
    NASHVILLE:
    JANUARY TERM, 1827.
    Jones and Kimbro vs. Walker.
    Freighters of cotton and tobacco on flat boats are common carriers, and liable as such for any loss that may arise from negligence.
    Where a receipt was given in these words: “We have received from A B three hogsheads of tobacco, which we will freight for him to New Orleans, and if they bear inspection, pay him the price they may sell for on our return:” Held, that this was a special agreement, and the freighters were bound at all events, unless the tobacco was condemned at New Orleans by the public inspectors; and that this being a matter resting within the knowledge of the shippers, they were bound to prove the fact by way of defence.
    Where a receipt is given by a freighter for three hogsheads of tobacco, to be freighted to New Orleans, and there sold, and the proceeds to be accounted for on his return, which were delivered to the freighter at a warehouse, and one is afterwards lost, having been by mistake put in another boat by the warehouse-man, the freighter is nevertheless liable for the price of the lost hogshead, as if sold at New Orleans, though never put onhis boat; and that the same can be recovered in an action for money had and received.
    When a freighter agrees, by his receipt or bill of lading, to freight tobacco to New Orleans and sell it there and pay over the proceeds to the person furnishing him the tobacco, if it pass inspection at that place, he can hpve but three legal excuses for the non performance of his undertaking: 1. The act of God. 2. The destruction of the property by the public ene-mjeg of the country. 3. That the tobacco did not pass inspection in New Orleans.
    When a freighter gives a receipt for three hogsheads of tobacco, (two of which are paid for,) to freight to New Orleans and then sell them and account for the proceeds, if he refuse to account for the proceeds of the third, a justice of the peace has jurisdiction of the cause, to recover so much of the money as remained unpaid.
    The execution of papers which are the foundation of the action, need not be proved unless denied on oath, under the act of 1819, ch. 24, sec. 4.
    The plea of a former judgment before a justice of the peace must be proved by written evidence, and cannot be supported by verbal or parol proof.
    If on a trial of a cause before a justice of the peace, he intimate an opinion against the plaintiff, and the plaintiff then withdraw his suit and pay the costs, this is but a dismissal of the suit, and does not bar another action for the same thing.
    Walker sued Jones and Kimbro upon a receipt or agreement, in these words: “We have received from-Walker, three’hogsheads of tobacco, which .we will freight for him to New Orleans, and if they bear inspection, pay him the price they may sell for, on our return.” The receipt was signed by Jones and Kimbro. The suit was tried before a justice of the peace, who gave judgment for the plaintiff. An appeal was taken to the county court of Rutherford, where the verdict and judgment was for the plaintiff. The defendants appealed to the circuit court. Upon the trial of the cause in the circuit court, the plaintiff offered to read the receipt to the jury as evidence of the contract, without proving'its execution. To the reading of this paper the defendants’ counsel objected; but it appearing that there was no plea upon oath denying the execution of the paper, the court overruled the objection, and permitted the paper to be . read. The plaintiff then proved that two of the hogsheads of tobacco had been accounted for by the defendants, and also the price of each, and the weight of the third; he also proved that the defendants refused to account for the proceeds of the third. It appeared from the evidence of the plain- ** L tiff, that the three hogsheads of tobacco were delivered to Jones and Kimbro, as set forth in the receipt, but that one of them had been lost, in the following manner: that all three had been stored in a warehouse; that when Jones and Kimbro were about to start, one of them could not be found in the warehouse where it had been stored, the warehouse keeper having sent it off by mistake as the property of some other person; that the hogshead was therefore never put on board of the defendants’ boat, and was not sold by Jones and Kimbro. The defendants then offered to prove by the verbal testimony of a witness, that the plaintiff, Walker, had commenced an action against them for the same cause; that no judgment had been rendered; but that when the justice had intimated his opinion against the plaintiff, he withdrew his suit and paid the costs. No judgment had ever been entered. This proof was objected toby the plaintiff’s counsel, the objection sustained, and the proof excluded. The court charged the jury, that the receipt amounted to an agreement by which the defendants were bound at all events, unless they had shown that the tobacco was condemned at New Orleans. That if the defendants had undertaken as freighters to safely freight the tobacco to market, then to sell it and pay over the proceeds to the plaintiff, they were the bailors and agents; and for the non performance of this they could have but three legal excuses: 1. The act of God. 2. That the property had been destroyed by the public enemies of the country. 3. That the tobacco had not passed inspection at New Orleans. The jury found a verdict for the plaintiff, and a rule for a new trial being entered, was discharged. Prom this judgment the defendants appealed in the nature of a writ of error to this court.
   Catron, J.

