JAN. TERM, 1856. LINDSAY V. W Y LAND. HON. BEAUFORT H. NEELY, Circuit Judge. Win. Byers, for the appellant. Jordan, for the appellee. ENGLISH, C. J. On the 28th of March, 1854, Jonathan Wayland, as guardian of Sinclair Manson, commenced nine separate suits against John A. Lindsay, A. J. Hardin and William S. Smith, before a justice of the peace of Lawrence eounty. The suits were founded upon nine bonds, eight for $100 each, and one for $20, executed by the defendants to the plaintiff; as such guardian, all of them "'bearing date on the 12th of [*380 July, 1853, and due one day after date. Judgments in favor of the plaintiff, and appeal by the defendants, in each case, to the circuit court of Lawrence county. In the circuit court, the defendants moved to consolidate the suits, and 3851 LINDSAY that the plaintiff be taxed with the costs of all of them but one. The court V. ordered the suits to be consolidated, WAYLAND. and that the costs in the several cases and should abide the event of the suit so It is by no means certain that sections 132 133 (chap.126, Digest) were intended to apply to consolidated. cases pending in the circuit clurt on appeal from The cause was subinitted to a jury, a justice of the peace; and where, in such case, the the defendants relying upon failure of court, upon co..solidating s . veral suits, upon which consolidation as a defense ; the jury one action might have been brought, refusta to tax the plaint itr with the costs in all the cat:es but one, returned a verdict in favor of the this court will not control the discretion of the plaintiff for the full amount of all the circuit cottrt in that respect. bonds, and judgment was rendered It is not the province of this court to disturb the against the defendants accordingly, verdict of a jury, if it be not totally unsupported by evidence, although inclined to think the weight and for costs. Motion for new trial of evidence is against the verdict. overruled, bill of exceptions, and appeal The application of a witness to explain h, . s testi-by Lindsay to this court. mony, after he has gives it in and retired, is ad-1. The refusal of the court to tax dressed to the discretion of the circuit cout. Where the defense, to an action on a note is, that the plaintiff with the costs of all the it was given for the purchase money of a slave, and suits but one, is assigned for error. that the slave was unsound at the time of the pur-Neither of the bonds being for a chase, there is no objection to proof that the slave greater sum than $100, the plaintiff was sound at some time prior to the sale, provided the jury clearly understand that his soundness, at might have joined them in one suit be-the date of the sale, and not at a prior time, is the fore the justice of the peace, though the matter in issue. aggregate sum of all of them was greatly over that amount. Collins Appeal from the Circuit Court of Law-Woodruff, 9 Ark. 463; State v. Scogyin, rence County. 10 Id. 327.
LINDSAY V. WAYLAND. VOL. 17 But the plaintiff having elected to ment would not be warranted by the bring separate actions upon the bonds, terms of the recognizance. there is no provision in thestatute, reg-In this case, however, the same per-ulating proceedings before justices of son was security in all the reeogni-the peace, requiring the justice to con-zances, but the court rendered no judg-solidate them. See Barnes v. Holland, ment against him at all. 3 Mo. Rep: 47; Sykes v. T he Planters' Whether the court acted under Ale House, &c., 7 Id. 477. above provisions of the statute, or in Section 132, chapter 126, Digest, under the exercise of its common law power the caption of "Practice at Law," pro-in consolidating the several suits in vides that, • 'whenever several suits this case, the motion to consolidate, shall be pending in the same court, by and the taxing of the costs, were to be the same plaintiff; against the same de-determined in the exercise of a sound fendant, for causes of action which discretion. Dewes v. Eastham, 5 Yerg. may be joined, &c., the court in which Rep. 297; Thompson v. Shepherd, 9 the same may be prosecuted, may, in John. Rep. 262; Wilkinson v. Johnson, its discretion, order such suits to be 4 Hill N. E 47; Dudning v. Bank of consolidated into one action." Auburn, 19 Wend. 23; William Scott & Section 133, of the same chapter, pro-Co. v. Brown, 1 Nott & McC. 417; 2 Id. vides that, "when any plaintiff shall 438; McRea v. Boast, 3 Randolph, 481. bring, in . the same court, sev-The suits were consolidated upon the eral suits against the same motion of Lindsay, and for his own defendant or defendants, for causes benefit. The taxing of the costs being of action that may be joined, a matter resting in the sound discre-387*] *the plaintiff shall recover only tion of the court, we will not reverse the costs of one action: and the costs of the judgment, in the absence of any the other actions shall be adjudged showing that there was manifest error against him, unless sufficient reason ap-or abuse of such discretionary power, pear to the court for bringing several ac-as held in Meadows . v. Rogers, at tions." the ilresent teim. It is by no means clear, that these *2. The first ground of the P388 sections were intended to apply to motion for a new trial is, that the ver-cases pending in the circuit court, on dict was contrary to law and evidence. appeal from justices of the peace. It appears, from the bill of excep-They could not he applied in all such tions, that on the trial, the plaintiff