Albert Wiley v. Moses Keokuk
Albert Wiley
v
Keokuk.
Error from Douglas County
Affirmed
Syllabus
By the Court Kingman C. J.
1 A person who had served as a talesman in the trial of a cause at the same term of the court was placed on the regular panel in place of a Juror excused. He was challenged by defendant because of his previous service as talesman. The court overruled the challenge, and he was then challenged peremptorily
Held. That the court erred in overruling the challenge: but in as much as the record does not show that the defendant exhausted his peremptory challenges the Judgment will not be reversed for an error which was cured by the action of the defendant.
2 It is not error to charge that an illegal act has been committed by the defendant, where the answer of defendant admits facts that show he did certain acts which must be held illegal
3 It is not error to charge the Jury that they are authorized to give exemplary damages where the elements of fraud, malice, gross negligence, or oppression mingle in and form part of the cause of action.
Safford J. concurring
501
Albert Wyley.
v
Ke-o-Kuk.
Syllabus.
Filed May 10th 1870.
E. B. Fowler, Clerk.
Be it Remembered, That heretofore, to wit, on the 19th day of August A. D. 1869 Albert Wiley one of the Defendants in the case of Keokuk Chief of the Sac & Fox Indians – against Charles E. Mix et al filed in the Office of the Clerk of the District Court of Douglas County his certain made case for the Supreme Court against Keokuk which said made case is in words as follows viz:
Keokuk Chief of the Sac & Fox Indians
against
Charles E Mix, Thomas Murphy, Albert Wiley Thomas Dorwin & William P. Montgomery Defts
Civil Action
In the District Court of Douglas Co. Kan.
The said plaintiff on the 19th day of December A. D. 1869 filed in office of the clerk of said District Court his petition the body of which is as follows.
The said Keokuk plaintiff complains of the said defendants Charles E. Mix Thomas Murphy, Albert Wiley Thomas Dorwin and William P Montgomery for that at the said defendants on the 23rd day of November A. D. 1868 at Lawrence in the County of Douglas unlawfully and with force assaulted the said plaintiff and beat bruised wounded and ill treated him and then and there imprisoned him and kept and detained him in prison in the County Jail of Douglas County amongst a lot of theives and other vile characters without any reasonable or probable cause whatever for the space of one night and two days next following and other things then and there did to the said plaintiff to the damage of the said plaintiff Ten Thousand dollars Wherefore the said plaintiff prays Judgment against the said defendants for the sum of Ten Thousand dollars ($10,000) his damages so aforesaid sustained.
On the 15th day of February A D 1869 the defendant Albert Wiley filed his answer in said case the body of which answer is as follows.
1st def. And now comes the said Albert Wiley one of said defendants and for a separate answer to the plaintiff petition says that he denies each and every allegation therein contained.
2d def. And the said defendant for a second defense to the plaintiff petition says that on and prior to the 23d day of November A D 1868 he was the United States Indian Agent for the Sac & Fox Indians in the State of Kansas and for a long time previous thereto he had acted as such; That the said plaintiff is one of the Indians of said tribes and pretends to be a chief of said Indians and on the 23d day of November A D 1868 and for a long time previous thereto resided on the lands of said tribes in the County of Franklin in the state of Kansas.
That on or about the 26th day of October A D 1868 this defendant as such Indian Agent received from the said Thomas Murphy who then was the United States Superintendent of Indian affairs in the State of Kansas an order of which a copy is hereto attached marked "A" and made a part of this answer. This defendant further says that with said order he received a copy of an order given by Charles E Mix who was then the acting commissioner of Indian affairs for the United States which order is dated October 16th A D 1868 a copy of said order is hereto attached marked "B" and made a part of this answer. That by the terms of said orders this defendant as such Indian Agent was required to prevent any Indians of said Tribes visiting Washington D.C. and was required by the order of said Murphy to notify said Murphy if any Indians of said Tribes intended visiting said city of Washington.
