willfully, and mischievously, and out of a spirit of wanton cruelty, did kill, maim, and wound, contrary to the form of the statute in such cases made and provided," etc. The cause came on to be heard at the February term, 1872. There was a motion to quash the indictment:
      1. Because it contained two distinct offenses.
      2. Because the indictment was not in the language of the statute.
      This motion was overruled, and the trial proceeded.
      The hog was shot as it was leaving the cornfield of the accused, where it had been doing damage to crops. It appeared that the hogs of Tobe Clay had, for a year or so, been so often in the corn of Duncan, that he had several times notified Clay to take care of them, or he would shoot them. There was also evidence to show that Duncan had expressed a willingness to pay for the hog, but there was neither payment nor tender.
      The following instruction was given for the State:
      "If the jury believe, from the evidence, that Jesse J. Duncan willfully or mischievously, out of a spirit of wanton cruelty, did kill, maim and wound a hog, the property of Tobe Clay, as charged in the indictment, they must find him guilty as charged, unless they believe, from the evidence, that he has paid or tendered to the said Clay full compensation for the injury inflicted."
      For the accused, the following Instructions were asked:
      1. "To warrant conviction, every material allegation in the indictment must be proven; and unless the jury believe, from the evidence, that the shooting was willfully, unlawfully and mischievously done, or was out of a spirit of revenge or wanton cruelty, they must acquit." This was modified, and given as follows: "To warrant conviction, every material allegation in the indictment must be proven; and unless the jury believe, from the evidence, that the shooting was willfully, unlawfully or mischievously done, or was Out of a spirit of revenge, or wanton cruelty, they must acquit."
      2. "The defendant is entitled to the benefit of every reasonable doubt arising in the minds of the jury from the evidence." This was modified, and given as follows: "The accused is entitled to the benefit of every reasonable doubt arising in the minds of the jury from the evidence; but if the killing of the hog is established by the evidence, then the defendant must prove, beyond a reasonable supposition, excuse for such killing, before they can acquit."
      3. "The jury are instructed that they may take all the circumstances attendant upon the shooting, which have been given in evidence, in forming their verdict." This was given as requested.
      The jury returned the following verdict:
      "We, the Jury, find the accused guilty of the willful and unlawful killing of the hog, but not out of a spirit of mischief, revenge or wanton cruelty."
      It is stated in the bill of exceptions, that "the court here instructed the Jury upon the law applicable to the case without being requested so to do, and ordered them to retire and find a verdict." To this action of the court in giving instructions to the jury without request, the accused excepted.
      A second verdict was returned in these words: "We, the jury, find the accused guilty of the unlawful killing of the hog, as charged in the indictment."
      Thereupon a new trial was asked: 1st. Because the jury found contrary to the evidence; 2d. The verdict is contrary to the instructions; 3d. It was error to instruct the Jury without the consent of the defendant.
      A motion in arrest was also made on the grounds: 1st. That the court erred in instructing the Jury without the consent of the defendant; and 2d. That the verdict of the jury was informal, contrary to law, and the instructions of the court.
      These motions were taken under advisement, and at a subsequent term, were overruled, when the following entry was made: "It is ordered by the court that the defendant be fined in the sum of $75.00, and that he pay the costs of this prosecution, and that he stand committed until such fine and costs are paid." Hence a writ of error, based on overruling the several motions to quash the indictment, in arrest of judgment, and for a new trial.
      As this case presents practical questions of general importance, the action of the court below is somewhat fully presented, with a view to the comments which seem to be necessary. The statute upon which this prosecution is based reads as follows: "Any person who shall maliciously, either out of a spirit of revenge, or wanton cruelty, or who shall mischievously kill, maim or wound, or injure any horse, mare, gelding, mule, sheep, cattle, hog, dog, poultry, or other live stock, or cause any person to do the same, shall be fined in any sum not less than fifty, nor more than $300.00, or be imprisoned for any term not exceeding six months, or by both such fine and imprisonment; but the penalty in this section mentioned shall not apply to any person who may injure animals found in the act of trespassing within his enclosure, and who has paid or tendered to the owner of the animal, full compensation for the injury inflicted."
