No question is made in this case, of the validity of plaintiff’s note. The whole controversy arises upon the note pleaded as a set-off, independently of which, there was, strictly speaking, no defense.
sale by plaintiff of proper^y^ in tbleao-
^¿l”rV|0H" no right to it propor-
So muck of the answer as claims damages on account of the attachment, or the value of the cotton taken under it, which had been allowed to go into plaintiff’s hands, was out of place as matter of defense, and might well, upon motion, have been stricken out. An attachment has no bearing whatever upon the merits of a suit. It is only ancillary to secure the fruits of any judgment to be obtained. It brings under control of the court, not of the plaintiff, property, to be held for the purpose. The ownership is not changed. The plaintiff has no right to it in any case, as property, and to remove and sell it, with or without the consent of the sheriff, is a contempt of court, which a party commits at his peril. If the plaintiff fails in his action, the defendant is entitled to its return. In any case, if the attachment has been properly sued out, the Statute provides the mode of controverting the grounds, and obtaining satisfaction for damages. But wanton or illegal proceedings under an attachment, whereby the property has been injured or lost, although otherwise remediable, cannot be pleaded in defense of the action. The merits of that are not affected.
court1 to remedy illegal disposal OÍ
It is alleged in the answer, that the property had been lost by the plaintiff’s conversion of it, whilst under control of the court, and that, without defendant’s consent. Doubtless, the court, upon proper motion, might correct this wrong, and should, but it was neither matter of set-off, nor counter-claim, to be pleaded.
It is proper to add, as a corollary, that it was not correct practice in the court to direct the jury, trying the main issues, if they found for defendant to add to his note against plaintiff the value of the cotton seized, under the attachment, with interest,” “less the amount of defendant’s rent note, with interest.” The jury should have been instructed to set-off the two notes, in such case, against each other, and to find accordingly for plaintiff or defendant, as the case might be. The validity of the set-off was the only issue properly made by the pleadings, and the only matter properly submitted to the jury. There had been no issue made, as provided by Statute, upon the grounds of attachment; no discharge of the attachment itself. Nevertheless, as the court might, by its inherent power, have compelled the plaintiff to account for the property by him-converted, before giving a judgment in his favor, or allowing execution ; or in case of a judgment against him, might have compelled him to refund; no material injustice of which he could complain would be done by including the-matter in a verdict. As the practice pursued was not made-a special ground of the motion for a new trial, nor urged here as error, we will not notice it further. Compare Holliday Bros. v. Cohen, 34 Ark., 707.
The gist of the reply to the set-off is, that the note was-obtained by the fraud of defendant, in making false representations concerning the amount of the land which he had cleared, and the amount of the land which he had cultivated : in consequence of which, there was a partial failure of consideration. It is not a plea of total failure, nor of “no consideration.” In each clause there is an admission of some small part of an intended considei’ation, enough, in the absence of fraud or mistake, to support the note in an action at law; at least to the extent, that it should not be considered nudum factum.
The substance of the reply is, that defendant was tenant of plaintiff under a certain lease, by which he was to pay a certain amount,, per acre each year, for the old land in cultivation, and to clear more during the tenancy. The lease provided that he -was to be paid twelve dollars and a half per acre for the new clearings, and to have the use of them for the first crop, without rent. It is alleged that defendant, for four years, retained out of the rents, each-year, enough to pay for the clearing of ten acres, and afterwards, falsely represented to plaintiff that he had cleared, in all, seventy-six and a half acres. For the excess' of thirty-six and a half acres the note was executed, making at the stipulated rate, $456 25. It is alleged that defendant had only, in fact, cleared one acre in excess of that for which there had been former payments.
It is further alleged that defendant had actually cultivated more of the old lands than he represented to the plaintiff, to the extent of about twenty acres,- and kept back the rents upon this excess from year to year, so that when the note was executed, he had already in his hands enough of plaintiff’s money to pay for the additional clearing, save one acre. These representations also, are charged to have been false and fraudulent, and with regard to all of these, it is alleged that the plaintiff relied upon them, and was thereby induced to execute the note.
These were the issues presented. The jury, including the value of the cotton attached, about which there was no controversy, set-off the notes against each other, and rendered a verdict against the plaintiff below for the sum of $200 06.
instrUCTIONS: General object i o n to several.
The first ground of the motion for a new trial is, that the _ court erred in giving the 1st, 2d, 3d, 4th and 5th instructions: asked by defendant.
