
    
      J. C. Richardson v. W F. Provost and C. J. Provost.
    
    The Court will not undertake to control a jury where there was evidence on the question submitted to them, although that evidence was not so satisfactory as it might have been.
    All objections to the admissibility of evidence should be made, if known, at the time the evidence is offered,
    
      Bejore Evans, J. at Barmoell, July, 1849.
    W. F. Provost was resident out of the State. C. J. Provost was served with process, and the absence of the other suggested according to the Act of the Legislature. The action was ou joint contracts ; one a note for $50,12th January, 1847; the other a note for $450, dated 17th February, 1847. To the first note the signatures were signed by one E. C. Corbett as agent; to the second note both signatures were in the handwriting of W. F. Provost. The defendants were the owners of a patent press. Corbett was the brother-in-law and agent for W. F. and C. J. Provost, in relation to their cotton press. He employed the plaintiff to go to Florida to make and introduce their cotton press in that State. The small note was given for this service ; Corbett stated that he was authorized by both to settle with the plaintiff for building the press. Does not recollect that C. J. Provost authorized him to give a note, but he informed them what he had done, and no objection was made. In relation to this note it was proved by one Coker, that he went with the plaintiff to Florida, at the request of Corbett, As a compensation he was to have a right to build presses without paying for the patent. Plaintiff told him that Corbett was to give him $50 a month. He was to go and start the press in Florida. One was built for Ross, but it gave way the first bale of cotton that was packed. Ross did not refuse to take it, and appeared satisfied if he could get materials to finish it. Defendants were never in Florida; plaintiff did not work whilst witness was in Florida; assisted, once or twice in turning over a stick of timber; plaintiff went hunting several times ; he made no press in Florida. The Circuit Judge thought the authority to Corbett to give this note pretty clearly proved. In Corbett’s examination he spoke of his having two written powers of attorney.
    The second note was given for a negro. There was no proof of any partnership, in relation to the buying of, negroes, nor of any express authority given by C. J. Provost to W. F. Provost to sign his name to the note. The only copartnership that Corbett knew of was in the cotton press. Both of them had gone down to examine the negro, but C. J. Provost was not present when his brother, W. F. Provost, concluded the bargain and gave the note. A bill of sale or a receipt was given ; the negro was carried to Alabama, and was in tpe pOSSession of W. P. Provost.
    His Honor submitted the case to the jury, under the following heads .
    1. “Was Corbett authorized to sign C. J. Provost’s name to the note for $50; and was it void for want of consideration? I thought the authority of Corbett was clearly proved. It did not seem to me that the plaintiff was hired as a laborer, but as a supervisor of others, and therefore it was no objection that he did not work.
    2. “Had W. P. Provost authority to sign C. J. Provost’s name to the other note ? There was no evidence of a general partnership, or of any in buying negroes. The circumstances most relied on for the plaintiff were, that they both went to examine the negro, and that a bill of sale had been given, from the non-production of which it was argued that the purchase was made on joint account, as the defendant would certainly have produced it, if it would show that the conveyance was made to W. P. Provost alone.”
    The jury found for the plaintiff half of the fifty dollar note and the whole of the other.
    The defendant appealed, and moved for a new trial, on the following grounds:
    1st. Because inasmuch as it appeared in evidence that Corbett acted under two powers of attorney, they ought to have been produced ; and all other evidence as to the existence, nature and extent of his agency was secondary, and ought not to have been received.
    2d. Because there was no evidence to establish a partnership between W. P. and C. J. Provost, except as to the cotton press ; and that, in the absence of further testimony, W. P. Provost had no right to affix the name of C. J. Provost to the note of $450, given by him to plaintiff for the purchase of a negro, and that the said defendant ought not to be held responsible for the same.
    3d. Because, from the testimony submitted at the trial, it appears that the note for $50 was without consideration, and ought not to have been allowed.
    4th. Because the verdict of the jury was contrary to law and evidence.
    
      Hay, for the motion.
    
      Bellinger, contra.
   Curia, per Evans, J.

The questions whether Corbett had authority to bind the defendant, and whether W. P. Provost was authorized to sign C. J. Provost’s name to the note given for the negro, were mere questions of fact. The evidence on the latter question was certainly not as satisfactory as it might have been, but it cannot be said there was no evidence on the point. This Court rarely undertakes to control a jury on a question of fact merely, and then only in cases where the verdict is without evidence, or palpably against it. The rules by which the Court is governed in such cases have been so often stated that it is deemed unnecessary to repeat them here, although there is some difference of opinion in the Court.

