text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
McCulloch, C. J.
This is an action against a public carrier to recover damages alleged to have been sustained in the transportation of a carload of hogs. The plaintiff alleges that he shipped the hogs under a special contract of sale for a particular purpose and for a stipulated price largely in excess of the market price, and that, by reason of the act of the carrier in unloading the hogs at destination in pens where other hogs had been unloaded, the consignment was rejected by the consignee, and that loss was sustained thereby, the price being reduced to the market price. There were 147 of the hogs in the car, weighing an average of 111 pounds each, and plaintiff had a contract for the sale of the hogs at 9¼ cents per pound, the market price of hogs for commercial purposes being considerably less. . The aggregate value of the hogs, as per contract price, was $1,431.88, and the regular market price for ordinary purposes was $478.
On the trial of the cause the following state of facts was proved: Plaintiff was engaged in buying hog’s, and had on previous occasions sold what is termed “stocker” hogs to Black & Atchinson, of Kansas City, who operated a serum plant, and one of the requirements of the latter was that the hogs should not be unloaded at public yards or pens.
After securing the contract with Black & Atchinson, and after mailing purchases in the vicinity of Gurdon, the plaintiff applied to the railroad agent at Gurdon for terms of shipment, stating that he would not ship his hogs unless he could make an arrangement whereby unloading in transit could be obviated. The agent assured-plaintiff, so the latter testified, that such an arrangement could 'be made, and plaintiff gathered up the hogs and loaded them into the car, but when the bill of lading was made out there was nothing ‘in it about not unloading in transit. Plaintiff called the attention of the agent to this fact, and the agent stated that a notation would be made on the waybill, as it had no place in the bill of lading, and assured plaintiff that such a notation would be made for the instruction of the conductors and other trainmen. The agent informed plaintiff that it was necessary that he sign a waiver under the Federal -statute requiring live stock to be unloaded for food or rest within twenty-eight hours, whereupon plaintiff, signed the waiver, in accordance with the provisions of the statute permitting the time to be extended to thirty-six hours before unloading.
Plaintiff testified that he showed the shipping instructions to the agent, and told him that he would not be able to sell the hogs if they were unloaded in public stockyards or pens at Kansas City, which was the destination under the bill of lading.
According to the testimony adduced by the carrier, the shipment of a carload of live stock from Gurdon to Kansas City would be en route, under ordinary conditions, more than fifty hours. •
Defendant’s counsel objected to the introduction of the testimony about the agreement to put the notation on the waybill, on the ground that it was in conflict with the Federal statute requiring the unloading of live stock in transit.
There was no proof adduced tending to show whether or not the stock was unloaded prior to reaching its destination at Kansas City, but the proof shows that it was unloaded there, and that Black & Atchinson refused the consignment on that account, their contract with plaintiff to accept the consignment being dependent upon the stock not being unloaded in a public pen or at the stockyards. Mr. -Black testified that, under their method of doing business, they could not use hogs thus unloaded in public pens, for the reason that there was danger of exposure to disease.
There was a verdict for the plaintiff for the amount of damages named in the complaint, and the defendant has prosecuted an appeal to this court.
It is earnestly insisted that the court erred in the admission of testimony, and that, if the plaintiff be permitted to recover damages in the case, it will be, according to the undisputed evidence, upon an alleged agreement which is clearly in violation of the Federal statute. U. S. Comp. Slat. 1918, § 8651.
It must be conceded that, if the recovery ¡s-ought is based upon a contract which is in conflict with the Federal statute, the contract is void, and there can be no recovery. This principle has been recognized in one of our own decisions, though not expressly so decided. St. L. I. M. & S. Ry. Co. v. Davenport, 97 Ark. 82. See, also, Webster v. Union Pacific R. Co., 200 Fed. 597; B. & O. R. Co. v. United States, 220 U. S. 94. The statute operates as a restriction upon the right of contract between the shipper and the carrier, and this restriction cannot be disregarded and contractual rights built upon it. B. & O. R. Co. v. United States, supra. We think, however, that the right to recover is not based upon a contract in conflict with the statute, but is based upon the conduct of the carrier, which misled the shipper to his detriment. St. L. & S. F. R. Co. v. Vaughan, 88 Ark. 138; C. R. I. & P. Ry. Co. v. Butler, 132 Ark. 37; C. R. I. & P. Ry. Co. v. Stallings, 132 Ark. 446.
The plaintiff testified that the railroad agent told him that the shipment would go through to Kansas City without unloading, provided he would sign a release so that there would be no unloading within thirty-six hours. There is no proof that the plaintiff knew anything about the length of time it would take to complete the shipment through to Kansas City, and the conduct and statement of the agent necessarily constituted an assurance that there would he no occasion to unload before the shipment reached destination. Moreover, the proof does not show that there was any contract to disregard the requirement to unload within thirty-six hours, nor does it show whether or not the stock was unloaded before reaching Kansas City. The only proof as to unloading is that the hogs were unloaded in the public pens at the stockyards at Kansas City. Now, the agreement was that there should be no unloading at Kansas City, the destination, and this agreement constituted no violation of the statute, for it was within the legal right of the carrier to perform an agreement not to unload at destination, at any particular place or in any particular manner.
Plaintiff testified that he explained to the agent fully why he did not want the hogs unloaded in the pens at Kansas City, and he testified that he showed the agent the shipping instructions from the consignees.
The damages sought to be recovered in this case are special, but the carrier had notice of the circumstances upon which damages might arise, and is liable for violation of its duty. It constituted negligence on the part of the carrier to mislead the shipper to his detriment and to disregard the directions not to unload in the public pens at destination.
Our conclusion is therefore that there is no contract shown in violation of the statute, and that the plaintiff’s right to recover has been established by sufficient testimony:
The judgment is therefore affirmed. | [
-80,
-20,
-68,
-116,
10,
106,
8,
-102,
71,
-127,
37,
83,
-51,
-58,
5,
97,
-25,
125,
-12,
47,
116,
-105,
7,
83,
-109,
-41,
-93,
-121,
59,
75,
-20,
102,
79,
0,
74,
29,
-62,
-62,
-64,
28,
-114,
32,
-72,
-24,
125,
72,
52,
105,
84,
103,
113,
-97,
-17,
46,
27,
67,
105,
40,
107,
9,
-63,
-15,
-79,
15,
119,
6,
-127,
102,
-110,
5,
-54,
46,
-112,
-79,
25,
-72,
114,
-90,
-106,
84,
13,
-39,
12,
38,
102,
9,
37,
-83,
44,
44,
103,
-38,
-113,
-122,
-80,
92,
3,
67,
-66,
29,
114,
-46,
22,
-6,
-8,
13,
-97,
104,
7,
-113,
-108,
-77,
111,
100,
-34,
15,
-6,
-89,
49,
97,
-51,
-14,
72,
71,
126,
-101,
-114,
-42
] |
Hart, J.,
(after stating the facts). It is first insisted by counsel for the defendant that the court should have directed a verdict in favor of the railway company because the notice required by paragraph 8 of the live stock contract of shipment was not given by the plaintiff.
The live stock contract in question involves an interstate shipment of hogs. The Supreme Court of the United States has held that a stipulation in a contract which is governed by the Carmack Amendment for the interstate transportation of live stock releases the carrier from all loss or damage unless a written claim therefor is made on the carrier’s freight claim agent within ten days after unloading the live stock. St. L. I. M. & S. R. Co. v. Starbird, 243 U. S. 592; Erie Railroad Co. v. Stone, 244 U. S. 332, and Southern Pacific Company v. Stewart, 248 U. S. 446.
We do not think, however, the facts and circumstances as they appear from the record bring this case within the principles of law decided in the cases just cited. In the present case the hogs were not in charge of the shipper or his agent, and they were never delivered to the consignees. The undisputed evidence shows that the railroad company delivered the hogs to another company than the consignees, and that they were never carried to their destination. Hence the provisions of paragraph 8 of the contract of -.shipment do not apply, under the facts presented by the record.
It is next contended that the court erred in giving instruction No. 3, which is as follows:
“You are instructed that, if you find from the evidence that the delay in the delivery at St. Louis was occasioned solely by a strike on the part of the employees of the Terminal Railroad Company in St. Louis, then your .verdict should be for the defendant. But, on the contrary, if you find the delay was the result of the combined strike of the employees of the Terminal Railroad Company and the employees of the Missouri Pacific Railroad Company, then that would be no defense in this ac tion on the part of the railroad, and your verdict should be for the plaintiff.”
The contention of counsel for the defendant that the court erred in giving this instruction is based upon paragraph 6 of the contract of shipment, which is copied in the statement of facts.
There is no evidence in the record tending to show that the negligence of the railroad company in failing to deliver the hogs was due to any violence on the part of the strikers on the terminal carrier or any connecting carrier. Hence it is not necessary to decide whether or not violence on the part of the strikers would excuse the railroad company. It is sufficient to say that the general rule is that the carrier is liable for the negligence of its servants during the course of their employment, and therefore if its employees go on a strike, abandoning the perf ormance of their duty and causing the delay in the transportation of goods, the carrier is liable. 10 C. J., par. 414, p. 293, and Railway Co. v. Nevill, 60 Ark. 375.
But, as we have already seen, the shipment was an interstate one, 'and is governed by the provisions of the-act of Congress and the decisions of the United States Supreme Court construing the same. In addition to the authorities above cited, see Chicago & E. I. R. Co. v. Collins Produce Co., 249 U. S. 186.
In the case of Adams Express Co. v. Croninger, 226 U. S. 491, the court said: “That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary. York Mfg. Co. v. Illinois Central Railroad, 3 Wall. 107; Railroad Co. v. Lockwood, 17 Wall. 357; Rank of Kentucky v. Adams Express Co., 93 U. S. 174; Hart v. Pennsylvania Railroad, 112 U. S. 331, 338. The rule of common law did not limit his liability to loss and damage due to his own negligence, or that of his servants. That rule went beyond this, and he was liable for any loss and damage which resulted from human agency, or any cause not the act of God or the public enemy. But the rigor of this liability might be modified through, any fair, reasonable and just agreement with the shipper which did not include exemption against the negligence of the carrier or his servants. The inherent right to receive a compensation commensurate with the risk involved the right to protect himself from fraud and imposition by reasonable rules and regulations, and the right to agree upon a rate proportionate to the value of the property transported.”
It follows that the carrier may, by fair and reasonable-agreement, restrict its liability to losses which are the proximate result of strikes on its own road, or that of its connecting carrier, where the loss is not occasioned by the negligence of the carrier in the premises, or the carrier could not, by reasonable diligence, have prevented the loss. Paragraph 6 of the contract of shipment is the clause which releases the company from liability by reason of delay in the transportation of live stock caused by strikes on its line or on the line of any of its connecting carriers. But, as we have already seen, the railroad company could not exempt itself from liability on account of its own negligence, and the court should have submitted to the jury that question.
It also- follows that the court erred in limiting the right of the defendant to exemption from liability to a finding that the delay was occasioned solely by a strike of the employees of the Terminal Railroad Company. The Interstate Commerce Act extends to all terminal facilities and instrumentalities. Chicago Junction Railway Company v. United States, 226 U. S. 286. That case also holds that the duties of a common carrier in the transportation of live stock begin with -their delivery to be loaded and end only after unloading and delivery, or offer of delivery, t-o the consignee. It follows that a strike on any of the connecting carriers, singly or together, would, under the terms of the contract, release the initial carrier from liability, except in case of negligence with regard to averting the loss by reason of the strike on its own part or on tlie part of any of its connecting' carriers.
Therefore the court erred in giving instruction No. 3 as set forth above, and for that error the judgment must be reversed, and the cause remanded for a new ‘trial. | [
-80,
126,
-3,
-83,
42,
97,
42,
-102,
69,
-95,
39,
83,
-51,
-61,
-123,
113,
-25,
-3,
112,
58,
84,
-89,
7,
66,
83,
-41,
-77,
-124,
51,
75,
108,
78,
77,
0,
10,
-43,
-26,
-56,
-63,
88,
-86,
36,
-72,
-20,
113,
16,
56,
106,
92,
79,
33,
-50,
-29,
46,
25,
-57,
109,
40,
107,
125,
-64,
-7,
-70,
79,
117,
2,
-77,
36,
-103,
5,
-56,
47,
16,
49,
41,
-8,
115,
-76,
-58,
84,
41,
-103,
8,
34,
99,
1,
12,
-19,
30,
-88,
46,
94,
-113,
-26,
16,
24,
43,
71,
-74,
-99,
36,
16,
-90,
126,
-10,
77,
-97,
116,
1,
-57,
-76,
-93,
127,
100,
-102,
5,
-21,
-91,
18,
52,
-50,
-78,
92,
69,
114,
27,
-113,
-66
] |
Smith, J.
In the year 1909 Modern Woodmen of America issued to'William E. Laseter a policy of insurance, or benefit certificate, in the sum of $2,000, payable to William F. Laseter, his father, and Roy Laseter, his brother. On October 6, 1916, he changed the beneficiaries in said certificate, and designated as beneficiaries Mattie Laseter, his stepmother, and Mollie Elizabeth Laseter, his wife. The change of beneficiaries was accomplished, in accordance with the rules of the insurance order, by canceling the original certificate and issuing, in lieu thereof, a certificate in the 'sum of $2,000, payable to Mattie Laseter and Mollie Elizabeth Laseter, “related to said member as mother and wife.”
W. E. Laseter died on the 10th day of July, 1920, and claims were duly presented by Mattie Laseter and Mollie Elizabeth Laseter, the designated beneficiaries. Mattie Laseter’s claim was for a thousand dollars. Mollie Elizabeth Laseter made claim for two thousand dollars, setting up that Mattie Laseter was not eligible to take as beneficiary under the 'by-laws of the insurance order. Modern Woodmen of America promptly paid Mollie Elizabeth Laseter a thousand dollars, but withheld payment of the remainder on account of the conflicting claims of the designated beneficiaries.
Mollie Elizabeth Laseter sued the insurance order, and that defendant filed motion that the administrator of Mattie Laseter (who had died in the meantime) be-made a party, and offering to pay the money into court, although the payment was not made.
The benefit certificate provided that, in case the designated beneficiary should be disqualified, and no substituted beneficiary had been named, the money should go in accordance with the by-laws of the order in force at the time of the death of the insured.
It is admitted that, if Mattie Laseter was ineligible, the entire certificate, under the terms of the by-laws of the insurance order, would be payable to the widow; and it is also admitted that the stepmother of the insured was not eligible as a beneficiary, under the by-laws of the order, unless she was a member of the family of the insured, within the meaning of that phrase as used in the by-laws of the insurance order. Tt is insisted, however, that the stepmother was a member of the insured’s family within the meaning of the by-laws of the order; and it is also insisted that, if she was not a member of his family, that question can be raised only by the insurance order, and has not been raised by it.
The court below found in favor of tlie widow of the insured, and rendered judgment accordingly, and this appeal is from that judgment.
As has been said, the stepmother of the insured was not among the eligible beneficiaries under the by-laws of the order, unless she was a member of the insured’s family, or a dependent upon him; and we think, under the recitals of the agreed statement of facts, she was not a member of his family, nor a dependent. The relation of stepmother is a very tender one, and one’s stepmother might well be a member of his family; but, as we have said, the agreed statement of facts shows the stepmother was not a member of the insured’s family.
It appears, from the agreed statement of facts, that the insured’s father married Mattie Laseter in August, 1907, and that she was never dependent upon the insured for support, and never at any time lived in his home. The insured finished school at twenty-one, and for five years prior thereto came back to the home of his father and stepmother for short periods of time. After finishing- school insured taught continuously until he married in 1915, from which time he maintained a home of his own, and lived separate and apart from his father and stepmother until the time of his death. Under these circumstances the stepmother was not a member of the insured’s family. See the various cases defining the Word “family” in Words & Phrases.
Counsel for-appellant insist that only the insurance order can question the eligibilty of the stepmother, and cite, in support of that contention, the following cases: Johnson v. Knights of Honor, 53 Ark. 255; Longer v. Carter, 102 Ark. 72; and American Ins. Union v. Manes, 150 Ark. 315. In the case of Longer v. Carter, supra, the court said: “It seems to be settled by the weight of authority that, where a member of a fraternal benefit society has the right, under the laws of the order, to change the beneficiary, and does make a change in the manner prescribed by the laws of the order, no one but the -society itself can question the eligibility of the person thus designated, and the original beneficiary has no right to complain, even though the new beneficiary does not fall within the class specified by the laws of the order. In other words, that the society itself may waive the ineligibility of the designated beneficiary, and that the original beneficiary, having no vested interest in the benefit, is not in position to complain.” In that case the insured changed his beneficiary to one who was not eligible to be a beneficiary, and upon the death of the insured the original beneficiary sought to question the qualification of the subsequent beneficiary. The right of the original beneficiary to question the substitution was denied, upon the ground that the original beneficiary had no vested interest in the benefit cértificate, and therefore had no right to question the eligibility of the substituted beneficiary.
The same principle controlled in the case of Johnson v. Knights of Honor, supra. There the certificate was made payable to the insured’s “heirs.” Later the insured married, and died without changing his beneficiaries, and the litigation arose between the widow and the insured’s brother and sister. The court held that the brother and sister, and not the widow, were the heirs, and therefore the persons named in the certificate, .and that their eligibility could not be questioned by the widow, who was not named as beneficiary.
The case of American Insurance Union v. Manes, supra, was one where it was insisted that the benefit certificate was void as being a wager contract; but the court held that, even though it was not binding on the company which issued it, as being a wager contract, a society which subsequently entered into a contract to perform the original contract of insurance could not question its validity.
We have here a different proposition. An eligible and named beneficiary claims the entire benefit, and she is entitled thereto under the by-laws of the order, unless the stepmother is entitled to a paid thereof. We do not understand that the insurance order is waiving the ineligibility of the stepmother; it merely tenders into court the sum it still owes under the' benefit certificate, and asks that it be discharged from liability thereon, and accompanying its motion is a copy of its by-laws, from which it appears that the stepmother is ineligible unless she was a member of the insured’s family.
The case of Logan v. Modern Woodmen of America, 137 Minn. 221, 163 N. W. 292, 2 A. L. R. 1676, is a.case in which the propositions here involved were considered, and the opinion of the Supreme Court of Minnesota in that case is of especial value here, because it construes the sections of the by-laws of the insurance order here under consideration, the insurance order in both cases being the Modern Woodmen of America. In that case Oliver Jones procured a benefit certificate payable to Mrs. Austin, his mother-in-law. He later changed the beneficiary and made his certificate payable to Mrs. Logan, his deceased wife’s niece, who was designated as “related to said member in the relationship of niece.” It was conceded that Mrs. Logan was not a blood relative of the insured, and was never dependent upon him, nor a member of his family. The court said that, as Mrs. Logan was not within any of the classes of persons eligible to be appointed as beneficiary, her designation as such gave her no right to share in the benefit fund of the society. The named beneficiary being ineligible, the court, in construing the effect of the bylaws, said: “If the appointee in the certificate is ineligible, the by-laws step in and appoint another in his stead who is eligible. * * * The appointment of Mrs. Austin as beneficiary was canceled by the assured in the manner prescribed by the by-laws; and the failure to appoint an eligible beneficiary in the new certificate did not revive or reinstate the canceled appointment, but, by -force of the by-laws, made the children of the assured Ms legal beneficiaries,” and the judgment of the court in favor of the children was affirmed.
Here by force of the by-laws the widow is made the legal 'beneficiary, and she therefore takes the share which would have gone to the stepmother but for the ineligibility of the latter.
In that case, as in this, the insurance order tendered the money into court and asked to be discharged from liability, and on that account it was contended there, as here, that the insurance order had waived the ineligibility of the substituted beneficiary. Answering that contention, the court said: “We are also unable to assent to the proposition that the payment of the money into court operated to waive the by-law. By paying the money into court, the society simply recognized liability to the rightful claimant thereto, not to any particular claimant, and its action amounted to nothing more than a demand that the court protect it against a double liability by determining to whom the money rightfully belonged” (Cases cited).'
The case of Cunat v. Supreme Tribe of Ben Hur (249 Ill. 448, 94 N. E. 925) is annotated in 34 L. R. A. (N. S.) 1192. In the annotator’s note it was said that the authorities are unanimous in holding that joining an ineligible person with an eligible one as beneficiary in a mutual beneficiary certificate did not render the certificate void, and that the portion made payable to the ineligible person would, as a general rule of law, be payable to the persons who, under the rules of the insurer, are eligible as beneficiaries. That person here is the wife..
In the case of Logan v. M. W. of A., supra, the court, in construing § 46 of the by-laws, said: “By virtue of this provision, if the beneficiary named is found to be ineligible, the widow, and, if no widow, the children, become the’beneficiaries, and the obligation of the society remains in full force.”
We conclude therefore that the judgment was propprlv rendered in the wife’s favor, and it is affirmed. | [
-12,
104,
-36,
-36,
8,
-32,
42,
58,
86,
-63,
37,
87,
-37,
-32,
21,
37,
-77,
61,
-47,
122,
-77,
-93,
23,
19,
-42,
19,
-15,
-57,
-79,
77,
-74,
85,
77,
56,
10,
-108,
-118,
-126,
-51,
20,
-52,
0,
11,
-23,
-35,
81,
48,
-17,
-46,
-39,
113,
30,
-79,
42,
20,
107,
44,
102,
111,
-71,
-47,
-71,
-69,
12,
127,
23,
17,
6,
-104,
11,
106,
11,
-112,
17,
-112,
-31,
91,
55,
-41,
116,
49,
-119,
17,
98,
103,
33,
1,
-19,
-56,
-68,
-113,
-110,
-113,
5,
-92,
61,
50,
11,
-74,
21,
116,
16,
22,
124,
-90,
81,
92,
-96,
3,
-85,
-73,
-111,
-81,
-14,
-100,
-125,
-1,
-114,
54,
117,
-54,
114,
92,
71,
120,
19,
-121,
-126
] |
McCulloch, C. J.
Appellant is a fraternal society organized under the laws of the State of Arkansas and bearing allegiance to a national organization known as the “Grand United Order.of Odd Fellows in America.” There is a department of appellant organization designated in the constitution and by-laws as the district grand lodge endowment department, which furnishes insurance to members in good standing of the local lodges upon the payment of a small admission fee and the payment of quarterly dues. The policy is issued in the sum of three hundred dollars, and the present action is one to recover on a policy issued to Pittman Stevens,' a member of one of the local lodges of the organization.
The by-laws provide that the endowment department shall be under the control of the endowment board, consisting of the district grand master, the endowment secretary, and the endowment treasurer. A section of the by-laws reads as follows:
“Sec. 6. The endowment secretary, on receipt of the said first payment, shall issue to the member of the lodge a policy stipulating such payment. All endowment dues must be paid to the Endowment Secretary within thirty days after the beginning of the quarter.”
Another by-law provides for automatic forfeiture in the event of nonpayment of dues within the time prescribed. These provisions are indorsed upon th'e policy itself.
The provisions indorsed on the policy with reference to forfeiture in case of nonpayment of dues reads as follows: “The failure of a member to pay quarterly dues to the endowment secretary within thirty days after the beginning of each quarter will forfeit this policy without notice.”
It was the custom in the lodge to which Pittman Stevens belonged for the members to pay their quarterly dues to the secretary of that lodge, who remitted the same to the endowment secretary with a list showing the names of the members who had paid and the amounts. In July, 1921, three of the members of this local lodge, including Stevens, were unable to pay their dues, which were payable not later than July 31, and the lodge decided to make each of them- a loan of sufficient amount to pay their dues, and the secretary of the lodge was instructed to send in the amount to the endowment secretary with the payments made by other members. This was done, but, in making out the list of those who had paid, the lodge secretary erroneously omitted the name of Stevens, and instead thereof put in the name of a member named Martin, who had not paid. The endowment secretary, on receipt of the list, credited the amounts to the respective members who were named on the list. This payment was -made to the endowment secretary on the last day for payment, and the mistake was not discovered until after the death of Stevens, which occurred on August 27, 1921, and the proofs of loss were subsequently sent in.
Liability was denied on the ground that Stevens forfeited-his policy by failure to pay the July dues within the time required by the laws of the association.
At the conclusion of the trial the court gave a peremptory instruction in favor of appellee and judgment against appellant was accordingly entered for the full amount of the policy.
The ruling of the court in taking the case irom the jury is defended under authority of the case of Sovereign Camp v. Newsom, 142 Ark. 132, 14 L. R. 903, when the court held that where the clerk or secretary of a local branch of a mutual benefit society is charged with the duty of collecting and forwarding monthly assessments and is subject to suspension or removal for failure to discharge his duties, he is, in fact, the agent of the superior organization in the collection of such dues, “notwithstanding a rule or.by-law of the order recites that such officer in collecting or forwarding assessments shall be the agent of the members of the subordinate lodge. ’ ’ Thg facts in the present case are quite different, however, from those recited in the opinion in the case referred to above. In that case the by-laws of the organization provided that it should be the duty of the clerk or secretary of the local organization to collect and forward the dues, and that for failure to discharge his duties the superior body might remove him. In the present case there is no authority conferred by the by-laws upon the secretary of the local lodge to collect the dues. On the contrary, the 'by-laws distinctly provide that payments shall be made by the members to the endowment secretary within the time prescribed. The by-laws confer no authority whatever on the part of the endowment department or any of the officers thereof to control the local secretary, and there is proof tending to show that there was no attempt to exercise any control over him. The most that is shown in the proof is that it is a custom in this particular lodge for the members to pay the local secretary and for the latter to forward the amount to the endowment secretary. The case is therefore not controlled by the former decision referred to. In that case, as in many other cases,, we have decided that the by-laws constituted a part of the contract between the members and the society.
The mere fact that the members of this particular lodge paid their dues to the local secretary, who, in turn, forwarded the sum to the endowment secretary, does not establish a general custom or course of conduct on the part of the endowment department or its governing officers so as to constitute an abrogation of those provisions of the by-laws which require the payment to be made by the member and to confer authority upon the local secreaary as the agent of the endowment department to collect the dues. Sovereign Camp W. O. W. v. Barnes, 154 Ark. 486.
The testimony in the case at most only made it an issue for the jury to determine whether or not there had, in fact, been established such a general course of conduct within the knowledge of the governing officers as to show authority to the local secretary to collect the dues for the superior body.
The fact that a mistake was made in omitting Stevens’ name from the list of members who had paid and inserting in lieu thereof another member who had not paid is not a material factor as to the question of liability under the policy, for the case turns upon the question whether or not the local secretary was the agent of the superior body in collecting and forwarding the dues. If he was only the agent of the local lodge or of the local members, and not of the superior body, the latter was not responsible for the mistake, and the forwarding of the money for the payment of Martin’s assessment did not constitute a payment of Stevens’ assessment, notwithstanding the mistake.
For the error in giving the peremptory instruction the judgment is reversed, and the cause remanded for a new trial.
Hart, J., dissents. | [
-108,
-12,
-8,
-36,
-88,
100,
40,
-102,
82,
-55,
37,
19,
-19,
-26,
1,
103,
-23,
45,
85,
107,
-98,
-73,
7,
64,
-46,
-45,
-67,
-59,
49,
77,
-28,
-11,
8,
-80,
74,
-44,
-58,
-94,
-53,
-100,
14,
11,
-88,
-32,
-7,
-56,
48,
-45,
28,
71,
113,
22,
-93,
38,
92,
-32,
41,
109,
89,
-119,
65,
-5,
-116,
5,
127,
23,
-95,
39,
-104,
7,
-32,
46,
24,
49,
-42,
-24,
59,
-90,
14,
116,
123,
-103,
12,
100,
102,
16,
57,
-89,
-72,
9,
30,
38,
-99,
-123,
-110,
113,
114,
9,
-76,
29,
125,
-108,
7,
118,
-12,
-108,
30,
40,
-127,
-114,
-44,
-91,
-19,
124,
-3,
3,
-1,
-121,
48,
112,
-55,
114,
92,
79,
122,
59,
-122,
-48
] |
McCulloch, C. J.