      This is the provision of the Code of 1857, p. 605, art. 201, except the paragraph, that the penalty "shall not apply to any person who may injure animals found in the act of trespassing within his enclosure, and who has paid or tendered to the owner of the animal full compensation for the injury inflicted," which is considered matter of defense, the concomitants of malicious mischief remaining as defined by this court in Crealy v. The State, Op. Book A., 55 [not reported]; Biddle v. The State, Op. Book C., 183 [not reported]; Tillman v. The State, ib., 185 [not reported].
      It will be understood, that the references and quotations which follow, for another purpose, are qualified by the rule in this State, that in prosecutions under our code for malicious mischief, it is not necessary to charge or to prove "malice, ill-will, or resentment towards the property or its owner or possessor."
      In State v. Simpson, 2 Hawks, L. and Eq. [9 N.C.] 460, it was well said, "that malicious mischief, in most of its forms, has been legislated upon in England, for the purpose of annexing a severer punishment to it than the law allowed in misdemeanor. The number of these statutes has so overlaid the common law offense, that it is difficult to trace any distinct account of it, and it is the best in the commentaries." As an interesting historical fact, it is worthy of repetition, that, "Upwards of eighteen hundred sections, it is estimated, of acts, running from Henry VIII, to George III, repealed or otherwise, were created for the especial purpose of providing against malicious mischief;" and it is added, that, "as the statutory penalty was both more specific, and more certain than that of the common law offense, the books, in relation to this class of offenses, give but few examples of common law indictments." And the same author says of malicious mischief, that, "in its general application it may be defined to be any malicious or mischievous injury, either to the right of another, or to those of the public in general. Ib.
      Bouvier, (Law Dictionary,) defining this term, says, the "expression is applied to the wanton or reckless destruction of property, or the willful perpetration of injury to the person."
      An Indictment charging that, the defendant "unlawfully, wickedly, maliciously, or mischievously, did set fire to, burn and consume, one hundred barrels of tar," etc., was sustained in State v. Simpson [2 Hawks, L. and Eq., 9 N.C. 460], supra.
      In the case last cited, it is declared to be the "policy of the law, to protect property from those modes of destruction, against which all means of precaution and human prudence, are unavailing."
      Discussing the rules respecting injuries to private property, Blackstone, (vol. 4, p. 254,) says: "Malicious mischief or damage is the next species of injury to private property, which the law considers as a public crime. This is such as is done, not animo furandi, or with an intent of gaining by another's loss, which is some, though a weak excuse; but either out of a spirit of wanton cruelty or diabolical revenge, in which it bears a near relation to the crime of arson; for as that affects the habitation, so this affects the other property of individuals; and, therefore, any damage arising from this mischievous disposition though only a trespass at common law, is now, by a multitude of statutes, made penal in the highest degree."
      "Mischievously," in State v. Jackson, 12 Ired. Law [34 N.C.] 329, is said to be the generic term, designating the crime of malicious mischief. The word "mischievously" being omitted from the indictment, in that case, and the charge of malice not being sufficiently set out, the description of the offense, was held to be incomplete.
      The defendant, in State v. Landreth, Car. L. R. [4 N.C.] 331, was indicted for malicious mischief, in stabbing with a knife a mare, the property of one Young, and the jury found a special verdict, in which it is stated, that the defendant took the mare from his cornfield, where she was damaging his growing corn, to a secret part of the county, where he inflicted the wound, with a view of preventing a repetition of the injury.
      The court say: "We do not think that the facts found in this case, bring the offense within the common law motive of malicious mischief, that seems to be confined to those cases, where the act is done in a spirit of wanton malignity, without provocation or excuse, and under circumstances which bespeak a mind prompt and disposed to the commission of mischief. * * * The conduct of the defendant was certainly highly reprehensible and barbarous, yet it was prompted by the sudden resentment of an injury, which is calculated, in no slight degree, to awaken passion; and there is a difference which every one must feel, between an act committed under such circumstances, and one where the party goes off his own land in pursuit of an animal which had done him no injury, for the sake of exercising cruelty, or perpetrating wanton mischief."
