Brown v. Burrus

• Decision Date: 31 July 1843
• Citation: 8 Mo. 26
• Parties: BROWN v. BURRUS.
• Court: Missouri Supreme Court

8 Mo. 26

BROWN

v.BURRUS.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM HOWARD CIRCUIT COURT.

CLARK and KIRTLEY, for Appellant. 1. That the court below erred in permitting plaintiff's counsel to re-introduce and re-examine, in chief, Taylor and Duncan, under the circumstances of this case. See 3 Chitty's Practice, 901-2, and note; 1 Starkie's Ev. 181; 12 Mod. Eng. R.; 2 Carr & Payne, 121, Giles v. Powell. 2. That the verdict of the constable's jury, finding the property in controversy subject to the executions, was competent and legal evidence in the defense, and was improperly rejected by the Circuit Court. St. of Mo. § 14, p. 367. 3. That Col. Davis was sufficiently and properly sworn to answer questions to establish the collateral fact of the notice of Burrus' claim to the negro; and the court erred in considering him as defendant's witness-in-chief, and in allowing plaintiff's counsel to cross-examine him in that character. 4 That the executions in the hands of the constable, as soon as indorsed by him, were a lien on Duncan's personal property within the township, and that the Circuit Court erred in giving plaintiff's first instruction. See St. of Mo. § 6, p. 366; § 18, p. 256. 5. The Circuit Court erred in overruling the motion for a new trial, for in addition to the above reasons, the damages were clearly exeessive beyond the sum remitted, and because Bennett Brown was precluded from the benefit of the testimony of Robert Brown and Ford, material to his defense, by the improper conduct of the plaintiff. See 6 Bac. Abr. 672; 2 J. J. Marshall, 52, Daniel v. Daniel; 7 Wend. 62, Jackson v. Warford; 6 Mo. R. 604, Smith v Matthews.

DAVIS and LEONARD, for Appellee. 1. That no new trial can be granted upon the motion of one defendant; that the verdict must be set aside toto, or not at all. See 2 Tidd's Pr. 911; 2 Strange, 814; 3 Salk. 362; 12 Mod. 275, in this edition of Tidd, 329. 2. It is insisted, that the verdict of the jury who tried the rights of property was rightfully excluded from the jury as evidence in the cause, because the jury was not sworn by the constable. See Rev. St. of Mo. 367, § 15 of act concerning Justices' Courts, title Execution. Where a summary mode of proceeding is given by statute, the statute must be strictly pursued. See 2 Starkie's Ev. 432, title Justices. Otherwise the whole proceeding is void. See Davidson v. Gill, 1 East, 64. Again: The evidence in the cause shows conclusively, that had the verdict of the jury who tried the rights of the property been allowed in evidence in this cause, it would have been to permit Brown, the constable, to destroy that very title to the slave Nancy which he himself had been instrumental in creating in the plaintiff, Burrus. It cannot be conceded that an act of the Legislature, made for the justification and protection of a public officer, is thus to be made an instrument to shield and protect the officer against his own wrongs.

SCOTT, J.

This was an action of trespass, commenced by the appellee, against Bennett C. Brown, the appellant, Nathaniel Ford, and Robert Brown, for seizing and taking away a negro girl slave, named Nancy. The defendants pleaded not guilty, and on the trial Nathaniel Ford and Robert Brown obtained a verdict, and the appellant, Bennett C. Brown, was found guilty, and damages to the amount of $406 assessed against him.

From the testimony preserved in the cause it appears, that the appellant was the constable of Richmond township, in Howard county, and had several unsatisfied executions in his hands against George Duncan, a resident of said township. Duncan, by a bill of sale, of a date subsequent to the delivery of the executions to the appellant, sold and conveyed the slave in controversy to the appellee, Burrus. There was testimony conducing to show, that the appellant consented to the sale of the slave to Burrus, on condition that the purchasemoney should be paid to William Taylor, a trustee under a deed of trust executed by the said Duncan, and that it should be applied in satisfaction of the claims of the several creditors of Duncan according to the priority of their liens under the trust-deed, and the executions. This fact was controverted by the appellant.