The Grand United Order of Odd Fellows in America is a fraternal society composed of negroes, and the branch of the organization in Arkansas is incorporated under the laws of this State under the name of “District Grand Lodge No. 11 of the Grand United Order of Odd Fellows in America.” The Arkansas branch of the order bears allegiance to the national organization, and is subject to its constitution and bylaws.
The district grand lodge meets biennially, and at the meeting at Hot Strings in August, 1919, T. L. Newton, one of the appellees, was reelected district grand master, and the other appellees were elected to other offices in the district grand lodge. The next meeting was held in the city of Pine Bluff in August, 1921, and Newton was reelected, but, according to a special plea filed 'Since the present case came here on appeal, Newton, since his election, ceased to be grand master and another, one Taylor, has been elected, or appointed, in his stead.
Shortly after the Hot Springs meeting at which Newton was elected district grand master, charges were preferred against him by two members of one of the local lodges for alleged personal and official misconduct, and Newton was put upon trial before the executive board of the district grand lodge on these charges, and was acquitted. The individuals who preferred the charges took an appeal to what is termed the “-subcommittee of management,” which seems to be, under the by-laws of the national organization, a governing board of the national organization. The subcommittee of management entered an order finding Newton guilty of the charges and removed him from office. Another order made by tlie subcommittee of management appointed J. I. Blakely, one of the appellants, as district grand, master in the place of Newton. The order contained a specification that Blakely’s tenure should extend no longer than to the next meeting of the Grand Lodge of Arkansas, which, under the by-laws, was to convene in August, 1921.
Appellees instituted this action in the chancery court of Jefferson County on January 16, 1920, against Blakely and the other appellants who were associated with him in the controversy which had arisen between the Newton party and the Blakely party. In the complaint it was alleged that Newton had been regularly reelected grand master at the Hot Springs meeting for the ensuing term of two years; that a resolution was adopted at that meeting, in accordance with the by-laws of the order, fixing the next biennial .meeting to be held at Pine Bluff in August, 1921; that Newton had been tried and acquitted of the charges against him, and that the order of the subcommittee of ¡management was void for the reason that the hy-laws did not provide for an appeal to that body by the prosecutors of charges, and that the appellants were wrongfully interfering with Newton and the other grand lodge officers in the discharge of their official duties, particularly with reference to the holding of the next biennial meeting at Pine Bluff. The prayer of the complaint was that appellants be restrained from the aforesaid interference with Newton and the other officers of the grand lodge, and the chancellor granted a temporary injunction in accordance with the prayer of the complaint.
The appellants, or some of them, had instituted an action against appellees in the chancery court of Garland County to enjoin the latter from attempting to exercise the functions of office in the grand lodge, but the prosecution of that case was restrained by an order made by the Jefferson Chancery Court.
Appellants appeared in the Jefferson Chancery Court and filed an answer and cross-complaint .asking for the same relief which they had asked for in the Garland Chancery Court. The feature of the case which related to the adoption of the resolution of the grand lodge at Hot Springs calling the next meeting to 'be held at Pine Bluff was separately heard by the Jefferson Chancery Court on May 18, 1921, on oral testimony, and a decree was rendered finding that the next ensuing meeting to be held at Pine Bluff in August, 1921, had been fixed by resolution adopted by the grand lodge at Hot Springs in accordance with the laws of the association, and dismissing the cross-complaint of appellants for want of equity, and restraining them from “further interfering with Thomas L. Newton as grand master in the discharge of his duties as such, and calling the grand lodge to convene in Pine Bluff, Arkansas, in 1921. ’ ’
There was no separate appeal from that decree, but another decree was rendered by the court on January 25, 1922, restraining appellants from interfering with Newton and the other officers in the discharge of their official duties.
A transcript of the whole record in the case was filed here on July 24, 1922, and the clerk granted an appeal.
The decision of the case upon the merits of the controversy turns primarily upon the right of the prosecutors of the charges against Newton to appeal to the subcommittee of management and the authority of that body to hear the cause on appeal, but appellees have filed a motion to dismiss the appeal on the ground that the decree of May 18,1921, was final, and that the appeal was not prosecuted within six months, and also that since Newton was reelected as grand master at the Pine Bluff meeting and has since retired from that office, the question of the legality of his incumbency of the office for the term beginning with the Hot Springs meeting and ending with the Pine Blnff meeting has become a moot one.
We are of the opinion that the contention of appellees is correct, and that the appeal should be dismissed. The decree of May 18, 1921, was final, in form as well as in substance, as to all the matters adjudicated. It was not merely an interlocutory order granting or continuing an injunction, but it finally adjudicated the question of the legality of the meeting to be held at Pine Bluff.
In the recent case of Road Improvement District No. 1 v. Cooper, 150 Ark. 505, we said that “an order or decree extending an injunction for a fixed time, or until the happening of a certain event, may be final, but it appears clearly from the recitals in the decree that the court meant to continue control over the injunction granted in this case and over the subject-matter of the litigation.” The court did not retain control over that feature of the case, but finally adjudicated it, and the adjudication related to a matter which was to occur at a fixed time. It was necessarily final in its nature, for it completely covered the subject-matter of that part of the litigation.
Now, since we find that that part of the decree was final, and no appeal was prosecuted from it, it follows that the question of interference as adjudicated in the last decree has become moot. The litigation be-, tween the parties only related to the validity of the order of the sub-committee of management in deposing Newton from office and appointing appellant Blakely for the remainder of that term. That term expired, and an election was held for the next term at a meeting the legality of which was adjudicated by the decree, from which no appeal was prosecuted. We are of the opinion that this phase of the. case is controlled by the decision of this court in Kays v. Boyd, 145 Ark. 303.
The appeal is therefore dismissed. | [
52,
-13,
-8,
94,
-120,
65,
28,
-72,
82,
-39,
-35,
87,
-19,
-104,
4,
33,
-31,
45,
117,
75,
-92,
-73,
3,
73,
66,
-45,
-19,
-57,
49,
95,
-74,
-37,
73,
49,
-38,
84,
-57,
98,
-53,
-100,
-114,
9,
-120,
-32,
121,
20,
49,
119,
83,
-101,
69,
62,
-9,
58,
84,
-21,
105,
109,
-51,
-118,
88,
-77,
-104,
5,
105,
22,
7,
2,
-102,
-123,
100,
62,
-104,
21,
-36,
-8,
83,
-90,
-114,
68,
111,
-104,
109,
100,
102,
9,
-71,
-89,
-88,
8,
94,
63,
-107,
-89,
-70,
33,
-46,
73,
-110,
-103,
87,
90,
6,
118,
52,
-59,
-80,
104,
97,
-113,
-36,
-127,
4,
80,
-107,
-121,
107,
-113,
112,
113,
-51,
-10,
117,
30,
90,
27,
-121,
-16
] |
Wood, J.
This action was instituted by the appellee against the appellant. The appellee alleged that on the 5th of November, 1921, he was remarried to Elsie Barnard Scott '(Roach) and that from that date until the 5th of December, 1921, they lived happily together as husband and wife; that the appellant, by false representations, induced the appellee’s wife to believe that the appellee was unfaithful to her and had no affection for her, and also induced her to believe that the appellant would provide her with more luxuries than the appellee could, and thus wrongfully, maliciously and wickedly lessened appellee’s influence over his wife and alienated her affections from the appellee and induced her to leave and abandon him, all to his damage in the snm of $15,000, for which he prayed judgment.
The appellant answered, denying all the material allegations of the complaint.
The appellee testified that he had known appellant since 1919; that appellee was first married on 'the 16th of April, 1911, at Panghnrn. Two children were horn of the marriage, a boy and a girl. The woman whom he married was named Elsie Barnard. They lived together until January, 1919, when he moved to Jospoda, south of Des Are. Up to that time he and his wife had never had any trouble. In November she went over to the appellant’s place of business, where she remained. Appellant was running a boarding-house. In November following appellee’s wife obtained a divorce from him. The court awarded the children to him, but his wife took the girl and he took the boy. After the divorce, appellee moved to Pangburn, and later to Searcy. When he returned to Searcy, his wife was there, and they were remarried there. They then moved to Griffithsville, where they lived together five or six weeks. She went to De-Valls Bluff, where she made her home with a brother of the appellant. The appellee had done nothing to cause her to leave him. . He did not know that she was going to leave and did not have anything to do with it. The appellant was at Griffithsville during the time the appellee was living there with his wife. Appellant wrote to appellee’s wife while she and appellee were living at Griffithsville together. Appellee saw some of the letters.
On cross-examination appellee testified that at the time he and his wife separated in November, 1919, he knew no excuse whatever for it. He suspected that Roach had something to do with it; didn’t know for sure. The appellee’s wife sued for divorce on the ground of cruelty and nonsupport, but he denied that the divorce was obtained on that ground. The decree didn’t amount to much. His wife came and asked if he would give her a divorce if she would give him the chil dren. He permitted her to get the divorce. He denied that she quit him because he would not provide for her, and denied that she went to work for Boach because appellee would not provide for her. He denied that, while they were living at Griffithsville, his wife supported the family. Appellee didn’t remember writing'her any letters while she was living with Boach. He never asked her to quit Boách and come to him. Appellee turned the children over to her after she went to live with Boach. Afterwards appellee went down and picked the children up in the road and carried them off, and left his wife crying for them. Appellee did not tell Kirk or McHroy that he was going to get the children and get the woman and give Boach all the trouble he could, and never had any talk with Edwards about the matter. Appellee’s wife left him in December. He presumed that Boach was the cause of it; that was the way appellee figured it. Appellee wrote the following letter:
“August 2 — 7.
“Elsie, Kind friend: Elsie, I don’t want you to think I am interfering with your family affairs, but only to the condition of the children I feel so sorrow for them and you to. The children is almost killed about you leaving them. Ellord is broke down and is sick now. Now, Elsie, I no that you love your children, and I believe you will appreciate me letting you know about them, and I was talking with Andy, and I pumped this much from him. That you have a 'chance of raising the children yet, and you wont have to live with Andy neither. And so you will be welcome when you get ready to come back to see them. He is very .sorrow that he told you that he and the children would turn you down. Now, Elsie, if you will write him your wants, he will tell how the children can become yours again. Now, Elsie, this is enuff 'sai'd. Now, Andrew don’t know that I am writing this letter, but lie said ¡that he would like for you to know that everything was pretty yet for you to get the babvs. Now, Elsie, this is the best friend you ever had on earth. Now, he is not mad at you or Mr. Roach either, but is hurt so bad. See how bad it hurts the children because you went away.”
Appellee testified that at the time he wrote the letter Elsie Barnard was not Roach’s wife. She had married Roach, but had been divorced from him, but was still with him. The letter was written the second day of July. Elsie and Roach were divorced in October, 1921, and he wrote the letter in July, 1921. He denied that he was trying to get Elsie away from Roach. The reason why he was writing such a letter was because he had the children. Appellee didn’t remember writing Elsie any other letters.
On redirect examination he stated that he bought his children some clothes and grub and bought his wife a pair of shoes after she returned to him. Appellee testified that the expense of procuring his wife’s first divorce was paid by Roach. The woman and Roach were living together at the time he wrote the letter referred to. The suit for divorce had been filed prior to that time, and the decree was rendered and held off of the record at Roach’s request.
Witness Barnes testified that he knew the appellant ; that he recently did some work for him; knew Elsie Scott or Elsie Roach, and knew that she lived with Roach. He had a conversation with Roach with reference to the woman. He said something about going up to see her while she was at Searcy, and tried to get witness to go up there, and offered to take witness to Jospoda to see whether or not he could get the woman to come back and live with him. Something to that effect. Witness didn’t know exactly when it was. It seemed to witness that it was about a week after the woman separated from Roach and went away. Witness didn’t know whether she and Scott had remarried at that time. Appellant told witness that the woman was working at that time in a hotel in Searcy for a man named Hutchins. Witness knew that it was about a week, not over two weeks at the outside, after she left Roach. The day she left witness saw her putting some .clothes in a little grip; that was before Roach tried to get witness to go and try to get her to return. John Howell started to come in and pick up the trunk, and Mrs. Roach was helping to carry it, and witness offered to take her place and assist in lifting it; that was the day her things were going away, when she was leaving Roach. That occurred on Saturday, and on Monday, when witness returned, she was gone.
Howell testified that he lived about six miles southeast of Des Arc. He knew the appellant Roach, lived about three and a-half or four miles from him, and also knew Elsie Roach. He remembered the time she left Roach’s house. She left her things at witness’ house. The things were taken away from his house by Roach. Witness had a conversation with Roach after he removed Elsie’s things from witness’ house. Roach was talking about Mrs. Scott — about her leaving. He said,“She is married, but I don’t intend for them to live together if it is in my power.” Of course there were other things said too numerous to mention, but that was about it. It was after Scott and his wife were remarried. Witness stated that it was somewhere along about September that he had the conversation. Witness stated that he farmed for a living, and about the time Roach had the conversation with witness, witness was working for him, helping him harvest some sorghum hay that grew up after the 'first crop was cut. They usually cut the first crop about the last of August or the first of September. It was while they were cutting the second crop, somewhere along in September. Witness didn’t know whether Scott and his wife were remarried — only what Roach told him. He brought the subject up' himself.
Witness Romber testified that he was acquainted with Roach. He m.et him some time in November, at G-riffithsville. He spent the night with witness. The next morning witness had a conversation with him. He asked Roach his name, and Roach hesitated for a few moments, and told witness that his name was Roach, and that he came np to see abont the woman who used to be his wife. That was all that passed between them. Scott’s name was not mentioned in the conversation. The woman he spoke about was living at Hutchins’. Witness didn’t know what she was doing. The witness was asked if the woman had said that she and Scott were- remarried at that time, and replied that they said they were. Witness didn’t know for sure, as he never saw any license. Scott at that time was working at the tram shell at Griffithsville. Witness had dealings with Scott along about that time or before then.
Mrs. Julia Flowers testified that she lived at Griffithsville ; that she knew Scott and Elsie Scott, his wife, at the same time. They lived at Hutchins’, just across the lane from her. They came there the 9th day of October or November, and remained until the last of November or the first of December. Witness didn’t know what time Mrs. Scott came to Des Arc. Witness was quite intimately acquainted with them, and Scott was just as good to his wife as he could be. Witness supposes he provided for her as far as he was able. They had a little trouble over a trip or two that his wife made. She went down to Des Arc, and the only trouble they had was over that. Mrs. Scott told witness that she left Roach, and had remarried Scott to get her children. She told witness that directly after she icame there.
' Witness Hutchins testified that he was running a restaurant at Mesa. He knew Roach; had first met him at Searcy, and had known him since last fall. Also knew Scott and his wife. Roach came to Griffithsville after he wrote to Mrs. Scott to meet him at the train. Witness knew of Roach’s writing letters to Mrs. Scott at Griffithsville. They were addressed to witness to be delivered to Mrs. Scott. Roach told witness that if any letters came to witness from Jospoda to give them to Mrs. Scott, and witness did so. Scott and his wife were living together at that time. Witness read one of the letters that Roach wrote to her. It was mailed at De-Valls Bluff and was addressed to G. H. Hutchins. Witness gave it to Mrs. Scott to read, and she handed it over to witness. It was signed by Roach. Witness gave the letter back to Mrs. Scott, and had not seen it since, and didn’t know where it was. Witness didn’t remember all that the letter contained, but Roach told her he would give her the rest of that week to make up her mind what she was going to do, and if she didn’t come he would get another cook. Another letter came, saying that he wanted her to meet him at the train, and Mrs. Scott had witness meet Roach and tell him not to come to the house. The next morning Mrs. Scott left. As well as witness remembered, that occurred the last of November or the .first of December. The woman came back to witness’ place after he moved to Searcy. The woman worked and cooked for witness before he moved to Searcy. That was before she and Scott were remarried. After they were remarried they all moved down to Griffithsville, and Mrs. Scott continued to cook for witness. Scott furnished half the grub and witness the other half. Witness stated that he had two living wives and one dead.- He had not been trying to marry Mrs. Scott. Wouldn’t have any woman that wanted some one else more than she did .witness. He didn’t try to take another man’s wife. Witness and his former wife had discussed this woman, and witness told her that he wouldn’t have this woman. Roach had sent money by witness to Mrs. Scott when he was at Griffithsville. This occurred along the last of November or first of December. Roach handed witness the money, and told witness to tell Mrs. Scott to use it like she wanted to. The sum was two dollars. Witness supposed it was to pay her way to Jospoda. Witness had a conversation with Roach before Roach gave witness the money. Witness told Roach he had better not go over there; that he could go over and stay at Mrs. Bomber’s if he wanted to. Witness didn’t know what Roach’s business was up there. He seemed to want to see her to see if he couldn’t get her to go back. Witness never paid any attention to the date. The woman was without shoes. Witness joked with Scott, and told him if he or Roach one didn’t get her some- shoes, witness would have to. Scott got her the shoes, and also got shoes for the children. When Scott got -a check, he turned it over to Mrs. Scott, and also turned over his wages to her.
Witnesses on behalf of the appellant testified substantially as follows: One witness stated that she knew Scott and the woman alleged to be his wife, and knew Hutchins, the latter part of October when they were at the Roberts Hotel at Searcy. She was working for Hutchins at that time. Scott was there, in and out: came in at night and went out in the morning. Witness Kirk testified that some time in September he had a conversation with Scott in regard to the separation from liis wife and the cause of it, and Scott said he didn’t blame Roach at all for the separation; that Bill Chandler’s folks were the cause of the separation between him and his wife. He stated that he was going to take his children, and he didn’t believe that his wife could stay long with Roach after that. Scott took the children away in September, 1921. In the conversation Scott said something about his wife wanting to come back to him, but he didn’t know whether he would take her back or not. He was afraid she was betraying him. He stated that he told his wife “to go ahead and live with the old devil; that she had married him, and to go ahead and stay with him.” Another witness, Mcllroy, stated that he knew Scott and Roach; that he had a conversation with Scott last fall»with reference to the trouble between himself and his wife, and the separation. Scott said something about his children being down there, and witness asked him if he was going to let them stay. Scott replied, “No,” when he left he was going to take them with him. He also stated that he guessed the woman would not stay long with Roach after that.
Another 'witness testified that he heard Scott say, after his former wife had married Roach, that he was going to take his children, and that if he did that Elsie would not stay with Roach over thirty days. Other witnesses testified to the effect that they saw Mrs. Roach on the day that Mr. Scott took the children away from her in the road, and that she was crying.
The appellant himself testified that the woman alleged to be Scott’s wife was previously his wife. He married her on the 21st of April last. They lived together about three months, when she went away and was gone about ten days. After she had been at home about ten days she went away again on Saturday, saying she would be back on Monday. Witness then details, after he had married the woman, and during the time of his marriage, the efforts that Scott had made to induce her to leave appellant and return to him, and stated that after Scott took away his children appellant’s wife stayed with appellant only four or five days. She then left, and never came back. Appellant next saw her at Searcy, when she claimed that she had remarried Scott. She was then working for Hutchins. She was married on the 5th day of November, and the next day was at the appellant’s house. Witness had not seen her from the time she stated she had married on the fifth of November until she appeared at his place. Witness had talked to her, however, over the ’phone, and told her she could get her children. At that time she wasn’t married. Witness denied having written her any letters during the time it was claimed that she had remarried Scott. Witness was divorced from the woman in October, and after her remarriage to Scott he didn’t do anything to induce her to leave Scott and come back to him. Witness didn’t pay for her divorce from Scott the first time, and was not the cause of their separation. Witness admitted that, after the alleged remarriage to Scott, at Hutchins’ request he had given him $2 for the woman, and he admitted writing a letter to Mrs. Scott, addressed to Hutchins, hut stated that Hutchins’ statement as to what the letter contained was not true. Appellant testified that he told Mrs. Scott in the letter not to come back to him. The letter was also about buying the children. He wanted to buy the children because the woman wouldn’t stay with him without them. She was not with him at the time, and had left him. He knew at the time this letter was written that she was remarried to Scott. Scott had offered at one time to sell the children for $50 and to grant her divorce, and witness was seeking to buy them because Scott had made that remark. Mrs. Scott didn’t come to work in appellant’s boarding-house until she left Scott. She worked for appellant one and three-quarter days before she and Scott were separated. Witness paid the bill for the woman’s divorce from Scott, but it. was her money, which appellant had borrowed from her previously. Appellant was divorced from his wife, who lived somewhere in the west, and was married to Mrs. Scott right away. He went to see Scott about buying the children, and found that he had changed his mind in regard to selling them. Appellant didn’t see the woman. After the woman had left appellant, and before she had remarried Scott, appellant had made two trips, on the advice of his attorney, to see if he couldn’t get the children from Scott and then get out of the State. At that time the woman was his wife. Witness explained that he had made the trips which witness Hutchins testified about in response to Scott’s statement that he wanted to sell the children.
In rebuttal, Scott testified that, before his wife procured a divorce from him, and while she was staying at Roach’s, Roach overtook him in the road and asked if he had ever studied over the proposition about selling his children to Roach, and at that time stated that, if he (Scott) would divorce the woman and turn her loose so he could live with her, he (appellant) would pay for the divorce and give Scott $50 for the children. Appellant, being recalled, testified that no such conversation occurred as that last testified to by Scott.
The jury returned a verdict in favor of the appellee in the sum of $2,000. The appellant moved for a new trial, one of the grounds being that the verdict of the jury is contrary to the evidence. The court overruled the motion, and rendered judgment in favor of the appellee in the sum of $2,000, from which judgment is this appeal.
The appellant contends that there was no evidence to support the verdict, because there was no evidence to prove that the appellee and Elsie Barnard-Scott-Roach were legally remarried after her divorce from the appellant, as alleged in the complaint. The law as to proof of marriage in actions for alienation .of affections is correctly declared in Ency. of Evidence, vol. 1, p. 756, as follows: “In an action for alienating the affections, direct proof of a formal marriage is not necessary, the general rule being that evidence of cohabitation, reputation, and acknowledgment by the parties, a holding themselves out to the world as husband and wife, is a sufficient proof of the fact of marriage, and the admission of the defendant that the plaintiff and his alleged wife were married is sufficient.” See also 8 A. & E. Ency. of Law, 863; 2 Abbott’s Trial Evidence, 859; Elliott’s Evidence, § 1647.. ‘ ‘ The fact of marriage may be proved by one of the contracting* parties.” 8 Ency. of Evidence, p. 466; Ann. Cases, 1916-A, 651; 18 R. C. L. 424, § 50.
The' appellee testified that he and his wife Avere married. Under the above rule, the testimony was amply sufficient to establish the remarriage of appellee to his former wife, from whom he had been previously divorced.
The court, among other instructions, gave the following: “The burden is upon the plaintiff to prove by a preponderance of the testimony these allegations in the complaint, which, as stated to you, are that they had been legally married, bnt that is not denied, however, in a formal way.”
' Appellant contends that in the nse of the- words, “but that is not denied, however, in a formal way,” the court meant to say that a legal marriage need not be strictly proved. At least that such might have been the’ impression made on the jury. It occurs to us that the instruction is not susceptible of that construction, but, if so, the instruction was not prejudicial, for the reason that the court would have been fully warranted, under the law, as already stated, in instructing the jury that a legal marriage could be proved either by direct testimony or by circumstances from which marriage might be inferred. In other words, in actions of this character it is not essential that the marriage be proved only by the testimony of the parties themselves, or eye-witnesses to the marriage. Marriage may be proved by these or by circumstances which justify the inference that the parties were married,
Furthermore, the instruction is not inherently erroneous. The objection here urged is only to the concluding phraseology as above quoted. Only a general objection was made in the court below, and that was not sufficient to draw the attention of the trial court to the objection which the appellant here urges. Hence the alleged error cannot avail the appellant. Keirsey v. State, 131 Ark. 487; Chancellor v. Stevens, 136 Ark. 175; Miller v. Fort Smith Light & Trac. Co., 136 Ark. 272.
The most serious question, and the one that has given us the greatest concern, is whether or not, under the law applicable to such cases, the evidence is legally sufficient to prove that the appellant had alienated the affections of appellee’s wife.
In Boland v. Stanley, 88 Ark. 562-69, we said: ‘ ‘ The loss of what is termed in law ‘consortium’, that is, the society, companionship, conjugal affection, fellowship, and assistance of the wife, is the principal basis for ac tions of this kind. Tiffany’s Persons and Domestic Relations, p. 75, and authorities cited in note. 15 Am. & Eng. Eno. Law (2 ed.) 862 (b), note 6. Whoever invades the hallowed precincts of a home, and, without justifiable cause, by any means whatsoever severs the sacred tie that binds husband and wife, alienating her affections from him, and depriving him of the aid, comfort and happiness of a loyal union between them, is liable in civil damages for his wrongful conduct. Rodgers Dom. Rel., §177; Sohouler’s Dom. Rel., §41; Tiffany’s Per. & Dom. Rel., 74; 15 Am. & Eng. Enc. Law, 862. In such cases, whether or not there were malevolent or improper motives is always a material consideration. In case of a stranger in blood the causes must be extreme that will warrant him in interfering with the relation of husband and wife. If he, by advice or enticement, induces a wife to leave her husband, or takes her away, with or without her consent, and encourages her to remain from him, or harbors and protects her while away from him, he does these things at his peril, and the burden is on him to show good cause and good faith for his conduct.”
‘ ‘ To entitle the plaintiff to recover, in an action for alienating affections, the burden of proof is upon the plaintiff, and the plaintiff must show that there was a direct interference upon the part of the defendant, that not only was there infatuation of the husband or wife for the defendant, but that the defendant, by wrongful act, was the cause of it. The plaintiff must show a wrongful attempt on the part of the defendant to alienate the affections of plaintiff’s husband or wife. The burden is also upon the plaintiff to show that the attempts were successful and without the consent of the plaintiff.” Elliott on Evidence, § 1643; Smith v. Gilapp, 123 Ill. App. 121. See also Scott v. O’Brien, 129 Ky. 7; DeFord v. Johnson, 133 S. W. 396; Hanor v. Housel, 113 N. Y. Supp. 163.
It would unduly extend this opinion to reiterate the testimony and discuss it in detail. In testing the sufficiency of the evidence on appeal, the rule is that this court must view it in that aspect which is most favorable to the verdict. We might have reached a different conclusion from that reached by the jury had we been triers of fact, but, after carefully considering the argument of counsel in their briefs, as well as the oral argument pro and con, we are convinced that the evidence is legally sufficient to sustain the verdict. The jury were the judges of the evidence and the credibility of the witnesses. When all of the testimony is considered, it cannot be said that there was no evidence to sustain the verdict. There is no error. Let the judgment be affirmed.
Hart, J., dissenting. | [
-48,
108,
-100,
-115,
10,
-16,
106,
-72,
114,
-125,
-93,
-45,
-17,
83,
40,
105,
51,
45,
80,
106,
-11,
-73,
30,
34,
-14,
-13,
-13,
-35,
-68,
76,
-12,
87,
72,
34,
10,
-47,
-30,
26,
-59,
92,
-50,
-126,
-119,
-20,
-39,
82,
62,
121,
72,
79,
117,
-98,
-5,
42,
53,
71,
40,
46,
107,
60,
-48,
112,
-106,
28,
95,
86,
49,
102,
-100,
-63,
72,
47,
-104,
-79,
0,
-7,
115,
-74,
-122,
118,
12,
-99,
8,
118,
98,
32,
-91,
-17,
-96,
24,
-82,
122,
-99,
-90,
-74,
24,
3,
108,
-82,
-103,
95,
-48,
-41,
126,
-32,
-35,
28,
32,
-126,
-113,
-108,
-79,
93,
-72,
-108,
19,
-29,
-79,
50,
116,
-53,
34,
92,
71,
122,
-69,
-114,
-61
] |
Smith, J.