      It was held in Mosely v. State, 28 Geo., 190, that, "to constitute the crime of malicious mischief under our (their) code, it is not necessary to prove actual ill-will or resentment towards the owner or possessor of the property; but if the act be done under circumstances which bespeak a mind prompt and disposed to the commission of mischief, or, in the language of the court, (the court below,) wantonly, and recklessly, it is sufficient."
      Wright v. The State, 30 Ga. 325 [76 Am. Dec. 656], was an indictment for malicious mischief, in shooting the mule of one Baker. The facts are indicated in the opinion of the court, wherein it is said: "We think the proposed evidence of the mule's thievish and unmanageable character was improperly rejected. It was material, by way of support to the other evidence, which showed that Wright's motive in shooting the mule was a desire to protect his crop, and not either ill-will to the owner, or cruelty to the mule. The whole evidence against Wright was his own admission that he had shot the mule. This admission was coupled with a statement that he had shot him to keep him out of his corn field, and that the mule was in his field when he shot him. Now, the truth of this statement, that the mule was in his field, was most material to his defense, and the fact that the mule had a proclivity for being in such places, and was hard to be kept out of them, supported the probability of the statement. If the mule really was in his field, as he asserted, the fact very powerfully supported his further assertion that his motive in shooting, was the protection of his crop. The question to be tried was not whether he was justified in shooting the mule, but whether his motive in shooting was malicious. The question of justification would be the issue in an action of damages against him, but on this indictment the issue was malice or no malice. If he had shot from the motive of protecting his crop, and not from either ill-will to the owner or cruelty to the animal, his motive was not malicious, whether it was justifiable or not, and his act was not malicious mischief."
      In view of these authorities, and of the code, and adjudications of our own State, the following observations are deduced:
      1. The Code defines two distinct attributes, conditions, or definitions, of malicious mischief, within one or the other of which the facts must bring a case to warrant prosecution, viz.: that the injury was done "maliciously, either out of a spirit of revenge or wanton cruelty"; or, that it was done "mischievously," the latter, according to the authorities, being the generic term designating the crime in question. Referring to the indictment in the case at bar, it will be observed that it does not follow the Code in its definition of the offense charged, but avers that the accused did "unlawfully, willfully, and mischievously, and out of a spirit of wanton cruelty," kill the hog of Tobe Clay.
      The action of the court, however, in overruling the motion to quash the indictment may be now sustained by treating the italicized words as surplusage.
      2. Tested by this analysis of the Code, the Instructions of the court are found to be subject to criticism, and erroneous. The instruction for the State presented to the jury the alternative proposition, that if they believed the accused either willfully or mischievously killed the hog of Tobe Clay, they must convict. Under this charge of the court, the jury could acquit the accused of "mischievously" killing the hog, but might convict him of "willfully" committing the act; though the "willful" killing would not constitute the offense of malicious mischief.
      The first instruction asked for the defendant was so modified as to present three alternative propositions, viz.: "That the shooting was willfully, unlawfully, or mischievously done; or was out of a spirit of revenge or wanton cruelty." This was clearly error, as the willful and unlawful killing would not bring the case within the statute.
      3. The second instruction asked by the defendant was so modified as to present the proposition to the jury that, "if the killing of the hog is established by the evidence, then the prisoner must prove, beyond a reasonable supposition, excuse for such killing before they can acquit." There was more proven, and there was more to be "established by the evidence," to the satisfaction of the jury, than the mere killing. The question to be determined was not the mere act of killing, but was the act done "maliciously, either out of a spirit of revenge, or wanton cruelty"; or was it done "mischievously?" Finding the killing to fall within either definition of the offense as provided by the Code, the crime would be complete; but the Code declared that "the penalty * * *" shall not apply to any person who may injure animals found in the act of trespassing within his enclosure, and who has paid or tendered * * * full compensation for the injury inflicted." As to the excuse for killing, that is a question for the jury. In the case at bar, if the jury believed, from the evidence, that the killing was not done "maliciously, either out of a spirit of revenge or wanton cruelty," nor "mischievously," then the crime was incomplete, and the jury should, in such a case, acquit. The motive, upon the facts, was the question to be determined. Notwithstanding the killing was done while the stock was doing damage within the enclosure of the defendant, the jury, upon a state of facts, might, nevertheless, believe it was done "maliciously," either out of a spirit of revenge or wanton cruelty, or "mischievously," and so should convict in either case. According to these views, the instructions failed to present either a logical or legal view of the case, and the Jury were without proper guides in their deliberations. The Code, Sec. 2708, under which this prosecution was instituted, is clear, simple and easy of application.
