CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF ARKANSAS,

AT THE

DECEMBER TERM, A. D. 1870.

JORDAN V. WALKER.

CONFEDERATE MONEY.-Where consideration of a contract is Confederate money, the contract is void ab initio.

Error to Crawford Circuit Court.

HON. THOMAS BOLES, Circuit Judge.

Clark, Williams & Martin, for plaintiff.

Watkins & Rose, for defendant.

WILSHIRE, C. J.

Jordan v. Walker.

[DECEMBER

This was an action of debt, brought by Sallie E. Jordan, as administratrix of Pleasant Jordan, deceased, against William Walker, in the Crawford circuit court, at the November term thereof, 1866, on a writing obligatory, bearing date March 4, 1863, for $1,000, with interest at ten per cent.

The defendant interposed one special plea in bar, alleging that the writing obligatory was executed by him to the plaintiff's intestate, in his life time, in consideration of Confederate treasury notes, loaned and advanced by the plaintiff's intestate to the defendant, and for no other consideration.

The plaintiff replied, confessing the allegation of the defendant's plea, that the writing obligatory sued upon was executed by the defendant in consideration of Confederate treasury notes, but sets up, in avoidance of the plea, that, although the consideration of the writing obligatory was Confederate treasury notes, it was not made payable in Confederate treasury notes, but, by the tenor and effect of the writing obligatory, it was payable in lawful currency of the United States,

etc.

The cause was submitted to the circuit court, sitting as a jury, upon the issue joined, which found for the defendant and rendered judgment against the plaintiff.

The plaintiff moved for a new trial; the court below overruled the plaintiff's motion, and he brought error.

We deem it unnecessary to notice the motion for a new trial. The question of the illegality of the contract presented by defendant's plea, stands confessed by the plaintiff's replication.

The admission, by the plaintiff's replication, of the illegality of the consideration of the writing obligatory sued upon, brings this case within the ruling of this court in the case of Latham v. Clark, decided at the last term; 25 Ark., 574. The consideration being illegal, the contract was void ab initio, and the courts will not aid in its inforcement.

The judgment of the court below is, in all things, affirmed.

FERRYMEN-Ferrymen, like all other common carriers, are regarded in law
as insurers of the property committed to their care, and are responsible
for all losses or damages to it, which do not come within the excepted
cases of the acts of God and the public enemy.
COMMON CARRIER-Burden of proof.-As a common carrier, a ferryman is
compelled to receive all goods and property offered for transportation,
and in such capacity, he is presumed to have charge of it, and the bur-
then is upon him to show that he had not such control over it as to in-
vest him with that character in respect to it.
RESPONSIBILITY—Where it affirmatively appears that the owner retains the
exclusive control of the property, the ferryman is not chargeable if loss
occur, as a common carrier or insurer, but is only answerable for actual
negligence; and if in such case the loss be occasioned by the willful
wrong or negligence of the owner, so that but for it, the loss would not
have occurred, the owner cannot recover, except where the direct cause
of the loss is the omission of the ferryman, after becoming aware of the
owner's negligence, to use a proper degree of care to avoid the conse-
quence of such negligence.

Appeal from Cross Circuit Court.

HON. JAMES M. HANKS, Circuit Judge.

Watkins & Rose, for appellant.

The instructions given by the court on the motion was manifestly wrong; ferrymen are common carriers. Spring v. Turner, 1 Murphy, 339; Trent v. Cartersville Bridge Co., 11 Leigh, 591; Rutherford v. McGawen, 1 note, 3 McCord, 17; Gardner v. Green, 8 Ala. 96; Cohen v. Hume, 1 McCord, 144; Pomeroy r. Donaldson, 5 Missouri, 30; Smith v. Seward, 3 Barr. 342.

"The law regards ferrymen as common carriers, and has imposed on them the same duties and liabilities, and as soon as a ferryman signifies his assent or readiness to receive a passenger, he becomes liable for his safe transit and delivery, and is chargeable with any accident occurring except by act of God or the public enemy." May v. Hanson, 5 Cal. 360; Richards

v. Fuqua, 28 Miss. 792, and the fact of mutual negligence is no excuse. Albright r. Perns, 11 Texas, 290; Fisher v. Chisbee, 12 I.344.

"A common carrier is regarded by law as an insurer of property intrusted to him and is responsible for acts against which he could not provide, from whatever cause arising, the acts of God and the public enemy only excepted." Angel on Carriers, sec. 67: Story on Bailments, sec. 489.

HARRISON, J.

This was an action of assumpsit, to recover from the owner of a public ferry, the value of a mule lost in the course of transportation.

The defendant pleaded the general issue, and the verdict was in his favor.

The facts, as set forth in the plaintiff's bill of exceptions are, that the plaintiff applied to cross with his wagon and team, at the defendant's ferry, on the St. Francis river. The wagon was loaded with cotton, and the team, which was driven by a servant, consisted of six mules. Before entering the boat, the person in charge of the ferry directed the two leading, or front span of mules to be detached from the wagon and left on the bank until the next trip of the boat, and he himself unhitched them and fastened them to a stake on the shore, and the wagon was drawn into the boat by the four other mules. As the boat was about leaving the bank, the plaintiff, who was on the boat, spoke to a negro man, the servant of a person crossing at the same time, and requested him to bring the two mules into the after part of the boat, behind the wagon, which he did, and then held them there. The person in charge of the boat made no objection, and gave a direction to separate them from each other, which, however, appears not to have been done. When the boat had proceeded about one third of the distance across the river, one of the mules in the rear of the wagon (proven to have been worth one hundred dollars) fell overboard and was drowned.