On April 15,1920, the appellant insurance company issued and delivered to appellee :Smith, as beneficiary, a policy of insurance for one thousand dollars on the life of Smith’s wife. The application for the policy of insurance contained certain answers to questions which, by the recitals of the application, were declared to be material by the company in determining whether or not a policy would issue, and, among others, that the applicant had never suffered from any ailment or disease of the skin. The policy, when issued, contained an incontestable one-year clause reading as follows: “After this policy shall be in force for one full year from the date hereof, it shall be incontestable for any-cause except for nonpayment of premiums.”
The insured died on March 5, 1921, and on April 13, 1921, the company brought suit in the chancery court to cancel the policy on the ground that its issuance had been procured by the fraud of the insured, in that she had suffered from a disease of the skin, to-wit., pellagra, but had falsely and fraudulently denied that fact in her application.
It will be observed that the suit to cancel was brought two days before the expiration of the year after the issuance of the policy, but slightly more than a month after the death of the insured, as the suit on the policy was commenced June 30, 1921.
The chancery court transferred the suit to cancel to the circuit court, over the company’s objection, and it was there consolidated with the suit on the policy, to which action the company also objected and excepted.
At the trial of the cause conflicting testimony was offered as to whether Mrs. Smith had pellagra, and as to her answers made to the examining physician in regard thereto, but at the conclusion of all the testimony the court directed the jury to return a verdict for the beneficiary, on the ground that a year had expired before the suit thereon was brought. Judgment was rendered accordingly, and the company has appealed.
Instead of transferring the suit to cancel the policy to the circuit court, that suit should have been dismissed, for the reason that the death of the insured fixed the rights and liabilities of both the insurer and the insured'. Joyce on Insurance, § 1650b; American Employers’ Liability Ins. Co. v. Fordyce, 62 Ark. 562; Porter v. Mutual Life Ins. Co. of N. Y., 41 Atl. 970.
But, inasmuch as the insured died before the year had expired, the incontestable clause did not apply, and the fact that the suit was not brought until after the first anniversary of the policy is unimportant, for, as we have said, the rights and liabilities of the 'parties under the insurance contract had been fixed by the death of the insured.
The court should not therefore have directed a verdict, but should have submitted the question of the alleged breach of the warranty, the law of which question has been announced in many cases.
For the error indicated the judgment is reversed, and the cause remanded for a new trial. | [
-78,
109,
-100,
-116,
24,
112,
104,
-110,
86,
-64,
-91,
83,
-51,
86,
84,
63,
-75,
41,
69,
122,
-9,
-93,
55,
32,
-42,
-97,
-5,
-43,
-111,
93,
-4,
-4,
4,
56,
-118,
-59,
-26,
-58,
-55,
-104,
-58,
-116,
-87,
-19,
57,
-112,
48,
107,
-48,
71,
85,
-102,
-21,
-86,
19,
-57,
41,
40,
107,
-87,
-16,
-31,
-118,
4,
127,
21,
51,
5,
-98,
-49,
72,
14,
-112,
17,
56,
-56,
114,
-74,
-58,
60,
63,
-103,
12,
98,
99,
-76,
1,
-19,
-120,
24,
55,
70,
31,
-124,
-73,
89,
-45,
12,
-66,
-103,
108,
20,
-89,
120,
-12,
85,
29,
32,
1,
-117,
-78,
-79,
-49,
-8,
-100,
7,
-2,
-125,
54,
113,
-53,
40,
92,
69,
120,
-109,
70,
-56
] |
Hart, J.,
(after stating the facts). To reverse the decree the plaintiff relies upon the case of Maloney v. Hale, 153 Ark. 162. In that case the court held that, where a wife permitted her husband to use her money and personal property as an apparent basis of credit, she is estopped from claiming the property as against one who extended credit to her husband on the faith thereof. In that case the husband failed in business, and about a year afterwards he again engaged in business in the name of Hale & Co. The wife claimed the business, and said that she obtained the money with which to start it from her brother-in-law. The business was conducted solely by the husband under the name of Hale & Co. for many years. The wife never gave any attention whatever to the business. The husband obtained credit on the faith of its being his own business. The money of the wife and the business skill and industry of the husband could not be separated. There was no question but that the creditors extended credit to the husband on the faith that it was Ms own business. He had no other basis of credit. Hence the court held that, the plaintiff having given the husband credit on the faith of Ms supposed ownership of the business, it would be a fraud on him for the wife to be allowed to claim the business. In cases of this sort, however, it is essential, in order that the plaintiff may invoke this estoppel against the. wife, that he should have given credit to the husband upon the faith of, and in the reasonable and justifiable belief in, the fact that the husband was the actual owner of the property in controversy, and without notice of any facts and circumstances that would lead to the belief that the property was claimed by the wife.
In the present case the wife mortgaged her homestead to secure the money with which she purchased the mortgages on the Barry farm. It is true that she did this with the view of selling'the farm to the corporation promoted by her husband for use in erecting a large sanitarium. The motive which prompted, her to make the purchase, however, cuts no figure in' the case. The fact remains that she did purchase the mortgages with her own money. It is also insisted that she purchased the mortgages for less than their face value. This did not make any difference. That was a matter which solely concerned the mortgagees. The validity of their mortgages is not even questioned by the plaintiff. Mrs. Winegar had a right to foreclose the mortgages after they were assigned to her and to purchase the mortgaged land at the foreclosure sale. It is not shown that the husband had possession of the land or that his wife permitted him to use it as a source of credit.
The evidence also shows that the automobile -was given her by a wealthy oil man in token of his appreciation of professional services rendered him and members of his family by Dr. Winegar. It is not shown that the automobile was given as a part payment for these medical services. The evidence shows that it was a gift, pure and simple, to the wife, and we.are not concerned with the motive which prompted the gift, in the absence of a showing that it was intended as a payment, in whole or in part, for the medical services performed upon the giver by her husband. It is not shown that the husband used it as a basis of credit.
With regard to the office furniture, the case is not so plain, but we are of the opinion that the finding of the chancellor in favor of Mrs. Winegar on this point is not against the preponderance of the evidence. The evidence is plain that Mrs. Winegar bought the furniture and paid for it. She exhibited the receipted bill which she obtained from the dealer who. sold her the furniture. She testified to the amount of money that her father gave her, and the large amount inherited from him after his death. She gave the place where he died, and the records there would have shown the falsity of her testimony as to the amount that she received when her father’s estate was administered upon and dis tributed to his heirs. No contradiction of her testimony in this respect was made. Hence, if the plaintiff has any standing iii this case as to the furniture, it must be upon principles of equitable estoppel on the ground that Mrs. Winegar permitted her husband to take possession of it and acquire credit on the strength of it, and, the plaintiff having given him credit on the faith of his supposed ownership of it, it would be a fraud on her for Mrs. Winegar to now claim that the furniture is hers.
According to the testimony of Mrs. Winegar, she at all times claimed the furniture and collected the rent on it while it was in her husband’s possession. The chief source of her husband’s income as a physician and surgeon would necessarily arise from his professional services, and his office furniture would be merely an incident to his profession.
It does not even appear that he obtained the loan from the plaintiff on account of having this furniture. He was engaged with an associate, who also had signed the note sued on, in promoting a $10,000,000 enterprise. Both Dr. Winegar and his associate spent large sums of money and much time in promoting this enterprise. The plaintiff thought that it would be a success, and that Dr. Winegar and his associate had considerable means. It does not appear that his office furniture was ever considered in the premises at all.
In the case relied on for a reversal of the decree the wife necessarily knew that the husband was conducting the business solely on his own account, and that credit was being extended to him solely on the faith of his supposed ownership of the business. He was insolvent, and had no other source of income. His ability to earn money was inseparable from the business.
Here the office furniture was but a small incident in the business of Dr. Winegar. He claimed to be a physician and surgeon of note, and obtained credit from the plaintiff on her belief in the success of the enterprise promoled bv him and his associates.
The chancellor found that, under the peculiar circumstances of this case, no fraud was practiced upon the plaintiff, and that the doctrine of equitable estoppel did not apply. It cannot be said that his finding is against the preponderance of the evidence, and the decree will therefore be affirmed. | [
-79,
-2,
-36,
46,
74,
-32,
42,
-118,
98,
-128,
-89,
-1,
119,
-54,
16,
111,
-28,
105,
96,
104,
85,
-77,
7,
3,
-14,
-37,
-47,
-35,
-72,
77,
-25,
-59,
13,
48,
82,
-43,
102,
-118,
-63,
84,
-114,
-122,
26,
97,
-8,
-42,
52,
-85,
84,
8,
65,
-121,
-77,
12,
55,
78,
72,
46,
107,
45,
64,
-8,
-66,
13,
79,
1,
-111,
53,
-68,
103,
-56,
38,
-120,
113,
9,
-23,
114,
-74,
-122,
84,
75,
27,
9,
34,
98,
16,
-63,
-1,
-110,
-104,
10,
126,
29,
-114,
-111,
88,
11,
107,
-65,
-97,
108,
4,
-74,
-12,
-18,
-100,
28,
104,
25,
-50,
-106,
-109,
-115,
92,
-104,
3,
-9,
-121,
49,
113,
-49,
34,
93,
-62,
126,
-69,
14,
-77
] |
Hart, J.,
(after stating the facts). 'The main reliance of the defendants for a reversal of the judgment is that the verdict is not supported 'by the evidence. The evidence of the plaintiff as to the amount of crushed stone hauled under the contract is based upon the measurement of the beds of the -trucks in which the crushed stone was hauled. A measurement of the beds of two of the trucks shows that t-hey held a fraction over two yards each, and the other, three yards of crushed stone at a load.
The witnesses for the plaintiff testified that the beds of the trucks were well filled at each load.
It is contended by the defendants, however, that this method of measuring the amount of crushed stone hauled is not accurate. . They introduced evidence tending to show that a more correct method of ascertaining the crushed stone was to measure it after it had been spread on the roadbed. Hence they contend that the measurement made by the engineer of the road district in this way should govern. This may be true, but their contention is not conclusive. The -evidence for the plaintiff shows that the measurement of the truck bed was a correct and convenient way of ascertaining how much crushed stone had been hauled under the contract. The testimony of the plaintiff also showed th-at this method had been used by the party with whom -the first contract to haul rock had been made, and that, when lie was substituted for that party, it was understood that the amount of crushed stone hauled under the contract should be ascertained by measuring the truck beds and filling them up as each load was hauled. Hence the jury had a right to use this method in ascertaining the amount of stone hauled under the contract.
It is also contended by the defendants that the estimates made by the engineer of the road district were more accurate as to the number of yards of stone hauled. This may be true, but it cannot be said that the evidence of the plaintiff is not' of a 'substantial character, and therefore -cannot support- the verdict. He testifies in positive and definite terms as to the amount of stone hauled by himself and by two other parties for him. His testimony in this respect is corroborated by the two persons who hauled stone for him. The jury had a right to believe the testimony of these witnesses and to base its finding upon their testimony.
Again, it is insisted by the defendants that the plaintiff accepted the estimates made by the engineer of the road district, and, having received payment based upon the percentage he was to receive under the contract, he is concluded by the settlements, and the district is only liable to him for the retained percentage of 25 per cent. We do not think the testimony of the 'defendants on this point is uncontradicted. Under the contract it was the duty of the plaintiff to roll the stone after it was placed on the surface of the road. According to his testimony, the defendants would not pay him for stone which had been hauled by him and which had not been rolled at the time the monthly payments were made. In this way he accounts for the shortage in payment, and says that the defendants would not pay him for' stone which had been hauled and spread on the road but which had not been rolled at the time the settlement was made. Hence it cannot be said that', under the undisputed testimony, he is bound by the settlements made with the defendants as shown by the report introduced in evidence by the defendants.
Again, it is insisted by the defendants that the undisputed evidence shows that the defendants paid $800 to repair the government trucks borrowed from the county, and that it was the duty of the plaintiff to make these repairs. Hence they insist that the judgment should be reduced by this amount in any event.
There are two answers to this contention of the defendants. While it is true that the uncontradicted evidence shows that the defendants paid $800 to repair the trucks, still the uncontradicted evidence does not show that these repairs were necessary to place the trucks in as good condition as they were when they were received from the county. According to the testimony of the plaintiff, all that was necessary to place the trucks in as good condition as they were when received from the county would be to put in a missing differential in two of the trucks. This would not cost anything near the sum of $800. In the second, place, we cannot know but that the jury might have allowed the whole of the $800 in arriving at its verdict.
Besides the testimony -of the plaintiff, abstracted above, he testified that the defendants owed him $2,456.93, for the 25 per cent, retained by them under the contract. His testimony as to this amount is unequivocal, and he says that it is based on the actual .yardage of crushed stone hauled by him. In the same connection he testified that the defendants owed him an additional sum of $1,137 for stone hauled and for which they had made no settle‘ment with him. He also claims an additional amount for damages because they stopped him from completing hiscontraot, and thereby prevented him from earning a profit of something over $1,000 for stone which he was not allowed to haul.
But it is insisted by the defendants that the testimony of the plaintiff is inconsistent, and in some respects contradictory, and that this is shown by the fact that the verdict of the jury is not based on the estimates made by the plaintiff, but is in the nature of a compromise between the claim by the plaintiff and that made by the defendants.
The contention of the defendants in this respect cannot operate to reverse the judgment. If we were trying the case ele novo, it would be proper to consider it in order to determine whether the finding of facts made by the chancellor was against the weight of the evidence. This is an appeal from a judgment at law, however, and we can only review it for errors made by the circuit court in trying the case. We cannot undertake to determine whether or not the verdict of the jury is in all respects consistent. Under the settled practice in this testimony in this respect is contradicted by that of the State, the verdict of a jury must be upheld on appeal if there is any evidence of a substantial character to support it. We are not required, and indeed we are' not permitted, to inquire into the consistency of the verdict of the jury. The jury has the exclusive right to weigh the testimony and to accept all or any portion of it which it believes to be true.
While, according to the plaintiff’s. testimony, if accepted by the jury in its entirety, he. was entitled to a larger verdict, yet his testimony is of a substantive character and is sufficient to support the verdict for a less amount.
Finally, it is insisted' by the defendants that the suit was prematurely brought, and for that reason the judgment should be reversed. Their contention is that the record does not show that the road was completed at the” time the suit was brought, and that, under the contract, the defendants were not liable for the retained percentage until the road was completed.
This would he true if the defendants had allowed the plaintiff to complete his contract of- hauling. According to their testimony, the plaintiff breached the contract, but according to his testimony the defendants breached the contract and prevented him from completing it, and thus the contract was ended in so far as he was concerned. The plaintiff testified that he was not given the right to haul the sand as provided in the contract, -and, while his defendants, yet the verdict-of the jury in his favor is conclusive upon us. Hence it can not be said that the suit was prematurely brought.
We find no reversible error in the record, and the judgment will therefore be affirmed. | [
114,
-8,
-36,
-84,
10,
96,
42,
-40,
97,
-91,
55,
95,
-81,
-54,
20,
51,
-90,
93,
-44,
42,
84,
-93,
71,
67,
-42,
-9,
-5,
-59,
61,
78,
-20,
92,
76,
32,
-64,
-35,
102,
-53,
-44,
88,
-114,
-116,
-88,
-19,
123,
48,
52,
110,
84,
15,
113,
-113,
-45,
44,
28,
-57,
45,
44,
107,
61,
73,
-39,
-74,
13,
79,
4,
-80,
38,
-68,
7,
-40,
55,
-120,
49,
0,
-56,
115,
-74,
-112,
-12,
41,
-103,
24,
-30,
98,
1,
93,
7,
-2,
-104,
43,
-2,
-116,
-90,
-110,
8,
73,
101,
-105,
-43,
120,
82,
46,
126,
-26,
93,
95,
109,
3,
-61,
-14,
-95,
77,
48,
-104,
1,
-21,
-127,
19,
112,
-52,
-78,
92,
101,
82,
-97,
23,
-86
] |
Smith, J.
Upon complaint being made to the Insurance Commissioner 'concerning the management of the Knights of Pythias of North America, South America, Europe, Asia, Africa, Australia, and the State of Arkansas, a domestic colored fraternal insurance order, that officer caused an audit of its affairs to be made. Authority for this action is conferred 'by § 6110, C. & M. Digest; indeed, without complaint being made to the Insurance Department, it is the duty of that department to make an examination of the “affairs, transactions and condition” of such organizations at least once every three years.
The accountants representing the Insurance Department made a report, in which they reported that they had not been accorded the cooperation by the order necessary to make a satisfactory audit of its affairs; and the testimony established the fact that the officers of the company did not apparently realize their duty to aid in this audit, nor did they appear to comprehend the extent of the authority of the auditors. Subordinate lodges made complaint of the management of the officers of the order, and, in addition, the grand chancellor, the chief officer of the order, preferred charges to the Insurance Commissioner which tended to show that the finances of the order were being misappropriated. A supplemental audit by the Insurance Department appeared to confirm the findings in the first report; and the Insurance Commissioner turned these reports over to the Attorney General of the State. Upon an examination of these reports the Attorney General commenced an action in quo ivarrcmto to liquidate the order, under the 'authority of § 6111, C. & M. Digest.
“While the allegations of the complaint were not sustained by the testimony, and the court below made a general finding against the State and dismissed the complaint, we take occasion to commend the Attorney General for his action in instituting this proceeding. It was highly praiseworthy for him to have sought to protect the interests of the members of the four hundred subordinate lodges of the order in the State. The facts, as they appeared to him at the time he instituted the suit, after giving the notice required by § 6111, C. & M. .Digest, warranted that action; but explanations have been made which should have been made to the auditors of the Insurance Department and to the Attorney General himself.
A demurrer to the complaint was overruled by the court below, and it is now insisted that the demurrer should have been sustained. The ground of the demurrer was that the Attorney General was not authorized by the law to institute the proceeding. Section 6117, C. & M. Digest, as amended by act 493, General Acts 1921, page 472, exempts certain named fraternal orders from the list of those orders whose financial affairs the Insurance Department is required to audit. Section 16 of the Act of 1921 is the section which amends § 6117, O. & M. Digest, and this section, as amended, does grant an exemption from the operation of this insurance act to certain named orders, and the Knights of Pythias is among those thus exempted; but the insurance department of that order is excluded from the exemption, and the effect of this exclusion is to leave the insurance department of the Knights of Pythias subject to the law. There appears to be a white order and a colored order, both known as Knights of Pythias, and while the statute contains but one general designation, “Knights of Pythias,” we are of the opinion that both orders are embraced in that designation, and that the insurance departments of both orders are subject to audit by the Insurance Commissioner. The demurrer was therefore properly overruled.
The State asked the court to malee a number of findings of fact conforming to the allegations of the complaint, but the court refused to make any of these findings, and this refusal is assigned as error, as constituting n refusal to comply with § 1309, C. & M. Digest, which requires the court, upon trials of questions of fact, to state in writing the conclusions of fact separately from the conclusions of law. We think, however, that the court’s general finding of fact and re fusal to appoint a receiver as prayed for sufficiently complies with, the law.
The first declaration of law asked by the State was to the effect that, if. the grand keeper of records and seal, or the committee of the order which audited its books,' negligently, carelessly, or fraudulently failed to keep the cashbook, or the duplicate receipt book, and failed to deliver them to the examiner, when called for by the examiner of the Insurance Department, such failure would be transacting business fraudulently within the meaning of the statute. The court refused this declaration, upon the ground that the testimony did not support the finding of fact that the records had been purposely put beyond the reach of the examiner, and we concur in that view. The particular record which was specially desired was the duplicate .receipt book. This was a larg'e book, and was not in current use at the time of the audit, and had not been for six months prior thereto, and appears to have been lost during the session of the grand lodge at Hot Springs, where the record had been carried from the general offices in Little Rock. The loss of this record was not accounted for to the auditors of the Insurance Department, and the failure to produce it was one of the irregularities insisted upon by the auditors. It may be said that it now appears that proper records are being kept, and are being properly kept. It may also be said that the funds have all been properly accounted for, and the auditors of the Insurance Department now report the order as 100 per cent, solvent. There appears no reason now to believe that the order has been made insolvent by the misconduct of its officers, or that its funds are being wasted or misappropriated by them.
The auditors of the Insurance Department discovered the fast that the grand keeper of records and seal had mingled his own funds with those of the order. This was, of course, an inexcusable thing to do, and tliat officer confessed his error and has abandonee^ his practice. This was done by that officer using money to pay Ms private expenses out of money which would be due him on salary. In other words, he was anticipating his salary by using it as it was earned but before it was payable, and it was shown that he never at aiiy time used any more of the order’s funds than was due him for salary at the time of such use. This appears to have been the practice of the predecessor of the present incumbent and to have been known to the grand lodge trustees.
Another thing reported to the Insurance Commissioner was that the officers of the order had devoted a portion of the order’s charity fund to the defense of certain members of the colored race, not members of the order, who were charged with the commission of a capital offense. It appears that the grand lodge annually appropriated a thousand dollars to be used for general charitable purposes, and there remained $481.65 of this fund, which was appropriated not to the defense of persons accused of crime, but to the members of their families, who were said to be in destitute condition. This cannot be said to have been an improper use of this money, as it was made the duty of the officers of the order to determine who should be’ the beneficiaries of its charity fund, and it does not appear that they acted fraudulently in the matter.
The most serious charge preferred against the officers of the order was that four of them had conspired with a contractor who had been employed to erect a building belonging to the order in the city of Little Rock, and that the contractor, in consideration of being awarded the contract, had paid each of these officers the sum of $250. This charge was based on the testimony of one of the officers, who said he had been paid that sum of money by the contractor. The other officers emphatically denied any knowledge of this agreement, and the contractor also denied that any such agreement had been made, or that he had paid, or had promised to pay, anything to any one for the award to him of this contract.
In further explanation of this very serious charge it was shown that sharp differences existed between these officials, and each had sought the displacement of the other at the election of officers, and, although much bitterness had been engendered by this contest, no charge of bribery had been made at the grand lodge meeting when the officers were- elected, although the alleged bribery preceded the grand lodge meeting. The court below, in refusing to find that the officers of the order had accepted a bribe, evidently discarded the testimony of the officer who gave that testimony. There was no corroboration of Ms testimony, and much contradiction of it, and we cannot say the court should have found otherwise.
The court was requested to make other findings of fact of less importance, but refused to do so, and, upon the whole case, we do not feel warranted in disturbing the judgment of the court below. There were irregularities which should not have existed, but these appear to have been corrected, and the officers have been taught that the management of the order is not their private business which can be run by them without rendering the account to the Insurance Department which the law requires.
Legislation such as we have is getting to be general among the States, and the right of the State to supervise these fraternal and benefit orders, where, they embark in the insurance business, is universally upheld, and, when it is found proper to do so, the right to appoint receivers to take over their affairs will be enforced, and the courts have not hesitated to do so. The courts, however, recognize these statutes as harsh and severe remedies, which will not be applied until all others fail. Note to annotated case of Supreme Sitting of the Order of Iron Hall v. Baker, 20 L. R. A. 210, 214; State v. Bankers’ Union of the World, 99 N. W. 531; State ex rel. Attorney General v. People’s Mutual Benefit Assn., 42 Ohio St. 579; Crombie v. Order of Solon, 27 Atl. 710; Order of International Fraternal Alliance v. State, 26 Atl. 1040; Stendell v. Longshoremen’s Protective Union Benev. Assn., 41 Sou. 228; French v. Gifford, 30 Iowa 148; 19 R. C. L. 1320 et seq.
This insurance order is shown to have nearly four hundred subordinate lodges and a gross annual income of over a hundred thousand dollars, and there are no doubt members who were eligible for insurance at the time of their applications who are no longer so. If the order is put in the hands of a receiver, its usefulness is largely abridged, if, indeed, its existence is not terminated, as the-best risks might seek other insurance, leaving the order liable on benefit certificates to the less desirable risks, and the purpose of the law, which is that of protecting the persons insured, would be defeated by the appointment of a receiver.
The judgment of the court below is therefore affirmed. | [
-76,
-4,
-36,
-4,
40,
96,
48,
58,
83,
-56,
101,
83,
-19,
-21,
0,
119,
-32,
61,
-44,
66,
-42,
-13,
23,
42,
-42,
-41,
-7,
-59,
-112,
77,
-17,
-68,
72,
56,
-118,
-43,
-122,
-26,
-49,
-100,
-50,
9,
-102,
-27,
-7,
80,
112,
95,
-109,
91,
117,
94,
-29,
60,
24,
67,
45,
41,
-7,
-87,
-64,
-15,
-68,
29,
111,
20,
49,
71,
-70,
39,
-48,
14,
-128,
49,
-38,
-87,
115,
-78,
6,
52,
39,
-103,
8,
32,
100,
-127,
-119,
-25,
-88,
-120,
63,
54,
-99,
-121,
-110,
105,
107,
5,
-66,
-103,
109,
16,
39,
126,
-26,
85,
-37,
40,
-127,
-117,
-42,
-95,
-44,
-28,
-99,
3,
-18,
-113,
48,
80,
-56,
-30,
93,
103,
51,
27,
-122,
-32
] |
Humphreys, J.
The questions presented for determination on this appeal grow out of a contest between appellant and appellee, J. H. Cole, as to the priority of mortgages held by each on the lands of J. F. Davidson.
On the 17th day of October, 1917, J. F. Davidson and his wife, B. Davidson, executed a mortgage on the following described real estate in Crawford County, Arkansas, to-wit: W½ NW, 35-10-30, 80 acres; W½ NW SW, 35-10-30, 20 acres; W½ SW SW, 35-10-30, 20 acres, to J. H. Cole to secure a note dated October 17, 1917, for $6,000, which was immediately recorded, and upon which $4,967.63 was due May 5, 1922, the day judgment was rendered in this case.
On the 5th day of May, 1921, the Davidsons executed a mortgage to appellant to secure , two notes, one for $885.85 and the other for $3,600, upon the following described real estate in Crawford County, Arkansas, to-wit: W½ NW¼, W½ NW¼ SW¼, and W½ SW¼ SW¼, all in section 35, township 10 north, range 30 west. The mortgage was recorded May 27, 1921. On the 5th day of May, 1922, the day judgment was rendered in this case, $4,734.02 was due upon the mortgage.
In the mortgage executed, by the Davidsons to J. H. Cole the $6,000 note was described as follows: “Whereas, the said J. F. Davidson and B. Davidson are justly indebted unto the said J. II. Cole in the sum of six thousand and no/100 dollars, evidenced by a promissory note of even date for six thousand dollars, with interest from date at the rate of ten per -cent, per annum, if interest be not paid at interest paying time to become principal and bear the same rate of interest.” The note was not stamped with an internal revenue stamp, and appellant objected to its introduction in evidence for that reason, which objection was overruled by the court.
The trial court rendered a judgment against J. F. Davidson in favor of appellant and appellee, J. H. Cole, for t'he respective amounts due them, and decreed a foreclosure of the lands to pay same, but declared the mortgage lien of J. H. Cole prior and paramount to that of appellant.
Appellant contends that the court erred in giving preference to the lien of said appellee for three reasons. First, that the description of the lands in the Cole mortgage Was indefinite; second, that t'he $6,000 note was not sufficiently described in the mortgage; third, that the note was not admissible in evidence because it had not been stamped -with an internal revenue stamp.
The objection made to the description of the lands was that the words “section” before 35, “township” before 10, and “range” before 30, must be inferred in order to definitely describe the lands. We do not think the certainty of the description was dependent upon mere inference. The lands were described as being in Crawford County, Arkansas. The calls in the first part of each description referred unmistakably to United States Grovernment surveys. In government surveys lands are described as being in -sections, townships and ranges in the order mentioned. It is a necessary implication therefore that the figures 35-10-30, used in connection with government surveys, mean section 35, town ship 10, range 30. The base line is south and the meridian line east of Crawford County, so the lands are situated necessarily in township 10 north, range 30 west. We do not think a surveyor would have any trouble in locating the lands from the description in the mortgage.
The $6,000 note was sufficiently identified in the mortgage. The date and amount were given, together with the interest it bore. The only requirement is that the description be sufficient to put interested parties upon inquiry, which, when followed up, will inform them of the extent of the incumbrance. Word v. Cole, 122 Ark. 457; Blackburn v. Thompson, 127 Ark. 438.