The slave mentioned in the declaration was seized by the appellant, and sold under the executions at public sale. It appeared from the return on the executions in the hands of the appellant, that they were levied on the slave before the date of the bill of sale and her delivery, but the truth of the return was disputed, and evidence conducing to show its falsity was introduced. The appellee claimed the slave before the sale under the executions, and required a trial of the right of property between Duncan, the defendant, and himself, but afterwards, and before the trial, withdrew his claim of property. The appellant, however, proceeds with the trial, and the jury reported a verdict that the slave was the property of the defendant in the execution. The oath to the jurors was administered by William Taylor, who, in does not appear from the record, was authorized to administer oaths. The court below refused to admit in evidence the verdict of the jury. During the trial, the court permitted witnesses to be recalled, and give evidence in chief, who had once been examined and cross-examined. A witness was called by the appellant, merely to prove the fact that the appellee preferred a claim to the slave after the levy was made, and was suffered by the court to be cross-examined, in chief, by the opposite party. Some evidence was given against the defendants, Ford and Brown, in the court below. At the instance of the plaintiff, appellee, the court instructed the jury that nothing but a levy vested any property in the constable to the slave in controversy, and that a levy is the actual seizing of the property by the officer, under and by virtue of the execution. This instruction was objected to by the appellant, but was given. On motion of the appellant, the court instructed the jury, that if the constable had executions in his hands against Duncan, which were unsatisfied at the time of the sale of the negro, Nancy, such executions were by law a lien upon said negro, as well as Duncan's other property.

The first question raised is, that if several be sued in trespass, and some are acquitted and others found guilty, whether those found guilty can move for a new trial unless those join in the motion who are acquitted? Cases have been referred to in which it has been held this cannot be done. 2 Strange, 814. The rule seems to have been a technical one, and not founded in substantial justice. It was a principle, that the jury could not find less than the whole issue before them; if they did, the verdict was bad, and the whole must be set aside. If the issue, whether four are guilty, is submitted to a jury, and two be found guilty, and two acquitted, the verdict as to the two who are guilty cannot be set aside without affecting the validity of the finding as to the other two. This seems to have been the reason of the rule; it is a harsh one, and one by which a plaintiff may prevent a party entitled to a new trial from obtaining it by joining one that he knows will be acquitted, or whom he may have acquitted by withholding evidence against him. When a judgment was rendered against several, and some of them refused to join in a writ of error, the common law provided a mode by which the party who felt himself aggrieved could obtain redress, notwithstanding the obstinacy of those with whom he had been joined.

Why should not a party have a mode of getting rid of an unjust verdict? and why should a plaintiff take advantage of the situation of a defendant, in which he may have been placed by his own contrivance? This rule once prevailed in indictments for misdemeanors, but it is now exploded, and a defendant found guilty may move for a new trial, notwithstanding others who were grieved with him have been acquitted. See The King v. Mawley, 6 Term R.; The People v. Vermilyea, 7 Cowen, 369. During the argument of the case cited from Term Reports, Grose, Justice, mentioned a case, in which a new trial had been granted as to one issue out of several. In the case of Price v. Harris, 25 Eng. Com. L. R., we find the court relieving the plaintiff of the difficulty in which he was involved by joining too many defendants, by granting a new trial, on condition of paying costs against some of the defendants who were acquitted. If this favor can be extended to a plaintiff who has caused the difficulty by joining too many defendants, how much more should it be allowed to a defendant.

Another point in the cause is, that the court should have granted a new trial because the appellee, plaintiff below, joined Ford and Brown as defendants, and thereby deprived the appellant of their evidence. Ford and Brown being acquitted, became competent witnesses for the appellant, and he was prevented from examining them by the act of the appellee. The proper course for a defendant to pursue under these circumstances, if there is no evidence, or if there is slight evidence, is, to have the jury pass on the case, and then introduce him as a witness. It may be inferred, from a departure from this course, that there was probable cause for joining those who were acquitted. The want of all authority in support of the position of the appellant is a strong argument against it. In the case of The People v. Vermilyea, 7...