Gillett et al. vs. Ellis. it may be said, that there was no tribunal on the lakes, before which an average could have been adjusted, that would bind the parties. Admit that this was so: it neither excused the master, nor exonerated the defendants. The latter were responsible to the plaintiff, in any event, for their proportionate share of the loss. The master, having all of the evidence within his control, should have had a general average settled, upon the principles before stated, by discreet and competent men, selected for that purpose. In most cases, the adjustment of an average, thus made, although not conclusive upon the parties interested, would be readily acquiesced in by them. And, in the absence of fraud, error and unfairness, it would become the proper basis for determining the rights of the parties in any subsequent litigation. The effect of the failure of the master to make an average, and insist on its payment before the delivery of the cargo, may be to embarrass, if not wholly defeat the plaintiff in the collection, except from the defendants, of the sum contributable on account of the cargo. The parties liable for its payment may be insolvent, or domicilled in other states, so that his remedy against them, if subsisting, is not worth pursuing. Reasonable diligence on the part of the master-in other words, the simple performance of his duty-would have avoided all difficulty in the matter. It would be wrong now to permit the defendants to defeat the plaintiff in the recovery of his just share of an average, because their agent, who was bound to make the average, failed to discharge that duty. There is, indeed, some uncertainty in the case, as to the true amount the plaintiff was entitled to receive, in the way of contribution; but this uncertainty results chiefly, if not entirely, from the negligence of the master. We cannot affirmatively say, that the jury have erred in their assessment of the damages. The plaintiff was clearly entitled to recover from the defendants the price which his goods would have brought at Macinac, if the same had safely arrived there, after deducting the freight thereon from the port of shipment, and his relative share of the loss occasioned by the jettison. We cannot say, that the verdict exceeded the value of the goods at the port of delivery, after making the proper deductions. This is emphatically one of those cases in which every reasonable presumption should be indulged to sustain a verdict. The master had all the means within his control of ascertaining the extent Cornelia vs. Ellis. of the loss, and the amount of compensation the plaintiff was entitled to receive, and it was his duty to have preserved the evidence of these facts for the benefit of all concerned. Omitting to perform that duty, and thereby depriving the parties of the benefit of the evidence, the plaintiff might well be excused for not making precise proof of the extent of his claim. The judgment of the Court below is affirmed, with costs. Judgment affirmed. PATRICK CORNELIA, appellant, vs. MYRON ELLIS, appellee. Appeal from Kane. The defendant in execution may proceed against the officer who seizes upon his property exempted by the statute, either for treble the value or the single value of the property seized. A horse worth forty-five dollars, may be considered suitable to the condition in life of a miller, receiving thirty dollars per month as wages, who has an invalid family, requiring exercise in the open air. The suitableness of the property to the condition in life of the claimant, is a question of fact for the jury. Ellis brought an action before a justice of the peace against Cornelia, for $41 66, in trespass, for taking a horse and harness. Cornelia admitted the taking, and justified under an exetion in favor of Condey against Ellis. Ellis claimed the property to be exempt from seizure. The justice gave judgment in favor of Ellis for the whole amount claimed-$41 66. Cornelia appealed to the Circuit Court of Kane county. A trial was had in the Circuit Court; the cause having been submitted to the Court, T. L. Dickey, Judge, presiding, without the intervention of a jury. The Court found the damages at forty dollars, and entered a judgment accordingly. Cornelia appealed from the Circuit Court to this Court. The facts elicited in proof, on the trial of the Circuit Court, are sufficiently stated in the opinion. The plaintiff did not claim treble the value of the goods seized, but only the single value of the articles. GLOVER & COOк, for appellant. E. S. LELAND, for appellee. Cornelia vs. Ellis. Opinion by Mr. Justice CATON: The first objection is, that the plaintiff below contented himself with claiming to recover simply the value of the property taken, instead of going for the penalty of three times its value, as he might have done, under the statute. We do not think the objection. founded in