that an officer or a private individual may justify the arrest of a suspected person for the purpose of bringing him before a committing magistrate, provided there be proof that a felony has been committed. Much might be said as to the effect of our bill of rights upon the ex officio powers of a sheriff or constable who acts without warrant, and when there is no immediate apprehension that an escape will be attempted before one can be obtained from a justice of the peace. But a discussion of this matter is not now called for.

BATTLE, J., delivered a dissenting opinion.

Judgment reversed, and a venire de novo.

ARREST WITHOUT WARRANT BY OFFICER OR PRIVATE PERSON, upon grounds of probable suspicion that a felony has been committed, and that the person arrested is the felon: Eanes v. State, 44 Am. Dec. 289, and extended note 291, on this subject, and also that of arresting the wrong person; Roberts v. State, 55 Id. 97, and note embracing both subjects; and see also exhaustive note on arrest to Hawkins v. Commonwealth, 61 Id. 151.

THE PRINCIPAL CASE IS CITED to the point in the syllabus, supra, in State v. Shelton, 79 N. C. 607, and Neal v. Joyner, 89 Id. 290.

HARRISS v. WILLIAMS.

[3 JONES'S LAW, 483.]

BUYER MAY RECOVER FOR BREACH OF CONTRACT WITHOUT SHOWING HIS READINESS TO PAY PURCHASE MONEY, where a mutual contract had been made between buyer and seller for the sale and purchase of a horse, but before the execution of the contract the seller disposes of the horse to another party.

Defendant offered

ASSUMPSIT to recover the value of a horse. to sell plaintiff a horse for sixty-five dollars. To this plaintiff agreed; but there was a further agreement that defendant should ride the horse home, but not ride him too hard, and should deliver him to plaintiff on the next day, plaintiff to then take the horse at the price above mentioned. On the same day defendant sold the horse to another party, and therefore failed to deliver him as agreed upon; whereupon plaintiff issued his writ, demanded his property, and averred his readiness and ability to comply with his part of the contract. Verdict for plaintiff, with leave to set it aside if the court should be of opinion from the facts that plaintiff ought not to recover. The court was of such opinion, and ordered a nonsuit in favor of defendant, from which judgment plaintiff appealed.

Baxter, for the plaintiff.

N. W. Woodfin, for the defendant.

By Court, BATTLE, J. It is contended by the counsel for the defendant that the alleged contract for the breach of which the suit was brought was never completed; that it was never finally assented to by the parties. In that he is clearly mistaken. The defendant offered to sell his horse for the sum of sixty-five dollars, and the plaintiff agreed to give it. This certainly created an executory contract between them, which neither of them could rightfully dissolve without the consent of the other. The defendant had the right then and there immediately to tender the horse and demand the price; and the plaintiff had the corresponding right to tender the money and demand the horse. But for the defendant's convenience he was permitted by the plaintiff to ride the horse home upon his agreeing to return it the next day, when the plaintiff was to receive it if returned uninjured. This arrangement was not intended by the parties to put an end to the contract, but only to postpone until the next day their mutual rights to enforce it. The defendant then, on the same day, sold the horse to another person at an advanced price, and thereby very clearly committed a breach of his agreement for which the plaintiff could sue him, unless he had omitted something which it was necessary that he should do to entitle him to maintain his action. The counsel for the defendant contends that the plaintiff has failed to show that on the day when the horse was to be delivered he had tendered to the defendant the price, or was ready and able to do so, and that consequently he cannot recover in this suit; and for this position he relies on the case of Grandy v. McCleese, 2 Jones L. 142. That case would be in point if the defendant had returned the horse at the time appointed, and the plaintiff had not then tendered the price or been ready and able to do so. But after the defendant had, by selling the horse, put it out of his power to comply with his contract, the plaintiff was discharged from the duty of tendering the money or showing his readiness and ability to do so. This clearly appears from the case of Grandy v. McCleese, supra, itself, where it is said: "The plaintiff, then, could not sustain his action for a breach of the contract by the defendant without showing that he himself had paid or tendered the price of the corn, or was ready and able to do so, or that the defendant had done something to discharge him from that duty." See also Abrams v. Suttles,

Busb. L. 99. The judgment of nonsuit was erroneous and must be reversed, and judgment must be given for the plaintiff. Judgment reversed.

PARTY TO CONTRACT FOUNDED on Concurrent CONDITIONS seeking to recover for breach thereof must show that he was ready and willing to perform his part of the agreement: Smith v. Lewis, 62 Am. Dec. 180; Sargent v. Adams, Id. 718; Hawley v. Mason, 33 Id. 522; Shinn v. Roberts, 43 Id. 636, and citations in notes to these cases giving the different qualifications to the rule above stated.

BROWN V. BEAVER

[3 JONES'S LAW, 516.]

SCRIPT MAY BE PROVED AS OLOGRAPHIC WILL, though attested by subscribing witnesses.

DEVISAVIT vel non to try the validity of a will. The will offered for probate appeared to be attested by a sufficient number of witnesses, but the court, upon inquiry, held one of them to be incompetent. The propounders then offered to prove the will as an olograph. The caveators objected, upon the ground that decedent had intended to attest his will by subscribing witnesses, and that it could not be proved by any other testimony. The court admitted the evidence; the caveators excepted. The will was then proved by other witnesses to be all in the handwriting of deceased, and that it had been deposited with a neighbor for safe-keeping. After being instructed by the court, the jury returned a verdict for the propounders; judgment accordingly. The caveators appealed.