That on or about the 16th day of November A D 1868 this defendant caused the above mentioned orders to be read to the plaintiff and other Indians of said Tribes. That on or about the 19th day of November A D 1868 this defendant informed Thomas Murphy that said plaintiff with others contemplated visiting the city of Washington in violation of the order of the said Charles E Mix above mentioned, and the said Murphy then as such superintendant of Indian affairs did then order and require this defendant in case said plaintiff should leave the Reserve of said Indians in said county of Franklin for the purpose of going to Washington is cause him to be arrested and put in jail or returned to his Reservation.
That on or about the 22d day of November A D 1868 this defendant was informed that said plaintiff with others had left said Reserve in said County of Franklin and was then in the city of Lawrence Douglas County Kansas on his way to the city of Washington D.C., in violation of said order above mentioned; That this defendant on said day went before Hon William P. Montgomery who then was the United States commissioner for the District and State of Kansas and made an affidavit in writing a copy of which is hereto attached marked "C" and made a part of this answer and that on the same day he gave his testimony as a witness on the hearing of said complaint before said commission against the said plaintiff. That the above is a full statement of all that this defendant had to do with said plaintiff or the arrest assault or imprisonment of the said plaintiff.
That this defendant did not arrest touch or imprison said plaintiff, or in any manner interfere with him, and all he did do in the premises was strictly in accordance with the instructions and orders he had received as above mentioned and which this defendant as an officer of the United States was bound by law to obey.
Wherefore this defendant asks judgment against the said plaintiff for his costs and that said suit as against him may be dismissed.
Copy of Order mentioned in the aforesaid answer marked "A" and made a part of the same.
Office Supt Indian affairs
Atchison Kansas Oct 23d 1868
Sir. I transmit herewith for your information and government a copy of a letter of the 16th inst from Hon Charles E Mix actg commission. You will do all in your power to have the instructions of the actg Commission carried out and should any delegation from our tribe contemplate visiting Washington without special instructions from the Department you would promptly advise this office
Very Respectfully
Thomas Murphy
A Wiley U.S. Indian Agent Sac & Fox AAgency Kansas.
Copy of Order mentioned in said answer marked B and made a part thereof.
Department of the Interior, Office of Indian affairs Washington D.C.
Oct 16th 1868
Sir. I have to answer you that as Congress failed to make certain appropriations from which the expenses of delegations of Indians visiting this City have heretofore been paid. No delegation from any of the tribes in your superintendency will be allowed to visit this place during the present fiscal year unless specially directed to do so by this office for the reason that there are no funds at the disposal of the Department that can be used to defray their necessary expenses. You will inform the different agents under you of the foregoing and take [unclear] to prevent any Indians coming here as may be necessary to accomplish the order.
Very Respectfully
Charles E Mix
actg comission
Thomas Murphy
Supt Ind Affairs
Atchison Kansas
Copy of Affidavit mentioned in defendant answer marked "C" and made a part thereof.
United States of America
District of Kansas S.S.
The complainant Albert Wiley of Franklin County who being duly sworn says that Keokuk a Sac & Fox Indian late of the Sac & Fox Reserve in said District heretofore to wit: on the 23d day of November A D 1868 at said Reserve in said District did leave said Sac & Fox Reserve and did disobey the orders of the United States Commission of Indian affairs and the orders of other agents of the United States to him given contrary to the laws of the United States in such case made and provided. Wherefore complainant prays that the said Keokuk may be apprehended and dealt with according to law.