The note was admissible in evidence without being stamped. The act of Congress of October 3, 1917, did not require notes to be stamped until the first day of December of that year. 40 U. S. Stat. 319. The Stamp Act of Congress of 1914 was repealed by an.act of Congress of October 3, 1916, and the clause in the Stamp Act of. 1898, making unstamped notes inadmissible in evidence, had long since been repealed by implication.
No error appearing, the decree is affirmed. | [
-9,
77,
-4,
44,
-38,
-64,
42,
-109,
2,
-128,
-74,
83,
-1,
-50,
4,
37,
-31,
29,
-43,
105,
-57,
-77,
55,
64,
82,
-13,
-15,
-43,
-79,
79,
-12,
-43,
12,
41,
-54,
81,
-62,
-30,
-115,
94,
-114,
-124,
57,
108,
-35,
2,
56,
107,
116,
14,
21,
-89,
-61,
44,
61,
121,
77,
47,
-39,
40,
-48,
-16,
-118,
-123,
93,
21,
-111,
101,
-104,
65,
74,
12,
-112,
53,
12,
-24,
115,
38,
-122,
84,
69,
-101,
8,
118,
102,
26,
69,
-17,
124,
-120,
14,
-2,
29,
-90,
-109,
88,
-53,
40,
-98,
-99,
125,
20,
7,
-2,
-17,
-123,
-35,
104,
5,
-81,
-106,
-109,
43,
120,
-103,
19,
-13,
23,
-80,
113,
-114,
-94,
92,
68,
31,
-101,
-122,
-103
] |
Humphreys, J.
Appellants, twenty-eight in number, commenced this suit in the Eastern District of the Lawrence Chancery Court, to enjoin appellee from obstructing the natural flow of Turkey Creek until it provides complete drainage to carry off the water, and from discharging water from their boilers and roundhouse into the ditch cut on the west side of its tracks to turn Turkey Creek, which water backs up to and on the lands of appellant in such way as to stand and become stagnant.
Appellee filed an answer admitting that it obstructed the natural flow of Turkey Creek by damming the 'Channel or filling in the draw where the creek crossed the roadbed east of the lands of appellants, and turning the water into a ditch on the west side of its track, but alleging that the right of action, if any, was barred by the three years statute of limitation; and denying that it is discharging water from its boilers and roundhouse into the ditch which backs up to and on the lands of appellants so as to stand and become stagnant. Other defenses were introduced, but the proof was largely directed to the defenses set out above, so we deem it unnecessary to set out the others.
The court found that the cause of action was barred by the three years’ statute of limitation, and dismissed the bill of appellants for want of equity.
Prom the decree dismissing the bill an appeal has been prosecuted to this court.
Appellants were owners of certain lands in the town of Hoxie immediately west and across appellee’s railroad track from its terminal and switch yard. Originally Turkey Creek flowed down from the north part of said property and passed under the main line of the railroad and thence in a southerly direction along the east side of Hie roadbed for a considerable distance before crossing back to the west side thereof. In 1902 appellee filled in the gap of its roadbed where' the creek first crossed it, so as to .obstruct the flow of water, and, in order to carry it off, dug a ditch in a southerly direction along the west side of the roadbed to connect with Turkey Creek where it crossed the roadbed a second time. According to the weight of the evidence, the ditch was not large enough to carry off the water, and during the heavy rains the lands of appellants were inundated and greatly damaged with back-water.
The nuisance complained of consisted in filling in the trestle which theretofore spanned Turkey Creek, so as to divert the water from the channel of the creek, and by digging a ditch too small to accommodate the flow of water during- heavy rains. The decided weight of the testimony shows that, before the trestle was filled and the ditch constructed, the water had not backed up over any of appellants’ lands, but immediately thereafter and since (hat time has backed up and seriously affected said lands. The nuisance as well as the injuries were original and permanent, and the rights of action to enjoin the nuisance or sue for damages on account of permanent injuries accrued when the construction was completed in 3902, and suits should have been instituted within three years after that time. This court s'aid in the case of Turner v. Overton, 86 Ark. 406: “When the nuisance is of- a permanent character and its construction and continuance are necessarily an injury, the damage is original and may be at once fully compensated, and the statute of limitations begins to run upon the construction of the nuisance.” The facts in that case are quite similar to the facts in the instant case, and the rule announced therein is applicable and controlling here. Appellants are clearly barred from maintaining this suit to abate the original and permanent nuisance. The case, however, is different with reference to water being continually emptied into the ditch from the boilers and roundhouse. The weight of the testimony is to the ef feet that the water discharged from the roundhouse either passed through a sump into the ditch, or directly into it, to such an extent that it -backs up two blocks in dry weather and stands in a stagnant pool near or on said lands. The act of appellee in discharging this water into the ditch from day to day is distinctively a continuing nuisance and injury. It is in no sense a part of the original nuisance and injuries. The action to abate it was not barred when this suit was instituted. The court erred in dismissing this, the second cause of appellants’ action.
The decree is affirmed as to the first cause of -action, but reversed and remanded as to the second, with directions to enjoin appellee from emptying water out of its boilers and roundhouse, directly or indirectly, into the ditch or the bed of Turkey Creek north of the ditch, without preparing facilities for carrying the water off. | [
-16,
108,
-72,
-52,
-118,
72,
-56,
-106,
89,
-93,
-11,
83,
-49,
-63,
0,
117,
-25,
125,
117,
59,
-27,
-77,
31,
-62,
17,
-109,
113,
95,
-74,
93,
100,
-41,
72,
33,
74,
21,
70,
-54,
-51,
92,
-114,
38,
59,
97,
-47,
-56,
38,
106,
54,
79,
21,
15,
-13,
46,
16,
-29,
73,
44,
-49,
45,
83,
114,
-102,
-107,
28,
20,
48,
-58,
-111,
3,
-50,
58,
-112,
52,
57,
-84,
119,
-90,
-105,
116,
75,
-103,
40,
102,
102,
3,
109,
-25,
-116,
-72,
14,
-38,
13,
-90,
-80,
16,
75,
104,
-79,
-99,
116,
16,
37,
114,
-20,
-123,
94,
108,
5,
-121,
-108,
83,
-97,
-84,
-116,
55,
-21,
55,
32,
116,
-49,
-30,
92,
71,
112,
27,
31,
-38
] |
McCulloch, C. J.
Appellant, John Brents, shot and killed one Leonard Hare in the town of Cleveland, in Conway County, on Saturday afternoon, June 24, 1922, and was indicted by the grand jury of that county for the crime of murder in the first degree. On the trial of the case the killing was admitted, but appellant claimed, and attempted to prove, that he acted in necessary -self-defense. The verdict of-the jury found appellant guilty of voluntary manslaughter, and -assessed his punishment at three years in the State Penitentiary. According to the testimony adduced by the State, trouble first arose between Hare and Marvin Brents, one of appellant’s brothers, and there was evidence tending to- show that appellant was in conspiracy with his brother to kill Hare, or compel him to leave town and stay away.
Hare and Marvin Brents met on the street in Cleveland, and Marvin ¡accused Hare of having interfered and prevented him from obtaining a school contract. Marvin struck Hare, and as the latter ran away Marvin drew his knife and started after Hare. The parties then separated without any further trouble at that time, and Hare went away in his car and returned in a short time with a rifle. Marvin also went away and returned with a gun, but both parties were disarmed by others, at least the rifles were taken away from them. Hare went into Frazier’s store, where Marvin and some of his intimate associates were, and shots were fired there, the proof tending to show that Hare had a pistol, and fired one or more of the shots, and that one of the shots hit Marvin. Appellant was not in the store at that time, but was on the outside. Hare ran out the back door of Frazier’s store, and as he ran across the street appellant, who was standing on the front porch of Frazier’s store, fired at Hare and killed him.
Some of the witnesses testified that during the time that Hare was in the store appellant took a position on the porch where he could command a view of both the front and rear exits from the store, and others testified that he walked up the street, but that as soon as the firing commenced lie ran back down to Frazier’s store and stood on the porch.
There is also a conflict in the testimony as to whether or not Hare had a pistol in his hand when he ran out of the store and across the street at the time appellant shot him. One or more witnesses to the encounter testified that Hare had a pistol in his hand, but that he did not fire at appellant nor make any demonstration. Others testified that Hare did not have a pistol at that time. Appellant himself testified that Hare bad a pistol in his hand, and fired at him before he fired the shot which killed Hare.
The testimony was abundantly sufficient to sustain ’the conviction of voluntary manslaughter; it was suffi cient, if accepted in the strongest light against appellant, to have justified a conviction of murder in the first degree, for there was proof tending to show that appellant joined with his brother in a conspiracy either to kill Hare or to compel him to leave town, and that the shot was fired pursuant to the conspiracy.
It is conceded that the killing was intentional, and the verdict of the jury has eliminated all the elements of malice and premeditation by confining the findings to the degree of voluntary manslaughter. The court instructed the jury as to law concerning all the degrees of homicide, and there are no objections urged to the rulings of the court in regard to the instructions, except in refusing to give certain requested instruction of the appellant which related to the question of self-defense. We are of the opinion that the subject was fully and correctly covered by the court’s charge, and that there was no error in refusing to give those instructions on the 'subject which were requested by appellant.
It is especially urged that the court erred in refusing to give the following instruction on the subject of self-defense :
“4. You are instructed that if, at the time the defendant fired the shot which resulted in the death of the deceased, the deceased was in the act of firing, or had fired at defendant, or the defendant, in good faith, acting as a reasonable person, situated as he was, believed, and had reasons to believe, from the circumstances then surrounding him as he viewed them, that he was in imminent or immediate danger of receiving at the hands of the deceased some great bodily harm, or of losing his life, and, so believing, he fired the fatal shot, then such shooting would be justified under the law of self-defense; and if you find this to be true, or if you have a reasonable doubt relative thereto, then you should acquit the defendant.”
The instruction was erroneous in more than one respect, and was properly refused. In the first place, it stated the law to be that if deceased had first fired at appellant, that, in itself, would afford sufficient justification for appellant’s firing in return, regardless of all other circumstances. In the next place, the instruction was erroneous in failing to incorporate the idea of appellant himself being free from fault or carelessness. Even if the subject had not been fully covered by another instruction, appellant could not complain without having first requested an accurate instruction.
•We are of the opinion therefore that the case was submitted to the jury under instructions free from error, and that the court’s rulings on appellant’s requested instructions were correct.
There are numerous assignments of error with respect to admission of testimony.
J. H. Frazier, the owner of the store where the shooting occurred, was introduced as a witness by appellant, and he described that scene, and also told about, the rifle being taken from Hare. H© stated that he admonished Hare to go away and not have any trouble, and that Hare replied that he “hated to be run off just like a dog.” This testimony was admitted’ over appellant’s objection. There was likewise objection to the further statement of the witness that when the gun was taken away from Hare in Frazier’s store and he was told by one Holbrook, who took the gun, to “stay in there and behave"himself,” he said, “I am not doing anything or ain’t going to do anything if they let me alone.”
The first statement of Hare was immaterial, and it is clear that it could not have had any prejudicial effect. We are of the opinion, however, that these statements were part of the res gestae, and for that reason were admissible. They occurred after the first trouble between Hare and appellant’s brother. Marvin and almost immediately before the second encounter. They were a part of the second encounter, which occurred just before anpellant shot Hare on the outside of the store. The statements were close enough to the main incident to constitute a part thereof, and were, we think, admissible. 1 Byrd v. State, 69 Ark. 537; Childs v. State, 98 Ark. 430.
Dr. Stover was one of the most important witnesses introduced by the State, and he testified that he. saw the killing, and that deceased had a pistol in his hand, but did not fire at appellant nor make any hostile demonstration toward the latter. One of the attorneys for the prosecu-. tion asked the witness: “How long after the examining trial was it that your house was burned?” On objection being made to the question, the court stated that it- was not material. The witness did not answer the question, but the attorneys stated their respective contention with regard to 'this evidence, the prosecuting attorney insisting in his argument before the court that it was competent for him to show that witness’ house had been burned after he testified in the examining trial. The court ruled that the testimony was not admissible. The State’s attorney then asked the witness if he did not get a note to leave, and he replied that he had, whereupon objection was made, both as to the testimony and as to the statement of the prosecuting attorney concerning his reasons for insisting upon the admissibility of the evidence. The court directed the jury not to consider either the evidence or the statement of the prosecuting attorney. The rulings were all in favor of appellant, and were sufficiently emphatic to exclude the offered testimony and statement of the prosecuting attorney from consideration of the jury. We think there was no prejudice resulting from the incident.'
Oscar Holbrook was one of the important witnesses introduced by the State, who testified concerning circumstances attending the killing. The witness testified, in response to questions propounded by the State, that he and deceased had served recently on the ’grand jury which had investigated charges against appellant and his kinsmen for violations of the liquor laws. Objection was made to this line of examination, but the State was permitted to proceed for the purpose of establishing its theory that there was a conspiracy to do violence to deceased and Holbrook on account of their participation in the investigation by the grand jury. The witness was asked, after making’ the foregoing statement, whether his and deceased’s investigations upon the grand jury had resulted in bitterness and hard feeling between them and the members of the Brents family, and the witness answered that he could not say that there was any such feeling, and that he had seen no indications of it. In view of this answer of the witness, we cannot see that there -was any possible prejudice resulting from the admission 'of this testimony. Moreover, the prejudice, if any, has been removed by the verdict of the jury finding-appellant guilty only of manslaughter and thus eliminating all questions of premeditation and malice. The testimony, if it had any effect at all, only tended to show malice on the part of the accused.
Exceptions were saved to other rulings of the court in regard to the cross-examination by the State of witnesses concerning feeling aroused by Hare’s participation in the proceeding’s before the grand jury. These witnesses testified that they had no feeling towards Hare, but their statements tended to show that there was cause for feeling- against Hare, and the testimony was admissible for that purpose in order to affect the credibility of the witnesses. We think that, while these matters may not have been admissible as original testimony, it was competent to thus interrogate the witnesses themselves for the purpose of testing their credibility.
On the whole, we find no error in the record, and the judgment is affirmed. | [
-80,
-44,
-8,
-97,
58,
-88,
104,
122,
-6,
-94,
117,
-5,
111,
73,
65,
97,
107,
125,
-43,
105,
-91,
-77,
39,
103,
27,
99,
-87,
-59,
51,
-55,
-68,
-41,
8,
96,
106,
73,
-58,
106,
-27,
-66,
-114,
1,
-71,
96,
90,
80,
52,
63,
116,
10,
49,
-98,
-86,
42,
22,
-81,
72,
44,
91,
-86,
80,
113,
26,
13,
-27,
6,
-109,
102,
-99,
-121,
-40,
62,
-103,
53,
2,
-24,
122,
-106,
-111,
84,
109,
-103,
-116,
102,
70,
9,
-120,
-83,
-87,
-103,
14,
126,
-123,
-121,
-104,
96,
33,
6,
-106,
29,
122,
48,
6,
118,
-20,
-36,
25,
120,
71,
-41,
-74,
-111,
-49,
116,
-42,
-69,
-37,
37,
48,
116,
-49,
-22,
92,
70,
88,
-37,
15,
-47
] |
Humphreys, J.
This suit was originally instituted by appellee in the Faulkner Circuit Court against the Missouri Pacific Railroad Company to recover $153 damages on account of the decline in prices of a carload of cattle in the St. Louis market occasioned by the alleged failure to furnish a car for the shipment thereof from Conway, Arkansas, on the sixteenth day of October, 1919, after notification. The shipment occurred during -government control of railroads, -and by agreement James C. Davis, as agent for the President, was substituted for the railroad company, and entered his appearance. Upon- the trial of the cause before a jury, a verdict was returned and judgment rendered against appellant for $132 with interest -at the rate of 6 per cent, per annum from June 16, 1920, until paid, from which an appeal has been duly prosecuted to this court.
Two contentions are made by appellant for a reversal of the judgment; first, that the proof was insufficient to justify the submission to the jury as to whether cattle declined in price at St. Louis between the time they should have been delivered in the National Stock Yards and the time they were delivered; and second, because the court erred in permitting appellee to recover upon a verbal contract for a car in which to ship the cattle.
Appellee testified that the market price of the cattle he shipped was twenty-five cents less on the hundred pounds on the day the cattle arrived in the National Stock Yards, in East St. Louis, than on the day they should have arrived. The delay in shipment was eight days. He not only testified that he received this information from the man to whom he shipped the cattle, but that he obtained his knowledge from a regular St. Louis market publication, showing quotations from day to day of hogs, cattle, sheep, etc., which all the live stock men sent out regularly to shippers of live stock. Appellant was pressed closely on cross-examination concerning the character of the market publication, circular,- or card, and he said it was published by the National Live Stock Company for use by all the live stock commission merchants and their patrons. We think the testimony sufficiently definite and competent -as tending to establish the decline of the market value of the cattle during the period of delayed shipment. St. Louis & S. F. R. Co. v. Pierce, 82 Ark. 353; St. L. I. M. & S. R. Co. v. Laser Grain Co., 120 Ark. 119.
The appellant testified that on October 13, 1919, he called the agent at Conway, B. C. Benedict, and notified him to have a cattle-car ready on Saturday the 16th for shipment of a carload of cattle, belonging to him, from Conway, Arkansas, to the National Stock Yards at East St. Louis, Illinois; that the agent accepted the oral notice; that, pursuant to the notice, he drove his cattle a distance of twenty miles to Conway, where he was compelled to wait for a week before he could get a cattle-car. As against appellee’s right to recover, appellant cites a Missouri case, Underwood v. Director General, 222 S. W. 1037, in which it was held that “no verbal agreement for cattle-cars for shipment in interstate commerce can be- relied on under the Carmack amendment, which requires a written contract, nor can a preliminary oral agreement for future interstate shipment.” Appellee did not sue upon an oral agreement or contract of the government’s 'agent ito furnish him a cattle-car for an interstate shipment. He sued the carrier for not furnishing the oar within a reasonable time after notice to do so.
“A railroad company, when engaged in the business of transporting live stock, is bound to furnish suitable cars therefor upon reasonable notice, whenever it is within its power to do so without jeopardizing its other business.” (Syllabus) Hines v. Mason, 144 Ark. 11. Of course the above rule is controlled, in interstate shipments, by the character of notice approved by the Interstate Commerce Commission, and it approved a rule requiring a written notice. So, under the latter rule, the agent could have refused to accept an oral order or notice for a car. In the instant case, however, the agent accepted the oral notice or order, thereby waiving the form of notice. We know of no reason why the form of the notice or order might not be waived.
As the shipment occurred during government control, the judgment is reversed as to the Missouri Pacific Railroad Company, and affirmed 'as to James C. Davis, as agent for the President of the United States. | [
-16,
69,
-68,
77,
10,
106,
42,
-70,
70,
-94,
38,
83,
-55,
-58,
16,
117,
-25,
61,
-11,
106,
-12,
-105,
23,
-29,
19,
-109,
19,
-57,
57,
75,
100,
-25,
73,
16,
74,
21,
-62,
-32,
-63,
30,
-82,
36,
-87,
-20,
89,
80,
56,
105,
22,
67,
49,
-66,
-21,
46,
28,
83,
105,
46,
-5,
45,
-63,
120,
-78,
79,
63,
6,
16,
102,
-104,
5,
-56,
58,
-104,
49,
17,
-87,
115,
-92,
-122,
116,
41,
-39,
8,
38,
38,
75,
5,
-113,
-120,
-88,
47,
-38,
-117,
-122,
-96,
16,
2,
99,
-66,
29,
20,
84,
-105,
126,
-3,
69,
-99,
56,
3,
-114,
-74,
-94,
47,
-84,
-98,
23,
-53,
-73,
50,
113,
-53,
-94,
93,
71,
126,
-101,
-114,
-9
] |
Humphreys, J.
Appellee instituted suit in ejectment, in the Garland Circuit Court, against appellants to recover the possession of “all that part of lot six, block eleven, of the U. S. Hot Springs Reservation, as surveyed, mapped and platted by the Hot Springs commissioners, bounded and described as follows: beginning on the division line between lots six and nine, a distance of 115 feet southerly from lot eight; thence southerly along the division line between lots six and nine for a distance of 45 feet; thence northwesterly parallel with the division line between lots five and six, for a distance of 27 feet; thence northerly for a distance of 40 feet to a point that is 39 feet from the place of beginning; thence easterly for a distance of 39 feet to the place of beginning, situated in Garland County, State of Arkansas.” Appellee alleged ownership and right to possession of said parcel of land through mesne conveyances from the United States.
Appellants filed an answer denying the ownership of said land by appellee or the grantors in the chain of her title, naming them; .also alleging ownership in themselves by adverse possession.
At the conclusion of the testimony appellants requested a peremptory instruction, which was'refused by the court, to which ruling they objected and excepted.
Over the objection and exception of appellants the cause was then submitted to the jury upon the sole issue of whether they had acquired title to the parcel of land under the seven years’ statute of limitation. Upon conflicting evidence responsive to this issue, the jury returned a verdict in favor of appellee, and from the judgment rendered in accordance therewith an appeal has been duly prosecuted to this court.'
Appellants’ contention for reversal is, that the trial court erred in holding that the pleadings presented only the one issue for determination by the jury. It is argued that the court should have also presented -the issue of the sufficiency of appellee’s record title to the jury for decision, as the undisputed testimony disclosed that appellee, nor her predecessors in title, had ever been in actual possession of the land. We think not. Appellee set out her chain of title in the complaint, to which a general denial was entered by appellants. This court ruled in Pace v. Crandell, 74 Ark. 417 (quoting from syllabus 1) that “a general denial of plaintiff’s ownership of land sued for in ejectment, where the complaint specifically sets forth the plaintiff’s title, raises no issue.”
Malinda Greer, one of the appellants, makes the additional contention that the trial court erred in rendering judgment against her for possession and costs, because it was not shown that she claimed or occupied the property. She was made a’party defendant to the suit, and did not enter a disclaimer. On the contrary, she answered jointly with Hester A! Conley that they claimed title by adverse possession. The jury determined the issue thus tendered against her, so it was proper to render judgment against her for possession and costs.
No error appearing, the judgment is affirmed. | [
85,
108,
-16,
60,
40,
96,
56,
-126,
96,
-119,
101,
83,
47,
-56,
12,
57,
-29,
9,
-11,
121,
-57,
-77,
95,
64,
80,
-13,
89,
85,
52,
76,
-90,
-42,
72,
81,
-54,
85,
64,
98,
-17,
28,
-50,
-128,
-71,
108,
-39,
-126,
56,
47,
80,
15,
33,
-113,
-13,
-84,
17,
67,
73,
45,
-53,
61,
72,
120,
-102,
69,
-1,
7,
33,
-89,
-102,
1,
72,
120,
-112,
48,
8,
-40,
115,
54,
-126,
116,
3,
-101,
-120,
96,
103,
11,
108,
-25,
-72,
8,
14,
62,
13,
-90,
-14,
8,
107,
73,
-74,
-99,
-4,
-108,
69,
126,
110,
-123,
93,
108,
7,
-50,
-106,
-95,
13,
120,
-116,
3,
-13,
3,
52,
112,
-49,
-30,
92,
71,
51,
-101,
-114,
-13
] |
Hart, J.,
(after stating the facts). In Epperson v. Helbron, 145 Ark. 566, the court held that, under an oil and gas lease stipulating that if no well is completed within one year from date it shall become void unless the lessee pays $60 for each additional year, the lessor may declare a forfeiture at the end of the first year unless payment for such extension is made in advance.
It will be observed from the statement of facts that the lease in question provides for the payment of the. annual rental on or before September 11, 1921, and that September 11th fell on Sunday. The fact that the last day for the payment of the rent fell on Sunday raises the question of whether or not payment count be made on the following Monday.
The general rule with regard to contracts is that, when an act is to be performed within a certain number of days, and the last day falls on Sunday, the person charged with the performance of the act has the following day to comply with his obligation. The majority rule is that Sunday cannot, for the purpose of performing a contract, be regarded as a day in law, and should, as to that purpose, be considered as stricken from tlie calendar. In computing the time mentioned in a contract for the doing of an act, intervening Sundays are to be counted, but when the last day for performance falls on Sunday, it is not to be taken into computation. 28 A. & E. Enc. of Law, 2 ed. p. 224, and cases cited; Monroe Cattle Co. v. Becker, 147 U. S. 47; Avery v. Stewart, 2 Conn. 69; 7 Am. Dec. 240; Owen v. Howard Insurance Co., 87 Ky. 571; Seibert v. Stiles, 39 Wis. 533; Barnes v. Eddy, 12 R. I. 25; Post v. Garrow, 18 Neb. 682; L. R. & F. S. Ry. Co. v. Dean, 43 Ark. 529, and St. Louis Southwestern Ry. Co. v. Furlow, 81 Ark. 496. See also Street v. United States, 133 U. S. 290, where the rule was recognized in the exercise of a power.
The leading case on the subject is Hammon v. American Mutual Life Ins. Co., 10 Gray (Mass.) 306. The insured in that case contracted to pay his premium quarterly and not later than noon on the quarter day. The failure to make the payment forfeited his policy. One of the quarter days came on Sunday, and the insured died in the afternoon of that day. It was held that, as it was unlawful to transact business on Sunday, a tender of the premium on the day following was a compliance with the contract. In that case the court said* .
“But as to other contracts, which by the face of the instrument require a payment on a day which proves to be Sunday, to discharge literally the promise or duty, the law seems to sanction the postponement of the time for doing the same till Monday following. In other words, Sunday is not a legal day for the performance of contracts and doing secular business. The statute law forbids all such acts. The party paying and the party receiving money on that day in discharge of a contract would subject themselves to a penalty for so doing. Sunday was not a day contemplated by the parties as embraced in the stipulation to pay a quarterly premium on the first day of October in each and every-year during the life of the party assured. The defendants had no office open on that day, and were under no obligation to receive the payment of the premium on that day, if the same had been tendered by the assured. 'Such being the case, the assured was under no obligation to do what would have, been not only an illegal act, but also one which the' other party was not bound to recognize. In this view of the case there'was no such default on the part of the assured, in not paying the premium fully due on the 1st of October, as should be held to terminate the policy.”
In Edmundson v. Wragg, 104 Pa. 501, where the right to recover usury paid was limited to six months after the payment of the usury, it was held that the last day of the six months being Sunday, the party had a right to bring his suit on the following day.
In Sands v. Lyon, 18 Conn. 18, where a testator devised to his son a tract of land upon condition that he pay, within a year after the testator’s death, certain legacies, and the last day of the year being Sunday, it was held that a tender on the following day was sufficient to save his right to the land. In that case the court said that the nonpayment of the money was in the nature of a forfeiture, and that the general rule should be applied so as to prevent this effect.
In Campbell v. International Life Assurance Society of London, 4 Bosworth’s (-N. Y. Superior Court) Repts., 298, the general rule was applied in a life insurance case where the insured had the option to pay his premium on or before a certain date, which fell on Sunday, and the court held that he might pay the premium on the following day.
In Semmes v. Adams, 228 S. W. 353, the Court of Civil Appeals of Texas held, under a mineral lease providing that the lessee might prevent forfeiture ¡by paying á specific annual rental in advance, that, the last day of the payment of the rental being on Sunday, payment on the following day was in time. The holding- was in application of the general rule that, when the last day of the performance of a contract falls on Sunday, performance on the next day is sufficient.
Again, in Plumber v. Southern Oil Co., 214 S. W. 896, the Court of Appeals of Kentucky followed the general rule in a suit to cancel an oil lease for the nonpayment of rental.
As said by the court in Craig v. Butler, 83 Hun (N. Y.) 286, contracts mature and rent falls due on -Sunday as well as on any other day of the week, and the only effect of the rule of dies non is to postpone the enforcement of the contract to a day which is open to transactions of a secular nature.