cases, for the reason, that where de-read in evidence to the jury, the nine fendant appeals, and the plaintiff suc-bonds sued on, and closed. ceeds in the circuit court, he is entitled The defendants proved that the to judgment against the defendant and bonds sued on were given for a negro his securities in the recognizance, for boy, Sam, sold by the plai..tiff to de-the debt and costs of both courts (Di-fendant, Lindsay, on the 12th of July, gest, chap. 95, sec. 193), and where there 1853, for 5820, with bill of sale, war-might be different securities in t he sev-ranting the negro to be sound in body eral recognizances, the court would and mind. have no power, upon consolidating the A number of witnesses, mostly phy-several suits, to render judgment in sicians, were examined, as to the favor of the plaintiff, against the secu-soundness of the negro at the time of rities in the recognizance taken in one the sale, &c., &c. suit, for the several demands, or for It seems, from the testimony, that costs Of all the suits. Such a judg-Lindsay had the boy hired iu the y ear
JAN. TERM, '1856. LINDSAY V. WAYLAND. 1853; that he ran off from him about the weight of evidence is against the the last of May, and was out between verdict, but it is not totally unsup-three and six weeks, and when he reported by the evidence, and it is not turned, he was much reduced in our province to disturb it./ flesh, and looked feeble and emaciated. 3. The second grouad relied on for In a week or two after he returned a new trial, is as follows : from the woods, being in Lindsay's At some time during the progress of possession and employment, he pur-the trial, after the witness, Dr. Valen-chased him of the plaintiff. He was tine, had been examined, cross-ex-kept employed on Lindsay's planta-amined, and retired from the stand, he tion during the summer, but not gen-came before the court. and asked leave erally put at hard or heavy work, nor to explain his testimony touching required to make a full hand, in con-the primary and exciting causes of the sequence of his reduced condition. On disease of which Sam died. But he the 4th of September, 1853, Lindsay ob-stated, in reply to a question of the tained a prescription, from his family court, that he was himself, satisfied physician, Dr. Valentine, for the boy, with his testimony, but that he feared saying he had a chill. Two or three that they did not understand him days after this, the physician was called rightly, and he had been so told by in to see the boy, and found him sick Lindsay : but the court refused to al-in bed, with Symptoms of typhoid fe-low the explanation by the witness, ver, of which disease he died, about and defendant excepted. twenty-two or . three days afterwards. There is nothing in this exception at The point in controversy, before the all. The application of the witness to jury, seems to have been, whether or explain his testimony, was addressed not the seeds or causes of the disease, to the discretion of the court : the court of which the negro died, were con-deemed it unnecessary, and perhaps, tracted while he was run off, by ex-improper at the time, and we find posure, alternate hunger and excessive nothing in the record to induce the eating, anxiety of mind, &c., &c., and belief that the court erred in the mat-consequently, existed in him at the ter. time of the sale, &c. 4. The third cause assigned for a new It appears, from an entry of trial, is stated in the bill of exceptions, record, that the counsel of the thus : 389'.1 *parties agreed that the law of "During the progress of the trial, the case was, that if the boy, Sam, was John Bridges was introduced, as a sound at the time of the sale, no de-witness for the plaintiff, to prove the fense could be made against the bonds soundness and good health of the boy, sued on ; but that, if the boy wns un-Sam, in 1852, which the defendant ob-sound, the unsoundness was a valid jected to, but the court overruled and legal defense to the bonds, to the the objection, so far as to allow extent of unsoundness. That, in con-*such evidence to be given, re- L'390 sequence of this agreement, the court lating to the latter part of the year gave no instructions to the jury. 1852, to which the defendant ex-Thus, the parties having agreed upon cepted." the law, there was nothing but a single The sale was 12th July, 1853. The question of fact to be determined by plaintiff had a right to go back to a the jury ; whether the negro was sound or unsound at the time of the 1. The verdict will not be disturbed on account sale. We are inclined to think that of weight of evidence, Howell v. Webb, 2-364, note 2.
VoL. 17 point of time reasonably remote, to commence showing the health of the negro, and trace it to day of sale. How far he might go back would depend much upon the circumstances of the case, and would have to be controlled by the discretion of the court. In this case, the jury must have understood very well, from the agreement of the counsel in relation to the law of the case, that the soundness of the negro, at the date of sale, and not at a prior period, was the matter in issue ; and if the court erred in permitting evidence -of his good health, Sze., as far back as the latter part of the year 1852, to be introduced, it was merely irrelevant testimony, and we cannot suppose that the jury were misled by it. The judgment of the court below is affirmed. Absent, Mr. Justice Scott. Cited :-19-118 ; 24 184.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.