Albert Wiley
Taken subscribed and sworn to this 23d day of November A D 1868 before me
W. P. Montgomery
U.S. commission for the District of Kansas
On the 6th day of May A D 1869 the said plaintiff by his attorney appeared in Open Court and dismissed his suit without prejudice as to the defendant Charles E Mix, Thomas Dorwin and W. P. Montgomery and continued the case as to Thomas Murphy and the case against said Albert Wiley came on to be tried on the said petition of said plaintiff & answer of the said defendant Albert Wiley. Whereupon a jury was called to try the issue in this case, and upon the trial of this action and in the course of the impannelling of the jury one Walter Willis was called as a juror and was challenged by the defendants' counsel for cause. The cause of challenge given by the defendants' counsel being that the said Walter Willis had served once already on a jury as a talesman on the trial of a cause in said court during the term thereof then being holden, and the said Walter Willis on being challenged as aforesaid then and there stated in open court that he had so served as a talesman and which fact was then and there proven by the Record of the Court and admitted by the court and the Counsel for the plaintiff. It also appeared that at the same term of said court and after said Walter Willis had served as a talesman as so aforesaid that said Willis had been duly summoned as a juror upon a special venire to fill a vacancy in the regular pannel of jurors for the term and that he was then in attendance as a regular juror. The court thereupon decided that the said Walter Willis was a competent juror to try said cause and overruled the challenge of defendant counsel of the said juror for the cause aforesaid to which decision and ruling of the court the defendant by his counsel then and there duly excepted. at the time of said challenge by the defendant said defendant had not exhausted his peremptory challenge and that said Willis was after challenged peremptorily by defendant and did not sit as a juror.
A full jury was then impannelled in said action to try said case in said District Court and were
duly sworn to try said cause. and on the said 6th day of May A D 1869 said action came on for trial before said court and jury. Whereupon the plaintiff to maintain the issue on his part introduced the following testimony.
Wilson Shannon was sworn and testified as follows. The defendant Albert Wiley came to me and said that the Indians had counsel and that he wanted counsel in the case before the commission Montgomery. He wanted me to act as such attorney in the case. When I went to the office of the United States commissioner I found that the case was up for hearing. Captain Christian appeared for the Indians and I appeared at the instance of Wiley for the Wiley told me that he was acting as the agent of the Sac & Fox Indians and claimed that he was then acting as such agent.
William P. Montgomery was sworn and testified as follows. I was present at the examination of Keokuk and the other Indians before the commission. The examination was before me. There was something said about the Indian not giving bail and Wiley the defendant said "then they will have to go to jail." He might have said "send them to jail." Wiley had testified before Captain Christian came in. I did not discover any thing very remarkable about Wiley's manner. He may have been excited some what. Mr Christian came in after the examination had proceeded some way and announced himself as attorney for the Indians under arrest and asked an interview with the Indians and called Keokuk out of the room. Mr Dorwin (United States deputy Marshall) objected to Keokuk and the other Indians going with Mr Christian unless he accompanied them. I think Mr Wiley also objected. I am not positive as to Mr Wiley objecting. I told the Marshall to let Mr Christian have a private interview. He was permitted to have such interview. When Mr Christian with his clients the Indians came into the room after the interview mentioned I informed Mr Christian that Mr Wiley had been sworn and examined already and that he could ask any question he chose. I cannot now remember whether Mr Christian asked any question. My best recollection is that he based his defence on the legal question at issue and no witnesses were examined after Gov Shannon came in and after Mr Christian for the Indians came into the case, when I announced my decision that the Indians would be bound over to court there was a good deal of confusion in the room. Mr Christian and Mr Powers the interpreter advised the defendants (the Indians) not to give Bail. Mr Wiley said then they would have to go to jail or something to that effect. I issued no then to send them to jail. I issued an order that the Marshall take charge of defendants the Indians and give them an opportunity to get bail if necessary allowing them to go to the Sac & Fox Reserve. All the parties soon left my office I afterwards reduced the order I made to writing and delivered it to the Marshal Dorwin. During the progress of the examination of the Indians before me defendant (Wiley) bore an active part and was much in earnest:
Andrew Carnes was sworn and testified as follows. On the 23d day of November A D 1868 I was keeping the jail for Sheriff Walker. I received Keokuk and the other Indians at the Jail. There were at the time both white and colored prisoners at the Jail. There was one confined for Burglary one for Robbery and some for city offences. The deputy Marshall brought the Indians to the Jail about dark and they remained there until 9 or 10 o'clock the next morning. The prisoners had their suppers and were locked up in the cells before the Indians came. I locked the Indians up in the hall of the Jail and gave orders to the prisoners not to annoy or molest them. There was no obscene or offensive language or bad[?] talk by the other prisoners while the Indians were in jail and nothing that would offend them or wound their feelings. Mr Dorwin brought the Indians to the jail and took them away again. They were not in jail more than twelve hours.
