for a motion for a new trial, which the court would not grant, to which Berry excepted, and the legality of the judgment depends upon the goodness of these objections.

The verdict being for the defendant on the first count, the liability of Berry upon the note is not under condideration. Berry is not to be considered as a partner of Scott, or a member of any firm of A. M. Scott & Co.; but the appellees sprung the question in the court below that Scott bought books of them to the amount of the note for Berry, and that Berry is liable to them for the price of the books upon the common count for goods sold and delivered.

Although the evidence contained in the writing and in the statements of Berry, to which we have referred, may be taken as tending to establish an agency in Scott to buy books for Berry, so as to have properly submitted the matter to the jury, the first, third, fourth and sixth instructions of the plaintiffs assumed that there was evidence in the case whence the jury might find that Scott could buy the books upon credit, and that Berry would be accountable on the credit extended by the plaintiffs. If there had been any such evidence, the instructions would have been free from objection. But nothing in the case shows that Scott had authority to pledge the credit of Berry for books. The books were never taken by Berry, were applied by Scott to his own use: hence there was no proof to charge Berry with the books on an implied authority for their purchase, resulting from his appropriation of them. Conceding that the jury had evidence before them on which they found Scott to be the agent of Berry, the agency did not authorize Scott to purchase the books upon Berry's credit. The law that, upon this subject, is familiarly applied to the relation of master and servant, is applicable to the relation of principal and agent, and among many other authorities may be found in Dunlap's Paley's Agency, pages 161-167.

Scott, if any agent at all, was a particular agent only, specially employed in the single transaction of buying the bill of books sued on, and the appellees should have ascertained his

authority to bind his principal by a purchase upon credit, or abide the consequences. Smith on Mer. Law. 173.

But the fact is, as shown by the evidence, that the relation of a separate agency was not attributed to Scott when the books were sold. The appellees supposed that they were dealing with the firm of A. M. Scott & Co., but upon the trial, it turning out that there was no such firm, the ingenuity of their counsel shifted the responsibility of Berry upon him as the principal of an agent who represented himself as a partner, and as such, having the right to bind Berry, his alleged partner.

The first, third, fourth and sixth instructions of the plaintiffs were not applicable to the case, not being connected with any evidence, and should have been refused.

The fifth instruction is subject to the same objection as those already considered, besides being so worded as to lead the minds of the jury to view facts that were applicable to the first count only, as showing Berry's liability upon the second count of the declaration.

We perceive no error in the ruling of the Circuit Court relative to the defendant's instructions. The instruction it substituted for the third was more favorable to the defendant than the one he asked the modification of the second instruction was proper, considering the evidence not to establish a partnership, but tending to prove an agency: and the fourth instruction only applied to Berry's liability as a partner of Scott, which the jury found in favor of the defendant.

The New York testimony was irrelevant till the authority of Scott to bind Berry by a purchase upon credit had been proven. That not having been done, it should have been excluded on the defendant's motion.

For giving the erroneous instructions, and for not excluding the illegal evidence, the Circuit Court should have granted a new trial, and its judgment is reversed, with instructions to set the case for trial again, when the principles of this opinion must be applied.

TERM, 1861.]

Haralson vs. Walker et al.

HARALSON VS. WALKER ET. AL.

In an action on a bond to deliver a negro or pay the value, on a specified contingency, a plea that, before the happening of the contingency, the negro died, is a good answer to the declaration.

Appeal from Prairie Circuit Court.

Hon. JOHN J. CLENDENIN, Circuit Judge.

WILLIAMS, for the appellant.

Haralson's bond did not

The second plea was clearly good. bind him to deliver the negro, if dead. The act of God or the public enemies always did excuse the performance of a covenant, if it thereby became impossible. Ch. on Con. 635; Shep. Touch. 173, 382; The People vs. Manning, 8 Cowen, 297; 4 Pick. 101; 19 John. Rep. 44.

MARTIN for the appellee.

Mr. Justice FAIRCHILD delivered the opinion of the court. The plaintiffs, appellees here, and Haralson, the appellant, had demands against John W. Walton, and for their satisfaction had, in some way not shown, got control of a negro girl, Violet, and Haralson took her into possession. Violet was, however, claimed by Cynthia Sloan, who was asserting the claim by suit in the circuit court of Marshall county, Mississippi, when Haralson entered into an obligation to the plaintiffs, that if judgment should be obtained for the taking of Violet, he would surrender her to the proper officers, to be applied to its payment, or would pay on the judgment the value of Violet.

The plaintiffs brought an action of debt upon the bond, alleg ing that Cynthia Sloan had obtained judgment in the suit, that Haralson had not surrendered Violet, nor paid her value according to the conditions of his bond.

Haralson interposed five pleas; the first was demurred to and the record does not disclose any action of the court upon the demurrer the third was a plea of nil debet, which afterwards seems to have been substituted by a plea of payment put in as a fourth plea, about which pleas nothing was done by the court, while the fifth plea was one of set off, which was also allowed to sleep on the files of the case.

No question is presented to us by the record but upon the second plea, which the court struck from the files. It averred that Violet, before judgment was rendered in the suit of Cynthia Sloan, died. We do not know why this plea should have been met with a motion to strike it out. The record does not show the grounds of the motion, and we conceive the plea to have been a good answer to the declaration: and it did not require a supporting affidavit.

Haralson's obligation was to surrender Violet to the judgment of Cynthia Sloan, or to pay her value on the judgment. He had then an election, at the rendition of the judgment, according to his bond, but by the act of God that election was taken away when the judgment was rendered, and therefore his obligation to pay Violet's value, as well as to surrender her, was discharged. Croke Eliz. 396, 399; Co. lib. 206, a; Shep. 1ouch. 173, 382; Bac. Abr., Conditions R. p. 335, by Bouvier; Ch. on Contracts, (9 Am. ed.) 743.

For this error the judgment of the Circuit Court is reversed.

No demand is necessary before the commencement of a suit in Replevin, where the defendant has treated the property as his own and exercised acts of ownership over it. (17 Ark. 172–4.)

Where a contract of sale of property is made by a person who lacks the capacity to make a valid contract, it is not necessary, to avoid the sale, that it be rescinded by the payment or tender of payment of the consideration paid by the purchaser. All the contracts of a lunatic are not held to be void, or even voidable-contracts for necessaries, etc., having been held to be binding.

In an action by the administrator of an insane person, to recover property sold by him, the vendee having introduced testimony as to the consideration paid, it was competent for the plaintiff, in connection with proof of the vendor's incapacity, and the defendant's knowledge of it, to prove that the value of the property was greater than the price given, and that the full consideration had not been paid.

Error to Washington Circuit Court.

Hon. JOHN M. WILSON, Circuit Judge.

JORDAN for the plaintiff.

Mr. Justice FAIRCHILD delivered the opinion of the court. On the 15th of January, 1856, John Brandon executed a bill of sale of a negro boy, Joseph, for the expressed consideration of seven hundred dollars, and in March, 1858, the possession was in Fine, according to the title, when Henry, as the administrator of Brandon, brought this suit, in which, by writ of replevin he acquired possession of the boy. It was proved that Fine claimed, and had treated the boy as his own property, and that Henry had demanded the boy of Fine in the month in which the suit was brought, but the demand was not proven to have been made before the commencement of the suit. This