The objection made to giving these instructions was general, embracing all of them in gross. It was not specific as to either or any of them, and directed the attention of the court to no particular error. We have, several times, held that objections of such a sweeping nature will not be considered here, if any of the instructions be good. It is not to be encouraged, even if they all be bad. It is manifestly due the court, as has been repeatedly said, that the attorney should “lay his finger” upon the errors complained of, and not compel the judge to ' seek them amongst all the matter included in a drag-net objection.
It would serve no useful purpose to discuss the instructions severally. It is enough to say, that, save with regard to the estimate of the value of the cotton in determining the amount of the verdict, a point to which we have already alluded, they correctly present the law, as far as they go, and are applicable to the evidence. The gist of the reply was fraud, and they are directed, principally, to that point. If the plaintiff had desired others, particularly directed to "the failure of consideration, independently of fraud, he might have asked them. The reply evidently rested upon the point of fraudulent concealments and representations, which were directly charged as the means by which the note had been obtained for a slight consideration. It was not charged that it had been executed under a mistake as to the quantities of land cleared and cultivated, nor does it appear "that any such point was pressed under the vague allegation that, because of the alleged facts, the note had been •executed without consideration.
The second ground is, error in the instructions given by the court, of its own motion. It is contended that its effect was to advise the jury “ that the only real issue to be determined was, whether there was any fraud in the transaction or not.” If such had been its effect, it would not be clearly erroneous, in view of the pleadings, and in the absence ■of any request on the part of plaintiff to modify the instruction so as to present to the jury any point, except fraud, upon which he relied. But we do not understand it ‘as having such limiting effect. It, too, announces the law correctly, as far as it goes. The parties had agreed, beforehand, to settle in accordance with a survey of the lands, to be made by the county surveyor, Houser. He made the survey, and they did settle by his report; the plaintiff, thereupon, executing the note in question for the clearing. A subsequent survey, made by a different •surveyor, differed from that of Houser, as to the quantity of old land in cultivation when the lease was made, and also as-to the quantity of land cleared by defendant.
The court instructed the jury “ that the law would presume that the county surveyor, in discharging his official duty, would proceed in the manner prescribed by law; and if the jury find that the county surveyor failed to make such-survey in a legal manner, and that defendant knew that, fact, and concealed that fact from plaintiff, and thereby induced him to give his note, it would be a fraud upon the part of defendant; unless the plaintiff had equal opportunity to know of such neglect.”
This was in the appellant’s favor. If there was any other aspect of the case made by the evidence, which the-plaintiff desired to have hypothetically presented to the jury,, he might have asked it. The instruction was substantially correct. The plaintiff asked none.
The third ground is, that the verdict was contrary to the law and the evidence. The burden was upon the plaintiff to show, by evidence preponderating with the jury, that the note set-off was void, or subject to abatement as to amount. The proof as to fraud failed wholly. The discrepancy between the two surveys is considerable, but there are several reasons why the jury may have failed to place such implicit reliance upon the second, as to wholly overthrow that of Houser, and nullify the agreement of the parties to-settle by it. For instance, it may be noticed that the second surveyor, Waldrup, although evidently skillful, and; accurate in his lines and calculations, much more so than Houser, made his survey long after the lease had been executed, and confesses that he was not able certainly to distinguish between the lands in cultivation when the lease was made and those cleared the first year afterwards.. This distinction was very important.
The jury were the judges of the weight of the evidence, and its effect, taken altogether; and were not satisfied that the plaintiff had well sustained the burden in making out his-•case. We cannot say their verdict was contrary to the evidence or the law. Upon the -whole case, it seems that it does substantial justice. The plaintiff owned the land, and, as the evidence shows, was frequently upon it. It was his interest, as well.as his duty to himself, to take notice and form some estimate of the amount of land for which his "tenant was required to make payment, as well as the amount of clearing for which he was himself required to allow compensation. It is important that men should be enabled to rely, with some reasonable confidence, upon their adjustments with each other of business matters. If, as seems plain, there was no fraud in the settlement, and he relied too readily upon the judgment and capacity of Houser, and closed his business with his tenant by note, he ought not, in fairness, to repudiate his act, and at a later day subject his tenant to a stricter account, without clear, decided proof of fraud or mistake.-
The objection to the verdict, on an account of excess, ■made the last ground for the motion for a new trial, is not •well taken.
Admitting the charge for cotton at its agreed value, -calculating interest upon that from the time of seizure, and upon both notes, at 6 per cent, up to the time of the verdict, the amount of the balance accords with that found.
Affirm the judgment.