James Christian being sworn testified as follows. I was called upon on November 23d A D 1868 by these Indians to act as their counsel. I went to the office of Mr Montgomery and asked for a consultation with the Indians. Dorwin and Wiley objected to their going out unless they went with them and heard what was said. Mr Montgomery ordered that they should have a chance to counsel with me. I did not see any one touch them except Dorwin, Wiley did not touch them. I instructed them not to give bail. Wiley then said I want them put in Jail He insisted that they should go to jail. Wiley was very much excited I am the attorney for the plaintiff is this action.
Henry Jones being sworn testified as follows. There are about 700 Indians in our tribe (the Sac & Fox) Keokuk is the chief He is the Government Chief our people think more of him than they do of a common Indian.
Keokuk plaintiff being sworn testified as follows. "I was arrested about this time of day. I was going to Washington on business. I was going on my own business and expected to pay my own expenses. I am a chief of the Sac & Fox Indians. My business was to try to get the Indians to be like white men. I received pay from the government for my services as chief. I was going to Washington to see about the trade and about other business for the Indians." The plaintiff then read as evidence on his part the following agreed statement of facts.
It is agreed and admitted on the part of the plaintiff that Albert Wiley the defendant swore on the trial before W. P. Montgomery that he had verbal instructions from Superintendant Thomas Murphy to arrest Keokuk and party should they attempt to go to Washington and it is admitted that if put upon the stand as a witness he would swear so again and it is admitted for the purposes of this trial that he has so sworn and it may so go to the jury. It is also admitted that the letters offered in evidence purporting to be from Charles E Mix acting commission of Indian affairs & from Thomas Murphy superintendent of Indian affairs are genuine and that they may be read in evidence to the jury as though properly authenticated. It is also admitted that Major Albert Wiley read said letters or the purport of them to Keokuk a few days previous to his departure for Washington and told him that he would arrest him if he attempted to leave the Reserve and go to Washington and that in reply Keokuk told him that he had money to pay his own expenses that he did not ask the Government to pay his expenses and that he was going. And that he did start for Washington on the 23d day of November 1868. It is admitted on the part of Albert Wiley that he came to Lawrence and made the affidavit on which Keokuk and his party were arrested. It is also admitted that he gave evidence on the trial [unclear] before W. P. Montgomery U.S. Commision and Hon D M Valentine District Judge, and that he employed counsel to prosecute the same.
James Christian
Atty for Keokuk
Plff
Riggs Nevison & Foote
Attys for Wiley deft
The plaintiff then to the jury as evidence in the case an affidavit made by defendant Wiley in words and figures as follows.
United States of America
District of Kansas S.S.
The complainant Albert Wiley of Franklin County who being duly sworn says that Keokuk a Sac & Fox Indian late of the Sac & Fox Reserve in said District heretofore to wit. On the 28th day of November A D 1868 at said Reserve in said District did leave said Sac & Fox Reserve and did disobey the orders of the United States commission of Indian affairs and the orders of other agents of the United States to him given contrary to the laws of the United States in such case made and provided. Wherefor complainant prays that the said Keokuk may be apprehended and dealt with according to law.
Albert Wiley
Taken subscribed and sworn to this 23d day of November A D 1868
W. P. Montgomery
U.S. Commission for the District of Kansas
The plaintiff here rested his case. The defendant Albert Wiley to sustain the issue on his part introduced the following testimony.
