Year: 1859

ROYAL C. SMITH, Error from the I'd


Us. judicial District,
FRANKLIN KENNEDY Washington Terry


FrzHUGH, Associate sties-This cause
comes up upon the pleadings and bill of
exceptions.


From the case as presented, it appears
that in the month of October, 1858, the
defendant below, who is also defendant in
error, having recently arrived across the
plains, came to Monticello, in this Terri
tory, and became indebted to the plaintiff
in the sum of one hundred and twelve dol
lars, for the transportation Of himself, fami-
y and effects, up the Cowlitz river At
the same time giving the plaintiff an order
for some cattle that were being driven
down the trail to Monticello. Under this
order the plaintiff claims to have received
the cattle, paying the person bringing
them down a charge which he asserted
against them Of thirty dollars, and during
the winter, that he advanced, or was at an
expense of fifty dollars more for keeping
the cattle. For all Of which be alledges
that he had a lien upon the cattle. He
then goes on TO state that being desirous
to close up the business, he did on the goth
of February, 1854, address and send by
mail to the defendant letter containing
his account, asserting his right to lien,
and making a proposition to purchase.
That in due course, he received an answer
to his letter by the hands of a man calling
himself George Henderson, accepting his
proposal, and that be in consequence did
purchase the cattle from Henderson, acting
as agent for the defendant, and thus be-
came the owner Of them,


The defendant admits the Indebtedness
Of one hundred and twelve dollars, but de-
nies that the cattle were left as pledge
denies that the person bringing the cattle
down had any lawful charge against them,
and says that If the plaintiff paid any
money, be did not pay it at the request Of
the defendant, but in his own money, and
he goes on to state that the plaintiff had
agreed to keep the cattle without charge.
A part Of the evidence only is embodied in
the bill of exceptions, aud we can only di-
rect our attention to that which, by the bill
Of exceptions, has been made part Of the
record. 1t appears that tho man Hender-
son, who brought the alledged answer to
plaintiffs letter, sold Smith the cattle and
took up the note of the defendant and re-
ceived the balance over and above the
plaintiffs charges, amounting to some thir-
ty dollars The defendant then denying
the right Of Henderson to sell, came and
took bis cattle FROM the place they were
kept They were replevied by the plaintiff,
but afterwards returned to the defendant
on his giving bond as required by the
statute.


As the case now stands, the defendant,
should he succeed, has in his hands the cat
tie without paying one cent of the hundred
and twelve dollars, his original and admit
ted Indebtedness, or any charge upon them /;
and the plaintiff, having surrendered his
note to this alledged agent, will have lost
all his evidence, and be in fact loser to the
value Of the cattle


It appears from the bill of exceptions,
that the plaintiff called the defendant him
self upon the stand as a witness, and ia the
course Of the examination, the defendant
admitted that he had received the letter Of
Feb. 20, 1854, addressed to him by the
plaintiff, which is alse by tue bill of excep-
tions made part of the record He also
stated that he did not answer it. There
upon the plaintiff offered to read the letter
to the jury, which was objected to and
ruled out by the court, to which ruling, and
the refusal Of the court to admit the letter
in evidence, the plaintiff excepted.


This is one Of the main grounds alledged
in error. 4


This letter contains the account of the
plaintiff against the defendant, and is ut
terly inconsistent with any other idea than
that the cattle were left in security for the
entire account. 1t also contains an offer