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Fish vs. Chupman & Ross.
“ The law pre
may be safe in their ways of dealings, for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, &c. and yot doing it in such a clandestine manner as would not be possible to be discovered. And that is the reason the law is founded upon in that point."
In Forward vs. Pittard, Lord Mansfield says : sumes against the carrier to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled.” It is not the reward which he gets by virtue of his contract which charges him as an insurer; it is true that he is paid for his risks, but it is because he is in fact a public officer, in whose fidelity the public is compelled to trust, and whoso infidelity it is so difficult, if not impossible, to establish by proof. The place of the carrier is a public office.
In Ansell vs. Waterhouse, 2 Chitty R. 1, Holroyd, J. said: “ This action is founded on what is quite collateral to the contract, if any; and the terms of the contract, unless changing the duty of a common carrier, are in this case quite immaterial. The declaration states an obligation imposed upon him by law. This is an action against a person who, by ancient law, held as it were a public office, and was bound to the public. This action is founded on the general obligation of the law.” The reasons of the rule may be summed up as follows:
The carrier is recognised as a public agent; for his services he is entitled to ample reward and is not bound to perform them unless it is paid or tendered ; ex necessitate rei the most unqualified confidence is reposed in him; this confidence is indispensable to the exercise of his vocation. From the nature of his calling, the utmost facilities are at his control for fraudulent conduct and collusive combinations, and for the same reason his frauds or combinations are difficult of proof. He enters into this line of business voluntarily and with a knowledge of all its hazards, for he is justly presumed to know the laws of the land. The law then, looking to the great interests of commerce, and guarding with parental care the rights of the greatest number, makes him an insurer of the property delivered to him. With what resistless force does not this reasoning apply to the ten thousand incorporations of our own country? Strong in associated wealth; strong in the mind which is usually enlisted in their management; and yet stronger, far stronger, in the large immunities and extraordinary privileges with which their charters invest them. If these, as carriers, can
Fish vs. Chapman & Ross.
vary their liability at all, at what limits does the power stop? where are its boundaries ? Outside of the obligations which their charters impose, there would be neither bounds nor limitations; the citizens would be at their mercy, bound by their power and subject to their caprices. The inconveniences of the modern English rule are well portrayed by Bronson J. in his opinion in Holister rs. Nowlen, whilst exhibiting its effects in England. “Departing as it did (says Mr. Bronson,) from the simplicity and certainty of the common law rule, it proved one of the most fruitful sources of legal controversy which has existed in modern times. When it was once settled that a carrier might restrict his liability by a notice brought to his employer, a multitude of questions sprung up in the courts which no human foresight could have anticipated. Each carrier adopted such a form of notice as he thought best calculated to shield himself from responsibility without the loss of employment, and the legal effect of each particular form of notice could only be settled by judicial decision. Whether one who had given notice that he would not be answerable for goods beyond a certain value unless specially entered and paid for, was liable in case of loss to the extent of the value mentioned in the notice, or was discharged altogether; whether notwithstanding the notice he was liable for a loss by negligence, and if so, what degree of negligence would charge him; what should be sufficient evidence that the notice came to the knowledge of the employer; whether it should be left to the jury to presume that he saw it in a newspaper which he was accustomed to read, or observed it posted up in the office where the carrier transacted his business, and then whether it was painted in large or small letters; and whether the owner went himself or sent his servant with the goods, and whether the servant could read—these and many other questions were debated in the courts whilst the public suffered an almost incalculable injury in consequence of the doubt and uncertainty which hung over this important branch of the law.” Well might the judges lament that the doctrine was ever admitted into Westminster Hall. See 1 Bell Com. 474.
Thus, whether satisfactorily or not, have we disposed of the real questions made in this cause. Let the judgment of the Court below be affirmed.
Nicholson vs. The State of Georgia.
No. 54.-James B. Nicholson, plaintiff in error vs. The State of
Georgia, defendant in error.
[1.] It is essential to a recognisance for the appearance of the conusor to answer to
charges against him, that it show the cause of taking it. [2.] A recognisance must stand or fall by itself; and if not good on its face by failing
to specify the offence for which the accused is arrested and bound to appear and answer, parol evidence is inadmissible to supply the defect.
Scire facias. Upon recognisance to answer to a criminal charge. Tried before Judge MERRIWETHER. In Green Superior Court. March Term, 1847.
The facts of the case, and the grounds of error alleged in the judgment below, are set forth in the opinion of the Supreme Court.
Cone, for the plaintiff in error.
THE ATTORNEY GENERAL for the State.
