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Attaway vs. Dyer and others. of proof lies on the plaintiff in execution, and that he is entitled to open and conclude the argument, that still the claimant suś tains the relation of plaintiff in the cause; that he holds the af firmative; that he makes the issue, by coming in between the creditor and debtor, and swearing that the property levied on is his; that the proceeding, by claim, was given in the place of the remedy, by action, for damages against the officer selling the property of a third person. All this may bé conceded. It may be yielded that our Claim Laws are cumulative only in their character ; that they do not repeal the Common Law, in terms or by implication; that the owners of property, instead of interposing their claim, may still bring trespass, or trover, or ejectment, to try the rights of property; and that, in that event, they would, of course, occupy the status of plaintiffs in these several actions. It by no means follows, however, that where the owner elects to try the right of property, under our Claim Law, that the same legal attributes will appertain to his character.

But admit, as a general rule, that this position is true; that upon the trial of the claim, as in ordinary suits at Law, the status of the claimant is the same; and that after an appeal is entered, he is entitled to the same privileges of plaintiffs in such suits, (and surely he can ask no more,) does it follow, necessarily, that by voluntarily going out of Court, he can relieve himself of the verdict which has been assessed by the Jury against him, as a compensation to the plaintiff for the injury he has sustained? Has any plaintiff

, in ordinary suits, such a privilege? We think not. There is no doubt but that at Common Law, and usually in this State, the plaintiff may dismiss his suit whenever he choses. He is the only party seeking a remedy-he alone asks the aid and action of the Court. The defendant stands in the attitude of resistance. He opposes the suit of his adversary, and endeavors to defeat it. If the plaintiff sees fit to retire from the case and the Court, it is all the defendant can ask. He accomplishes pretty much all that he could attain at the end of the trial, and is reliered from the hazard and risk of the result.

[2.] But suppose, under our Law of Set-Off, a verdict and judgment are rendered for the defendant, for a balance against the plaintiff, can it be contended, for a moment, that the original plaintiff, by entering an appeal; could dismiss his suit and thus defeat the recovery? .

Attaway vs. Dyer and others. The Judges in Convention, I have been informed, held otherwise; and the Supreme Court of Tennessee, in Riley & White vs. Carter, (3 Humphreys' Rep. 230,) ruled, under such circumstances, that the plaintiff had no right to dismiss his action without consent of the defendant;' that the plea of set-off was in the nature of a cross-action, and that if the matter of set-off be larger than the plaintiff's demand, the defendant then stands in the attitude of the plaintiff, and has all the rights of the plaintiff; that however they may be named in the proceeding, the real status of the parties is changed; that the origiual defendant has become plaintiff, and the plaintiff defendant, to all intents and purposes; and that, thenceforth, the defendant, in ordinary cases, might just as well, and with as much reason, dismiss plaintiff's suit against him, as a plaintiff can do so in 'a case where the defendant has pleaded, successfully, a set-off larger than his demand. The party to whom the balance is due, has as much right to the decision of the issue in his favor, in the latter as in the former case ; that atCommon Law, the plea of set-off, although a cross-action, is purely defensive-all it aims at is to defeat the suit; that’under the Statuté authorizing a recovery for the balance which may be found due, it is still a cross-action, but with a view to a judgment against the other party; and that the plaintiff cannot, by dismissing his suit, escape from the issue which he has voluntarily made.

Placing claimants, then, in the same attitude of plaintiffs, in ordinary suits, to my mind the reasoning is conclusive, that when saddled with a judgment for damages, they cannot, of their own accord, throw it off by going out of Court. It is contrary to all the analogies of the law. Our conclusion, therefore, is, that the Legislature never intended to sanction such a practice.

Is it to be presumed, that they designed to permit a claimant to join issue with the plaintiff in execution, upon the trial of the right of property--take the chances of a verdict—and if found against him, resort to this mode of escape? Is it not to make a mockery of the Courts thus to consume the time of the country? It will be noticed, too, that the bond given by the claimant is peculiar. It does not indemnify the party against all damages which he may sustain on account of the claim being interposed, but such only as the Jury may assess, in case it should appear that the claim was made for delay only; so that, if the plaintiff is de

Rogers vs. Parham.

prived of the compensation awarded to him, by the Jury, he is altogether remediless. The words of the Statute would have to be exceedingly clear and explicit to justify a construction that would work such an evil.

Recollecting the familiar rule, that every Statute ought to be construed for the preventing of delay, as much as possible, (2 Just, 611, 614. 6 Bac. Abr. tit. Statute, let. 1,) we hold, that the privilege allowed to claimants, by the Act of 1821, of capriciously withdrawing their claim once, must be exercised before a judgment has been rendered, assessing damages in favor of the plaintiff in execution, as a compensation for the injury he has suffered ; that at any stage of the proceeding the claimant, like any other party, may cease to litigate his rights, by discontinuing his claim; but that this does not withdraw the case from the Court; that if an appeal has been entered, it may, like any other suit, be dismissed by the consent of parties; otherwise, if the claimant decline prosecuting his claim, the plaintiff in execution will proceed, ex parte, with his case, on the appeal trial—it being discretionary with the Special Jury, as in all other cases, to ratify the first verdict, or increase or reduce it, as to them shall seem just, upon all the facts and circumstances which shall be submitted in evidence.

