Caraker vs. Mathews & Mathews.

weekly. The creditor cannot claim a benefit by virtue of this contract, and at the same time seek to violate it.

It is suggested that he is paying a debt which he is bound to discharge. In point of fact, this is not true. The employer would be made to pay his overseer's debt, because, according to the agreement between them, he has furnished food and raiment to his wife and children, to save them from suffering and want. The family of the overseer is entitled to this subsistence from his hands before any creditor, I care not how meritorious his demand may be. Women and children must have bread. The journeyman mechanic and employees of banking and railroad corporations are exempt from this process, shall the family of the poor overseer starve who earns their daily food by the sweat of his brow? Such could not have been the meaning and intention of the Legislature.

Right or wrong, the Legislature has indicated its policy in this respect. It should not be restricted, when sought to be applied to a class quite as needy, and meritorious too, as others who are confessedly exempt. We think it no straining of the statute, to consider the debtor in this case, under his special contract, a day laborer, in the language of the law, entitled to daily, weekly or monthly pay.

It may be argued, that if money accumulated under such a contract, it could be reached by process of garnishment. It is reply enough to make, that none has accumulated. The money has been advanced as fast as it was earned. Under such a contract, none ever would accumulate; for the debtor, if not paid, would have sought other employment. He could not see his wife and children perish for lack of the necessaries of life, and he made his contract to prevent such a result.

Again, it may be said, there will be no stopping place if overseers are brought under this Act.. I don't know that there ought to be any. There ought to be no class legislation in this country. All who come within the spirit of the

Caraker v. Mathews & Mathews.

Act, should be brought within its provisions. I know no reason why the employees of corporations, or even journeymen mechanics, aye, or even Irish ditchers, should have privileges, withheld from those who till the earth. The cravings of hunger can no more be appcased in the one case, than the other.

The garnishment Acts are wise and salutary provided they are confined to the exigency which gave them birth. Where debtors have effects in the hands of others, or others are indebted to them by note, account, &c., and these assets cannot be reached by levy and sale at law, this is a convenient remedy. They are liable to be greatly abused, however; and if they are to be perverted to wrenching the humble morsel from the mouths of women and children, provided by rough toil of the husband and father, then I say, let them be modified, or altogether abolished.

Judgment reversed

McDONALD, J. concurring.

BENNING, J. dissenting.

The contract was, that Jordan was to be Caraker's overseer for a year, at the price of $250, two hundred or two hundred and fifty pounds of pork, and thirty bushels of cornthe money to be paid daily, or weekly, as it might be needed for the support of Jordan's family.

The question is, whether the debt resulting from Caraker to Jordan from his contract, was subject to garnishment for Jordan's debts.

The Court below held that it was; and I think the decision was right.

In opposition to the decision Caraker's counsel rely on the act of 1845, which is in the following words: "That from and after, the passage of this act, all journeymen mechanics and day laborers shall be exempt from the process and liabil

Parker vs, Johnson, adm'r.

ities of garnishment, on their daily, weekly, or monthly wages whether in the hands of employers or others."

But an overseer is not, in my opinion, a journeyman mechanic or day laborer. Certainly, he is not a journeyman mechanic. Is he a day laborer? I think not.

I think he is not a "laborer" at all. As well might we say, that the superintendant of a factory, or of a railroad, or of a counting house, is a laborer.

The term, laborer, as I understand its import, is not applicable to any one who does not earn his living by the work of his hands; as, by plowing, hoeing, mowing, ditching, carrying a hod, feeding the fire of an engine, &c.

But, surely, an overseer, under such a contract as the present, is not a day laborer. He is bound for a year, not for merely a day, or a week. True, it may be, that his pay will be daily or weekly, but that does not prevent his engagement from being for a year. A day laborer, I take it, is one whose engagement to labor, is but a day long. At the end of each day, both he and his employer are free.

I think, then, dissenting from this Court, that the judgment excepted to, was right.

WILLIAM B. PARKER, plaintiff in error, vs. FRANCIS S. JOHNSON, administrator of Henry W. Dorsey, deceased, defendant in error.

[1.] In a case in the last resort, when the witness is in Court, and counsel on each side are to be heard on the evidence, his testimony ought to be received,

Parker vs. Johnson, adm'r.

notwithstanding the case may have been partially argued before the jury the opposite party not being surprised by its reception.

[2] Charge to the jury that they might find according to the weight of proba bility, that which ever way they believed the weight of probability to be, they might find, is erroneous; the evidence should so preponderate in favor of the party for whom the verdict is rendered, as to satisfy the jury that he is entitled to it.

[3] If verdict be decidedly against the weight of evidence, new trial should be granted.

Assumpsit, on warranty, in Bibb. Tried before Judge HARDEMAN, at November Term, 1857.

Francis Johnson, administrator, sued the defendant on warranty of soundness of a negro sold by said defendant to said Johnson's intestate.

On the trial, plaintiff first introduced a bill of sale, signed by defendant and conveying to him for $600 a uegro gi named Rose, and warranting her to be sound in body and in mind, dated November 27th, 1855.

Dr. Boon testified: That at the request of Wm. P. Phillips, he made a post mortem examination of said negro girl, January 30th, 1856, together with Dr. Hammond, understood the negro died the night before. He found a large quantity of water in the chest near the region of the heart; the liver was greatly enlarged, and the pleura was attached to the ribs. She had evidently what is known as pericordial dropsy and no doubt died from it, and gives it as his opinion, she had had it more than three months; was satisfied it was a chronic case of long standing. He never saw her in life; found the body in possession of Wm. R. Philips. The defendant was not present at the post mortem examination nor was he or his family physician notified or requested to attend as witness was aware of, Did not examine the stomach or any part of the body except as stated. Does not remember whether the heart was found to be diseased or not VOL. XXV.-37.

Parker vs. Johnson, adm'r.

Pericordial dropsy is usually attended with symptoms, before it results in death, such as difficulty and shortness of breathing, depression of spirits, heaviness in the chest, palpitation of the heart, &c., and these symptoms are increased by active labor or severe exercise of any sort. It is possible for the disease to exist, however, without evidencing its presence by symptoms. Witness had no doubt that the disease existed at the time of the purchase by plaintiff from defendant.

Philips testified: That about the 27th of November, 1855, his brother Wm. R. Philips brought Rose to the place where he had Dorsey's other negroes; there was no other negro in the lot named Rose; she was the one who died 29th January, 1856. She never complained once, from the time she was brought, up to her death; was in unusually good spirits about bed time of the night she died. She ran away in December 1855, when it was quite cold, and was gone several days; don't know how long, or whether she was in the woods or not, or where whilst runaway. Said negro was well treated. Wm. R. Philips was a silent partner of Dorsey's.

Dr. Hammond testified to substantially the same facts as Dr. Boon, and stated further, that he recollected that the heart was diseased also; found it enlarged and the left auricle diseased. His opinion was, that the disease was of long standing, and had existed before November, 1955; thinks it very likely it had existed for a year.

Dr. H. K. Green testified: That the negro Rose was in his possession for the two months immediately preceding the sale of her by defendant to plaintiff'; left his house the day of the sale. He employed said negro as a cook, washer, and as a house servant. She was constantly employed in cooking or washing or cleaning up the house, or in some other of the varied duties of such a servant. Said negro was not sick a day, never complained a moment that witness ever heard of, had all the appearances of a perfectly healthy negro. Witness is a practitioner of medicine, and is of the opinion that it is impossible that the disease evidenced by