The defendant read in evidence to the jury a letter written by Charles E. Mix to Thomas Murphy which is in words and figures as follows.
Department of the Interior, office of Indians affairs Washington DC
Oct 16th 1868
Sir. I have to advise you that as Congress failed to make certain appropriations from which the expenses of delegations of Indians visiting this city have heretofore been paid no delegation from any of the tribes of your superintendency will be allowed to visit this place during the present fiscal year unless specially directed to do so by this office for the reason that there are no funds at the disposal of the Department that can be used to defray their necessary expenses. You will inform the different agents under you of the foregoing and take such other steps to prevent any Indian coming here as may be necessary to accomplish the subject
Very Respectfully
Charles E Mix
Act Commission
Thomas Murphy Esq
Supt Ind Affairs
Atchison Kansas
The defendants also read in evidence to the jury a letter of the words and figures as follows.
Office Supt Indian Affairs
Atchison Kansas Oct 23d 1868
Sir. I transmit herewith for your information and government a copy of letter of the 16th inst from Hon Charles E Mix act commission. You will do all in your power to have the instructions of the act cCommission carried out. And should any delegation from your tribes contemplate visiting Washington without special instructions from the Dept. you will promptly advise this office.
Very Respectfully
Your obedient
Thomas Murphy
Super Indian Affairs
per A. C. Farnham clk
A Wiley Esq
U.S. Indians Agent
Sac & Fox Agency Kansas
The defendant then read to the jury the agreed statement made between the attorneys for the plaintiff and the attorneys for said defendant. Being same as read by plaintiff in evidence is this trial copied in his evidence.
The defendant then introduced as a witness Thomas Dorwin who being sworn testified as follows. I was acting as deputy United States Marshall at the time of the arrest of the Indian Keokuk and others and was present at the examination before Montgomery United States Commissioner. I objected to the Indians going out with Captain Christian unless I went with them because they were then under arrest. Wiley did not say they should not go out. Captain Christian advised them not to give bail Wiley then said "then they will have to go to jail," Wiley may have been a little excited but he was no more excited than Captain Christian. Wiley did not say to me "then Mr Marshall I insist upon their going to jail." I stood within five feet of them and heard all that was said. I took them to jail by order of Commission Montgomery. The mittimus shown me signed by W. P. Montgomery was my authority for putting plaintiff in Jail and I did so by the authority of said mittimus and not by the direction of Wiley. I took the plaintiff to Jail about 5 or 6 o'clock PM of the 23d of November A D 1868 and took him from the Jail about 9 or 10 o'clock AM on the 24th of November 1868. I did not put my hand on plaintiff nor did any person in my presence. I used him as kindly as I knew now and I saw nothing to the contrary on the part of any person in their conduct towards him. I offered them every chance to get jail out they would not do it.
The defendant then read to the jury as evidence in the case the mittimus which is in the words and figures as follows.
The United States
vs
Keokuk, Man to Wa Wa Co Mo Ka, Ka, Na pe quah
Whereas the defendant Keokuk, Man to Wa; Wa, Co, Mo; Ka Ka na pe quah; have been arrested on a warrant by me issued on the complaint of Albert Wiley United States Indian Agent for the Sac & Fox Indian tribe and said defendants having been brought before me and examination had and said defendant told to appear before the United States District Court for the District of Kansas to be held at Topeka in said District at the first[?] day of the next term of said court to answer to a charge of
resisting the words[?] and authority of the United States. Each of said defendants are required to give bail in the sum of one thousand dollars. You are hereby ordered to take and safely keep said defendants and if desired by them to accompany them to their reserve and afford them all needful means and opportunity to obtain bail; which bail when obtained is to be subjected to my approval or rejection. Given under my hand this 23d day of November A D 1868.
W. P. Montgomery
U.S. Commission for the District of Kansas
The defendant then read in evidence to the jury the Warrant for the arrest of the plaintiff which in the words and figures as follows to wit:
The President of the United States of America.
