
    Kemp v. Farlow and Others.
    A mandatary is answerable for gross negligence.
    A cause having been dismissed for want of prosecution, the plaintiff produced the affidavit of his attorneys, showing that their failure to appear at the calling of the cause was accidental, &e., and the cause, on the plaintiff’s motion, was reinstated.
    ERROR to the Vermillion Circuit Court.
    
      Wednesday December 6,
   Perkins, J.

Assumpsit by the executors of Joel Farlow, deceased, against Jesse Kemp, upon the receipt, a copy of which follows:

“ Tenth month 6,1840. Received of Michael Farlow, of Randolph county, North Carolina, three hundred dollars, to carry to Joseph Farlow, of Orange county, Indiana, unavoidable accidents excepted, to pay over to him — two hundred and seventy dollars in silver, and thirty dollars in paper, with five per cent, added. [Signed] Jesse Kemp.”

The count averred that the money was the money of Joel, in the hands of Michael Farlow.

The common counts were added in the declaration. The general issue was pleaded; cause tried by a jury; verdict and judgment for the plaintiff. It was proved that the plaintiffs were executors, &c.

Patience Kemp, a competent witness, testified “that she was with Jesse Kemp, in North Carolina, in the fall of 1840; that they called at the house of Michael Farlow on their way, and Michael brought out the money in question to the wagon; that she got out of the wagon the trunk in which Jesse Kemp had his money, and put Farlow’s money in with his; that this was a trunk which had been in the family, and used for keeping money, for fifty years; that she knows the money was kept in the trunk and safely brought to the house of Jesse Kemp, in Parke county, Indiana, where they arrived on Saturday evening; that when they got to Guilford county, on their way home, Stephen Kersey, who came home with them, put his money into the same trunk, and it -was also brought safely to Kemp’s house; that she knew the Farlow and Kemp money was in the trunk until the fourth or fifth day after their return, when Kersey got his money out; that she was present when Kersey’s money was taken out, and knows that Far-low’s money was left remaining in the trunk; that on the way home, on the usual route, they came to a new turnpike which was so sharp and bad that it made the horses lame, and the men consulted about it, and on inquiry finding it was about a hundred miles nearer to come by Madison, they changed their route for these two reasons, and came on straight home by Madison, instead of going round by Orcmge county, where they had intended to go.”

Elizabeth Horn testified “that she was living at the house of Jesse Kemp when he returned from North Carolina; saw the trunk said to contain the money, and saw Kersey’s money taken out, but did not see into the trunk; was about the house all the time for a week following; that on the sixth day after Kemp’s return, she lifted the trunk and felt that it was heavy, and heard the rattle as of the money; that on the seventh day, in the morning, she, Jesse Kemp, and all the family, went to meeting, and were gone about four or five hours, no one being left at the house; she returned in company with Kemp and his family, and when they came into the house they discovered that the trunk was broken open, and upon looking into it, the money was gone. Does not know whether any of Kemp’s money was gone or not, or whether there was any of Kemp’s money in the trunk at the time. The trunk stood on a bureau, and there was no lock or other fastening on the door of Kemp’s house, except a latch.”

It was admitted that Kemp had paid over 30 dollars to Fwlow.

We think the foregoing evidence makes out a clear case for the plaintiff below. If the money of Farlow was stolen, it was through gross negligence on the part of Kemp that it happened; and for such negligence he is answerable as a mandatary. If it was not stolen, of which a jury might well entertain doubts, then Kemp has failed to account for the money.

We think the Court below did right in refusing a new trial.

Another point in the case must be noticed. An affidavit as follows appears in the record:

“ Samuel B. Goolcins being duly sworn says, he is one of the plaintiff’s attorneys in this cause; that they have no attorney residing in this (Vermillion) county, nor do either of the plaintiffs reside here; that Amory Kinney and deponent are the only attorneys of plaintiffs in said cause, and that they reside at Terre-Haute, thirty-one miles from this Court; that they set out yesterday on their way here, to attend to the same and other causes in this Court, in due time, under ordinary circumstances, to have been here before the meeting of the Court this morning; that they were delayed on their way by the very bad state of the roads and a storm which came on this morning; still deponent would have been in Court before the calling of said cause, but for the additional reason that the Wabash river had risen so high that it was very difficult to cross it, and they were, by reason of the high wind and high water, so delayed in crossing that they did not get into Court until about half-past nine o’clock this morning; and deponent has learned that a very short time before his arrival, said suit had been called' and dismissed for want of prosecution. Deponent states that the plaintiffs have a good cause of action, as he verily believes, for over 300 dollars against the defendant in this action, and that said plaintiffs had not, nor had their attorneys, any intention of abandoning said suit, but that they would have been in attendance in time to answer to the same at the calling of said cause, but for the reasons above stated.” Signed and sworn to.

J. A. Wright, E. W Me Gaughey, and A. L. Roache, for . the plaintiff.

A. Kinney, for the defendants.

On this affidavit, the parties being still all present, the Court rightly sustained a motion to set aside the default and reinstate the cause upon the docket.

Per Curiam. — The judgment is affirmed, with 1 per cent, damages and costs.  