Following these decisions, we are of the opinion that the general rule fixing the time for the performance of all contracts which, by their terms, mature .on Sunday, should be uniform, and that no distinction in this respect should be made between optional and other contracts.
The lease by its express terms was assignable in whole or in part, and we hold that the lessee' and his assigns had a right to pay the rental on Monday, September 12, 1921.
It is insisted, however, by counsel for appellees that, inasmuch as the bank did not receive the letter containing the check for the rent until after banking hours on the 12th clay of' September, 1921, and did not credit the amount until the next -day, the forfeiture occurred. This did not make any difference. By the terms of the lease' the bank was made the agent of the lessors to receive the rent. It actually received the letter containing a check for the rent on the afternoon of Monday, September 12, 1921, and credited the amount of the check to the lessors on the next day. The time when the credit was extended to the lessors cuts no figure. This was merely the method by which the bank transacted .its business. The main purpose in the minds of the parties was met and the payment was effected when the bank received the check and accepted it as a payment. This was on the afternoon of Monday, September 12, 1921, and was within the time allowed by the contract under the rule announced above.
Of course the officials of the bank would not have to remain there after their customary banking hours in order to receive letters containing checks or other matters, but the fact remains that they did stay there and receive the letter containing the check, and accepted it as payment, on the 12th day of September, 1921. The lessees were not concerned in whether the bank gave the lessors credit on that day or on a subsequent day. They were only concerned in the bank’s receiving the letter containing the check and accepting it as payment on the 12th day of September, 1921. See Yoke v. Shay, 47 W. Va. 40, 34 S. E. 748, and Friend v. Mallory, 43 S. E. 114.
It follows that the decree must be reversed, and the cause will be remanded with direction's to the chancellor to dismiss the complaint of appellees for want of equity. | [
80,
121,
-44,
108,
58,
96,
10,
-102,
-33,
-29,
39,
21,
-19,
-46,
20,
41,
-29,
111,
117,
104,
-42,
-93,
39,
64,
-44,
-77,
67,
-63,
52,
109,
-90,
93,
76,
32,
-62,
-41,
-58,
75,
-63,
92,
14,
-124,
-103,
-28,
-39,
64,
48,
74,
24,
13,
9,
-123,
-5,
44,
24,
-17,
-23,
46,
127,
97,
-48,
-16,
-101,
5,
111,
21,
-112,
69,
80,
3,
-24,
12,
-100,
63,
8,
-24,
50,
-90,
-60,
52,
15,
43,
-120,
34,
98,
0,
5,
-1,
-20,
-68,
15,
-46,
-113,
-90,
-109,
89,
43,
46,
-74,
-97,
120,
21,
38,
126,
-30,
-107,
95,
-91,
19,
-50,
-42,
-93,
7,
115,
-106,
-119,
-26,
7,
33,
113,
-51,
-90,
92,
69,
114,
-101,
7,
-23
] |
Humphreys, J.
This is a suit to recover $3,000 on a fire insurance policy issued August 27, 1920, by appellant company to appellee, indemnifying him for a period of three years against loss by fire to his dwelling in the sum of $2,000 and to his household and kitchen furniture in the sum of $1,000.
Appellant filed an answer, denying liability.
The cause proceeded to a hearing upon the pleadings ánd testimony, at the conclusion of which each party asked a directed verdict. The court thereupon directed the jury to return a verdict in favor of appellee for $3,000 with interest at 6 per cent, from September 25, 1921, and a penalty of 12 per cent., which was done. The judgment was rendered in accordance with the verdict, from which an appeal has been duly prosecuted to this court.
Appellant contends for a reversal of the judgment upon two grounds. First, the insufficiency of the evidence to go to the jury upon the.waiver of the proof of loss. Second, refusal of the court to permit questions as to the cost and date of the purchase of the several items of the personal property.
On December 25, 1921, the house and furniture were completely destroyed by fire. Appellee failed to furnish proof of the loss within sixty days after the fire, in the manner provided by the policy. The failure to do so was interposed by the appellant company as a defense to the suit. Appellee admitted that he did not file proof of loss, but claimed that the adjuster for the company waived the requirement. The record reflects that, immediately after the fire, appellee notified'the local agent of appellant and W. B. Frith, cashier of the Bank of Wheatley,'of his loss, who in turn notified the company; that, at the suggestion of Mr. Frith, appellee made an itemized list of the personal property destroyed, in a small book, noting the value of each item, the total amounting to $2,257.88; that, in response to the notice and within three weeks after the fire, R. E. L. Turner, the adjuster of the company, viewed the place, in the absence of appellee, where the property was destroyed, and left a letter requesting him to come to Memphis to discuss the question of settlement; that during the meeting in Memphis the adjuster asked him if he had an itemized list of the property, to which he replied, that he did, and showed him the book containing the list theretofore prepared; that the adjuster said the company could not be expected to pay the price of new goods for old, to which appellee responded that he-did not expect it to do so, for the loss was three times as much as the property was insured for; that the adjuster then instructed appellee to furnish him with an itemized statement of what it would cost to rebuild the house, which was done, but made no further request concerning the list of personal property shown him. We think the conversation and conduct of the adjuster led appellee to believe that no further formality would be required concerning the proof of loss. A complete list of the personal property destroyed was shown the adjuster, and no objection was made as to' form and manner in which it was presented. Appellee was not asked to verify it by oath. In fact, he was led to believe it was satisfactory by the adjuster’s suggestion to make up an itemized statement of the cost necessary to rebuild the house. In reference to the personal property, appellee had done what he intended and thought was a satisfactory compliance with the requirements of his policy in respect to the proof of loss, and the adjuster should have notified him of any objection thereto. Silence on his part, under- the circumstances, was calculated to mislead appellee to his disadvantage, and constituted a waiver of additional proof of loss. Gould v. Dwellinghouse Ins. Co., 134 Pa. St. 570; Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475; Business Men’s Accident Assn. v. Cowden, 131 Ark. 419.
In answer to an interrogatory of counsel for appellant, on cross-examination, appellee made the following answer: “I could not tell the cost price of the articles on the list, hut the values set down on the list are about the market values. I placed the value on the list. I cannot tell how old the majority of the property was, some of it was twenty-odd years old.” After this information had been elicited, the same question, in substance, was repeated, and, over the objection of appellant, it was excluded by the court. In the exercise of a sound discretion, the court may prevent unnecessary repetitions in taking testimony, and we are unable to say that the court’s discretion was abused in sustaining the objection to the second question touching the same subject-matter.
No error appearing, the judgment is affirmed. | [
-76,
124,
-8,
-99,
24,
32,
106,
-6,
67,
1,
-73,
-45,
-5,
-59,
17,
111,
-25,
89,
-11,
106,
-41,
-93,
23,
34,
-38,
31,
113,
-59,
-75,
78,
-4,
-108,
76,
53,
-54,
21,
-30,
-64,
-59,
20,
74,
0,
41,
-28,
-39,
82,
48,
-5,
116,
71,
113,
-105,
-5,
56,
21,
73,
73,
44,
-5,
-87,
-48,
-7,
-118,
5,
123,
17,
49,
101,
-102,
1,
64,
24,
-112,
49,
0,
-24,
115,
-90,
-122,
116,
39,
-103,
0,
102,
103,
16,
5,
-25,
-20,
8,
39,
-66,
31,
-90,
-80,
40,
27,
41,
-65,
-99,
116,
20,
21,
58,
-4,
20,
93,
108,
1,
-113,
-108,
-9,
-119,
108,
-100,
-117,
-17,
19,
54,
113,
-49,
-88,
92,
79,
62,
-101,
30,
-37
] |
McCulloch, C. J.
A road improvement district designated as Western Crawford Road Improvement District was created in Crawford County by -special statute (unpublished) at the extraordinary session of the year 1920, and there were proceedings under the statute up to the assessment of benefits by the assessors and the- filing of the -list of assessments with the clerk of the county court for approval by the board of -commissioners. The statute contained the usual provisions with reference to giving notice of the assessments and providing for a hearing upon the correctness of the assessments-.
On the day provided for the hearing there were numerous protests made by owners of property to further proceedings toward the construction of the improvement, on the ground that the improvement was too expensive,and that the cost would probably exceed the benefits, and the -commissioners, without acting upon the list of -assessments filed by the assessors, decided to abandon the whole project as being impracticable. There were no further proceedings towards -carrying out the construction of the improvement, but there had been preliminary expenses incurred, and the statute contained the following provision with reference to the payment of such expenses:
“Section 25. In case, for any reason, the improvement contemplated by this district is not made, the preliminary expense shall be a first lien upon all of the lands in the district, and shall be paid by a levy of a tax thereon upon the assessed value for the county and State taxation, which levy shall be made by the chancery court of Crawford County and shall be collected by a receiver to be appointed by said court.”
The commissioners of the district, pursuant to the provisions of that part of the statute quoted above, prepared an itemized statement or list of the preliminary expenses, and filed a petition in the chancery court of Crawford County, setting forth in detail all the proceedings in connection with the preliminary expenses incurred, and asked the court to levy a tax upon the property in the district to raise funds for the payment of such expenses. The court disallowed one of the claims, but no appeal has been.prosecuted from that part of the decree. The remainder of the claims were approved by the chancery court and ordered paid, but in the final decree rendered the court refused to order payment of assessments in accordance with the directions of the statute quoted above, but ordered that the payments be made in proportion to the anticipated benefits assessed by the board of assessors.
It appeared from the proof that the property of two railroad corporations whose lines of railroad ran through the district would, under the method of assessment prescribed by the statute, amount to more than the whole of the anticipated benefits as assessed by the assessors of the district. It is shown that the assessed benefits of the Missouri Pacific Railroad were $1,960, whereas the levy of the tax on that property, according to the “ assessed value for county and State taxation,” would amount to $2,396.62. The board of assessors had assessed the property of the St. Louis-San Francisco Railway Company at $2,341.50, and it is shown that the amount to be paid on a levy in accordance with the provisions of the statute would be $2,769.40.
The chancery court based its conclusion on the ground that the assessment made by the board of assessors was conclusive as to the amount of anticipated benefits from the construction of the Improvement, and that the owners of property could not be taxed for preliminary expenses in excess of the anticipated benefits.
It will be observed, that the statute involved in this inquiry expressly provides that, in case the contemplated improvement is abandoned, “the preliminary expense shall he a first "lien upon all of the lands in the district, and shall be paid by a levy of a tax thereon upon the assessed value for county and State taxation.” This court has decided heretofore that the method of assessment prescribed in this statute is valid as applied to the payment of a completed improvement (St. L. S. W. Ry. Co. v. Board of Directors, 81 Ark. 562), or for the method of payment of preliminary expenses. Board of Directors v. Dunbar, 107 Ark. 285; Neterer v. Dickinson & Watkins, 153 Ark. 5. The decisions on this question were based on the ground that the statute constituted a legislative, determination that benefits would accrue in proportion to value. Special application of this rule was made in the Neterer case, supra, where a different method of assessment had been provided under the statute for payment of the' cost of the improvement, if completed. In that connection we said:
“The two methods of assessment are for wholly different purposes. One is for the payment of the cost of the completed improvements, which must be by taxation based upon and apportioned on benefits to accrue. The other is a mere provision for the payment of preliminary expenses where the improvement is not undertaken at all. This provision necessarily implies a determination by.the Legislature that there are anticipated benefits, at least to the extent of the cost of the preliminary expenses, apportioned according to assessments for county purposes, but it is neither unfair nor violative of any right of landowners to provide that, in the event the contemplated improvement is not undertaken, the preliminary expenses shall be paid according to value, and not according to anticipated benefits. The distinction lies between the payment of preliminary expenses and payment of the actual cost of the improvement.”
It is true that we reiterated in that case what had already been held in the Dunbar case, supra, that assess ments for payment of preliminary expenses could not be exacted in excess of anticipated benefits, but in each of those cases we emphasized the principle that a provision for payment of preliminary expenses necessarily implied a legislative determination that the cost of the preliminary expenses would not exceed the anticipated benefits from the construction of the improvement. The legislative determination is conclusive unless shown on its face to be arbitrary and unreasonable. Desha Road Imp. Dist. v. Stroud, 153 Ark. 587, and cases cited therein.
There is nothing shown in the present case to overcome the legislative determination except the unapproved assessment lists filed by the board of assessors. The assessment was incomplete because it was never approved by the board of commissioners. The point was never reached for the approval, for there was an abandonment of the district before this was done, and we do not certainly know what the assessments against the railroads would have been, had the assessment of benefits proceeded to finality.
Counsel for appellees lay stress upon the statement in the opinion in the Neterer case to the effect that the payment of preliminary expenses must not exceed the anticipated benefits, but this was a mere reiteration of what we have held in other eases in regard to taxation upon property and was a mere statement of the principle, without undertaking to determine how it might be shown that the taxes exceeded those benefits. We have always adhered to the principle that the right to tax for local improvements is limited to the amount of anticipated benefits, but, at the same time, we have consistently held that the legislative determination of the amount of benefits, or the legislative provision for the method of determining benefits, was conclusive unless shown to be arbitrary. So we hold now that this legislative determination is conclusive, and it is not sufficient to overcome this by showing that an incomplete assessment of benefits made by the board of assessors was less than the amount of taxes that the appellees would be required to pay under the other method prescribed by the statute.
The chancery court erred therefore in refusing to follow the statute, and the decree is reversed, and the cause remanded with directions to enter a decree levying taxes on the property in the district in accordance with the terms of the statute; that is to say, “upon the assessed value for county and State purposes.”
Wood and Hart, JJ., dissent. | [
-44,
-24,
-4,
-52,
-22,
64,
10,
28,
64,
-95,
101,
95,
-17,
70,
0,
97,
-30,
61,
69,
106,
97,
-94,
82,
67,
-85,
-77,
-73,
71,
-77,
-49,
118,
-80,
78,
113,
-54,
-100,
70,
64,
-57,
-34,
-114,
-117,
-71,
76,
81,
0,
52,
107,
19,
79,
113,
31,
-26,
40,
28,
-29,
72,
44,
-35,
43,
-112,
-30,
-70,
-99,
126,
6,
-127,
82,
-104,
3,
-54,
10,
-72,
53,
-34,
-24,
95,
38,
-106,
86,
5,
-119,
-120,
36,
70,
1,
40,
-17,
-24,
-71,
30,
-42,
-7,
-124,
-110,
121,
34,
43,
-78,
-97,
92,
-42,
-57,
124,
-82,
5,
89,
108,
-125,
-17,
-16,
51,
71,
-12,
-123,
3,
-17,
-85,
52,
64,
-57,
-42,
94,
-18,
19,
-101,
-42,
-103
] |
Per Curiam.
This is an appeal from a decree of the chancery court of Washington County disallowing a portion of appellant’s claim against Road Improvement District No. 6 of Washington County, created by special act of the General Assembly of 1919 (Vol. 2, Road Acts of 1919, p. 2326) and abolished by special act of the General Assembly of 1921. Special Acts 1921, p. 525.
Appellees moved to dismiss the appeal on the ground that it Vas not perfected within the time prescribed in a section of the repealing act cited above.
The history of the litigation is as follows: Appellees, who were certain owners of real property in the district mentioned, commenced suit in the chancery court of Washington County in June, 1920, attacking the validity of the statute creating the district and the assessment of benefits thereunder. No decree was rendered in that action until after the repealing statute became effective, ninety days after the adjournment of the General Assembly of 1921. After the passage and approval of that statute, but before it went into effect, appellees amended their complaint in the orginal action so as to set forth this statute, and the action proceeded to final decree after the repealing statute went into effect. The court appointed a master to investigate the claims, and specified a time within which the claims might be presented. The master made his report, and appellant filed exceptions to the report, and the court rendered a final decree allowing a portion of appellant’s claim but disallowing the remainder. This is the decree from which appellant seeks to prosecute his appeal, but his transcript was not filed within the time specified in the repealing statute for the prosecution of such appeals.
The section of the repealing statute cited above reads as follows: “Section 3. If the commissioners reject any claim, in whole or in part, presented to them, the holder thereof shall be barred, unless he shall, within ninety days after notice of the rejection thereof, proceed to enforce the same by suit. All suits shall be deemed matters of public interest, and shall be advanced and heard at the earliest possible moment; and all appeals therein must be taken and perfected within thirty days.”
Tliis court has, in numerous decisions, held to be valid statutes similar to this, limiting appeals in certain cases to a time as short as that mentioned in this statute. Crandell v. Harrison, 205 Ark. 220; Miller v. White, 108 Ark. 253; Norton v. Road Imp. Dist. No. 1 of Jefferson County, 143 Ark. 110; Ferrell v. Massie, 150 Ark. 156; Davis v. Cook, 155 Ark. 613.
Appellant insists that this ease does not fall within the terms of the statute, for several reasons; first, because his claim was never rejected by the commissioners,, but was passed on by the court in the first instance. The commissioners of the district were parties to this suit, and appellant presented his claim to the court, or, rather, to the master, in accordance with the instructions of the court, all parties treating the claims as being in the same attitude before the court for adjudication as if it had been rejected by the commissioners, and it is too late now, after the adjudication has .been made by the court, to raise the question that the commissioners had not previously passed upon the claim and rejected it.
The next reason given why the case does not fall within the provisions of the statute is that it was instituted before the repealing statute went into effect. The answer to that contention is that the suit progressed without final decree until after the repealing statute became effective, and the decree was rendered under that statute.
Again, it is urged that the case does not fall within the -statute for the reason that there is an attack made upon the constitutionality of the statute, and that the anpeal ought to stand-as to that nart of the decree under the rule announced in.Davis v. Cook, supra. Conceding it to be true that there is involved an attack upon the constitutionality of the statute, the attack arises entirely in the prosecution of the claim which appellant had filed, and therefore it comes squarely within the statute. The fact that there is a challenge to the constitutionality of the statute does not render it any the less conclusive as to the time for prosecuting the appeal. We have held that that part, at least, of the statute is valid under the rule announced in the cases hereinbefore cited.
It follows from what has been said that the appeal has not been prosecuted within the time specified by the statute, and the‘appeal must therefore be dismissed. It is so ordered. | [
-12,
-56,
-12,
12,
106,
96,
2,
-110,
67,
-95,
37,
83,
-81,
-62,
5,
49,
-17,
41,
117,
123,
-63,
-77,
19,
18,
50,
-77,
67,
-33,
53,
77,
-26,
118,
76,
52,
-54,
-107,
70,
-64,
-55,
88,
-122,
3,
-103,
-51,
89,
-63,
56,
107,
82,
15,
117,
-82,
-13,
-82,
28,
-61,
41,
44,
-55,
-88,
-55,
-72,
-102,
21,
62,
6,
33,
87,
-100,
-125,
-40,
-118,
-104,
49,
16,
-8,
115,
-74,
-42,
-12,
3,
-103,
40,
38,
102,
49,
33,
-1,
-24,
-68,
14,
124,
-115,
-90,
-109,
121,
72,
-93,
-74,
-103,
125,
-110,
103,
126,
-26,
-59,
95,
40,
-122,
-113,
-108,
-73,
-97,
-72,
-112,
3,
-25,
3,
50,
112,
-57,
-42,
94,
67,
49,
91,
-58,
-128
] |
Smith, J.
This is a suit on an account for the material to build a house on a lot owned by appellant in the city of Port Smith, and there is involved here only the correctness of the account sued on. When the cause came on for trial, appellant, the defendant below, admitted that all the material set out in the exhibit to the complaint had been sold and delivered to her, and had gone into her building, and that plaintiff was entitled to a lien on the house and lot for whatever amount was due, and that the only questions at issue were certain alleged overcharges on specified articles furnished and the failure to give credit for articles returned.
The important question in determining the amount for which plaintiff should have judgment is the price of the material, as there is -no dispute about the quantity.
Only two witnesses testified, one being the husband of the appellant, who Nas her agent' in the transaction; the other was Mr. Reeves, the general manager of the plaintiff company.
Reeves testified as follows: He personally sold and checked out the bill of lumber sold Mrs. Arnold, and the itemized statement thereof attached to the complaint is true and correct. The exhibit B, introduced by Mr. Arnold, was also true and correct, the latter being a statement of account furnished Mr. Arnold in August after the material had been sold and delivered in the preced ing June and. July. Mr. Beeves also testified that an exhibit A, introduced by Arnold, was a correct preliminary estimate of the cost of the material Mrs. Arnold would require, which witness furnished Arnold oh June 9th. The material was not bought at that time, and there was a difference in the quality and quantity of material. The estimate was never referred to again, and the sales were not made thereunder. Mrs. Arnold bought two or three times as much stuff as was stated in the estimate. These estimates are furnished on request, and are not contracts. He admitted a door and window had been returned, for which credit should be allowed for $14.90. There was a controversy over 35 pieces of flooring, which witness testified were returned and credited at the price charged, and the same quantity of. a better flooring later furnished at a higher price.
Mr. Arnold testified that his contractor had furnished him an itemized bill of the material that would be required to build the house, and on June 9th he submitted the bill to Mr. Beeves, who placed the price opposite each item, and on June 17th he ordered a substantial portion of the bill covered by the estimate. At the same time he also ordered 25 concrete blocks which were not in the estimate, the price of which was $5. He thereafter ordered a few extras not in the estimate, but the bill was otherwise substantially that covered by the estimate, there being only about $5 difference between the estimated price and the price charged on the articles included in the estimate. At the time witness gave the first order he paid $50 on the bill, and, while nothing was said about the prices covered by the estimate, he assumed the material was being sold in. accordance therewith. A number of items were furnished throughout the month of July, and, when the bill was finally rendered in August, a-higher price was charged for many o.f the articles than that shown on the estimate.
The first question for decision is whether Mrs. Arnold had the right to expect the material to be charged for according to the estimate. Beeves testified that similar estimates were furnished every day, and many of them to persons who never bought any of the items priced, and that the articles delivered to Mrs. Arnold were charged at the prices. current on the day of the delivery, and that nothing was said about the estimate when the material was furnished.
The majority are of the opinion that, under the facts stated, there was no contract to furnish the material at any fixed price, and no obligation to furnish it except at the prices current at the time of the delivery, for the reason that the estimate was, in legal effect, a price list, and in force only at the time made and subject to change to conform to the fluctuations in the market price.
’ It is the opinion of Justice Humphreys and the writer that the estimate furnished should be regarded as an offer to contract, furnished for the purpose of enabling Mr. Arnold to determine whether he would buy all or any of the material covered by the estimate, and an offer which remained open for acceptance for a rea: sonable time, and that eight days was a reasonable time within which to accept an offer to furnish material to build a house. Inasmuch as the order was filled by the man who made the estimate, and all of the material ordered was substantially that covered by the estimate, we think Arnold had the right to assume, in the absence of notice to the contrary, that the material covered by the estimate was being furnished at the prices stated in the estimate.
The court below fixed the current prices on all the items in accordance with the testimony of Beeves, and the view' of the majority approves that finding. There are, however, two errors in the account, even when stated on that basis.
The undisputed testimony shows that a bungalow door, priced at $15, and a door frame, priced at $5, were returned. Credit therefor should have been given for $20, but tlie credit allowed was only $14.90. Sixty-four pieces of flooring were furnished and charged for at 4 cents, and of these 35 pieces, amounting to 163 feet, were returned and credited at 3 cents. Mr. Beeves testified that the 35 pieces of flooring returned were credited at the exact price charged, but such is not the case. The account should therefore be credited with the overcharge of a cent per foot, amounting to $1.63. Later other flooring was charged for at -5 cents per foot, but, under the views of the majority, this was not improper. Mr. Beeves testified 5 cents was the market price of the flooring at the time the last of it was furnished; the explanation was also made by Beeves that the last flooring was of a better quality. A few other items are in dispute, but in each case explanation was offered that the prices had advanced above the estimated prices, or that a. better grade of material was furnished, and the lumber company has, under’the view of the majority, the right to have the items covered by the estimate charged at the prices current when they were furnished; but the account as thus fixed by the court belovv must be credited with the items of $5.10 and $1.63, and, as thus modified, the decree of the court below is affirmed. | [
-15,
126,
-24,
-36,
26,
96,
40,
-102,
121,
-32,
-11,
83,
-19,
66,
4,
107,
-91,
125,
85,
106,
71,
-77,
7,
99,
-46,
-77,
-5,
-43,
-72,
-51,
-76,
-44,
76,
36,
-62,
-99,
2,
-128,
-59,
24,
94,
-127,
41,
-24,
-7,
98,
60,
59,
36,
7,
49,
70,
-5,
44,
57,
75,
73,
42,
111,
59,
-64,
-15,
-110,
21,
93,
7,
-79,
118,
-100,
69,
72,
8,
-48,
53,
0,
-23,
115,
-74,
-122,
116,
47,
-85,
8,
96,
98,
2,
69,
-57,
88,
-40,
43,
122,
-99,
-89,
-109,
88,
27,
105,
-66,
-99,
117,
0,
54,
114,
-17,
85,
25,
108,
11,
-17,
-42,
-77,
-115,
48,
-104,
19,
-26,
-109,
48,
113,
-49,
-86,
92,
69,
50,
-101,
-114,
-8
] |
McCulloch, C. J.
Appellees own and operate a farm in Calhoun County and in the valley of Ouachita River, near the place where the line of railroad of the Chicago, Rock Island & Pacific Railway Company crosses that stream, and they instituted separate actions in the circuit court of Calhoun County against said railway company and the Director General of Railroads for damages to crops in the year 1919, alleged to have been caused by the overflow waters from the Ouachita River. The right of action in each case was based upon alleged acts of negligence on the part of the defendants, in failing to provide sufficient openings in the railroad dump to permit the waters to pass off.
The causes were consolidated, and the court sustained demurrers in favor of the said railway company and dismissed the complaint as to that defendant, leaving the cause to proceed against appellant Davis, Director General of Railroads, as agent. The trial of the consolidated causes resulted in a verdict in favor of each of the appellees for the recovery of damages.
Among other defenses there was a plea of the statute of limitations, and a denial of responsibility of the Director General of Railroads for failure to provide for additional openings in the dump constructed by the railroad company prior to the time the railroad came under government control. In other words, the question raised by this answer was that the damage to the crops of appellees was caused by the original construction of the dump, which occurred more than three years before the commencement of these actions, and was barred by limitation, and that the government was not liable for the original injury caused by a negligent act of the railway company. Appellant asked the court to give the jury a peremptory instruction in his favor on the grounds stated above.
This line of the Chicago, Rock Island & Pacific Railway Company was constructed during the year 1907. At the place where the railroad crosses the Ouachita River there is a low bottom, about three miles wide, which is subject to inundation by overflowed waters of the river. At the time of the original construction of the railroad there was a trestle across this bottom, but in the year 1912 the railway company filled, in the trestle so that the track rested on a dump. There was ah open space of 3,200 feet for the railroad trestle and. bridge across the river, and about a mile and a half from the river there was an opening of 425 feet left in the dump for the passage of water. The theory of appellees is that the opening in the dump was insufficient to let the water pass out, and that this constituted a continuing act of negligence for which damages might be recovered from time to time as injury resulted from the overflow.
There is evidence tending to show that the height of the overflow and the length of time it consumed in passing off were increased by the construction of the dump, and that the opening was insufficient to permit the water to flow through.
The overflow came in October, 1919, and damaged the crops of cotton grown by each of the appellees. The evidence adduced by the appellees tended to show that the height of the water during the overflow had been increased from the time the dump was erected, but that no damage had been done prior to the year 1919, for the reason that the overflow had not come at a season of the year when there were growing crops.
We are of the opinion that, according to the undisputed facts, the injury, if any, was original, and that appellees’ cause of action against the railroad company was barred by the statute of limitations; and that, for the same reason, there was no liability at all on the part of the government for damage caused during its operation of the railroad.
