Page:Parker v. Lewis, Hempst. 72 (Super. Ct. Ark. Terr. 1829).pdf/5

76 Rh  , and second, that the verdict is contrary to law and evidence. That the case may be understood, a short history of it seems to be necessary. Parker, the plaintiff, confessed a judgment to Lewis, the defendant, before the clerk of the circuit court of Phillips county, in vacation, in which shortly thereafter an execution issued, which was levied on the plantation and other property of Parker. This proceeding at the time it occurred was perfectly regular, and in strict conformity with the acknowledged and universal practice of the country. At a subsequent period, however, it was decided by this court, that the confession of a judgment thus taken by a clerk, was irregular and invalid, and required to give it legal effect, to be conﬁrmed by the court in term time. In the absence, then, of the decision of this court just adverted to, Parker had no ground of action. It is by virtue of that decision alone that he has a right to be heard in the present action.

There has been no evidence adduced, going to show that Lewis did not act in good faith, that he did not believe he was pursuing the remedy guaranteed to him by the then laws of the country for the recovery of a just debt. The evidence does not show any act of oppression or unfairness on the part of Lewis in vindicating his legal rights. What, then, was the- fair criterion of damages in the present action? There is certainly not a case made out of vindictive damages. Allowing the jury all possible latitude in their estimate of damages, they certainly could not exceed the fair value of the property sold under the execution. What was the value of the property thus sold? Let us advert to the plaintiff’s declaration, and the evidence adduced in its support. There are two counts in the declaration. The ﬁrst for entering his close, destroying fences and crop. There was not a particle of evidence to show that the farm or crop was in the slightest degree injured. The farm, though levied on, was not sold, the fences were not torn down, nor the crop injured. The ﬁrst count in the declaration is wholly unsupported by evidence, except by the facts that the farm was levied on, and that the coroner was on it when he sold the personal property. The second count is trespass de bonis asportatis. What was the value of the personal property sold under the execution? It is a most difficult matter to estimate its value, for the evidence is very far from being