To the Marshall of the District of Kansas
Greeting:
Whereas complaint upon the oath of Albert Wiley U.S. Indian agent has this day been made before me charging that Keokuk a Sac & Fox Indian late of the Sac & Fox Reserve in said District heretofore to wit: on the 23d day of November A D 1868 at the county of in said District did leave the said Reserve and did disobey the orders of the Commissioners of the United States of Indian affairs and did disobey the orders of certain agents of the United States to him given contrary to the laws of the United States in such case made and provided which complaint is hereon endorsed.
You are therefor hereby commanded that you take the said Keokuk if he shall be found in your district and him safely keep so that you may bring him forthwith before me a commission appointed by the United States Circuit Court for said District by virtue of the laws of the United States in such cases enacted at my office in the city of Lawrence in said District to be dealt with according to law you are also commanded in the name of the President of the United States to subpoena Albert Wiley to appear before me at my office aforesaid where you shall have the said witness to testify his knowledge on behalf of the United States touching the matter of said complaint and have you then and there this Warrant.
Hereof fail not, Witness my hand and seal this 23d day of November A D 1868
W. P. Montgomery (seal)
U.S. Com for said District
District of Kansas S.S.
I hereby certify and return that on the 23d day of November A D 1868 by virtue of the above warrant I did arrest the above named Keokuk and now have him in my custody and I did summon the above named Albert Wiley witness as commanded in said warrant;
C. C. Whitney Marshall by Thomas Dorwin Deputy Mar.
The defendant here rested his case and after the argument of counsel, the plaintiff counsel asked the court to charge the jury as follows:
1. That the President of the United States the chief officer of the Executive Department of this government cannot control a statute nor dispense with its execution nor can he authorize a person or officer to do what the law forbids.
2. That he cannot take upon himself nor authorize his clerk or secretaries to supersede a law or supply its deficiencies and that all instructions from the Executive which are not authorized by law are illegal and void and no inferior officer is bound to obey them and if he does so he acts at his peril.
3. That when the President has done all the law requires of him he has done not only all that he ought to do but all that he can do as the depositary of the Executive power without transcending the bounds of his lawful authority and if he does this though unintentionally his order affords no protection to the subordinate agent that he employs.
4. That any public officer obeying the President's instructions acts at his peril if those instructions are not warranted by law.
5. That instructions or orders from the heads of departments or bureaus not in accordance with law do not justify the illegal acts of the inferior agent to whom they are given.
6. That the letter of instructions of Commissioner Mix does not justify the illegal act of Agent Wiley. He is answerable in damages to the plaintiff for any illegal act.
7. That whenever the elements of fraud, malice, gross negligence or oppression mingle in the controversy, the case allows the jury to give what is termed exemplary or vindictive damages.
8. That in cases of torts and actions for false imprisonment the jury are the only proper judges of how much the plaintiff ought to recover.
The court accordingly charged the jury as the counsel for plaintiff asked, and instructed and charged the jury as above requested by the plaintiff's counsel, to which charges and instructions then and there given as aforesaid by the court to the jury the defendant by his counsel then and there duly excepted, and asked that his said exceptions be noted, allowed and made a part of the Records in the case which was accordingly done.
The defendant by his counsel then and there asked the court to charge the jury as follows viz:
1. The jury in arriving at their verdict can only give a judgment for such damages as the proof could show the plaintiff has actually sustained.
Which charge and instructions to the jury so asked by the counsel for the defendant the court then and there refused to give to the jury to which refusal of the court so to charge and instruct the jury the defendant by his counsel then and there duly excepted and asked that his exceptions be allowed, noted and made a part of the Record of this case which was accordingly done. And thereupon the counsel for the defendant then and there asked the court to charge and instruct the jury as follows:
2. The jury in arriving at their verdict can only give a judgment for such damages as the proof shall show the plaintiff was sustained.