The decisions of this court on this subject are very numerous, and there is no uncertainty as to the law. Doubts which arise on the subject are concerning the application of the law. All of the cases are cited in C., R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, and it is un necessary to review all of the decisions. Special reference to a few of them is necessary in order to show the varying application of the rule of law announced by this court. One of the leading cases on the subject in this court is St. L. I. M. & So. Ry. Co. v. Biggs, 52 Ark. 240, and the following statement of law, in the opinion in that case, has often been quoted in subsequent cases:
“Whenever the nuisance is of a permanent character and its construction and continuance are necessarily an injury, the damage is original, and may be, at once, fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance. * '* * But when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened; and there may be as many successive recoveries as there are successive injuries. In such case the statute of limitation begins to run from the happening of the injury complained of.”
We said in C. R. I. & P. Ry. Co. v. Humphreys, supra, that the fact that “damage is probable, or that even though some damage is certain,” does not necessarily make the injury original so as to start the running of the statute of limitations. But it may be added that the fact thattbe extent of the injury is difficult to determine, or its ascertainment is inconvenient or expensive, does not prevent the injury from being original so as to permit recoveries for recurring injuries.
The following eases may be especially considered in determining the application of the law on this subject: St. L. I. M. & So. Ry. Co. v. Biggs, supra; St. L. I. M. & So. Ry. Co. v. Anderson, 62 Ark. 360; C. R. I. & P. Ry. Co. v. McCutchen, 80 Ark. 235; Turner v. Overton, 86 Ark. 406; St. L. I. M. & So. Ry. Co. v Magness, 93 Ark. 46: Board of Directors of Levee District v. Barton, 92 Ark. 406; C. R. I. & P. Ry. Co. v. Humphreys, supra.
In the present case it is evident that the obstruction, by reason of insufficient opening in the dump, was permanent in its nature, and that damage would result to .adjacent lands if the natural flow of waters was obstructed. If the height of the overflow had been raised prior to this injury and at the time the injury occurred, as contended by appellees, this was a fact ascertainable by ordinary means in the beginning. All of the lands in the valley of the Ouachita were subject to overflow from that river, and this was just as certain in the beginning as it was at the time, the injury occurred. Even though difficult to determine to what extent damage would result, it was, in fact, known or could have been known when the dump was completed. The only reason shown in the evidence why damage had not resulted theretofore was that the overflow had come at times of the year when there were no crops to be damaged. In this instance it so happened that the overflow came during the crop-gathering season, and the ungathered crop was damaged.
If the damage from this structure was not original, it is difficult for us to conceive a case where there would be such original injury. It is not material, in considering this question, that the railroad did not run through the lands of appellees. If the building of the dumn caused the injury to lands, whether abutting on the railroad or not, it constituted an injury to the property within the meaning of the Constitution, for which there must be compensation, and appellees could have, in the beginning, recovered compensation for such injury.
Our conclusion being that there was no liability on the part of the government by reason of the fact that the injuries resulted from the original construction of the dump', it follows that there is no evidence upon which a recovery can be sustained, and the judgment is therefor reversed, and each of the consolidated actions is dismissed. | [
-12,
109,
-68,
-116,
-72,
-20,
56,
-102,
75,
-95,
-28,
83,
-19,
-61,
9,
97,
-25,
-3,
-15,
59,
100,
-93,
17,
98,
83,
-109,
-5,
71,
-78,
75,
100,
-58,
76,
80,
-54,
85,
-57,
96,
-59,
-100,
-50,
-122,
-54,
104,
121,
72,
52,
111,
84,
79,
113,
31,
-14,
42,
21,
-61,
41,
46,
-49,
13,
65,
-15,
10,
14,
125,
4,
33,
70,
-102,
1,
-22,
58,
-104,
53,
-112,
-68,
114,
34,
-126,
-43,
11,
-103,
12,
102,
102,
40,
13,
-17,
12,
-120,
6,
-66,
-103,
-90,
-128,
1,
75,
67,
-69,
-99,
80,
-44,
-106,
-6,
-22,
-59,
89,
108,
-123,
-114,
-108,
-27,
39,
36,
-107,
35,
-53,
-125,
54,
112,
-52,
-14,
77,
71,
112,
-101,
-49,
-11
] |
McCulloch, C. J.
Appellee, a foreign corporation with its principal place of business at St. Louis, is engaged in the cotton business and has branch offices at various points in Arkansas, including Texarkana, and on December 23, 1918, appellee, through' its Texarkana office, purchased from appellants, who were engaged in the mercantile business at the town of Foreman, Little River County, 809 bales of cotton, to be delivered at the compress at Hope, Arkansas. The agreed price for the cotton was 30% cents per pound, the price to be paid in advance on the basis of what the parties termed “country weights,” that is to say the book weights kept by the appellants, and there was to be a final settlement according to the compress weights. The cotton was in damaged condition on account of exposure to weather, and it was agreed that the cotton was to be “conditioned,” that is to say, the bagging and ties were to be removed and the damaged cotton removed, appellants to pay the cost of labor, and that the “pickings,” that is to say, the damaged cotton removed, were to be taken by appellee at the highest prices paid at that time for such cotton.
The gross weight of the cotton, as invoiced by appellants, was 427,075 lb., and appellees paid for the cotton in advance on the basis of that weight. The cotton was shipped to Hope, as agreed, and was there “conditioned” and repacked, and on January 30, 1919, appellee furnished to appellants an itemized statement of the amount of cotton, according to the compress weights, aggregating 422,689 lbs. which, at the stipulated price of the cotton, made a debit of $1,337.73 against appellants. Another statement furnished on the same date showed the cost of labor of handling the damaged cotton, the price of the bagging, and also the weights of the pickings at 13,661 lb., and the price, at 4½ cents, aggregating $614.74, which amount was credited to appellants, after charging them with the cost of handling, leaving a credit of $85.69. Appellants immediately repaid the amount due to appellee according to these statements, but later claimed that they had received information that the compress weights of the cotton were falsely understated in the account furnished to appellants, and that the price of the pickings should have been 9 cents a pound, instead of 4% cents.
After communications between the parties, extending over a period of several months, appellants instituted this action in the circuit court of Little Eiver County to recover, on account of the alleged false representations, the additional amount claimed for the price of the cotton.
It is alleged in the complaint that appellee’s agents misrepresented to appellant the amount of the weights, and, instead of there being a shortage of 4,386 lb. in the weights, as shown in the .statement furnished to appellants, there was, in fact, a gain of 1,277 lb., and that ap pellants were entitled to recover the sum of $1,728.16 on this account, as well as an additional sum on account of the difference in the-price of the pickings, making a total of $2,020.95 sought to be recovered.
Appellee answered the complaint, denying all the allegations with respect to the false representations concerning the weights of the cotton, and also denying the allegations with respect to the price to be paid for pickings.
There was a cross-complaint, in which it was alleged that there was even a greater loss than that set forth in the statement, as subsequently ascertained, and there was a prayer for the recovery of the additional amount of $250 from appellants.
Appellee also moved to transfer the cause to the chancery court, which was done over appellant’s objections. On final hearing of the cause, the court dismissed the complaint and also the cross-complaint, and appellee accepted the decree and has not cross-appealed.
It is first insisted that the chancery court is without jurisdiction, that the circuit court erred in transferring the cause, and that the chancery court erred in refusing to remand it. The contention is that the action is nothing more nor less than one to recover damages on account of alleged fraud and deceit, and that the remedy at law is adequate.
According to the pleadings in the case, to which we must look for the purpose of determining the jurisdiction of the court and in testing the correctness of the court’s ruling in transferring the cause to equity, there was an account stated between the parties and settled, and this is an action to surcharge that settlement on account of fraud and to recover the amount alleged to be actually due. It is not merely a case to recover damages on account of deceit, as, for instance, where a sale of property is induced by fraud. The correction of accounts stated, and settlement thereof for fraud or mistake, is within the original common-law jurisdiction of courts of chancery. It is unnecessary to determine whether or not the jurisdiction of the chancery court is exclusive, for undoubtedly the jurisdiction is at least concurrent, and, under our statute, it is proper to transfer a cause from the law court to the chancery, where “all of the issues are such as heretofore were cognizable in chancery, though none were exclusively so.” Crawford & Moses’ Digest, § 1045.
• The only issue related to the alleged fraud in the account 'furnished to appellants by appellee, and, as we have seen that this was at least within the concurrent jurisdiction of the chancery court, the case was properly transferred to that court.
The evidence was to some extent conflicting as to the correct weights of the cotton when reweighed at the compress, but we are of the opinion that the evidence preponderates in favor of the findings of the chancery court. The burden was on appellants to successfully impeach' the accounts furnished by appellee and accepted by appellants. They offered no direct testimony as to the correct weights of the cotton, but the testimony they introduced merely tended to show that the weights had not been correctly stated. On the other hand, appellee adduced direct testimony by at least two witnesses that the weights furnished were correct.
As to the issue concerning the price of the pickings, there was also testimony preponderating in favor of the finding of the chancellor. Appellants admitted that at the time a settlement was made for the pickings the price offered by appellee was discussed, and at first objection was made to it, but the price was finally accepted, and settlement was made accordingly. After acceptance of the price, under those circumstances, it is too late for appellants to object that the price was insufficient. They knew then all that they know now concerning the price of the pickings, and the acceptance of the price offered’ by appellee was binding on the parties.
Our conclusion is that the decree is supported on both branches of the case by sufficient testimony, and it. is therefore affirmed. | [
-80,
-27,
-68,
13,
58,
-32,
8,
-102,
90,
-95,
37,
83,
-55,
102,
81,
101,
-29,
25,
-27,
108,
-92,
-89,
64,
112,
-61,
-105,
-69,
-57,
57,
73,
-28,
-42,
73,
88,
-118,
-127,
-62,
-30,
-63,
-100,
-50,
1,
-23,
68,
93,
72,
48,
-21,
16,
75,
113,
30,
-21,
40,
29,
-61,
41,
63,
-21,
56,
81,
-15,
27,
12,
127,
23,
1,
34,
-102,
5,
-38,
62,
-104,
53,
-128,
-24,
90,
38,
-122,
84,
35,
-103,
12,
102,
99,
48,
-96,
-81,
90,
44,
46,
-5,
-99,
-90,
-94,
72,
66,
67,
-78,
28,
78,
-57,
30,
-2,
-8,
-115,
28,
44,
-121,
-50,
-108,
-73,
45,
116,
92,
19,
-49,
-89,
49,
101,
-49,
-78,
93,
87,
59,
-101,
-58,
-47
] |
Smith, J.
On January 20, 1920, W. V. Goodlett, who was then the owner of 640 acres of land in Howard County, executed to Earl A. O ’Hara an oil and gas lease thereon. On November 20,1920, O’Hara executed to the Superior Producing and Refining Company an assignment of the léase on 200 acres of the land; and that company, on September 19, 1921, reassigned the lease to the 200 acres to the Carmen Oil Company. One of the questions in the case is whether this last assignment is void for the reason that it fails to describe the land. The lease to O’Hara was filed for record January 20, 1920; the assignment to the producing company was filed for record December 9, 1920; and the assignment from the producing company to the Carmen Oil Company was filed for record September 24, 1921.
On January 30, 1920, O’Hara assigned to W. P. Stewart the lease on 120 acres of the land. This assignment was filed for record December 20, 1920. On January 30, 1920, O’Hara assigned to C. A. Gates the lease in so far as it covered 160 acres of the land; and this assignment was filed for record February 20, 1920. On March 18, 1921, W. V. Goodlett, the original lessor, exe carted and delivered to the Dormon Farms Company his warranty deed wherein he conveyed the entire 640 acres.
The original lease from G-oodlett to O’Hara contained the following provisions:
“If the estate of either, party hereto is assigned (and the privilege of assigning in whole or in part is expresslv allowed), the covenants herein contained shall extend to their heirs, executors, administrators, successors and assigns, but no change in the ownership of the land or assignment of rentals or royalties shall be binding on the lessee until after the lessee has been furnished with a written transfer or assignment, or copy thereof; and it is -hereby agreed that, in the event this lease shall be assigned as to a part or as to parts of the above described lands, and the assignee or assignees of such part or parts shall fail or make default in the payment of the proportionaté part of the rents due him or them, such default shall not operate to defeat or affect the lease in so far as it covers a part or parts of said lands upon which the said lessee or any assignee thereof shall make due payment of said rental. * * * *
“It is agreed that this lease shall remain in force for a term of five years from this date (January 20, 1920), and as long thereafter as oil or gas, or either of them, is produced from -said land by the lessee. In consideration -of the premises the said lessee covenants .and agrees, if no well -be soonmenced on -said land on or before the 20th day of January, 1921, this lease shall terminate -as to both parties, unless the lessee, on or before that date, shall pay or tender to the lessor, or to the lessor’s credit in the Planters’ Bank & Trust Company bank at Nashville, Arkansas, or its successors, which shall continue as the depository, regardless of changes in the ownership of said land, the sum of $320, which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first mentioned herein, the down payment, covers not only the privilege granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred.”
The Dormon Farms Company brought this suit to cancel these leases, and, as ground therefor, alleged that the lease to 0 ’Hara was void for lack of mutuality, and that the assigned leases were void because the sublessees claiming them have not paid or properly tendered the rental provided for in the lease to O’Hara.
The lease to O’Hara was evidently prepared by an attorney whose chief concern was to protect the rights of O’Hara, the original lessee, and the sublessees. At any rate, the lease serves that purpose most excellently.
We think the contract was not void for the want oi mutuality. For the recited consideration the right to explore oil for five years was granted. It is true there was no requirement that the lessee develop the land during the first year; but, as appears from the portion of the lease quoted above, it was provided that the lease should expire on its first anniversary, unless on or before that date the lessee had paid the annual renewal charge of fifty cents per acre. A similar payment before each subsequent anniversary was essential to continue the lease in force. This annual payment of fifty cents per acre, aggregating $320 on the entire acreage, was a substantial and sufficient,-consideration to support the lease, although during the time covered by it no attempt was made to explore for oil. There was no allegation or proof that the land was in or near a developed field. We proceed therefore to a consideration of what we regard as the real question in the case, that is, whether the payments due on or before January 20, 1921, were made or properly tendered.
It will be observed that the lease to O’Hara expressly gave him the right to assign the lease in whole or in part, and provided that any assignee should have the same rights to the part assigned him as O ’Hara originally had to the whole tract. It will be observed also that the lease to 0 ’Hara imposed on him no duty to advise Groodlett as to any assignments he might make'. On the other hand, the lease did impose on Groodlett the duty of advising the lessee of any change in the ownership of the land, and provided that no change in the ownership or assignment of rentals or royalties should be binding on the lessee until after the lessee had been furnished with a copy of the transfer or assignment. It is not con-, tended that Groodlett ever advised the lessee of his sale and conveyance of the land to the .plaintiff, Dormon Farms Company.
The evident purpose of this provision was to leave the lessee in no doubt as to where the annual rental should be paid. The contract made the Planters’ Bank & Trust Company, of Nashville, the depository for the’ purpose of receiving this annual rental, and the lessee, or his assignee, had the right to make the payments there, and to the credit of Groodlett, until advised in the manner provided by the contract to make them otherwise. The plaintiff, Dormon Farms Company, was affected with notice of this provision, because the lease to O’Hara and the assignments thereof were in the chain of its title and were all of record at the time it received its deed from Groodlett.
The question whether the sublessees have continued in force the leases to themselves must be decided by a consideration of the facts attending the separate payments or tenders of payments by each of them, for the reason that the lease to O’Hara provides that the default of any assignee in the payment of the proportionate part of the rent due by him “shall not operate to defeat or affect the lease in so far as it covers a part or parts of said lands upon which, the said lessee or any assignee thereof shall make due payment of said rental.”
The conrt found the facts to be that the assignees had paid the annual rental provided for by the O’Hara lease, and dismissed the complaint as being without equity, except as to a portion of the land upon which the court found the rent had not been paid. The 0 ’Hara lease, in so far as it related to that portion of the land, was canceled, and, as there is no appeal from that finding, that tract passes out of the case.
As to the sufficiency of the description of the land in the assignment of the lease by the Superior Producing & Refining Company to the Carmen Oil Company, it may be-said that, while the land was not there described in terms, that assignment referred to the assigned lease to the Superior Producing & Refinino- Company in which the lands were described, and in this manner the descriptions were made definite and certain. 8 R. C. L., sec. 134, p. 1078; 18 C. J., sec. 67, p. 184; Cooper v. White, 30 Ark. 513.
On the question of the sufficiency of the tender made by the Carmen Oil Company the facts are as follows. In apt time that company wrote the bank at Nashville as follows: “Inclosed- please find New York draft for $100, which please place to the credit of W. V. Goodlett, the same being a 12 months’ rental of an oil and gas lease containing 200 acres and located in Howard County, Arkansas, due January 22, 1922, and described as follows : The E½ of the E½ of section 14, and all of section 13, except the E½ of the E½, all in T. 9 S., R. 29 west.” These were the only directions given by that -company as to the lands on which it wished to pay the rent. The letter stated the purpose of paying on 200 acres, but did not describe the particular land. Payments 'by the other sublessees were made in the same manner without describing the land. It also appears that when Gates remitted to the bank the sum of $80 with directions to credit the account of Goodlett, the bank returned the remittance and directed Cates to make the check payable to Dormon Farms Company; but Cates responded by again remitting the $80 to be credited to the account of Coodlett.
The remittances under the circumstances were properly made to the bank at the designated depository. No one questioned the right o£ the appellant, Dormon Farms Company, to appropriate these remittances, and the leases which were in its chain of title showed the lands on which each of the sublessees were offering’ to pay. They each remitted fifty cents for each acre covered by their leases. This was the sum required 'by the O’Hara lease, and the Dormon Farms Company should have assumed that the sublesses were offering to pay on the land respectively covered by their leases.
It was not contended that either Coodlett or the Dormon Farms Company had given Cates, or the other sub-lessees, notice of the conAmyance by Coodlett to the Dormon Farms Company, and the president of that company admitted that he Avould not haAm accepted the tender had it been made to him in the manner in which it was made to the bank. The bank was not a party to the lease contract except in so far as it consented to act as the named depository, and there Avas nothing about this contract which authorized the bank to direct the sublessees how payments should be made. The information given Cates by the bank Avas correct, but, had incorrect information been given by the bank, as a result of which the tender might have been made to the credit of one not entitled thereto, there is nothing in the record to show that the Dormon Farms Company Avould have been bound by the improper tender resulting from the erroneous direction .to the bank. Cates had the right, therefore, to disregard the suggestion of the bank, and the second remittances made by him to the bank must be regarded as a continuance of the original tender, which Avas made in apt time and manner.
What we have said about the tender by Cates and the Carmen Oil Company is decisive of the ease of the other sublessees.
It follows, from what we have said, that the court properly refused to cancel the leases, and that decree is affirmed. | [
112,
123,
-36,
-116,
56,
-32,
8,
-72,
-5,
-93,
119,
87,
-49,
90,
0,
57,
-94,
61,
101,
108,
-91,
-30,
85,
19,
81,
-45,
-37,
85,
52,
-55,
102,
87,
76,
40,
-54,
-33,
-60,
-126,
-59,
92,
-18,
-91,
-37,
109,
-39,
-111,
48,
41,
16,
77,
65,
-113,
-22,
36,
89,
87,
108,
46,
-55,
41,
-63,
-32,
-70,
-124,
-17,
23,
33,
5,
-112,
-125,
-56,
78,
-110,
49,
60,
-20,
19,
54,
-42,
116,
15,
27,
40,
38,
38,
65,
-52,
-17,
104,
-100,
6,
-70,
-99,
-90,
-62,
88,
-29,
66,
-98,
29,
90,
80,
-113,
126,
-30,
21,
93,
40,
-93,
-117,
-42,
-95,
7,
-24,
-120,
3,
-53,
7,
53,
112,
-51,
-86,
117,
103,
116,
-109,
-121,
-40
] |
Hart, J.
Sam Houpt prosecutes this appeal from a judgment of conviction against Mm for grand larceny, charged to have been committed by stealing one Dodge touring car of the value of $500 from E. L. 'Barkley in Garland 'County, Ark.
According to the evidence for the State, E. L. Barkley and his wife jointly purchased .and owned a Dodge touring car in August, 1921. It was a five-passenger car, and had nickel-plated bumpers on the front and rear of the car. The lights were also nickel-plated, and the ear had been in use less than a year at the time it was stolen on the night of Saturday, July 1, 1922. E. L. Barkley was the proprietor of a Piggly-Wiggly store in the city of Hot 'Springs, Garland 'County, Ark., and a young man who works in the store drove the car in front of the store on the night in question and left it there. He then delivered the key to E. L. Barkley, and no one could drive the car after it had been locked without a similar key with which to unlock it. Soon afterwards, on the same night, the car was driven away by some unknown person, and in about ten days thereafter it was recovered. The car was worth about $1,000 at the time it was stolen. E. L. Barkley had the car in Ms care and custody at the time it was stolen. On the night the car was stolen a captain of police in the city of Hot Springs saw. Sam Houpt driving the car. The captain of police knew Barkley’s car and recognized the car by its similarity to that of Barkley. Immediately after he saw the car pass he heard that Barkley’s car had been stolen. The car was found out in the country near where Sam Houpt lived. After Sam Houpt was arrested, he admitted that he was driving .a car on the streets of Hot Springs on the night that Barkley’s car was stolen, but said that the car belonged to Tolbert Teague. The officer who saw Sam Houpt driving the ear testified that he knew the car of Tolbert Teague, and that the car he saw Sam Houpt driving was not Teague’s car. -
.This evidence clearly shows that Barkley’s car was stolen, and it is sufficient to identify the defendant as the person who stole the car. An officer saw the defendant driving a car immediately after Barkley’s car was stolen, and the car driven by the defendant exactly fitted the description of Barkley’s car. In'fact the officer, when he saw Barkley’s car after it had been recovered, identified it as the car wliich he saw the defendant driving just after Barkley’s car was stolen. This was sufficient to connect the defendant with the larceny of the car. Hence the assignment of error of the defendant that the evidence is not legally sufficient to convict him is not well taken.
The main reliance by the defendant for a reversal of the judgment is an alleged variance between the allegation in the indictment and the proof of ownership of the car. The indictment charges that the car was the property of E. L. Barkley.
On cross-examination E. L. Barkley testified that the car had been paid for by a check signed by himself and by his wife. He stated that the car was owned jointly by himself and wife. He stated further, however, that on the night the car was stolen it had been locked, and that he had the key to it and was in the exclusive possession of it.
Counsel for the defendant claim that this testimony is not sufficient to prove ownership in E. L. Barkley, and rely upon the case of Merrit v. State, 73 Ark. 32. In that case the indictment charged the stealing of a steer, the property of W. N. Marshall. The proof showed that the steer was the joint property of W. N. Marshall and h-is brother, as partners. The steer was running in the range, and neither of the partners was in possession of it. Hence the court, following its former decisions, held that there was a variance between the allegations of the indictment and the proof introduced. The court in that case, as well as in other later cases, recognized that an allegation of general ownership will be sustained 'by proof of special ownership.
In the instant case, while the indictment charged general ownership in E. L. Barkley, the proof showed that he had the car exclusively in his possession at the time it was stolen, and this created a special ownership in him. The accused had no special concern as to the exact state of the title of the stolen property, and evidence of the exclusive possession is ordinarily sufficient proof of ownership. Cook v. State, 80 Ark. 495, and State v. Esmond, 135 Ark. 168.
It follows that the judgment must be affirmed. | [
80,
97,
40,
63,
42,
-32,
42,
26,
-13,
-125,
-3,
-109,
-87,
68,
17,
49,
-55,
95,
117,
97,
-36,
-73,
7,
51,
82,
51,
89,
85,
-76,
73,
-92,
-44,
94,
112,
-62,
29,
5,
-40,
-27,
92,
-114,
-128,
-69,
-16,
89,
80,
36,
125,
37,
14,
-31,
-113,
-41,
46,
26,
-54,
105,
126,
95,
-65,
-16,
114,
-115,
5,
95,
22,
35,
68,
-72,
5,
-64,
24,
-104,
113,
2,
-8,
113,
-74,
-126,
84,
77,
-103,
-120,
38,
118,
18,
25,
-89,
-68,
40,
15,
-66,
-105,
-113,
-100,
105,
1,
5,
-33,
-103,
123,
18,
6,
-14,
118,
69,
93,
104,
35,
-50,
-76,
-127,
45,
32,
-124,
57,
-29,
49,
103,
115,
-116,
-30,
117,
20,
122,
-117,
14,
-15
] |
Hart, J.
W. E. Pratt prosecutes this appeal to reverse a judgment of conviction against him upon an indictment charging him with being interested in the man ufacture of alcoholic, fermented, and intoxicating liquors, contrary to the statute.
On the part of the State it was shown that the sheriff of Lawrence County procured a search warrant to search the house of Lute Smith, situated in the Eastern District of Lawrence County, Ark., for a still.. When the officers reached Smith’s home, he was absent, but they found his wife and daughter and the defendant Pratt in the house. Upon searching the house they found four fifty-gallon barrels of mash which had begun to ferment, and was intoxicating. The mash was made of chops, sugar and water, and tasted like it had just begun to sour and “work up good.” They also found a number of fruit jars containing about one-half a teacup each of moonshine whiskey. When the officers entered the house, Mrs. Smith made a motion towards her daughter, and the daughter left the house with a half-gallon fruit jar full of whiskey. The officers attempted to seize her, and after a struggle with the mother, who went to the assistance of her daughter, they took the whiskey away from the daughter. During this time the defendant ran away from the house and hid in a treetop, where he was captured by one of the officers. He admitted to the officers that he was interested in the mash, and said that it had been prepared for hog feed.
Mrs. Smith stated to the officers, in- the presence of the defendant, that her husband and the defendant had made the mash while she was away from home. The officers found where there had been a furnace prepared in the smokehouse and a pipe was in a ditch leading off from it, indicating that whiskey had been manufactured there. They found no worm, but there were several containers in the smokehouse which smelled -of whiskey.
The defendant was a witness for himself, and denied having anything whatever to do with manufacturing whiskey at Smith’s house, 'and stated that he just happened to be there on the day in question.
The evidence for the State clearly shows that the mash was suitable for making intoxicating liquors, and had been used and was being used for that purpose. This is shown not only by the fact that the mash was in a state of fermentation and was intoxicating, but other intoxicating liquors were found on the premises.
According to the testimony of the officers, the defendant admitted that he was interested- in making the mash, but stated that it was being prepared for hog feed. The fact that sugar was used in its preparation negatived the idea that it was being prepared to feed hogs. The fact that it was in a high state of fermentation and that there were four fifty-gallon barrels of it, also tended to show that the mash was being used to make moonshine whiskey. The evidence for the State was sufficient to connect the defendant with the manufacture of intoxicating liquors and to support the judgment of conviction.
The court specifically told the jury that it must find beyond a reasonable doubt, from the evidence in the case, that the liquor found in the barrels was alcoholic .or intoxicating liquor, and that the defendant was interested in making it, before it would be authorized to convict him. This was a clear presentation of the theory of the,State. But it is contended by counsel for the defendant that he was entitled to have his theory of the case submitted to the jury in an appropriate instruction. His claim was that the .mash was being prepared for hog feed, and that he had a right to have this theory of the case submitted to the jury, in compliance with the rule announced by this court in Milliner v. State, 154 Ark. 608. This is true if the defendant had asked a correct instruction on this point. The instruction asked by the defendant is as follows:
“You are instructed that, before you would be authorized to convict the defendant under this indictment, you must find that he manufactured some of the liquors prohibited by law, and named in the charge, or was interested directly or indirectly in the manufacture of the same. And it is not sufficient that he was interested in the mash in proof only as hog feed. ’ ’
The concluding part of the instruction is what the defendant claims presented his theory of the case. It will be noted that this part of the instruction is argumentative in form, and for that reason the court was not required to give it. The instruction carried with it a suggestion by the court that the mash in question was prepared for hog feed, when all that the defendant was entitled to was to have this question submitted to the jury. In other words, it was a question for the jury to say, under all the facts and circumstances in evidence, whether or not the mash in question was being prepared for hog feed. The court could not indicate to the jury that this was the use to be made of it.