The first ground in the notice of appeal requires a more particular notice. There is no doubt about the legal principle that where an agent does an act under a written power of attorney, the writing must be produced, that the Court may see that the act done was authorized. That is the best evidence, and secondary evidence of its contents is inadmissible when the better evidence can be produced. But every exception to the admissibility of evidence must be taken at the proper time. The evidence of Corbett was taken by the counsel under an agreement that it should be read at the trial. There was no objection made then. If there had been, it might have been supplied. All such objections should be made, if known, at the time the evidence is offered. It would be attended with very mischievous consequences, if in cases like this a party might withhold his objection until the trial, and then surprise the opposite party by an objection, which could have been removed if he had known that it would be made. Evidence thus taken is like evidence taken in Court, where it is every day’s practice to receive secondary evidence, if unobjected to. If objections to such evidence are not made at the proper time, they should be considered as waived.

The motion is dismissed.

O’Neall, Wardlaw, Frost and Withers, JJ. concurred.

RichardsoN, J.

dissenting. — The Court have just decided the case of Clayton v. Kittrell, exhibiting how far Courts go, in supporting the verdict of juries, though given, as said in that case, by the Circuit Judge, “on very slight evidence.” But it must always be borne in mind, that this Court is the constitutional guardian of the laws of the State. And judicial respect for verdicts consists in allowing to juries their right to weigh and decide, on all competent evidence, and in supporting such verdicts as may be rationally inferred from the facts proved, and which do not mistake, pervert or infract, legal principles.

Within these principles, Judges go great lengths, in supporting the verdict of a jury. But jury justice, like all judicial justice, must be justified by the facts proved, and by established law; and verdicts, unsupported by the principles, and adopted merely as fit for the occasion, degrade the law, and greatly weaken general confidence in jury trials,

The case of Clayton v. Kittrell was intelligibly within such principles; and we have now to decide, whether the verc[jC(; jn present case of Richardson v. the Provosts ought to be in like manner supported — that is to say, as far ag q. j. proves^ who alone now moves for a new trial, is concerned, and confining his motion to the $450 note given by his brother W. F. Provost, in their joint names, without the consent, or any agency, coming from C. J. Provost, and without any apparent interest in the negro, for whom that note was given.

When I ask, has there been any evidence of any authority whatever, given by him to his brother W. F. Provost, to sign his name to that note ? or where is there any evidence of his interest in the negro, for which that note was given ? my understanding can perceive none whatever. All the facts proved, are as follows, to wit: C. J. Provost was the brother of W. F. Provost. They were associated as partners in making cotton patent presses, and in nothing else. The $50 note was given by their agent Corbett, and very properly given, to James C. Richardson, for services in the copartnership business. W. F. Provost purchased a negro of J. C. Richardson, and gave the note of $450 in payment. In the course of the bargaining C. J. Provost went down with his brother to examine the negro. Afterwards W. F. Provost concluded the bargain, and gave the note in question in their joint names, in the absence of C. J. Provost, and took a bill of sale, the terms of which have not appeared. The negro was carried to Alabama, and remained in the possession of W. F. Provost, not of C. J. Provost. Where then, I ask, is there a single fact from which to conclude that C. J. Provost was interested in the negro' purchased by W. F. Provost 7 or that he had authorized him to sign the name of C. J. Provost to the note 7 There is not a single fact to authorize any such conclusion. The supposition that the bill of sale was given to both the Provosts is entirely gratuitous. W. F. Provost received it, and carried off the negro: and can it be said, with any reason, that the non-production of the bill of sale by W. F. Provost affords any reasonable presumption, that it had been given both to his brother and himself? This would be a mere imagination of what might possibly be. Rut on the contrary — it is plain, that W. F. Provost felt an interest in justifying his joint signature, and an evident pecuniary interest, as the verdict could not but be against himself, in making C. J. Provost also liable for, at least, one half of the amount, and hence he would not choose to produce a bill of sale taken in his own name alone. But take the evidence in the most ingenious and suspicious point of view, where is there to be found any evidence whatever to implicate C. J. Provost? There is not a tittle of any kind.

It is plain, therefore, that the verdict against C. JT. Provost on the 450 dollar note, has been given on some imaginary fitness, and adapted to the occasion, without any evidence whatever. Is it a small matter, that one man should be thus allowed to subject another, by his unauthorized act, to his own liabilities, and ought not such a verdict to be set aside, as plainly injustifiable by the laws this Court is bound to protect ?

I cannot but think so. In the case of Clayton v. Kittrell, the jury were supported to the verge of their constitutional rights, but in the present instance they have clearly overstepped it — and I cannot consent, judicially, to affirm so unauthorized, so plunging a verdict, as to render one man liable for the note of another, because they were brothers, or because they were associated m a different transaction, or because they were jointly liable on a certain other note, or becaue the other man bought a negro and took a bill of sale, himself alone giving a note, in the name of both, or else because they both went down to examine the negro, before the bargain was concluded by the actual purchaser. The verdict upon the 450 dollar note, is given upon some confusion of mind, and the jury themselves are entitled to a reconsideration, and C. J. Provost to a new trial, notes; gratia, but ex de-bites, justicia.

Motion refused.  