      4. If correct in the views thus far presented, the verdict first rendered was an acquittal of the accused, of the offense charged in the indictment. That verdict was in these words: "We the jury find the accused guilty of the willful and unlawful killing of the hog, but not out a spirit of mischief, revenge or wanton cruelty." The "willful and unlawful" killing was an act of trespass only, and not malicious mischief. The accused was, therefore, found guilty of a trespass, merely, Of the essential ingredients of the crime charged he was found not guilty, by the very words of the verdict. In other words, the verdict is, guilty of the willful and unlawful killing, and not guilty of killing the hog out of a spirit of mischief, revenge or wanton cruelty.
      5. The instructions of the court upon the return of this verdict are not given, but, whatever they were, they were given without the consent, and subject to the objection and exception of the defendant. Under these instructions, and in obedience to the instructions of the court, the jury retired to consider another verdict
      In this State it is forbidden to charge the jury without request, and this is not only the policy of our State, but is the subject of positive enactment. Code, Sec. 643; Code of 1857, p. 504, art. 161. It would be more satisfactory if these instructions were contained in the record, but it is not important, as the Jury had acquitted the accused, and it was improper to send them out a second time.
      Even the second verdict, returned in obedience to the unauthorized instructions of the court, though greatly changed from the first, is not a verdict of guilty of malicious mischief but of an "unlawful killing" only, which are simply other words for the commission of a trespass. Evidently the Jury did not believe, and were unwilling to find the defendant guilty of the offense of malicious mischief.
      6. The Code, Sec. 2708, furnishes a clearly defined and simple guide to the prosecution of this offense, whether for the indictment, proof or instructions in this, that the statute declares malicious mischief to consist, first, "in maliciously, either out of a spirit of revenge or wanton cruelty;" or second, "in mischievously killing, maiming, wounding or injuring the animals, or personal property therein enumerated."
      It may be added, that for trespasses by stock, the statute affords means of redress. Code, c. 23, art. 3, p. 413. And, also, as bearing upon the general subject, that Sec. 1922 of the Code, authorizes the confinement of stock "habitually addicted to fence breaking," and that Sec. 1924, allows "double damages" to the owner of stock injured by one whose fence is "not a lawful one." See further, 2 East P.C. 1072; [Johnson v. State] 37 Ala. 457; [Snap v People] 19 Ill. 80 [68 Am. Dec. 582].
      Judgment reversed and accused discharged.
 

"Reports of cases decided by the Supreme Court of Mississippi at the March term 1898, November Special term 1898, and March term 1899" Vol.76, reported by T. A. McWillie; Vol.76, pgs.133 to 136 (California State Law Library, Sacramento, 1/2004)
      JACOB J. DUNCAN v. LUCY L. JAYNE; Supreme Court of Mississippi; 76 Miss. 133; 23 So. 392; March, 1898, Decided.
      FROM the circuit court of Washington county. HON. F. A. MONTGOMERY, Judge.
      The appellee, Mrs. Jayne, was the plaintiff in the court below; appellant, Duncan, was defendant there. The facts are stated in the opinion of the court.
      COUNSEL: J. H. Wynn, for appellant.