The judgment, consequently, must be reversed, and the cause remanded, to take the direction herein indicated.

No: 32.-AUGUSTINE C. Rogers, plaintiff in error, vs. John S.

PARHAM, defendant.

[1.] Where P entered into a special written contract with R as an overseer,

for the year 1847, and was to receive a stipulated portion of the crop, at the end of the year, for his services, and in the month of Angust of that year, R dismissed P from his employment, without sufficient canse or provocation, whereupon P, in the month of November, of the same year, instituted his action against R, to recover damages for a breach of the contract; Held, that the action for damages fora breach of the contract, on the part of the

Rogers vs. Parham.

defendant, was not prematurely brought; and that in regard to this particu- -lar class of special contracts, when the overséer or agent is wrongfully dismissed from the service of his employer, he has his election of three remedies : lst. He may bring an action, immediately, for any special injury which he may have sustained in consequence of the breach of the contract by the defendant; 2d. He may wait until the termination of the period for which he was employed, and then sue upon the contract and recover his whole wages; 3d. He may treat the contract as rescinded, and may immediately suc on a quantum meruit, for the work and labor be actually performeda

Case, in Crawford Superior Court. Tried before Judge FLOYD, August Term, 1849.


This was a special action, on the case brought by John S. Par. ham against Augustine C. Rogers, for the breach of a contract, in writing, by which Parham was bound to act as overseer for Rogers, for the year 1847, in consideration of which he was to receive a certain portion of the corn, cotton, fodder and wheat made on the farm. The breach alleged (in three counts, varied,) was that Rogers, about the 12th August, 1847, peremptorily and without cause, dismissed Parham from bis employment, to his damage $500. Several pleas were filed, unnecessary to be referred to particularly.

On the trial, before the cause was submitted to the Jury, Rogers, by his counsel, moved a non-suit, on the grouud that the action was commenced before the cause of action accrued the agreement being for the year 1847, and the suit being commenced on 29th November, 1847. The Court overruled the motion, and defendant excepted. · The evidence showed, that a difficulty had arisen between the parties ; Parham abused him, when Rogers insisted on Parham's quitting his business; that Parham at first refused to do so, that subsequently he left, and they agreed to refer the matter to arbitrators. James Stephens, a witness for plaintiff, swore that both parties told him they had agreed to quit and leave it to men; and E. L. Harris swore, that defendant told him that plaintiff proposed to quit and leave it to men. It was also proven, that defendant, Rogers, while he wished it settled, refused to let Parham return to work and gather the crop, when the latter proposed it, saying, "We agreed to quit and arbitrate, and you can't go to work." The arbitration failed, because onę arbitrator refused to

Rogers vs. Parham.

act, unless Rogers would be sworn to abide the award. The latter pledged his word and honor, but had religious scruples as to swearing. One witness says, Rogers gave as a reason for his said last refusal, that Parham had proposed, that " as they could not agree, to leave it to men.”. Auother witness adds, that Rogers farther said, he was willing to go into the arbitration and abide the award, without either party being sworn.

Plaintiff having closed, defendant moved a non-suit, on the ground that plaintiff's own witnesses showed that he left voluntarily, and that the contract was mutually rescinded; and there was no count in plaintiff's declaration, except for a breach of the contract, and none under which the contract could be apportioned. The Court overruled the motion, and defendant excepted.

The Court charged the Jury, that if they believed from the testimony, the parties mutually agreed to rescind the contract before the end of the year, the plaintiff in this form of action was not entitled to recover; but if defendant dismissed plaintiff, without sufficient cause or provocation, the plaintiff was entitled to recover the damages actually sustained. To this charge defendant excepted. The Jury found a verdict for the plaintiff.

A motion was made for a new trial, on the ground that the verdict was contrary to law and evidence; which motion the Court overruled, on the ground that there was some evidence to support the verdict, and there were two concurring verdicts of Special Juries.

To this decision defendant excepted, and these several decisions are alleged as error.

HUNTER and HAMMOND, for plaintiff in error, cited

: Chitty's Pl. 289 and note, 372. Dudley's R. 91. 12 John. 166. 19 Ib. 337. 4 McCord, 246, '9, 2 Hill, 477. 2 Smith's Lead. Cas. 24. 5 Bos. & Pul. 61. 7 Ga. Rep. 283. · 4 Ib. 193. Grao ham on New Trials, 278. 34 E.C. L. R. 154.

G. J. Green and S. Hall, for defendant in error, cited

7 Hill's (N. Y.) Rep. 75. 14 Vert. R. 311. i Hill, (N. Y.)


1 487. 11 Wheat. 237. Chitty on Bills, 370, 371. Buller's N.

P. 269, 3 East, 481. - 3 J. R. 202. 4 16. 144. 15 Ib. 375.-3 Mass. 557. 8 Ib. 461. 2 Smith's Lead. Cas. 22. 2 0.$.P. 37.

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