Baxter, for the propounders.

J. W. Woodfin, for the caveators.

By Court, BATTLE, J. In the case of Harrison v. Burgess, 1 Hawks, 384, a script was offered for probate as the olograph will of one Irvine. The caveators objected, because it was attested by one subscribing witness. The court overruled the objection, with this short and emphatic remark: "The will is certainly not worse by having one subscribing witness; it will certainly answer the purpose of more certainly showing that this is the paper which she (the witness) saw deposited in the bureau. Going beyond the requisition in respect of proofs certainly cannot annul that which comes up to them." This reason is certainly decisive of the present case, and shows that

his honor was right in admitting proof of the script as an olograph will. This renders the question as to the competency of one of the subscribing witnesses unnecessary, and makes it improper for us to express an opinion upon it.

Judgment affirmed.

LAW DOES NOT PRESCRIBE MODE OF PROOF OF WILL, nor require it to be proved as well as attested by a specified number of witnesses: Jesse v. Parker's Adm'rs, 52 Am. Dec. 102, and note 105; and as to the necessity of proof of will by subscribing witnesses, see Chaffee v. Baptist Missionary Convention etc., 40 Id. 225; Nelson v. McGiffert, 49 Id. 170; Greenough v. Greenough, 51 Id. 567, and notes to these cases collecting prior cases.

THE PRINCIPAL CASE IS CITED AND APPROVED in Hill v. Bell, Phill. L. 125, to the point contained in the syllabus, supra.

SCOTT V. BROWN.

[3 JONES'S LAW, 541.]

NON-JOINDER OF NECESSARY PARTIES PLAINTIFF IN ACTION ON CONTRACT may be taken advantage of by defendant, under the general issue, by motion in arrest of judgment, or by writ of error, when the defect appears upon the record.

NON-JOINDER OF NECESSARY PARTIES PLAINTIFF IN ACTION OF TORT must be taken advantage of by defendant by plea in abatement, and not by way of nonsuit on the trial.

NON-JOINDER OF NECESSARY PARTIES PLAINTIFF IN ACTION OF TORT ARISING EX CONTRACTU may be taken advantage of by defendant by plea in abatement or under the general issue on the trial.

RELEASE EXECUTED AT TRIAL OF ONE OF NECESSARY PARTIES PLAINTIFF does not make him a competent witness for his co-plaintiff.

ACTION of deceit in the sale of an ass. Verdict and judgment for plaintiff. Defendant appealed. The opinion states the facts.

The plaintiff was not represented by counsel.

Boyden, for the defendant.

By Court, NASH, C. J. The action is in tort for a deceit in the sale of a jack. The plaintiff and his brother, Cyrus Scott, were the joint purchasers of the jack. The action is brought by G. W. Scott alone. On the trial, the brother Cyrus was offered by him as a witness, and upon objection was set aside by the court. Cyrus then executed a release to the plaintiff of all his interest, and the court held he was then a competent witness. In this there is error.

In all actions on contracts, all in whom the legal interest vests should, in general, be made parties plaintiff; and if any be omitted whom the law requires to be joined, the defendant may take advantage of the omission on the trial, under the general issue, as the contract proved will not be the same declared on; or he may move in arrest of judgment, or proceed by writ of error, if the defect appear on the record. In an action simply of tort, as in trespass to property, real or personal, the defendant must plead in abatement the non-joinder of a part owner, and cannot take advantage of the defect by way of nonsuit on the trial; because one joint owner may recover his aliquot portion of the damages sustained if no notice by plea is given him that the defendant intends to rely upon the defect. There is yet a third class of cases under which this arranges itself, namely, actions of tort arising ex contractu. There the defendant may plead in abatement or take advantage on the trial as in an action purely of contract: Scott v. Godwin, 1 Bos. & Pul. 71; and Powell v. Layton, 2 Bos. & Pul., N. R., 965, which is the third volume of Bos. & Pul.; Story's Eq. Pl. 20, 87.

This is an action quasi ex contractu, in which the defendant may take advantage of the non-joinder, under the general issue, on the trial. It was necessary for the plaintiff to prove his contract in order to sustain his action; for if there were no sale, there could be no fraud: Sce Gwynn v. Setzer, 3 Jones L. 382. In doing that, he necessarily showed that Cyrus, his brother, was a joint purchaser with him, and his honor ought to have ordered a nonsuit; and if the plaintiff objected, he ought to have directed the jury that the plaintiff could not maintain his action. It must have been upon the ground that the witness was a necessary party plaintiff, that he was regarded incompetent in the first place; for his release to the plaintiff could not confer upon him any interest which he did not at the time possess. The witness's interest in the damages sought to be recovered was a mere chose in action, and not the subject of an assignment at law. Suppose one of two obligees in a bond. assign to his co-obligee all his interest in the bond, could the assignment authorize the co-obligee to sue in his own name. alone? Surely not. The action would still have been in the name of both, unless one were dead. After the release, then, in this case, the rule of pleading remained still the same. Cyrus was a necessary plaintiff to the action. If it were not so, it would be very easy, where there are two obligees, for one to bring the action and then to introduce as a witness his joint

AM. DEC. VOL. LXVII-17