Exum v. Brister , 35 Miss. 391 ( 1858 )

HaNDY, J.,

delivered the opinion of the court.

The defendant in error brought this action, to recover of the plaintiff in error, the penalty provided by the statute, as the value of certain trees, cut by the plaintiff in error, and appropriated to his use, from the land of the defendant in ‘error.

The case comes up upon a bill of exceptions, taken by the plaintiff in error, to the overruling of a motion made by him for a new trial. The grounds upon which that motion was made, present the questions for our consideration.

The first ground of error insisted upon, is the admission of the patent from the State of Mississippi, to the defendant in error, for the land from which the trees were cut and carried away. This patent was offered in evidence, for the purpose of showing title in the defendant in error, to the locus in quo. It was objected to, on the ground that, though it was signed by the governor, with the great seal of the State affixed to it, yet that it was not signed Toy the secretary of state ; but the objection was overruled.

The correctness of this ruling depends upon the true meaning of the Act of 15th March, 1852, ch. 16, sec. 15, under which the patent was issued. That act provides that, in cases like the one in which this patent was issued, “ the secretary of state shall issue a patent” for the land, “which patent shall be signed by the governor, and attested by the secretary of state, with the great seal of the State.”

It will be observed, that while this phraseology positively requires the patent to be signed by the governor, it only requires that it shall be attested by the secretary of state. But how is it to be attested by him ? If the act had been silent as to the mode of his attestation, it might have been a matter of doubt what mode was sufficient, and whether his signature was not intended. But it proceeds to point out the mode of attestation, to wit, “ with the groat seal of the State.” When it is recollected that the secretary is, under our laws, the keeper of the great seal, it is manifest that the mode of attestation was intended to be, by his affixing the great seal, in testimony of the authenticity of the act. No other person had the power to affix the seal, for it was in his keeping; and, therefore, when affixed, it was, per se, evidence that the act of affixing was his : thereby, in the most solemn form, adding his attestation to the patent; and that is all that the statute requires.

There is, therefore, no error in the ruling of the court on this point.

Secondly. The plaintiff below introduced one Julian, as a witness, and proceeded to prove by him, that a contract for furnishing cross-ties to the Mississippi Central Railroad, was made between the defendant and that company, which contract was in writing. The defendant thereupon objected to any further evidence of the contract, unless it was produced. The objection was overruled, so far as to permit the witness to prove the execution of the written contract, but not the contents of the paper. The witness then testified, that it was a contract signed by Edward Exum, as agent for the defendant, and under seal.

It does not appear that the defendant objected to the evidence, to the limited extent to which it was admitted by the court; and, therefore, he would not be permitted to insist upon the objection as a ground for a new trial. If the evidence, as admitted, was illegal, he should have made his objection to it at the time, and have tahen his exception then, or at least have reserved his exception.

The evidence must be treated as having gone to the jury unex-cepted to; and it was clearly competent, in connection with the other evidence offered in behalf of the plaintiff, to be submitted to the jury, upon the point, whether the grievance complained of was done by the defendant’s agent, and in the course of the business in which he was engaged.

Thirdly. It is objected that the court erred in giving certain instructions, asked in behalf of the plaintiff below.

The first of these, is the plaintiff’s third instruction, which is, that if the jury believe, from the evidence, that the defendant was engaged in getting out cross-ties for the Central Road, and if they believe that the hands of the defendant, either by direction of the defendant or his agent, did cut down and carry away certain white-oak trees, on the lands of plaintiff, without first having obtained the plaintiff’s consent, and that the same were appropriated to the defendant’s use, then the plaintiff is entitled to recover, &c. The fourth instruction is to the same effect, with the addition, that the defendant was liable for the wrong, if committed by his agent whilst engaged in the business, if done with the knowledge of the defendant, or afterwards ratified by him; and the fifth instruction states, that if the agent acted within the scope of his authority, the law presumes knowledge on the part of the principal.

Several objections are taken to these instructions. 1st. It is said that they assume the facts referred to in them, and especially' the fact, that E. Exum was acting as agent for the defendant, in cutting down and appropriating the trees. But that is a mistake of fact, with regard to the instructions. The question of agency in the matter is stated hypothetically, and is distinctly submitted to the jury. ■ If there had been no evidence whatever, tending in any degree to show, that E. Exum was engaged in the transaction as the agent of the defendant, then the objection might have been sustained; on the ground that there was no evidence applicable to the supposed state of facts. But there is evidence from which the jury might infer the agency. It is shown that the defendant’s slaves, under his overseer, were engaged in cutting timber on his own land, under the superintendence of E. Exum, who had made a contract for the defendant, with the railroad, in relation to the timber; that, whilst engaged in that business, the defendant’s slaves cut the plaintiff’s trees, which were hauled by the defendant’s teams, and delivered to the railroad ; and that E. Exum acknowledged the wrong, and made some effort to settle the matter with the plaintiff. Upon these facts, the question was properly presented, and the jury were authorized to infer the fact of agency for the defendant, and of appropriation of the timber to his use.

2d. It is insisted that, conceding that E. Exum was acting as the agent of the defendant, in the business of getting timber on the defendant’s lands for the railroad, yet the agency did not extend to the trespass committed on the plaintiff’s land; and, therefore, that the defendant was not responsible for the wrong. Admitting this to be true, yet the evidence was such as to warrant the jury in concluding, either that the injury was done by the defendant’s agent and servants, with the knowledge of the defendant, or that it was subsequently sanctioned by him; and in either of these cases, the defendant was responsible. Story on Agency, § 455.

The evidence shows that the cutting of trees was continued, after the defendant’s overseer and agent were apprised that they were upon the plaintiff’s lands; that the plaintiff’s land, upon which the trees were cut, lay nearer to the railroad than the defendant’s land; that the timber was hauled away by the defendant’s teams; that a large number of trees were cut and taken away, and appropriated to the use of the defendant. All these things, being done by. the defendant’s servants, and under the superintendence of his agent, as-the evidence tends to show, were sufficient to warrant the jury in believing, that the injury was done with the defendant’s knowledge and approbation; and the third instruction, as limited and qualified by the fifth, is not erroneous. The fourth instruction states that the defendant was responsible, if the trespass was committed by his agent, with the knowledge of the defendant, or he subsequently ratified it; and is not objectionable.

Upon the whole, we think that the verdict is sustained by the evidence; and the judgment is affirmed.