We find no reversible error in the record, and the judgment must therefore be affirmed. | [
-80,
-22,
-20,
29,
42,
-16,
106,
-104,
66,
-61,
-11,
-13,
-19,
82,
1,
99,
-19,
123,
85,
121,
-64,
-105,
23,
69,
-46,
-5,
27,
-41,
-72,
79,
-19,
-50,
45,
116,
83,
93,
-29,
-56,
-125,
-36,
-114,
13,
105,
-24,
113,
18,
58,
-69,
21,
15,
33,
30,
-10,
47,
21,
91,
73,
44,
91,
60,
-39,
-7,
-110,
93,
-113,
22,
-111,
34,
-108,
5,
72,
30,
-104,
17,
0,
-8,
115,
-76,
-128,
116,
15,
-119,
13,
32,
98,
9,
-35,
-53,
40,
-94,
57,
-82,
-99,
-121,
-8,
97,
107,
-88,
-66,
-99,
118,
24,
-113,
-16,
106,
-11,
89,
104,
-124,
-113,
-74,
-127,
-119,
40,
-42,
23,
-29,
-105,
96,
113,
-59,
43,
92,
69,
112,
27,
-122,
-73
] |
Wood, J.
This is an action by the appellee against the appellant to recover on an account for professional services alleged to have been rendered by the appellee to the appellant, for which the appellee asked'judgment. The appellee testified that the • appellant was indebted to him in the sum of $216. He exhibited an account which was taken front his books. He stated that the sum of $24 had been paid on the account. The appellee stated that he never made any agreement with the appellant to reduce the account to the sum of $24, and denied that he ever made a statement- to the appellant or to any one else that he agreed to reduce the account to $24. He mailed the appellant a statement of the account showing the number of visits charged for, amounting in the aggregate to $240, which was credited -by -check for $24, leaving a balance due of $216. The account was exhibited to the jury. The appellee stated that the account was correct, and was past due and unpaid. On cross-examination the appellee identified a statement which had been rendered to the appellant by the appellee, which statement is as follows:
‘ ‘ Statement.
“Dr. C. R. Gray.
“Newport, Arkansas, Sept. 28, 1921.
“Professional Services Rendered to....................................$24.00
Amount paid
Balance ...................................................................................................$24.00
“To Will Davenport
“Newport No. 1”
Appellee also identified a similar statement dated October 12th.
Appellee also exhibited a check which had been given-to him by the appellant for the sum of $24, which check and statement were introduced in evidence. Appellee testified that the statements showing the account as $24 were due to an error made by tbe girl who worked in his office and who mailed out the, statements for him. The statements should have been for $240 instead of $24. The correct amount of $240 is shown by his books. Appellee did not supervise the sending out of the statements, but told the young lady working in - his office to send them out.
Miss Blanche Hee-bes testified that she was working in the appellee’s office in September and October, and that she mailed out the statements of the accounts which had been exhibited and introduced in evidence. The appellee never instructed her to mail a statement to the appellant for the sum of $24. Appellee was sick from the 29th of September until some time in December. The statements sent out by her showing the amount of appellant’s account to be $24 was a mistake made by witness. The amount of the. account, as shown by appellee’s ledger, was $240, and the ledger showed a credit of $24. The appellee was permitted to exhibit the ledger to the jury.
The appellant testified that the appellee had visited appellant’s wife during her illness, and that appellant discharged him from the case. Afterwards the appellant met the appellee on the road and asked the appellee what kind of a bill he had against the appellant. The appellant told appellee that he had called him to wait on his wife, and with proper attention she would not have had the long spell of sicknes-s. Appellee at that time told the appellant to send appellee $24 in settlement of the account, $20 being for the initial treatment of appellant’s wife and $4 for a previous trip. Appellant told appellee to send him a statement. Appellant received a statement on September 28th for $24, and subsequently received two more statements showing a similar amount to be due. When he received the statement on October 12th he mailed appellee a check for $24. Appellant never received a statement showing $240 to be due. Appellee came to- appellant’s house and had a conversation in regard to the matter shortly before suit was filed, which was after appellant had sent the appellee his check for the amount of the account rendered.
On cross-examination, appellant testified that before his wife got sick he owed the appellee $4. Appellant discharged the appellee on the 4th of February. Appellee came to visit appellant’s wife about the 29th of December and visited her twice a day until appellant stopped it. Appellant had told appellee the reasons he objected to paying more than $24, and appellee agreed to accept $24 in settlement of his bill. Appellant had told appellee that he had not treated appellant’s wife properly, and that appellee’s conduct was ridiculous. The appellee said that he had not done anything wrong. Appellant told him some of the things that he had done wrong, and thereupon appellee stated that he didn’t know that appellant was dissatisfied, and asked appellant to send him $24 and let it go. Appellant then told appellee that he didn’t pay his bills until he got a statement, and asked appellee to send him a statement of the account agreed upon. Appellant got a statement, and mailed a check to appellee after the last statement was received.
Two witnesses testified to the effect that they had seen the-appellant and appellee engaged in conversation about the time and place mentioned by the appellant as the time and place the conversation took place between him and the appellee concerning the agreement for settlement of the account.
Appellee testified that his visits for which he charged the appellant were when he was sent for by the appellant, or in response to a call over the telephone.
The court gave the jury the following instruction: “The plaintiff in this suit seeks to recover from the defendant upon an account which has been verified by the evidence in this case, and the amount of it undisputed, the correctness of the account undisputed. Under the law in this case’, it becomes my duty to instruct you to return a verdict for the plaintiff for the amount of the account, $216 with interest,” The appellant duly objected and ex cepted to the ruling of the court. The jury returned a verdict, as directed, for the sum of $216. Judgment was entered for that sum with interest, from which is this appeal.
The court erred in instructing the jury to return a verdict in favor of the appellee. . We must give the testimony its strongest probative force in favor of the appellant. When this is done, it occurs to us that, under the testimony, it was an issue of fact for the jury to determine as to whether or not the claim of the appellee against the appellant was disputed. If the jury found that the claim was disputed, it was also an issue for the jury as to whether or not there had been an accord and satisfaction. “All disputed claims, irrespective of their subject-matter, may be settled by a contract of accord and satisfaction, provided such contract is not tainted with fraud or illegality.” 1 R. C. L. p. 179, sec. 4; 12 C. J. 334, sec. 24, and cases there cited in note 4; see especially Harris v. Henderson, 100 A. S. R. p. 386, note at p. 409 et seq. These issues should have been submitted to the jury under instructions applicable thereto. The court therefore erred in telling the jury, as a matter of law, that the amount of the appellee’s account ag-ainst the appellant was undisputed.
The judgment is reversed, and the cause remanded for a new trial. | [
-110,
-3,
-23,
-19,
10,
-32,
58,
-120,
80,
-125,
55,
115,
-3,
-61,
20,
109,
-28,
-19,
116,
106,
69,
-77,
7,
99,
-14,
-109,
-7,
85,
-79,
-50,
-92,
-35,
76,
48,
-22,
-111,
98,
75,
-59,
88,
-114,
-123,
-119,
76,
-7,
96,
48,
-91,
28,
73,
49,
-66,
-5,
44,
54,
71,
77,
44,
127,
8,
-112,
-96,
-118,
5,
111,
23,
49,
118,
-68,
75,
-40,
46,
-112,
-67,
1,
-39,
114,
-74,
2,
-44,
111,
-71,
8,
114,
98,
32,
53,
-21,
-100,
-115,
38,
126,
-99,
-90,
-48,
57,
3,
109,
-74,
-100,
126,
80,
-89,
-4,
-8,
92,
29,
100,
3,
-50,
-42,
-77,
-35,
116,
-100,
11,
-17,
51,
16,
81,
-35,
-94,
92,
79,
42,
-101,
-122,
-7
] |
Wood, J.
On Friday, January 13, 1922, appellant shot and killed Clay McIlroy on the northeast corner of the public square in the town of Ozark, Franklin County, Arkansas. McIlroy at the time was armed with a twelve gauge choke-bore shotgun loaded with B B shot. The appellant used a small automatic pistol. On the northeast corner of the square is situated the People’s Bank building. It is a two-story building, the lower story being devoted to the banking- business and the upper story containing offices. The appellant, with another lawyer,, had an office on the second floor. The stairway leading to the second story was immediately west of the bank building. The appellant fired the shot that killed McIlroy from this stairway. Appellant at the time was some eight or ten steps up the stairway.
A nineteen-year-old unmarried' daughter of MaIlroy had become pregnant and given birth to a baby on January 23, 1922, in Oklahoma City. She claimed that the appellant was the father of the child, and that she went to Oklahoma City at his suggestion and upon his promise that he would defray the expenses of the trip. Miss McIlroy was staying at her home in Ozark at the time she had sexual intercourse with the appellant. After she became pregnant she notified him of her condition, but' did not tell her father. Her father ascertained her condition after she reached Oklahoma City. She did not tell her father that the appellant was the author of her ruin.
It was the contention of the State that the appellant, without provocation, waylaid McIlroy and killed him at a time when the appellant was in no danger of death or great bodily harm from McIlroy. There was testimony to warrant such contention on the part of the State. On the other hand, it was the contention of appellant that McIlroy knew that his daughter had accused the appellant of being the father of her child, and that because of this McIlroy had threatended the life of the appellant and had taken his gun to the People’s Bank, where he transacted his business, and had left the same there to be used by him when the opportunity presented for shooting the appellant; that the appellant had been informed of these threats of McIlroy; that on the day of the killing McIlroy saw appellant standing unarmed, as he believed, near appellant’s car in front of the People’s Bank; that McIlroy thereupon went and got his gun, and came out of the bank with the gun in a shooting position, and was seeking appellant to take his life; that when the appellant saw McIlroy come out' of the door with the gun he left the man with whom he was talking at the edge of the sidewalk and ran up the stairway in an effort to get away from McIlroy; that he lost his footing after he had ascended eight or ten steps, and fell or sank down; that McIlroy pursued along the sidewalk in a trot or run until he. came in front of the stairway with his gun in a shooting position, and just as he was in the act of bringing his gun toward the appellant to shoot, the appellant fired the fatal shot in order to save his own life. There was testimony to support this contention of the appellant, and we deem it unnecessary to set forth in detail the testimony in support of the respective contentions.
The' appellant was indicted by the grand jury of Franklin County of murder in the first degree for the killing of McIlroy. The venue was changed to the Northern District of Logan County, where the trial was had, resulting in a verdict of guilty of murder in the second degree, and a judgment sentencing the appellant to imprisonment in the State Penitentiary for seven years, from which judgment is this appeal.
We will dispose of the alleged errors in the rulings of the trial court in the order in which they are presented in the brief of learned counsel for appellant.
The appellant contends first that the court erred in refusing a new trial on account of a demonstration in the court room by the spectators and the deputy sheriff who selected and summoned the talesmen on the jury, and on account of the argument of Hon. Steel Hays in urging the jury to convict the defendant because of the demonstration. To sustain the above assignment of error, which was made one of the grounds of the motion for a new trial, the appellant attached several affidavits. One of the affidavits stated, in substance, that he heard the argument made by Mr. Wolf, one of the attorneys for the State, and that at the close of his argument a great many persons in the audience engaged in a noisy demonstration by clapping their hands, stamping their feet, and hollering in loud voices; that he saw Guy Lipe, who was sitting on a bench near to, and in plain view, of the jury. He had his hands raised above his head, and was clapping them, and stamping his feet, and in that manner assisting and engaging in the demonstration. Lipe is the chief deputy sheriff of B. B. Foster, sheriff of Logan County. Other affiants corroborated the above statement as to the character of the demonstration in the court room.
Two of the appellant’s attorneys stated, in an affidavit in support of the above ground for a new trial, that they were present and heard the argument of Steel Hays, one of the-counsel for the prosecution, who- stated in liis argument with reference to the demonstration by the audience the following: “It was the spontaneous outburst of the honest heart of the people of this county —of'-your friends and neighbors.”
The court put into the record the following statement: “At the conclusion of the speech of Otha Wolf, an attorney representing the State, there wasi a sudden outburst of applause by a small portion of the audience located near the east front door and extended to other portions of the audience, but by no means a general applause. Immediately the court rapped vigorously for order, and order was almost immediately restored. The court rebuked the crowd severely for the outburst, directed the sheriff to arrest any one whom he saw applauding and bring them before the court, and directed the sheriff, if another applause occurred, to clear the room of spectators, and admonished the jury that they must not allow the applause of the audience in any way to influence them in their verdict, and said to them that, should they do so, they would be unworthy as jurors, and ought not to be allowed to sit in any case. If the Honorable Steel Hays made the statement in his address to the jury that it was the spontaneous outburst of the honest hearts of the people of this county, of your friends and neighbors, the statement was not called to the attention of the court, and no exceptions were saved to such statement.”
The statements of the presiding judge with reference to the character of the demonstration in the court room following the argument of the attorney, Wolf, must be accepted as the facts concerning such demonstration and the rulings of the court concerning the same. The statements show that the outburst of applause was by no means general, and that the trial judge immediately took vigorous action, by way of reprimand to the audience and instructions to the sheriff and admonitions to the jury, to correct any prejudicial effect in the minds of the jury that might have been caused by such demonstration. The demonstration that was made by the audience was exceedingly reprehensible, and if the court had not promptly, and on its own motion, taken the steps indicated to counteract the prejudice which such demonstrations were calculated to produce in the minds of the jury, we would not hesitate to reverse because of the probable prejudice which might have resulted from such improper exhibition of public sentiment in favor of the prosecution. But the demonstration, as evidenced by the statement of the court, was not of so flagrant a character that any prejudice occasioned by it in the minds of the jury could not be completely removed by the efforts which the trial judge made to eliminate the same. The conduct of the deputy sheriff in .charge of the jury was, to be sure, the most culpable of all, because he was a sworn officer of the law, whose duty it was to preserve the utmost impartiality in his conduct before the jury. However, we are convinced that the instructions of the presiding judge to the jury not to allow the applause in any way to influence them in their verdict, and telling them that, if they did so, it would show them unworthy to sit as jurors in any case, were adequate to eliminate from the mind of any sensible and honest juror whatever prejudice might, for the moment, have been lodged in his mind. The manifestation of popular sentiment in a court of justice for the purpose of influencing the decision of a cause is always to be deprecated, and, where such sentiment is voiced in a manner calculated to create an abiding bias or prejudice which enters into the determination! of a cause, then the only possible method of obviating the failure in the administration of justice caused by such undue influence is to award a new trial. To anticipate and to prevent such occurrences presents a serious problem, and one ofttimes most difficult, and even impossible, to solve. It would not do to invalidate trials because of some sudden outburst of popular feeling which it is impossible for the presiding judge to control. Much must be left to his judgment and discretion in such cases, and, where he fails to grant a new trial because of such misconduct on the part of the public, this court will be slow to control his discretion, and will not do so unless it is manifest that same has been abused resulting in a miscarriage of justice. The facts of this record as evidenced by the statements of the trial judge do not warrant us in coming to that conclusion.
Concerning the remarks of counsel for the State in regard to the demonstration, such remarks were, of course, calculated to accentuate in the minds of the jury any prejudice which the demonstration might have produced, but these remarks also were not so flagrant that their prejudicial effect could not have been removed by appropriate directions to the jury. The statement of the trial judge shows that his attention was not directed to these remarks, and counsel for the appellant at -the time saved no exceptions to them and did not ask the court to instruct the jury not to consider them. Such being the case, appellant cannot now take advantage of a failure of the trial judge to exclude such remarks, or to reprimand counsel for having made the same. Smith v. State, 79 Ark. 25; Bell v. State, 84 Ark. 128; Wilson v. State, 126 Ark. 354.
The appellant next contends that the court erred in refusing to grant a new trial on account of alleged newly discovered evidence. He brings forward to sustain this ground of his motion for a new trial the affidavits of William Bearden, John McCormick, and Mrs. Godwin Lewis. The affidavit of William Bearden shows that he on one occasion observed an intimacy and familiarity in conduct between L. M. Guthrie and Edna Jane McIlroy, which counsel .for appellant contends would tend to show that appellant was the victim of a blackmailing scheme on the part of Edna Jane McIlroy, to which Guthrie was a party. The affidavit of Mrs. Lewis shows that she would testify to facts which would tend to prove that Edna Jane McIlroy told her that she had never had intercourse with any man except the appellant. and that appellant forced her to such intercourse at the point of a gun, and that Miss McIlroy wrote to the appellant demanding money, and that Miss McIlroy’s father saw the letter. Such testimony as the above was wholly collateral and irrelevant to the issue as to whether or not the appellant killed McIlroy in self-defense. Moreover, the testimony of these witnesses, even if relevant, was only for the purpose of impeachment. Newly discovered evidence which goes only to impeach the credibility of a witness is not ground for a new trial. Dewein v. State, 114 Ark. 472.
The affidavit of McCormick shows that he would testify that he witnessed the killing; that “he saw McIlroy come out of the. door of the People’s Bank with a shotgun in his hand and heard McIlroy say as he came out, -‘I am going to kill the son-of-a-bitch!’ That appellant ran from where he was talking with a party across the sidewalk into the stairway; that McIlroy changed the gun from his right hand to his left, put the gun to ids left shoulder and ran along the sidewalk with the gun to his shoulder, and as he got in front of the stairway he was bringing the muzzle of the gun around into the stairway when he was shot and fell.”
The above testimony was but cumulative of the testimony of several witnesses adduced at the trial which tended to show the circumstances of the rencounter to be substantially as disclosed by the alleged newly discovered evidence of McCormick. Under numerous decisions of this court a new trial will not be granted on the ground, of newly discovered testimony which is but cumulative in character. Hays v. State, 142 Ark. 587; Huchaby v.. Holland, 150 Ark. 85, and many cases cited in 4 Crawford’s Arkansas Digest at page 3819.
Motions for a new trial on the ground of newly discovered evidence are addressed to the legal discretion of the trial judge, and, unless it appears from the record that there has been an abuse of that discretion, the ruling of the trial court refusing a new trial for such ground will be sustained. Anderson v. State, 41 Ark. 229; Arm strong v. State, 54 Ark. 364. The court did not abuse its discretion in overruling the motion for a new trial on the ground of newly discovered evidence.
Appellant contends that the court erred in refusing a new trial on account of the misconduct and disqualification of juror Joe Girard. The record shows that Girard was selected on the jury that tried the appellant. He was a member of the regular panel, and on his voir dire he qualified himself to sit on the jury by stating that he did not know anything about the facts of the case, and had not formed or expressed an opinion as to the guilt or innocence of the appellant, and that, if selected, he would try the case fairly and impartially according to the law and the testimony, and that he was not prejudiced against the appellant. The affidavit of one of the attorneys for the appellant shows that appellant and his counsel did not know at the time Girard was accepted by them as a juror that he had expressed the opinion that the appellant ought to be hung. To sustain this ground of his motion for a new trial, appellant also brought forward the affidavits of two parties to the effect that during the August term of the court, 1922, at which the trial of the appellant was had, and before the trial began, they heard Joe Girard say that he knew Pendergrass and McIlroy, and knew enough about the ease to know that Pendergrass ought to be hung for killing McIlroy. To rebut the statements made by the two affiants as to what Girard said, the State adduced the affidavit of Girard in part as follows: “I have read the affidavit of Walter Leach of the county of Wagoner, State of Oklahoma, as the same is eorcied in the application for a new trial in the case of State of Arkansas v. Willard Pendergrass, and I -have no recollection of making such statement to any one.” Tt arc-pears that the affidavits tending to show the prejudice of juror Joe Girard were made by parties who lived in Oklahoma. These affidavits do not state the occupation of the affiants, and no facts are set up that would tend to advise the court as to the identity of the affiants and the credibility that should be given their affidavits. It is not shown that appellant asked that they be brought before the court for observation and personal examination.
As we have already stated, it was shown by the affidavit of one of appellant’s counsel that the juror Girard qualified himself under oath as a juror by answering that he had not expressed any opinion as to the guilt of appellant, and the affidavit of Girard states that he had no recollection of making sudh statement to any one as was attributed to him in the affidavit of Walter Leach. The affidavit of Walter Leach as to what he heard the juror Girard say was in substance and effect the same as the affidavit of Walter Smith, so the denial by Girard that he made such statement to any one was tantamount to a denial of both affidavits. The answers to the questions propounded to him on his voir dire were in effect a denial that he had made such statements prior to the trial as were attributed to him in the affidavits of Leach and Smith. The court had personal observation of the juror Girard while he was making his answers with reference to his qualification to sit as a juror.
In the early case of Meyer v. State, 19 Ark. 156, we had under consideration the incompetency of a juror on account of prejudice alleged to have been discovered after the trial and conviction, and among other things we said: “If, in this case, the juror Beard 'had really and seriously expressed the determination, before the trial, to convict the prisoner at all events, he was guilty of a fraud upon the law, and upon the prisoner’s rights, in hypocritically taking upon himself the solemn oath of a juror, and falsely assuming to act as an impartial arbiter .of the life or liberty of the prisoner. But it would not be safe to hold that the prisoner, after ¡conviction, could take the ex parte affidavits of persons' out"’ O.f doors, to establish the prejudice of the juror, and, bringing them into court, claim a new trial,- absolutely, and as a matter of right, upon such affidavits, as insisted by the counsel of the prisoner in this case. Such a practice might open the door for corruption and perjury.”
The above case is the leading case in our reports on the subject now under review, -and contains a learned and thorough discussion of the same. In that case the court held that where the competency of a juror is challenged on the ground of prejudice which was not discovered until after the trial, the trial court might consider the affidavits of parties tending to show such prejudice, and might have the affiants and juror brought before the court for examination concerning the alleged prejudice, and that, after ascertaining all the facts, the court would necessarily have to exercise a sound legal discretion in disposing of the motion. In that case there was nothing in the record to discredit the affidavits tending to show prejudice on the part of the juror. .The juror himself whose conduct was impeached was not examined, nor his afidavit taken in rebuttal of the alleged fraud and misconduct practiced upon the court in the concealment of his prejudice.
Such being the state of that record, this court held that the competency of the juror had been impeached, and' that a new trial should be had on that account. Chief Justice English concluded by saying: “In this case, nothing appears of record to discredit the affidavits of Addy and Tune, and the court below, perhaps, overruled the motion for a new trial, under the impression that, under our statute, the competency of jurors could, in no case, be impeached after the trial.” But in the case at bar the juror whose conduct was questioned made an affidavit in rebuttal or contradiction of the charges made against him. It occurs to us that the statement contained in his affidavit was an absolute contradiction of the alleged misconduct set forth in the two affidavits that were filed by the appellant in support of his motion. Th.e court considered these affidavits in connection with the affidavit of the juror Girard, and held that the competency of the juror had not been impeached. We are convinced that the trial court did not abuse its discretion in holding that the integrity of the trial was not impaired by any alleged concealment or prevarication on the part of Girard in imposing himself upon the panel. See Vowell v. State, 72 Ark. 158. “On motion for a new trial on the ground that a juror was disqualified by reason of having formed and expressed an opinion that the accused was guilty, a finding of the court, on conflicting evidence, that the juror was not disqualified, is conclusive.” Sneed v. State, 143 Ark. 178. Wright v. State, 133 Ark. 16; Van Houser v. Butler, 131 Ark. 404.
The appellant next urges that the court erre! in its instructions given on the subject of manslaughter, and erred in refusing to grant prayers by the appellant in regard to manslaughter. It is a sufficient answer to this contention to say that the appellant cannot complain of error, if any, in the rulings of the trial court in giving or refusing prayers for instructions on the subject of manslaughter, for, as we view the record in the ease, there was no testimony to justify instructions on the subject of manslaughter. Counsel for the appellant, in their statement of the case, correctly say that their contention at the trial was that the appellant'“was running to the stairway and up the stairway in an effort to avoid the deceased and to prevent the deceased from shooting and killing him, and that the deceased followed, or went along the sidewalk in front of the bank, in a trot or run, with his gun in a shooting position, until he came in front of the stairway up which the apnellant was trying to escape, and just as deceased was in the act of bringing his gun in the stairway toward the apnellant to shoot, the appellant fired a shot which resulted in the death of the deceased, and that he fired the shot for the sole and only purpose of saving his own life from being taken by the deceased.”
As we have already stated, there was testimony to sustain this contention, but there was no testimony whatever to warrant á finding that the appellant voluntarily shot and killed McIlroy in a sudden, heat of passion caused by a provocation apparently sufficient to make the passion irresistible. Nor is there any testimony on behalf of appellant, if believed by the jury, that would warrant the inference that appellant was careless in reaching the conclusion that it was necessary to take the life of McIlroy and acted too hastily in doing so. Appellant either shot and killed McIlroy in his -necessary self-defense under the circumstances as detailed by himself and witnesses in his behalf, or else he killed McIlroy, as the State contended, and as the testimony tended to pr-o-ve, without any provocation whatever, and with malice aforethought, and after deliberation and premeditation. The verdict of the jury has settled the issue thus made by the facts against the appellant by finding him guilty of murder in the second degree, showing that, under the evidence, they believed him guilty of that grade of homicide. If they had not so believed, they should, and doubtless would, have acquitted him, for, if the evidence tending to prove the contention of appellant were believed by the jury, they could not have convicted him of any offense. In this state of the proof the appellant is in no attitude to complain because the court -submitted instructions on the subject of manslaughter, which,- even if erroneous, would have permitted the jury to find him guilty of a lower grade of homicide than that of which he was guilty under the evidence, if 'he was guilty at all. The instructions on manslaughter were therefore more favorable to the appellant than he was entitled to under the evidence, which tended to prove that, if guilty at all, he was guilty of murder and nothing less. Beatty v. State, 77 Ark. 247; Cook v. State, 80 Ark. 495; Sexton v. State, 91 Ark. 589; Hamer v. State, 104 Ark. 606; Wilkerson v. State, 105 Ark. 367.
Appellant urges, as a ground for reversal of the judgment, that the court erred in failing and refusing to correctly instruct the jury on the subject of the duty of the defendant to retreat. The appellant prayed for instructions which, in effect, declared that if Mcllroy, at the time of the killing, was in the act of making a murderous assault upon the appellant and attempting to take his life, under such circumstances appellant would not be required to retreat before he was authorized to shoot and kill Mcllroy, but -that he had the right to stand his ground, and, if need be, kill Mcllroy to prevent him from killing, or doing great bodily harm to the appellant. In this connection the court gave the following instruction :
“15. No one in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden encounter, or in a' combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, is justified in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing. The danger must apparently be imminent and actual, and he must exhaust all means within his power, consistent with his safety, to protect himself, and the killing must be necessary to avoid the danger. If, however, the assault is so fierce as to make it apparently as dangerous for him to retreat as to stand, it is not his duty to retreat, but he may stand his ground, and, if necessary to save his own life, or to prevent a bodily injury, slay his assailant. ’ ’
The appellant offered only a general objection to the above instruction, and the appellant’s prayers raised only the objection that the instruction given by the court did not correctly declare the law applicable to the testi mony adduced by the appellant, which tended to prove that McIlroy, at the time appellant shot and killed him, was making a murderous assault upon the appellant. Appellant’s prayers for instructions in this connection were correct declarations of the law, but we are convinced that the law embodied in these prayers was fully and correctly declared in the instructions which the court gave.
The concluding portion of instruction No. 15, given by the court as above set forth, correctly stated the proposition of law which the appellant contends the court should have stated, for it tells the jury in substance that, if the assault upon appellant was so fierce as to make it apparently as dangerous for him to retreat as to stand, it'was not his duty to retreat, but that he could -stand his ground, and, if necessary to save his own life or to prevent great bodily harm, slay his assailant, McIlroy. This certainly accurately declared the law safeguarding all the rights of the appellant, if the jury should find that a murderous assault was made upon appellant by McIlroy, and thus fully covered the evidence tending to sustain his theory that the killing was done in his necessary self-defense. After the court had fairly and fully declared the law applicable to the facts which the testimony adduced by the appellant tended to prove, then it was not error to refuse to multiply instructions covering the same subject. Stevens v. State, 117 Ark. 64-70; Dickerson v. State, 121 Ark. 564-70.
