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Saffold vs. Keenan.

course of judicial administration. A judgment rendered in 1833, and acquiesced in ever since, and long since fully executed, cannot be remodeled in 1847, in order to conform to the opinion of this or any other tribunal, as to what constitutes the evidence of eventual condemnation money in an action on an injunction bond.

[2.] If this motion would have been objectionable for the reasons already assigned if made at any time, what excuse shall be given for the delay of fourteen years which have elapsed since the alleged mistake occurred? In this period a judgment would be doubly barred under our dormant judgment act; and the right to maintain ejectment for lands, twice tolled or taken away, although the unquestionable title should be in the plaintiff. Must there be no limit to motions to amend judicial proceedings?

In Evans vs. Rogers, 1 Kelly R. 466, it is pretty strongly intimated that the ear of this Court would be stopped after five years, to similar complaints. Here the tardiness is trebled, the fault threefold.

In Burroughs vs. Stevens and others, 5 Taunt. 554, both Chief Justice Gibbs and Justice Heath put their refusal to permit the judgment to be amended, upon the great length of time which had intervened since its rendition.

It is not pretended that there is any positive rule of law upon this subject, and therefore much, nay every thing, must be left to the sound discretion of the Court. That there may be an end of litigation, however, it is important, undoubtedly, that these applications be made within a reasonable time. At this distant day, who shall undertake to say what was in the mind of the very able judge who awarded this judgment? or that it was not done upon the most mature reflection, when the whole transaction was fresh and the circumstances of the case spread out before him?

In the State of New York it has been decided, that after a lapse of twenty years no judicial proceedings whatever ought to be set aside for irregularity. 7 John. 556. And in a later case, of Soulden & Smith vs. Cook, 4 Wend. 217, the Supreme Court of that State held, that after a lapse of ten years a judgment will not be set aside for irregularity, or on the merits, where there is no complaint of fraud or circumvention. And Mr. Justice Sutherland, in delivering the opinion of the court, says: "that to do so would be an extraordinary and unprecedented exercise of the powers of the court." He adds, "it may be injurious to the party that he cannot be relieved, but the blame rests upon himself. There must be some

Saffold vs. Keenan.

limitations to applications of this nature, and the length of time which has elapsed must estop the party. For the most manifest error apparent on the record, the defendant could not be relieved by writ of error, the time for bringing such writ having expired; and if for error apparent on the record he is remediless, he cannot expect to have a judgment set aside for a less cogent cause."

In Surtell vs. Brailsford, 2 Bay R. 338, the Constitutional Court of South Carolina say, "it would be a most dangerous thing to set aside a judgment and proceedings twelve years after final judgment was signed and entered up; there would be no end to applications of this sort if once a precedent was established for that purpose."

These decisions of the courts of other States, with others which might be adduced, establish, it is true, that there is no uniformity of practice upon this point; from the nature of the case none could be expected; still they are entitled to much consideration, and will, I trust, like all others coming from any quarter of the confederacy, be always treated with respect by this Court. They show with what caution a door will be opened and a precedent made of unravelling and setting aside judgments, after such a length of time, for errors and mistakes which ought to have been corrected immediately after the time when the proceedings were filed.

The statutes of jeofails, made to secure verdicts and judgments, stand opposed to these motions. And judges should lend them an unwilling ear, as not only tending to render all judgments insecure and uncertain, but, as suggested by counsel in the argument of one of the cases cited, their time would be wholly occupied in revising and examining old judgments.

And besides, the question now to be considered is, not whether this Court under similar circumstances would have done as was done by the Circuit Court; (we are free to admit that we would) the question is, whether that Court, in the exercise of its discretionary power upon this subject, has manifestly and flagrantly violated any principle of law? We do not perceive that it has. We maintain that it has not.

After all, the judgment as it now stands, is not erroneous, conceding all that is claimed, but only less beneficial to the party than that which he contends, he might have had. The case too of Short vs. Coffin, 5 Burr. R. 2730, shows that the rule is different where the application is to discharge and where it is to charge the party. Much more latitude is allowed in the former than in the latter case.

Long and others vs. Strickland.

What, I ask, would be the effect of the proposed amendment? to bind Keenan and his security in a suit upon the injunction bond, for the remainder due upon the mortgage fi. fas; to exclude all defence as to the real injury sustained by Saffold on account of the injunction. Now the actual damage may have been nothing, or very inconsiderable; would it not be doing gross injustice to Keenan and Lockwood so to mould these proceedings as to compel them to submit to a recovery of some three thousand dollars, the difference between the amount of the fi. fas. and the sum for which the mortgaged property sold? Such an interpretation of the law would be productive of results which I am free to confess, do not accord with my notions of right and equity.

