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Doster vs. Brown.

grounds. 1st. Because it was without date; and secondly, because it showed, upon inspection, manifest alterations and erasures in the amounts charged. The date of the account may have been proved by other evidence, and that the book had no date, was not a valid objection to its being admitted in evidence. The date of the account must have been proven, however, in some way. the books is a sound one. lowest grade, being the mere declarations of the party himself, in writing, that another is his debtor. There can be no reliance on such a book, where the amounts have been altered, and there are erasures, and there is no explanation, and the party had no clerk and made the entries and alterations. himself. They ought to have been rejected.

The other reason for excluding This kind of evidence is of the

[2] The only objection made to the admissibility of the evidence of Samuel D. Echols, was that he was not an expert. There was no question asked him as to the particular work done. He testified that the plaintiff was no millwright, and that his opinion was founded on work done by him for both the witness and the defendant. He had owned mills twenty-five or thirty years, and had work done on them. In the case of Malton vs. Nesbit and another, 1 Car. & P. 70, which was an action for negligently steering a ship, whereby she was wrecked, nautical men were called and allowed to give their opinion, whether upon the facts in proof there was negligence. They were not steersmen. I see no reason why a mill owner of twenty-five or thirty years experience may not give his opinion in a case like this, An expert ist nothing more than a man of experience in the particular business to which the enquiry relates.

[3.] The Court below committed no error in arresting the argument of plaintiff's counsel, that he was entitled to recover the amount contracted to be paid to him, although the work was not done, if he was prevented by the act of God from finishing it. There is no such principle. He might, in such case, be entitled, on a quantum meruit count, to recover

Doster vs. Brown.

for what materials had been furnished and the work which he had done, if it was worth anything. But in this case there was no evidence to support the argument. The mill and the dam had been washed away. There was no extraordinary flood, and one of the witnesses testified that the rain was not very heavy. The mill was not braced, nor was the dam or mill house weighted down. There was nothing to prevent its floating off. If the evidence be true, instead of what is termed in law, the act of God, preventing the work, the destruction of the mill and dam was the result of the great unskillfulness or the gross negligence of the plaintiff in executing the work which he had undertaken. While every shower of rain that falls upon the earth is the act of God, in contradistinction to the act of man, yet an ordinary freshet is not the act of God, in the legal sense which protects a man against responsibility for the non-performance of a contract like that made by this plaintiff. If by skill and labor, the work can be done by man so as to resist the ordinary, or what may be called extraordinary floods, which often occur, but at long intervals, and the work is carried away, it cannot be attributed to the act of God; but if what is called a water spout, descends with such overwhelming power and force as to bear off every thing before it, and is irresistible, and the strongest work of man cannot stand up against it, then it may be said that man is faultless in the matter, and therefore excused for failure by the law. But such extraordinary and resistless calamities enure as an excuse and relief of both parties. If it legally releases the one from executing a work he has undertaken, it equally protects the other from paying for more than has been done.

In this case there was no proof of the value of the work done. The party relied on a special contract and sued for a stipulated price.

[4.] There was an objection to the admission of proof of the washing away of the mill and dam unless there had been a warranty of the work. There was no strength in this ob

Pearce vs. Vaughn.

jection: The party was bound to do faithful work, for that is implied in every contract, whether there was a warranty or not. We have discussed and disposed of most of the grounds taken in the motion for a new trial. We think that the verdict is fully sustained by the evidence, and that there was no error committed by the presiding Judge against the plaintiff in his charge to the jury and that he committed no error in refusing the new trial.

Judgment affirmed.

THEOPHILUS PEARCE, plaintiff in error, vs. LUCINDA VAUGHN, defendant in error.

Where the evidence is balanced, a judgment refusing a new trial, will not be disturbed.

Covenant, from Spalding county. Tried before Judge CABINESS, at November Term, 1857.

This was an action of covenant, by Theophilus Pearce against Lucinda Vaughn, for the recovery of damages for the breach of the warranty of soundness of a negro woman slave named Lucy, sold by defendant to plaintiff.

The jury found for the defendant, and counsel for plaintiff moved for a new trial, upon the ground that the verdict was contrary to the evidence, and decidedly and strongly against the weight of evidence.

In the argument before the jury, plaintiff's counsel contended, that inasmuch as the negro had been tendered back, it amounted to a rescission of the contract, and defendant was liable for the maintenance and support of the slave, she being worthless.

Reid vs. Butt, adm'r.

His Honor failed to charge upon this point, not being requested to do so, and for this omission plaintiff excepted. The presiding Judge overruled the motion for a new trial, and plaintiff excepted.

NORTON, for plaintiff in error.

OGLESBY, contra.

By the Court.-BENNING, J. delivering the opinion.

There was evidence on both sides; and that on the one side, about balanced that on the other. When this is so, there can be no reason for disturbing a judgment refusing a new trial. This Court, then, ought not to disturb the judgment of the Court below.

The verdict having been for the defendant generally, the point as to whether the plaintiff, if entitled to recover at all, was entitled to recover for the maintenance of the negro, became of no practical importance.

Judgment affirmed.

JOHN REID, plaintiff in error, vs. JOHN BUTT, adm'r, defendant in error.

[1.] To entitle an administrator to maintain trover against the vendee of his intestate's son and heir at law, it is not necessary to show an order of the Ordinary authorizing a sale of the slaves.

[2.] Where an unmarried son lives with his father, the presumption is that the property on the place belongs to the father. If the father lives with the son, the preumption is the other way.

[3.] Possession of property is prima facie evidence of title; and where the possession is joint, the presumption is in favor of the party who exercises principally, if not exclusively, acts of individual control and dominion over the property.

Reid vs. Butt, adm'r.

[4] Where it turns out, upon the trial of a cause, that a paper purporting to be a deed of gift to certain slaves not specified, has been in existence and destroyed by the donor, no advantage can be taken of the instrument; nor can any presumptions be made to the prejudice of the party making it, unless it be first made to appear that the paper had been executed and delivered; and that the negroes in dispute were included in it.

[5.] A purchases of B a slave; C, the father of B, dies, and D. the administrator of C, brings an action of trover against A to recover the negro, alleging that it was in the possession of his intestate at the time of his death, and he was the owner thereof.

Held, That the plaintiff was entitled to recover the whole property, aliter, if the defendant had made proof that there were no debts due by the estate; in that case the plaintiff could only recover the interest or share of the other distributee or distributees of the estate in the property.

Trover, from Union county. Tried before Judge RICE, at November Term, 1857.

This was an action of trover by John Butt, administrator of Robert C. Laughter, deceased, against John Reid, to recover a negro man named Cyrus, alleged to belong to the estate of his intestate.

The defendant set up and claimed title to the negro under a purchase from Robert Laughter, a son of plaintiff's intestate. The father and son lived together, and the testimony was somewhat conflicting as to the ownership and control of the negroes on the place. But as the exceptions go to the rulings and charge of the Court only, it is unnecessary to detail the evidence.

After the testimony was closed, defendant moved for a nonsuit, which the Court refused, holding that an administrator could maintain an action for property which belonged to his intestate at the time of his death, from one claiming under an heir at law, without showing an order of sale from the proper Court. To which decision defeudant excepted.

The Judge charged the jury that where a son lives with his father, the presumption is that all the property on the place belongs to the father, and if the property is the son's it

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