The daily clarion. [volume] (Meridian, Miss.) 1863-1866, 1866-03-03

y I
Lucy p Moore ct al
Opinion ofcourt delivered by Judge Har-
The defendants in error filed their COM
plaiut in the Circuit Court of Copiah county.
4 recover Of the plaintiffs in error, rs com
pog carriers, the value of "A trunk and its
tauteuts. delivered to the plaintiffs in error,
A be transported by them on their railroad
"a Jackson, Miss, from Hazlehurst in the
eouuty Of Copiah which it is alledged
Through the Carelessness, negligence and
deEault Of the plaintiffs in error, were wholly
lest to the defendants in error.
To this complaint the plaintiffs in error
lied two answers; the first saying that they
Az not guilty of the wrong and injury al
kIgediu the complaint, and the second deny
tgthe delivery to or receipt by them of the
a ids in the declaration mentioned, or any
1lH thereof, to be carried and delivered,
4 as complained in the declaration.
Upon these issues there was a jury and
strIiCt for the defendants III error, and a
zion for new trial, which was refused.
IT, plaintiffs in error excepted, and filed
helr bill of exceptions, and now prosecute
Bier writ of error here to reverse the iudg-
neHt below.
& The first error assigned is that the Court
aTgd in refusing to exclude, on motion of
Dc plaintiffs III error, testimony tending to
move other damages than the value of the
nunk and its contents.
The defendant in error offered TO prove, as
appears by this bill of exceptions, that she
appended from one hundred to one hundred
D. Sevcuty-tiye dollars for clothing, Shoes
D., to supply her immediate wants, occa-
6oBed by the loss of the trunk To the in
|hOductiOn of this testimony plaintiffs in
|E0r objected. The objection was overruled
ID the Court, and the testimony admitted
Ia was clearly erroneous. This is an aC-
b. TO recover damages for breach of con-
o.; no special damages are alledged i'll the
pmplaint. The value of the trunk and its
lGcnts (within the rule limiting their re-
RCasibility and requiring the transportation
usual passengers baggage by common car
Rrs of such,) Is all that can be recovered III
hs form of action. To allow the defendant
error to recover for clothing, &c, to sup
II her Immediate wants, and also for those
ht were lost, would be to that extent to
sMrgc the plaintiffs in error double damages
or the articles so lost and replaced.
ID was further proposed to be proven what
Falld be reasonable attorneys fees for prose-
cutiug a suit of this kind, and the evidence
objected TO- and the objection overruled
9hls was also erroneous for the same rea- /
gons, The action is not in tort, but for a /
kgeaCh of contract, and the actual damage .
ahslng from the breach is the measure of re- /
eoyery in this form of action.
Zinc second assignment of error is, that /
d jury were instructed that they might /
aReSs damages for attorneys fees, and as
~ exemplary as well as actual damages
ia have already seen that this was errone-
4he third assignment of error is, that the
FaflTt refused / a # the that the
aaendants below were only responsible to a
H&senger for the loss of such reasonable
Mount of baggage to include such articles
asare necessary and convenient for the per
ma Use OF the passenger, and usual for per-
sfs travelling to take with them.
his instruction properly states the rule
Mlaw governing this case on that subject,
~ should have been, therefore, given as
ated
4he fourth error assigned, it is needless to
W>aer, as the refusal of the instruction
81 ID not possibly have preiudiced the de-
~ auts below, under the evidence in the
faal
Fac fifth assignment of error has already
w considered under the first and second
arguments.
44e last ground of error relates to the re-
~ to grant new trial. 1t follows from
ia We have already said, that a new trial
Neuld have been granted
Let the Judgment be reversed cause re-
A4lued and yenire de novo awarded.
! sEkaAdy, I. j., being interested as a stock
80 III the railroad company, did not sit
athis case.
>. Hewitt Error to the Cir F
~ rs }cuit Court of
OP.Cobb & Co. Adams County.
Justice Elicit delivered the opinion
aEshe Court.
ne plaintiff in error was sued as the ma
81 Of prOmiSSory note. and did not plead
g The action. Nevertheless the record
- that a jury was empanneled and
- to try the issue joined and that II
sMlct was found, and Judgment entered
sPh 1t. rs if an issue had been joined be-
..ten the parties. This is the error COM
. med OF, and it is insisted that a judg-
= final by default should have been
'Aen, and that il was erroneous to submit
N case to the jury under the circum-
n his precise question has been several
les before this Court, and has not always /
lyed the same consideration. In the !
= Of Wilkinson VS.. Patterson, Howard, /
"a and Harrison vs. Agricultural Bank, .
edeS and NJ, 3O7, it was held to be er- /
Sous to empannel jury to pass upon an |
ne when in fact there was no Issue to be +
WI rmlned. The judgments were therefore /
ersed, and this Court, proceeding to do t
~ the Court below ought to have I
entered up final judgments by default /
lst the plaintiffs in error. In McAdams /
Nassie, Smedes and NJ, eco, the iudg- /
t was reversed for the same error, but /
cause was remanded for further pro-
angs in the court below. In the later
Of Ganett vs. Felt and Reed, - Miss, /
+. I,,o lint ha nrt
at a different conclusion; one which !
further reflection we are satisfied is /
Fect, and to which we are disposed to /
ele
f statute requires all regular jurors to
Worn to try all issues, and execute all
OF inquiry that may be submitted to
during the term. (Rey. Code sol, art
and they are never especially sworn IN
particular civil case. Tales jurors are
" IN the same form for the day. No
YER therefore, what may be the nature
y case submitted to them, whether 1t
uIaI OF an issue, or the execution of a
" inquiry, it must be certain that the
lave been properly sworn. There is no
ooa'ry of error in this respect, if the
# 81 Ste sworn at all When, therefore, the
IN the record purports that the jury
OIn to try an issue when the case was
;4'9uon of writ of inquiry, or rice
ea T' Is clear that the entry is a mere
error, and cannot be true in point of
'SSu u any injury could result to the
mil ~ such clerical misprison he would
; ~ to relief, But it is settled prin-
kms ~ all appellate tribunals, that no
itV e[ ~ VIII be recovered for any irreg-
h = ~ VI error that does not actually pref
Of He party complaining of it. In the
b;r Eases under discussion, there is no
MY OF prejudice to the defendant.
a. ms in the present case were en-
70 Judgment final by default on the
tor the very same amount, and
Pm s sne same operation and effect, as the
i 4 - actually given. The only differ
he snat IN one case, the interest would
on calculated by the clerk, and in