In any view therefore which we can take of this matter, the judgment of the Court below must be affirmed.

No. 52.-JAMES LONG and others, plaintiffs in attachment, and plaintiffs in error vs. KINCHEN STRICKLAND claimant, and defendant in error.

[1] The security to the appeal bond in the Court below must be made a party to the writ of error.

[2.] The writ of error may be amended so as to include such security, but only upon the production to the Court of the written consent of such security, together with a waiver of the notice to which he is entitled.

From Madison Superior Court. Attachment against Barkley Sims, in which the defendant in error was claimant of the property levied on under the attachment.

It appeared that the cause was tried in the Court below on the appeal, and that Richardson Hancock, one of the securities to the appeal bond was not made a party to the writ of error. Motion to dismiss writ of error on this ground.

COBB, for plaintiffs in error.

MITCHELL, for defendant in error.

Fish vs. Chapman & Ross.

By the Court-WARNER, J. delivering the opinion.

In this case there was a motion to dismiss the writ of error, on the ground that Richardson Hancock, one of the securities to the appeal bond in the Court below was not made a party. This ques- [1.] tion was settled by this Court in the case of John Dill et al. vs. Gabriel Jones, 2 Kelly, 79, and re-affirmed in the case of James Morris vs. Wiley Parish & Co. 1b. 287. In both of those cases we held, for the reasons therein stated, that the security on the appeal bond in the Court below, was a necessary party to the writ of error in this Court, and that is to be considered as the established rule of this Court from which we do not consider ourselves at liberty to depart. The writ of error may be amended, but in our judgment [2.] there should be produced to the Court the written consent of the party whose name is sought to be introduced, together with a waiver of the notice to which he is entitled, which the party moving the amendment in this case has failed to exhibit to the Court. Let the writ of error therefore be dismissed.

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No. 53. WILLIAM FISH, plaintiff in error vs. CHAPMAN & Ross, defendants in error.

[1.] One who contracts to transport goods from one point to another, and deliver them in good order and condition, unavoidable accidents only excepted, is not a common carrier, but is responsible on his contract as one.

[2.] To make a person a common carrier, he must exercise it as a common employment; he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation pro hac vice.

[3.] Unavoidable is synonymous with inevitable, and inevitable or unavoidable accidents are the same with the acts of God, which mean any accident produced by physical causes which are inevitable; such as lightnings, storms, perils of the sea, earthquakes, inundations, sudden death, or illness.

[4.] A common carrier is in the nature of an insurer of the goods entrusted to his care, and is responsible for every injury sustained by them, occasioned by any means whatever, except only the act of God and the King's enemies.

[5.] Nor can he vary his responsibility by notice or special acceptance, such being void as contravening the policy of the law; but he may require the nature and value of the goods to be made known to him, and may avail himself of any fraudulent acts or sayings of his employers.

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This was an action brought by Chapman & Ross, against William Fish, in Washington County Superior Court, and was tried before Judge HOLT, March Term, 1847.

It appeared that Fish, the plaintiff in error, received at the then head of the Central Rail Road, from the agent of transportation on that road, certain packages of goods belonging to Chapman & Ross, the defendants in error, which, by special contract he promised to deliver in good order and condition at Macon, unavoidable accidents only excepted. In attempting to cross a stream his wagon was upset, and the goods damaged. The action was brought to recover the loss sustained by the injury thus done to the goods. Upon the trial the special contract to deliver as above was proven, whereupon the Court below decided that the plaintiff in error, under his contract with Chapman & Ross, was a common carrier, and the defendants in error recovered.

To which decision of the Court below the plaintiff in error excepted.

FISH, for the plaintiff in error.

THOMAS & JOHNSON, for the defendants.

Mr. R. M. JOHNSON, for defendants, submitted the following points and authorities :

All railroads are common carriers, unless exempt by some special provision.

An agent of a railroad, giving a receipt of goods to a bailor for a wagoner, connects the wagoner with the railroad, and thereby makes him a common carrier.

A wagoner is a common carrier, whether transportation be his direct and principal employment, or only an occasional and incidental employment. Smith Leading Cases, Coggs vs. Barnard, 178, note referring to, 1 Watts & Sergeant, 285.

One who undertakes to carry produce or goods of any sort from one place on the river to another, is a common carrier. See Smith L. C. above, referring to Peck Ten. R. 270; 17 Yerger, 340, 342. All persons carrying goods for hire come under the denomination of common carriers. Petersdorff Abr. b. 57.

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