Harris, Wormley & Co. vs. Redman, surv.

[DECEMBER

placed to the credit of Harris, Wormley & Co. This Dec. 16th, 1853.

P. H. REDMAN & CO."

Thus it appears that the plaintiffs stated in their letter of 23d May, 1854, about five months after they deposited with P. H. Redman & Co. the $500 and $300, as proven by Brooks, that the balance due them was $438 24, which included the $300 deposited through Carey.

The defendant attempted to prove, by the papers copied above, and we think the attempt was successful, that he had paid the balance so claimed to be due by the plaintiffs.

The plaintiffs requested P. H. Redman & Co., in the letter just referred to, to send them $138 24, by packet, without naming any particular boat.

It appears that about seven days after, the defendant delivered that sum to McManus, the captain of a steamboat running between Jacksonport and Memphis, for the plaintiffs. There is no proof that the boat was unsafe, or the captain irresponsible, nor indeed is there any pretence that the plaintiffs did not receive the money.

That the note read in evidence by the defendant, dated 19th June, 1854, was given for the $300 deposited by Carey, with $9 interest, there is little room to doubt. That it had been in the possession of the plaintiffs, is shown by their receipt to J. C. McManus; and that it had been paid was proven by the same receipt and by the production of the note by defendant; and that the sum deposited by Carey had been settled, was also shown by the production by defendant of the certificate of deposit given to him, which the plaintiffs referred to in their letter as having been delivered to them by Carey. It is true that there is a discrepancy between the date of the receipt, and the testimony of Brooks as to the time Carey made the deposit the receipt bears date 16th December, 1853, and Brooks says the money was deposited 21st December, 1853. But there is no evidence that plaintiffs ever made any other

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TERM 1861.]

Harris, Wormley & Co. vs. Redman, surv.

deposit through Carey, and Brooks may have been mistaken as to the day on which the deposit was made, or the receipt may have been antedated for some reason or other.

The plaintiffs introduced no evidence tending to prove that they were mistaken when they stated, in their letter of 23d May, 1854, that the balance due them at that time by P. H. Redman & Co., was only $438 24.

The court permitted the defendant to introduce in evidence, against the objection of plaintiffs, some receipts, drafts, etc., relating to moneyed transactions between P. H. Redman & Co. and the witness Brooks, which appear to us to have been irrelevant to the matters in issue, and inadmissible, but we do not see how their admission could possibly have prejudiced the plaintiffs, for the jury could not, we think, have found otherwise than they did upon the evidence properly admitted before them, unless they had found a balance in favor of the defendant, under his plea of set-off, upon letters of plaintiffs stating the sums that were to his credit for shipments of cotton, and upon other evidence as to the commissions, etc., he was entitled to for purchasing the cotton, etc.

The judgment of the court below, overruling the motion for new trial, appearing to be right upon the whole record, it must be affirmed.

The prosecutor is not liable for costs, under the statute, where, instead of a trial, a nolle prosequi is entered.

Appeal from Yell Circuit Court.

Hon. JOHN J. CLENDENIN, Circuit Judge.

HOLLOWELL, attorney general for the state.

BATSON and CRAVENS, for appellee.

Mr. Justice COMPTON delivered the opinion of the Court. On an indictment, found in the Yell Circuit Court at September term, 1859, against William Aikin, for assault and battery, the name of Hiram Branum, the party injured, was endorsed as prosecutor. At a subsequent term, a nolle pros. was entered, and judgment for costs rendered against Branum. The case is brought here on appeal from the decision of the court below sustaining Branum's motion in arrest of judgment, and the question is, was Branum liable for the costs?

In a certain class of prosecutions-to which this case belongs-the statute requires the name of the party injured to be endorsed on the indictment as prosecutor; and then provides that if any indictment, so endorsed, shall be returned "not a true bill," or if the defendant be acquitted on the trial, the prosecutor shall be adjudged to pay the costs. Dig., chap. 52, secs. 89, 90, 91. The prosecutor in the case before us, was

clearly not liable. The entering à nolle pros. is not à trial within the meaning of the statute, or in any other sense, and unless there is a trial, where a true bill has been found, the prosecutor is not to be burdened with the costs-the law is so written, and we must apply it.

Let the judgment be affirmed.

THE STATE VS. SARTAIN ET AL.

A scire facias upon a forfeited recognizance must show that the recognizance was entered into before a court or officer authorized to take it. (Darby et al. vs. State, 21 Ark.)

Appeal from Perry Circuit Court.

Hon. JoHN J. CLENDENIN, Circuit Judge.

HOLLOWELL, Attorney General, for the State.

Mr. Justice COMPTON delivered the opinion of the court.

This was a proceeding by scire facias on a forfeited recognizance. The scire facias does not show that the recognizance was entered into before the court in which the prosecution was had, or before any of the officers authorized by law

to take it, which this court held in Darby et al. vs. The State, 21 Ark. 523, must be shown. The judgment of the court below quashing the scire facias is, therefore, affirmed. Of course the State may sue out an alias.

STRAWN VS. NORRIS ET AL.

If a party file a petition for discovery, and read a part of the answer in evidence, the whole answer must be considered as evidence in the case, as well that which is not, as that which is, responsive to the interrogatories.

Appeal from Montgomery Circuit Court.

Hon. LEN B. GREEN, Circuit Judge.

GALLAGHER and KNIGHT, for appellant.

Mr. Justice COMPTON delivered the opinion of the Court. In this suit, an action of assumpsit, the plaintiff, finding it difficult to establish his demand without appealing to the conscience of the defendant, filed a petition for discovery, and obtained an answer. At the trial-which was before the court sitting as a jury-the plaintiff read the answer in evidence; and thereupon the defendant insisted that the whole answer should be considered by the court as evidence in the case, but