Judge Cone, in behalf of the plaintiff, made the following points :
First. In order to render valid a recognisance or bond taken for the appearance of a party at court, it is essential that it recite the cause of taking it; that the person taking it had the power to take such recognisance or bond; and that it should specify the offence with which the party is charged, and for which he is bound to appear at court to answer. 2 Wash. C. C. R.; 2 Greenlf. Ev. 62; 9 Mass. R.520 ; 16 Id. 447; 4 ld. 641 ; 7 Id. 209; 1 Stew. & Porter, R. 465; 1 Dana R. 523, 165; 3 United States Dig. 326, citing 6 Halst. R. 126; 1 Ala. R. 114; 4 Black. Com. 296; 1 Chitty Crim. L. 85.
Second. Parol testimony is not admissible to explain, add to, or otherwise vary a bond, recognisance, or other contract, which by law is required to be in writing. 3 Starkie on Ev. 999, 1043 ; 2 Constitutional R. 740; 5 Cowen, 509 ; 1 ld. 121; 5 Mass. R. 411; 6 Id. 435; 15 Wend. 561.
By the Court-LUMPKIN, J. delivering the opinion.
The writ of scire facias in this case was sued out on the alleged
Nicholson vs. The State of Georgia.
forfeiture of a recognisance entered into by Jacob L. Broughton and James B. Nicholson, on the 10th day of April, 1845, whereby " they jointly and severally acknowledged themselves indebted to his excellency George W. Crawford, in the sum of three hundred dollars, for the payment of which they bound themselves, their heirs, executors, &c. with condition for the appearance of the said Jacob L. Broughton at the next term of the Superior Court of Green County, to be holden on the second Monday in September next thereafter, then and there to surrender himself to the same in terms of the law."
The writ recites the foregoing recognisance, and after setting forth the condition as quoted, adds, “meaning and intending that the said Jacob L. Broughton should appear at said court, as above stated, to answer to the charge of riot; for which offence he was then arrested, under and by virtue of a bench warrant issued from the honourable the judge of said court, and for which offence a bill of indictment was then and there pending against him.”
It also recites the default of Jacob L. Broughton, and of the recognisor to produce him; and commands the sheriff to make known to the said Jacob L. Broughton and the said James B. Nicholson, to be before the said Superior Court of Green County, on a named day, to show or allege any matter or thing they have sufficient to discharge them from their said recognisance, or why final judgment should not be given thereupon against them for the said sum of three hundred dollars, with costs.
The recognisor, James B. Nicholson, through his counsel, objected to the motion of the Solicitor General to take judgment upon the bond, upon the ground that it did not state any offence for which Broughton had been arrested, and for which he was bound to appear and answer at court; which objection was sustained by the Court.
The Solicitor General then moved the Court to introduce parol evidence to supply this defect, and to prove that at the time the recognisance was taken, Broughton was under arrest by virtue of a bench warrant issued against him for the offence of riot, and that the bond was given for the purpose of compelling his attendance at the term therein specified, to answer for this crime. The defendant demurred to the competency of this testimony, but the objection was overruled by the Court, and judgment ordered to be entered up under the statute, for the penalty of the bond and costs. And thereupon Nicholson, through his counsel, excepted.
Nicholson vs. The State of Georgia.
The more regular course undoubtedly would have been to [1.] have demurred to the writ of scire facias, as the bond was set out at length in the writ. The State's Attorney after reciting truly its condition, attempts by innuendo to extend its meaning and apply it to its proper subject matter. Still, as the record, by looking through it as we are bound to do, satisfies us that manifest error has been committed by the Circuit Court, it becomes our duty to correct that error.
The books are full of cases as to the necessity of a recital in the recognisance of the cause of the obligor's caption and the offence charged against him. In Goodwin vs. The Gorernor, 1 Stewart & Porter, 465, the Supreme Court of Alabama say, “The authority to take a recognisance should plainly appear, by a specification of the charge which is made against the party, and that the accused was bound to appear and answer a charge against him for a particular offence; and as the recognisance does not bind Cargill (the defendant) to appear and answer any particular charge, there is in this respect a material defect.”
The case of The Commonwealth vs. Silranus Daggett, 16 Mass. R. 447, was precisely analogous to this. It was a scire facias upon a recognisance, entered into before a justice of the peace, the condition whereof was, that the defendant should personally appear before the court for Duke's County, September term, 1818, then and there to answer such matters and things as should be objected against him in behalf of the Commonwealth, and should do and receive that which by the said court, should be then and there enjoined upon him, and not depart without leave. The defendant demurred to the writ. Morton, the Attorney General contended, that the record of the justice which came up with the recognisance, fully discloses the cause of taking it.
Per curiam—“It is essential to a recognisance, that it show the cause of taking it. There is here no reference to any previous proceedings, nor is any reason given why the defendant should be held to appear. The writ is adjudged bad and the commonwealth takes nothing by it."
The act itself under which this proceeding was had, by clear implication shows, that the offence should be stated. It is in these words : “when any person or persons shall enter into any recognisance or obligation, for the appearance of another to answer any indictment, information or presentment of a grand jury, for any offence committed against the laws of this state, and shall fail to pro