Which charge and instructions to the jury so asked by the counsel for the defendant the court then and there refused to give to the jury, to which refusal of the court so to charge and instruct the defendant by his counsel then and there duly excepted and asked that his exceptions be allowed noted and made a part of the Record of this case which was accordingly done.
The jury after having heard the proofs adduced the arguments of counsel and the charge of the court as above set forth retired to their room under charge of an officer to consider of their verdict. That some time after said jury returned into OpenCourt and returned their verdict in words and figures as follows to wit: We the jury find for the plaintiff and assess his damages at one Thousand dollars.
A. S. Anderson foreman of jury
Thereupon the defendant by his counsel filed in said court then and there a motion for a new trial, which said motion was in writing and in the following words viz:
That his exceptions be allowed noted and made a part of the Record of this case which was accordingly done.
The jury after having heard the proofs adduced the arguments of counsel and the charge of the court as above set forth returned to their room under charge of an officer to consider of their verdict. That some time after said jury returned into Open Court and returned their verdict in words and figures as follows to wit: We the jury find for the plaintiff and assess his damages at one Thousand dollars.
A. S. Anderson foreman of jury
Thereupon the defendant by his counsel filed in said court then and these a motion for a new trial, which said motion was in writing and in the following words viz:
Keokuk Chief of the Sac & Fox Indians Plff
vs
Albert Wiley et al defts
In the District Court of Douglas County Kansas. Motion for new trial.
And now comes the said Albert Wiley by Riggs Nevison & Foote his attorneys and moves the court to set aside the verdict heretofore rendered in this case and to grant a new trial in this action for the following reasons to wit.
1st. That the damages given by the jury in this case are excessive.
2d. That the verdict of the jury given in this case is not sustained by the evidence nor by sufficient evidence and is against and contrary to the weight of the evidence and is against and contrary to the law of the case.
3d. That the proceedings of the court were irregular in the impanelling the jury in this action in this to wit: That in impanelling the jury one Walter Willis was called as a juror and was challenged by the defendant counsel for cause.
The cause of challenge given and assigned by the defendant counsel being that the said Walter Willis had served once already on a jury as a talesman on the trial of a cause in said court during the term thereof then being holden and the said Walter Willis on being challenged as aforesaid then and there stated in open court that he had so served as a talesman and which fact was also then and there proven by the Record of the Court and admitted by the court and the counsel for the plaintiff. Wherefor the court erred & proceeding irregular whereby the defendant was injured.
4. That the court erred in his charge of the law to the jury in this action.
5. That the court erred in refusing to charge the jury as requested by the defendant's counsel.
The court then rendered a judgment in said action which upon the verdict of said jury which was as follows. It is therefor ordered and adjudged by the court here that the said plaintiff Keokuk do recover of and from the said defendant Albert Wiley the said sum of one thousand dollars his damages assessed aforesaid and that the said defendant pay all costs in and about this suit expended taxed at $ and hereof let execution issue.
That afterwards to wit: On the 21st day of May A D 1869 and at the same term of court at which said suit was tried as aforesaid said motion for a new trial came for hearing before said court. Whereupon James Christian Esq appeared as attorney for the plaintiff and Riggs Nevison & Foote for the defendant Wiley and was argued by counsel and after hearing the arguments of counsel the court then and there overruled said motion for a new trial, to which ruling of the court the said defendant then and there duly excepted, and on motion of the defendant the court granted to said defendant until the 22d day of June A D 1869 to make and file a made case for the Supreme Court.
That on the 22d day of June A D 1869 the said parties appeared by their respective attorneys in open Court and by agreement of said plaintiff and defendant by their attorneys the court then and there extended the time in which the defendant was to make and file a made case for the Supreme Court to the 2d day of the next term of said court.
We have examined the above and find the case made correct in every respects.
James Christian
Atty for Ptff
Riggs Nevison & Foote
Attys for Albert Wiley def
Allowed time having been extended in open court until this date
Aug 19 1869.
Owen A Bassett
Judge