      Duncan had a statutory lien (Irwin v. Miller, 72 Miss. 174) superior to every other lien, unless it was inferior to that of Jayne. But I insist that the conduct of Jayne was such as to operate as a waiver of priority in favor of Duncan. If Jayne ignored his tenant, Holland, and told Duncan that he must gin the cotton, it would be inequitable and unjust afterwards to say that he had a prior lien on the cotton and the charges should be inferior thereto. The ginning had to be done before the cotton could be marketed. Jayne urged Duncan, who ginned cotton for hire, to gin the cotton, and told him he must gin it; and appellee cannot now claim that, because he had furnished money to Holland, the tenant, to pay the charges, that Duncan has no lien upon the cotton. In McCormick v. Blum, 75 Miss. 81, McCormick, a manager, had a lien on cotton shipped by him to Greenville. In a suit by him to recover the proceeds of the cotton, this court says that "he, the appellant, not only consented to what was done in shipping the cotton to Greenville for the purpose of sale, but that he himself was the person that shipped it, and that he is estopped to assert a lien against it." In Cohn v. Smith, 64 Miss. 821, the landlord consented for the tenant to sell cotton because she desired him to discharge a debt owing to her. In a suit against the purchaser by the landlord, the court says that she was estopped. Here Jayne had a lien on the cotton. Desiring to get it into market, he urged Duncan to gin it as early as possible, knowing that Duncan charged for the ginning, and saying nothing to Duncan about having given money to the tenant to pay the charges. He should be estopped.
      The reporter finds no brief for appellee of record.
      TERRAL, J., delivered the opinion of the court.
      This is a suit by Mrs. L. L. Jayne, the landlord, against J. J. Duncan for the value of two bales of cotton appropriated by him, with the consent of R. H. Holland, the tenant of Mrs. Jayne, to pay Duncan for the ginning of the cotton of said tenant during the season, the said landlord's rent and supply bill being unpaid. The evidence showed that Holland was the tenant of Mrs. Jayne, and was owing her several hundred dollars for rent and supplies, and that Duncan, with the consent of Holland, had furnished the bagging and ties, and ginned the cotton raised by Holland on the place leased by him of Mrs. Jayne, and had received and appropriated to the payment thereof two bales of cotton raised by said tenant, Holland. There was evidence that Jayne, the husband of plaintiff, expected the tenants to have the cotton raised by them ginned and baled, and that there was no gin on the lessor's land, and that the tenants, in order to comply with the contract with the lessor, must gin and bail the cotton raised by them. A peremptory instruction was given for the plaintiff below.
      We think that Duncan was entitled to a verdict, upon the evidence before the court. The ginning and baling of the cotton was necessary to prepare it for market, and, with no gin on the leased premises, it could not have been expected by the lessor that the tenant would gin and bale the same without incurring a charge therefor, and the lessor, under the circumstances, must be taken as consenting to its payment out of the crop grown by the tenant. The charge for ginning and baling the crop being for the common good of all the parties interested, and being absolutely essential to make it available to them, constituted it, from the necessity of the case, a lien upon the crop superior to all other liens, whether of the lessor or others.
      The judgment of the circuit court is reversed, and a new trial is granted.
      J. B. Stribling, for appellee, suggested error as follows:
      It is error to hold that the charges for ginning the crop, created, from the nature of the case, a lien on the cotton superior to the lien of the landlord. The code of 1892 gives the landlord a lien on the crop grown by his tenant, which is "paramount to all other liens, claims, or demands upon such products." Sec. 2495. Code of 1892, Sec. 2682, in relation to employers and employes, provides that "every employe, laborer, cropper, part owner, or other person who may aid, by his labor, to make, gather, or prepare for sale or market, any crop, shall have a lien on the interest of the person who contracts with him for such labor for his wages." But it provides further that the lien of the person who may aid, by his labor, to prepare for sale or market, any crop, "shall be paramount to all liens except the lien of the lessor of the land on which the crop is made, for rent and supplies furnished, as provided in the chapter on landlord and tenant."
      The suggestion of error was denied.
 

Return to the Washington Co. MS Research File

END

Return to Index to Duncan Research Files in Mississippi

Return to The Genealogy Bug's Home Page