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Cooper v. Livingston-Opinion of Court.


death, according to the testimony of Mr. Luders. rote was therefore given for some consideration passed anterior to the date it bears, or for services to be performed,. er other consideration to be had after the note was given. Mr. Cooper and Mr. Ledwith testify to the declarations of Mr. Livingston that he knew what the consideration was, and that it was for conjuring by a fortune-teller or doctor of that character, and his knowledge of that fact at the time he obtained the note is not contradicted by him on this trial.

While it is true that Luders testifies to the frequent visits and services of Mrs. M. for three weeks before the death. of Mr. Roberts, which may have entitled her to some compensation, yet, as the testimony now stands, it is not shown that those services were performed in consideration of the note, or that the note was given in consideration of these services to be performed.

According to the testimony of Mr. Livingston he gave an adequate equivalent for the note, although Mr. Ledwith and Mr. Cooper got the impression from the interview with Livingston that the consideration was trifling. Their recollections on the subject are not equal to the fact proved. It is probable that Mr. Livingston did not, at that interview, give a detail of all the articles sold with their prices.

It is considered proved in this case that the plaintiff admitted, and does not here deny, that the note in question was given in consideration of "conjuring" by Mrs. Magruder, performed or to be performed upon Mr. Roberts to cure him of his illness; that it was given by him while in low condition of health a few weeks before he died, and that Mr. Livingston knew the consideration at the time he bargained for the note.

Is "conjuring" for the purposes mentioned a good consideration for the promise to pay? "Conjuration signifies.

Cooper v. Livingston-Opinion of Court.

a plot or compact made by persons combining by oath to do any public harm, was more especially used for the having personal influence with the devil or some evil spirit, to know any secret or affect any purpose. Hawkins, in his Pleas of the Crown, says that conjurors are those who, by force of certain magic words, endeavor to raise the devil and oblige him to execute their commands." Tomlin's L. Dict. And such persons were punished as rogues and vagabonds. 4 Bl. Comm., 60. According to Noah Webster conjuration is the act of using certain words or ceremonies to obtain the aid of a superior being, the act of summoning in a sacred name, the practice of arts to expel evil spirits. allay storms or perform supernatural or extraordinary acts. Conjurer, one who practices conjuration; one who pretends to the secret art of performing things supernatural or extraordinary by the aid of superior powers; an impostor who pretends by unknown means, &c.

Our conclusion is that "conjuring" over a sick man “to make him well” is not a valid consideration for a promissory rote; and that no man with a healthy mind would voluntarily give a note for $250, with interest at two per cent. a month, for the services of a conjurer, who proposes to cure a lingering disease by conjury or incantations.

The necessary conclusion is that the plaintiff upon the case made is not entitled to judgment. The onus of showing a valid consideration for the giving of the note was thrown upon him by the proof that the consideration was at least doubtful, and that he knew it when he bought the paper. He failed to show a good and valuable consideration, but submitted his case upon proofs which negatived his right to recover.

The judgment in this case is entered against the defendant, "that the plaintiff have and recover of and from the defendant" the damages and costs. This is not a proper

Huling v. The Florida Savings Bank, &c.-Syllabus.

judgment against the defendant, Cooper, as executor, nor is it to be satisfied of the goods, &c., of the decedent.

In actions against executors and administrators judgment should be given if plaintiff recover against the defendant as executor, &c., to be made out of the goods, etc., of the estate of the deceased, and not against the defendant generally. Flagg vs. Winans, 2 Ind., 123; Barrow vs. Wade, 7 Sm. & Mar., 49; Massingale vs. Jones, 3 Hayw. Tenn., 36; Voorhees vs. Eubank, 6 Iowa, 274.

The judgment is reversed and a new trial granted.


1. The omission of the signature of plaintiff's attorney to an amended declaration, his name already being of record, and defendant having pleaded, is no ground for arresting or reversing the judgment.

2. After a full trial upon the merits and verdict upon the matters embraced in the declaration and pleas, the mere absence of a similiter to a plea or replication is not ground of arrest of judgment or reversal, the similiter not having been insisted on by the opposing party or required by the court.

3. When in assumpsit a defendant has pleaded the general issue, "did not promise as alleged," and a second plea that he did not contract as alleged, the latter is merely a repetition of the general issue.

4. When a plea is not responsive to the declaration or any part of it, it is frivolous and may be treated as a nullity, and without motion to strike out or demur the plaintiff is entitled to judgment. 5. A verdict should not be set aside as against the weight of evidence unless the preponderance is such that it must have been produced by considerations other than a due respect to the evidence.

Huling v. The Florida Savings Bank, &c.-Statement of Case.

6. A verdict is not against evidence when there is legal evidence to support it, though there be conflicting testimony upon material points.

7. Both parties having proposed written instructions which were given by the court to the jury and no exception being taken, the acquiescence of parties is presumed, and alleged error in some portion of the charge cannot be insisted upon on appeal.

Appeal from the Circuit Court for Duval county.

The appellee, who was plaintiff in the court below, brought suit in assumpsit against George D. Huling, the appellant, and by its amended declaration (the original declaration having been demurred to and the demurrer admitted by the plaintiff) alleged that the defendant, Huling, appointed and constituted the plaintiff his agent for the sale of certain coupon certificates owned by the defendant, and that he authorized, empowered and employed to make sale of such certificates at any price over fifty-five per cent. of their face value, and that plaintiff was to be allowed all sums received by it over fifty-five per cent, of the face value of said certificates as compensation for making such sale; that the plaintiff sold and agreed to deliver to one Philip Walter the said certificates amounting to fifty-five hundred dollars, as expressed by their face value, at sixty-five per cent. of such face value; that defendant, although notified of such sale by the plaintiff and requested to carry out the contract with said Philip Walter, failed and refused to do so, and that the sale was not completed and no money was received by plaintiff, and that plaintiff is entitled to its commissions, and claims one thousand dollars damages.

To the said amended declaration the defendant, Huling, filed the following pleas:

Ist. That he did not promise as alleged.

2d. That he did not authorize, empower and employ the plaintiff to enter into contracts with purchasers for the sale of said certificates.

Huling v. The Florida Savings Bank, &c.-Statement of Case.

3d. That he did not authorize the plaintiff to sell said certificates at any price over fifty per cent. of their face value as alleged.

The plaintiff did not reply to or take issue upon or make any other disposition of said pleas, but went to trial, each party introducing witnesses and other testimony.

After the charge of the court the jury retired and brought in a verdict for the plaintiff for five hundred and fifty dollars.

The defendant moved the court in arrest of judgment and for a new trial on the following grounds:



Because no replication was filed to defendant's

2d. Because plaintiff went to trial without disposing of defendant's pleas.

The third ground was abandoned.



Because the plaintiff's amended declaration is not

5th. Because the verdict is contrary to the evidence. 6th. Because the verdict of the jury is contrary to the manifest weight of the evidence.

7th. Because the verdict is contrary to the charge of the


8th. Because the court erred in giving the third charge asked by plaintiff, the tendency of said charge being to confuse and mislead the jury, and being otherwise erro


9th. Because the court erred in giving the fourth charge asked for by plaintiff.

10th. Because the charges given by the court in said. cause were not sealed by the Judge.

The motion was denied in toto by the court, and the defendant excepted and appealed from the judgment, and assigned for error

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