reason or in law. It is very unreasonable in the party to complain that he was only made to pay the single value of the property, instead of the treble value; and as to the law of the case, that is settled against him, in Pace et al., vs. Vaughn, 1 Gilm., 30, where it was held, that the injured party might waive the penalty, and proceed in an ordinary action of trespass, for single damages. And this would seem to be reasonable. The statute exempts certain property from the operation of an execution; and, consequently, the execution could be no justification to the officer for taking the property thus exempted. If the officer took the property without authority, he was none the less the trespasser than if he were not an officer. We think the evidence warranted the Court in finding that this property was exempt from execution. At the time of the levy, the plaintiff below named over to the officer such property as he claimed to have, with the supposed value of each article, concluding with a watch, and told the constable, if he thought they were worth more than sixty dollars, he might take the watch, which he took out of his pocket. The constable said he did not know that it was worth more than sixty dollars, but he was indemnified, and he was going to take the horse. There was some evidence about a harness, but that was proved to have been applied upon the execution, by the agreement. There was also some evidence that he had, some time before, owned a wagon and some law books, but the evidence does not show that he owned them at the time of the levy. We certainly do not feel warranted in deciding that this finding was erroneous, because it was against the evidence. The statute, after enumerating various species or articles of property, which shall be exempt from execution, proceeds, "and sixty dollars' worth of property, suitable to his or her condition or occupation in life, to be selected by the debtor." And it is objected, that the Court erred in not finding that a horse, worth forty or forty-five dollars, was not suited to the "condition and occupation in life" of a miller, who works out for thirty dollars a month, who has a sick wife, with four children—the attending Mann et al. vs. Russell. physician advising that it would be for the invalid's health, to ride out in pleasant weather. We agree with the Circuit Court, that the debtor ought not to be deprived of the benefit of the statute, for the reason assigned, that he had no occasion for the horse which he kept, or, in other words, we do not think it was not suited to his "condition or occupation in life." At any rate, that was a question for the jury, or, as in this case, for the Court, who was, by agreement, sitting in place of a jury, and whose finding is entitled to the same consideration. We see no error in the record, and the judgment is affirmed, with costs. Judgment affirmed. JOHN E. MANN, RACHEL BLIVIN and JOSEPH RICE, appellants, vs. CHARLES H. RUSSELL, appellee. Appeal from McHenry. The verdict should be manifestly against the weight of evidence, in order to demand any interference with it on the part of this Court. This Court will not look into affidavits in relation to the conduct of jurors, or examine the instructions given and refused, merely because the clerk has copied them into the transcript. They should be incorporated in the bill of exceptions. This was an action on the case, for obstructing a water course and causing the water to flow back upon the mill of appellee, brought by him against the appellants, which was heard before Henderson, Judge, and a jury, at April term, 1850, in the McHenry Circuit Court; and a verdict and judgment for appellant, for the sum of $835 20. The defendants in the Court below appealed to this Court, and assigned several errors. The bill of exceptions was so loosely taken as not to enable this Court to examine the errors assigned. STRODE & BUSH, for appellants. I. N. ARNOLD, for appellee. Opinion by TREAT, C. J.: Although numerous errors have been assigned in this case, but two questions are legitimately reserved on the record-one Lake vs. Morse et al. growing out of a decision rejecting an offer by the appellants to Judgment affirmed. WILLIAM A. LAKE, appellant, vs. SIMEON W. MORSE and BEN- Appeal from Kane. It is a general rule, that Courts will not allow amendments which change the parties to the action, unless there is something in the record to amend by. This is more especially the rule in relation to amendments changing the plaintiffs in the action. This suit was originally commenced before a justice of the peace of Kane county, on the 2d day of October, 1849. The summons issued by the justice, commanded the constable to summon the defendant to answer the complaint of S. M. More and B. Connelly, for the use of William Fordham. There was no appearance by the defendant before the justice. The justice ren |