delivered the opinion of the court.

Walker sued Jones and Kimbro, upon a receipt in form, though a special agreement in substance, before a justice of the peace of Rutherford county. The cause, by appeal, went through the county and circuit courts, and, by a writ of error, came to this court. The plaintiff recovered below, by the verdicts of the juries, in both courts.

The plaintiffs in error, in the receipt, say they have received from Walker three hogsheads of tobacco, which they will freight for him to New Orleans, and, if they bear inspection, pay him the price they may sell for, on their return. This is the substance of the undertaking, on which this action was predicated. Was the plaintiff, Walker, entitled to recover upon this paper alone?

The defendants were bound to pay, at all events, unless the tobacco was condemned at New Orleans, by the public inspectors: and this being a matter resting in the knowledge of the defendants, they were bound to prove the fact, by way of defence; the plaintiff, Walker, being entitled to recover, prima facie, upon the special agreement. Without any other fact appearing, the justice had, clearly, jurisdiction of the cause which was brought before him to recover the value of the three hogsheads of tobacco, or so much of the money as remained unpaid. By way of defence, it was proved that two of the hogsheads had been paid for, and that one only had not been accounted for. This appeared to have been lost in the following manner, as was shown very clearly by the proof of the plaintiff, Walker, himself. The lost hogshead was delivered to Jones and Kimbro, as set forth in the receipt, but was not by them put on board of their boat, for the reason that it could not be found in the warehouse where it was stored, the warehouse keeper having sent it off by mistake as the property of some other person. Therefore, this hogshead was never sold by Jones and Kimbro; and they say this action cannot be supported against them for money had and received.

The defendants, as bailors and agents, agreed safely to freight to market the tobacco, then to sell the same, and pay over the proceeds to the plaintiff, Walker.

For the non-performance of this, there could not have been more than three legal excuses made. 1. The act of Providence. 2. The enemies of the State might have destroyed the property, when, as carriers, the defendants would have been excused. 2 Com. on Con. 291, 320. 3. The tobacco not having passed inspection in the New Orleans market. These are believed to be the only excuses that could be set up as a legal defence to the payment of the money, promised tobe paid by Jones and Kimbro, to Walker, on the delivery of the tobacco. It lay upon the defendants to show either of them. They not having done this, are liable to pay for the lost hogshead, as if sold at New‘Orleans, and the money received by them.

It is objected that the court erred in permitting the paper evidencing the contract to be read, without proof of its execution; the court having required the defendants to deny its execution upon oath, before proof thereof could be required. The act of 1819, ch. 24, sec. 4, applies to papers which are the foundation of the action; this paper was clearly so, and full proof prima facie to authorize the plaintiff to recover. Here we think the paper well admitted.

It was insisted, that a former suit had been brought by Walker, before a justice of the peace, for the same cause of action, against Jones and Kimbro. This was offered to be proved by parol: no judgment, as it plainly appears, had been entered by the justice; but when he intimated his opinion against the plaintiff, he withdrew his cause and paid the costs. We view this as a dismissal of his suit, by the plaintiff, and no bar to his action. Therefore, if the evidence had been received, it proved nothing, was immaterial, and well rejected. We also think it well rejected, because a judgment must be in writing, in some form. The evidence was offered to prove a judgment or opinion of the justice in writing, which cannot be done in such a case as the present. We can see no sufficient reason for reversing the judgment, and order it to be affirmed.

Judgment affirmed.  