The record presents no reversible error in the rulings of the trial court, and its judgment is therefore affirmed. | [
112,
-17,
-28,
12,
9,
98,
42,
58,
114,
-125,
-31,
83,
-83,
-55,
68,
97,
34,
105,
-43,
121,
-32,
-73,
23,
74,
-14,
-69,
57,
-57,
-80,
-40,
-17,
-11,
60,
112,
74,
89,
70,
74,
-29,
92,
-118,
-124,
-87,
112,
-56,
-128,
56,
123,
104,
14,
97,
-66,
-94,
43,
28,
-58,
72,
44,
74,
-65,
80,
112,
-119,
5,
-3,
18,
-95,
-73,
-68,
0,
-40,
24,
-40,
53,
0,
-68,
114,
-74,
-124,
68,
100,
-119,
12,
102,
98,
38,
-99,
-49,
-96,
41,
-65,
-1,
-123,
-89,
16,
32,
1,
40,
-98,
-99,
58,
16,
6,
114,
-75,
77,
88,
104,
1,
-97,
-46,
-111,
-113,
40,
-108,
19,
-21,
15,
38,
117,
-115,
98,
92,
69,
-6,
-101,
-118,
-47
] |
Smith, J.
Gillette and English owned a ranch in the State of Oklahoma, with certain personal propertv thereon, which they decided to sell or exchange, and with that purpose in view they prepared a circular letter descriptive of their property, which they mailed to a large number of real estate agents. One of these letters was received by Carroll and Hogan, partners as Carroll & Hogan, residing at 'Bentonville, in this State, and engaged. there in the real estate business.
Gillette represented himself and English in the transaction out of which this litigation arose, and Carroll represented himself and Hogan.
Carroll testified that he and Gillette met and discussed the letter, and Gillette listed the ranch with him to be sold or exchanged, and he told Gillette that he would list the ranch with-a number of subagents' who were cooperating with him in selling and in exchanging lands, and that if he, or any of those subagents, negotiated a sale or an exchange of the ranch, he would expect a commission of two and one-half per cent., and Gillette assented and agreed to pay the commission.
Among the other real estate brokers notified by Carroll of this arrangement was R. O. Leeper, of Spring-dale, Arkansas, who agreed to find a purchaser or some one with whom an exchange could be made, and Carroll accompanied Gillette to Springdale and introduced him to Leeper as a man who would negotiate a sale or exchange, and some time thereafter, and pursuant to this understanding, Leeper found one McClinton, with whom Gillette made an exchange for the property of McClinton, and a commission is claimed, on the theory that, by virtue of the introduction of Gillette to Leeper, Carroll & Hogan thereby became the procuring cause of any sale or exchange of the ranch to any customer Leeper might find and himself represent in making a purchase or exchange for the ranch, although Carroll & Hogan might have nothing else to do towards bringing about the sale or exchange. The theory of the case was that Leeper could be, and was to be, the agent of Carroll & Hogan to procure a purchaser for Gillette, and also to be the agent of such purchaser in making an exchange with Gillette.
Shortly before the consummation of the exchange with McClinton, Carroll wrote to Gillette that.if he (Gillette) traded with McClinton, a commission would be expected on the theory stated above. The deal with McClinton was closed, and Gillette refused to pay a commission, and this suit was brought to recover it, and there was a judgment as prayed, from which is this appeal.
Carroll did not claim to have an exclusive agency, or any agency for any given time, and the right of Gillette to make the sale was not questioned. The insistence is that Gillette promised to pay a commission if Carroll & Hogan themselves, or if they, through one of their sub-agents, negotiated a sale or an exchange; and this latter thing they did through Leeper.
The court submitted the case to the jury under instructions to find for the plaintiffs if the facts were found to be as contended by Carroll, and we think no error was committed in so doing, as one may agree to pay commissions for services of almost any character. At least, there is no legal objection to his doing so. It is insisted, however, that the instructions did not properly present the theory of Gillette’s defense, and we think that contention is well taken.
The testimony shows that Carroll accompanied Gillette to Springdale and introduced Leeper and Gillette, and Carroll endeavored to exchange the ranch for a hotel owned by a customer of Leeper, but this deal failed, and thereafter Carroll admittedly did nothing further towards selling or exchanging the ranch, except in so far as Leeper represented the firm of which C'arroll was a member.
Leeper testified on behalf of the plaintiffs, and it is quite obvious from a reading of his testimony that he was highly friendly to the plaintiffs. He testified that he told Gillette that Carroll would expect a commission if the McClinton deal was consummated, yet he admitted that in all his negotiations with Gillette he was representing McClinton, and that Gillette was without representa ion. .He further testified that the MeClinton deal hung fire for a period of several months, and finally MeClinton himself took charge of the negotiations, and thereafter no one acted for either Gillette or MeClinton, but when the exchange between them was closed MeClinton paid him the agent’s commission agreed upon.
Gillette testified that Carroll was never at any time his agent, and had no more right to claim a commission than any one of the other hundred or more real estate brokers to whom he sent his circular letter, which was nothing more than an inquiry whether any of the persons to whom the circular was sent had a customer who might become interested in purchasing or trading for the ranch. He testified that, for a period of several months, negotiations proceeded between himself and Leeper, and, so far from ever being advised that Leeper was his ag-ent and was attempting to procure him a purchaser, he at all times regarded Leeper as his adversary, with .whom he was trading at arm’s length. He denied that Leeper told him that Carroll was expecting a commission if the McClinton deal went through. He admitted receiving the letter from Carroll & Hogan in which they stated they would expect a commission if the MeClinton deal was made, but he dismissed it from consideration on the ground that there was no agreement to support the claim.
An instruction numbered 2 was asked by the defendants, which, in our opinion, should have been given, but which the court refused. It reads as follows:
“If you find from the evidence that defendants mailed a description of their property to plaintiffs for sale or exchange, and that the plaintiffs thereupon made out copies of such description and mailed them to other real estate agents in Benton County and other counties, and, among others, R. C. Leeper, a real estate agent at Springdale, Arkansas, for the purpose of finding other agent who might have property of others for sale or exchange and to enable them in that way to exchange defendant’s property through a deal with such other real estate agents for property which they might have for exchange, in which case each agent would collect the commission from his own client, and that plaintiffs explained this arrangement to the defendants, and thereafter said Leeper notified plaintiffs that he had certain property of one Hart in Springdale for exchange, and that plaintiffs thereupon took defendant, Gillette, to Springdale for the purpose of endeavoring to make such exchange, and introduced him to Leeper, and that plaintiffs, then representing the defendants, endeavored to make an exchange of their property, hut that the sale was never consummated, and that Leeper then told Gillette he would endeavor to get other property for exchange for his ranch, and afterwards notified Gillette that he had the property of one McClinton for exchange for other property, and to come down to Springdale, and that Gillette went down to Sprindale, and Leeper introduced him to McClinton and entered into negotiations with him as McClinton’s agent for the exchange of McClinton’s property for the ranch of defendants, and that Leeper and McClinton finally carried through a deal with Gillette for the ranch of defendants; that neither Leeper nor plaintiffs notified defendants that plaintiffs were having anything to do with the negotiations for said deal, and that plaintiffs did not, in fact, do or offer to do anything whatever toward bringing about or procuring the exchange for McClinton’s property, but only kept informed through Leeper of the progress of the deal, of which fact defendants were not notified, then I charge you that plaintiffs could not be considered in law as the procuring cause of the exchange which was finally consummated by Gillette himself with Leeper and McClinton, and. plaintiffs would not be entitled to a commission, and you will find for the defendants.”
This instruction is open to the objection that it is rather long, but it is not at all obscure, and is a concrete statement of the defendants’-contention, and we think should have been given.
It is true Leeper’s testimony connects with that of Carroll and corroborates Carroll’s contention that a commission was promised and would be expected if he (Leeper) was instrumental in closing the McClinton deal; and we know of no legal reason why a property owner should not be held bound by an agreement of that character, if he made it.
But this instruction declares the law to be that Gillette was entitled to know who was assuming to act for him, or who his agents were, and that he would not be bound unless he was so advised.
Here, according to plaintiffs’ contention, Leeper was acting in a dual capacity. He was McClinton’s agent, without question, and, according to Leeper’s own testimony, was assuming to act for no one else. As such, Leeper no doubt talked up McClinton’s property, and talked down that of Gillette. Certainly loyalty to McClinton required him to endeavor to induce Gillette to make the concessions necessary to get the parties together on a trade. As we have said, Gillette had the legal right to contract to pay a commission for the services of having an adversary in a trade produced with whom he might make a trade, and under the case of Meyer v. Holland, 116 Ark. 271, a person is liable who does so contract when a purchaser is produced.
But, we say again, one is entitled to know who his agent is, and who is the procuring cause in a sale or an exchange of property, and, if there is a divided allegiance, he is also entitled to know which principal the agent is professing to serve.
The law does not look with favor upon contracts of agency where one agent assumed to represent the adversary principal in a contract of any'kind, and only permits an agent who has done so to recover his compensation for such services when there has. been a full disclosure to each principal of all the facts. Murphy v. Willis, 143 Ark. 1; Featherston v. Trone, 82 Ark. 381; Taylor v. Godbold, 76 Ark. 395.
We conclude therefore that the instruction set out above should have been given.
An instruction numbered 1 was requested by the defendants, which reads as follows:
“If you find from the evidence that defendants listed their ranch with plaintiffs for sale or exchange, this would not preclude the defendants from making a sale or exchange of the property themselves, and they would not be liable to plaintiffs for a commission if they made such sale, unless plaintiffs, by finding and introducing a purchaser to whom the sale was made, were the procuring cause of the sale.*”
This instruction would be a correct declaration of the law except for the fact that it leaves out of account the contention of the plaintiffs that a commission was to be paid, not merely if plaintiffs found and introduced a purchaser to whom a sale was 'made, but a commission was also to be paid if one of plaintiffs’ subagents found a purchaser with whom defendants traded, and for that reason it was properly refused.
For the error in refusing to give instruction No. 2, set out above, the judgment is reversed and the cause remanded. | [
112,
-12,
-67,
12,
8,
-32,
40,
-94,
122,
-86,
103,
91,
-51,
78,
16,
-35,
-30,
109,
69,
107,
-44,
-77,
87,
38,
114,
-45,
-39,
-35,
-75,
-51,
47,
-41,
76,
44,
-54,
93,
-62,
-118,
-57,
-36,
-18,
5,
11,
-20,
-35,
-64,
56,
107,
16,
75,
96,
-114,
-29,
46,
61,
83,
109,
46,
-21,
41,
-16,
105,
-70,
76,
-9,
7,
2,
3,
-56,
3,
-24,
-50,
-112,
53,
-40,
-23,
83,
54,
18,
116,
13,
41,
8,
32,
103,
100,
-63,
-25,
34,
-116,
47,
-69,
-115,
-90,
-31,
88,
18,
96,
-66,
-100,
56,
64,
-127,
116,
-29,
13,
29,
40,
-109,
-65,
-106,
-125,
69,
110,
-99,
27,
-14,
14,
36,
96,
-49,
-90,
93,
69,
56,
-97,
-116,
-31
] |
McCulloch, C. J.
The road improvement district which is plaintiff in this action was originally created under the general statutes by an order of the county court on October 7, 1918, but there was a special statute enacted by the General Assembly of 1919, curing irregularities in the organization and establishing the district as a valid road improvement district covering the territory embraced in the original order creating it. The assessments of benefits were completed, a contract was let for the construction of the road, and a great portion of the improvement was constructed — eleven miles of the seventeen-mile length of the proposed road. Bonds in the sum of $130,000 to raise money to pay for the cost of the improvement were also issued and sold subsequent to the enactment of the curative statute referred to above.
The present action was instituted by the board of commissioners against all delinquent owners of land in the district, including’ appellants, and an appeal has been prosecuted from the decree of the chancery court decreeing payment of the delinquent assessments and declaring a lien on the lands.
Appellants answered, and filed an answer and cross-complaint attacking the validity of the assessments and also the validity of the district itself.
So far as concerns the correctness and validity of the assessments, it is sufficient to say that the attack comes too late, since the assessments have been approved and have become final. There were attacks on the validity of the assessments by owners of property who protested against them in apt time, and the cases were brought to this court from the circuit court, where the questions were adjudicated on appeal from the county court. Payne v. Road Imp. Dist., 149 Ark. 491, 152 Ark. 170. On the last appeal of the case we affirmed the judgment of the circuit court approving the assessments.
The validity of the district is assailed on the ground that the description of the lands embraced in the district were in many instances so vague that it is impossible to determine what lands were meant to be described, and that the district, for that reason, is void.
In the order of the county court creating the district, as well as in the special act of the Legislature curing irregularities and establishing the district, the lands were described by sections and subdivisions thereof, and some of the descriptions specify certain sections “on the left bank of the Saline River”; the lands are described, of course, as being in Howard County. The Saline River forms the boundary between Howard and Sevier coun.ties. These are the descriptions which counsel for appellants insist are insufficient. We are of the opinion, however, that the words of descriptions giving the number of the section and stating that they are on the “left bank of the Saline River” clearly refer to that portion of each section which lies on the east side of the river and is in Howard County. Bush v. Delta Road Imp. Dist., 141 Ark. 247.
The General Assembly of 1921 enacted a special statute (act No. 594) excluding from the district about half of the lands originally embraced therein, and the lands thus eliminated from the district had been assessed more than half of the total benefits. It is contended now by counsel for appellants that the effect of this statute was to nullify the district altogether, for the reason that the Legislature had no power to impose the total cost of the improvement on the lands remaining in the district after the exclusion of others.
Counsel is correct in the contention that the Legislature had no right to thus enlarge the burden on the lands remaining in the district. This, however, affords no reasons for nullifying the district, but it does afford grounds for declaring the act void. The act is also void as an impairment of the obligation of a contract between the district and its creditors.
It is shown by stipulation that, subsequent to the enactment of the curative statute, the larger portion of the •improvement was constructed and that bonds were issued in the sum of $130,000. In the last case which was before us involving the question of the asessments in this case (152 Ark. 170) our attention was called to the act of 1921, supra, but we declined to pass upon its validity for the reason that it was not shown that there had been any indebtedness incurred prior to the passage of the statute.
It needs no citation of authorities to support the view that a statute dismembering a district after obligations are incurred constitutes an attempt to impair the obligation of a contract, and is void; that falls within the inhibition of our Constitution which declares that no law shall ever be passed impairing the obligation of contracts. Constitution of 1874, art. II, sec. 17. The attacks upon the validity of the district are therefore unfounded.
Decree affirmed. | [
-10,
-18,
-4,
76,
-22,
-64,
26,
-122,
65,
-85,
117,
83,
-81,
78,
0,
99,
-93,
59,
101,
105,
-12,
-77,
83,
64,
-94,
-13,
-65,
71,
-69,
77,
-12,
22,
78,
80,
-54,
85,
-58,
96,
-49,
-104,
-82,
-117,
-101,
76,
89,
-128,
60,
111,
18,
79,
69,
47,
-22,
45,
28,
-61,
73,
110,
-55,
-86,
81,
-13,
-104,
-97,
121,
5,
1,
-62,
-104,
1,
74,
58,
-104,
53,
8,
-68,
95,
-74,
-106,
116,
5,
-103,
12,
36,
98,
16,
40,
-57,
-88,
-84,
6,
-70,
-87,
-90,
-94,
9,
75,
79,
-66,
-108,
94,
22,
71,
126,
-14,
-123,
91,
40,
-89,
-53,
-112,
-75,
5,
-80,
-111,
3,
-37,
5,
52,
112,
-49,
-42,
115,
70,
18,
-37,
-121,
-80
] |
McCulloch, C. J.
Section 9 of the special statute creating Boad Improvement District No. 16 of Wood- ruff County (act No. 183, extraordinary session of January, 1920, unpublished) provides, in substance, that, after the assessment of benefits to lands in the district is completed, the list shall be filed with the county clerk and notice given by publication, and that on the day mentioned in the notice the commissioners shall meet to hear complaints against the assessments and to readjust the same.
Section 11 of the statute provides that “the county court shall, at the time the assessment of benefits is filed, or at any time subsequent, enter upon its record an order, which shall have the force and effect of a judgment, ’ ’ levying the assessments as a tax against the property in the district, etc.
The commissioners of the district, after the time for hearing complaints on the assessments had expired, filed an application in the county court asking that an order be entered levying the assessments in accordance with the provisions of the statute, but the county judge refused to enter such an order, and the commissioners then filed a petition with the circuit judge of the district praying for a writ of peremptory mandamus to compel the county judge to- perform the duty imposed upon the county court by the statute. There was a hearing of the application upon notice, -and the circuit judge made an order in vacation awarding the writ of peremptory mandamus as prayed for in the petition, and an appeal has been prosecuted to this court.
The county judge appeared by counsel before the circuit judge at the hearing and filed a response challenging the authority of the circuit judge to hear the petition in vacation, and also setting forth the fact that there had been no refusal of the county court to enter the order, but that, on the contrary, the court had not been in session on any day since the assessment list was filed. Proof was adduced showing that the county judge had announced his refusal to enter an order levying the assessments.
The contention of appellant is that there is no authority in the statute for the county court to enter an order except in term time; that there is no provision for a special term or for the judge to act in vacation, and that there is no provision in the law for the circuit judge to hear a mandamus case in vacation.
Counsel for appellee rely upon certain provisions of the general statutes governing road improvement districts for authority of both the county court and circuit court to make orders in vacation. Crawford & Moses’ Digest, §§ 5456, 5458, 5462.
In the absence of express statutory authority for the county court to be opened at any time for the purpose of making such an order, the order cannot be made except during the regular term, and a vacation order would be void. State v. Canal Construction Co., 134 Ark. 447; Light v. Self, 138 Ark. 221.
Section 11 of act No. 183, supra, provides, however, that the order of the county court may be made “at the time the assessment of benefits is filed, or at any time subsequent,” therefore the court can enter the order at any time after the assessment list has been filed, and can be compelled to do so if it refuses. The entry of the order is ministerial, involving no discretion, and on refusal the court can be compelled by mandamus to enter the order. It appears, however, from an examination of act No. 183 that it contains no provision with reference to special sessions, either of the county court or of the circuit court, to enter orders or judgments with respect to the operation of the district.
We cannot agree with counsel for appellee that the sections referred to in the general statute are applicable, for those sections in express terms apply only to proceedings inaugurated under that particular statute.
Section 5456, Crawford & Moses’ Digest, provides that county courts “shall be open at all times for the purpose of making an order or entering any judgment necessary for the carrying forward of the work gf im provement contemplated by this act.” That section is a part of the general statute for the establishment of road improvement districts, approved March 30,. 1915, Crawford & Moses’ Digest, § 5399 et seq. It has no application to districts subsequently organized under special statutes.
The same may be said of § 5458, which provides that, if a county court refuses to make the necessary orders, the circuit court is vested with jurisdiction to hear and determine an application for mandamus or injunction, and that “the ruling made by the circuit judge in vacation shall have the same force and effect as if made in term time.” This section refers to orders having reference to “said district,” meaning a district organized under general statutes.
Counsel place much reliance on § 5462, which reads as follows:
“This act shall not be construed to repeal any special act providing for the creation of road improvement districts in the various counties, and road improvement districts may be created in counties where a special act is applicable, either under the provisions of said special act, or under the provisions of this act, as deemed best by the petitioners, and this act shall be liberally construed by the courts for the purpose of aiding and promoting the improvement of public roads in Arkansas, and upon the trial of any question relating to the establishment of any district, or the collection of any tax hereunder, after a district has been established by the county court, the presumption shall be in favor of the establishment of said district, or the collection of any tax hereunder.”
This section has no application to districts formed under special statutes enacted subsequent to the enactment of the general statute. The section merely provides that the act shall not be construed to repeal any special statute, and this is necessarily a reference to a special statute alreády in existence. We discover no language in it which, can he construed to confer authority upon a road district formed under a special statute thereafter enacted.
The order of the circuit judge awarding the writ of mandamus was strictly judicial, and could not he rendered by the circuit judge in vacation, in the absence of statutory authority. Finding none, we are forced to the conclusion' that the order of the circuit judge was void.
The judgment is therefore reversed and quashed, and the cause is remanded to await a hearing before the circuit court in term time. | [
-80,
-30,
-3,
-36,
-21,
-64,
26,
-72,
73,
-77,
117,
87,
-81,
-6,
16,
103,
-70,
127,
117,
104,
71,
-78,
83,
66,
-18,
-13,
-45,
-41,
-77,
79,
-12,
114,
8,
49,
-118,
117,
70,
98,
-51,
28,
-114,
3,
-103,
77,
-55,
64,
60,
107,
26,
9,
113,
-17,
-30,
44,
25,
67,
104,
109,
89,
-85,
-47,
-15,
-98,
29,
126,
6,
-79,
102,
10,
-125,
72,
47,
-104,
49,
-62,
-8,
51,
-74,
-106,
116,
13,
-103,
8,
38,
66,
1,
44,
-1,
-16,
-87,
14,
18,
-67,
-90,
-102,
25,
106,
3,
-90,
-99,
116,
82,
70,
126,
-25,
-59,
89,
108,
-123,
-49,
-28,
-73,
-121,
-76,
-120,
3,
-17,
3,
48,
113,
-51,
-10,
94,
103,
51,
91,
-121,
-112
] |
Wood, J.
This is an action brought by the appellee against the appellant to recover the sum of $409.83, which the appellee alleged the appellant was due her on the following contract: “This confirms sale to W. E. Kefauver of my entire crop of Ben Davis and Gano apples in bulk, knots and rots out, delivered to Rogers, at $1.90 per cwt. (Signed) W. E. Kefauver. S. M. Oakley.” Appellee delivered to the appellant, under the contract, at various times, apples the total amount of which was 21,570 pounds. Appellant, after demand, refused to pay for the apples thus delivered.
The appellant answered, denying the material allegations of the complaint. By way of cross-complaint he alleged that he purchased of the appellee her entire crqp of apples for the year 1919, consisting of Ben Davis and Gano, as evidenced by the contract set up in the complaint; that the appellee delivered to the appellant several barrels of apples, which were accepted by the ap pellant and for which, appellant made payment to be .applied on the purchase price; that the apples delivered to the appellant by the appellee were inferior in quality, consisting principally of windfalls and drops; that, after delivering these faulty apples under the contract,, appellee wholly failed to carry out her contract with the appellant, by refusing to deliver to the appellant the remainder of her crop, which consisted of the best quality of apples, and which appellant believed would have amounted to 100,000 pounds, and for which appellant would have received seventy cents per hundred profit if the appellee had complied with her contract. Appellant further alleged that , he had incurred certain damages and expenses in a litigation between himself and the appellee which he had been compelled to institute on account of the breach of the contract by the appellee. The appellant alleged that the appellee, at the time of entering into the contract with the appellant, only intended to deliver to the appellant the inferior grade of apples from her orchard, and did not intend to deliver to appellant choice apples; that, by falsely representing that she would deliver to him the entire crop, she had induced the appellant to enter into the contract and to receive the inferior apples. The appellant prayed for a special master to state an account between himself and the appellee, and that the cause be transferred to equity, and that he have judgment for his damages and costs. The cause was tranferred to the chancery court.
The appellee testified to facts which tended to sustain the allegations of her complaint. It was agreed that she had delivered to appellant 21,570 pounds of apples which, at $1.90 per cwt., would amount to the sum for which she prayed judgment; that she had made demand upon the appellant three different times for the amount, and he refused to pay the same. On cross-examination she stated that, after the appellant refused to pay her, she sold what was left of her crop to another for the sum of $1,500. Before she sold the apples the ap pellant had paid her for the Jonathans that she had delivered to him early in the season in the snm of $180.14. This sale was a separate deal before the contract in suit was entered into. Each time the appellee made demand on appellant for the amount due, the appellant stated that he did not intend to pay for them until he got them all hauled. Appellant sent word to the appellee that he wanted to buy her apples. She went to his store on September 30th, and he told her that he was offering fifteen, cents more than any other person was paying. After appellee had sold her apples to the appellant, she ascertained on the same day that other parties were paying more. Men at the car offered her $2.25 per hundred. Appellee could have sold to them, but did not because she had offered to sell to the appellant, and, she says, “I stayed with it. ’ ’
The testimony of the appellant was to the effect that he entered into the contract with the appellee as set up in the complaint; that the contract provided that the apples were to be delivered in bulk, and that the appellee asked the appellant to let her deliver some in barrels, and he told her she could deliver them in any way she preferred; that the contract specified so much per hundred in bulk. Appellant thought appellee could get more by barrels. The appellee did not comply with her contract to deliver the entire crop-for the year 1919. Appellant stated that the apples appellee brought in were under-sized, wormy and inferior. He took thje apples to keep her satisfied so she would deliver the apples under the contract. He received apples "from her that he would not have received from any one else. When the appellee demanded pay for the apples she had already delivered to the appellant, he told her that he had heard that she was trying to sell the apples for more money, aiid stated to her that if she would promise, in the'presence of the four or five men who were there, that she would deliver to appellant the balance of the apples under the contract, he would pay her in full. Appellee objected to that, and therefore appellant felt justified in withholding payment for the apples appellee had already delivered to him. Appellant further stated that lie did not cancel the contract when he found that the appellee was delivering to him inferior apples, because he knew that she had better apples, and thought that she would certainly bring in better apples than she had brought in; otherwise he would have canceled his contract in the first place. Appellant testified that his total loss, by reason of the failure of the appellee to deliver all the apples she had agreed to deliver under the contract, amounted to the sum of $522.20.
The above are substantially the facts upon which the trial court rendered a decree in favor of the appellee against the appellant for the sum of $409.83, with interest from October 28,1919. From that decree is this appeal.
In Harris Lumber Co. v. Wheeler Lumber Co., 88 Ark. 491-496, we held: “Where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the whole is in its nature single and entire, the contract is severable. (Citing cases). * * * The contract in this case was entire in the sense that, if appellee had complied with its terms as to payment, it could then have compelled appellant to ship it the balance of the lumber, or else have responded in damages for its failure to do so. But here the uncontroverted proof shows that appellee was guilty of the first breach of the contract.” The doctrine of the above case is peculiarly applicable to the facts of this record. The contract here under review was severable in the sense that the apples were to be delivered in car lots at so much per hundred, and were to be paid for as they were received by the appellant, but the contract was entire in the sense that if the appellant had complied with its terms as to payment, he could then have compelled the appellee to deliver to him the remainder of the crop. But the appellant was guilty of the first breach in refusing to pay for the apples as they were delivered. The testimony warranted the court in finding that the appellee had not breached her contract at the time the appellant refused to pay for the apples which had already been delivered to him. On the other hand, the appellant breached the contract by refusing to pay for the apples that had been already delivered by the appellee, until she had delivered her entire crop. This the appellant had no right to do.
The decree is correct. It is therefore affirmed. | [
-110,
108,
-88,
-115,
10,
96,
42,
-102,
86,
99,
55,
83,
-23,
119,
28,
109,
-11,
125,
-48,
122,
68,
-77,
71,
98,
-46,
-101,
-47,
-43,
-79,
79,
-28,
124,
77,
52,
-62,
-105,
-30,
-46,
-24,
28,
-114,
-128,
45,
-24,
-3,
66,
52,
-71,
56,
73,
97,
-114,
-5,
40,
21,
71,
109,
40,
-17,
57,
-63,
-24,
-93,
13,
95,
22,
16,
38,
-98,
7,
-56,
110,
-112,
-79,
2,
-64,
123,
-74,
-122,
84,
11,
-119,
8,
114,
98,
48,
-115,
-25,
-104,
-104,
38,
-2,
-99,
-90,
80,
40,
67,
72,
-66,
-100,
50,
80,
22,
122,
-7,
-35,
-99,
100,
3,
-58,
-44,
-77,
-114,
-72,
-104,
27,
-17,
-90,
51,
113,
-49,
-94,
89,
69,
126,
-101,
-122,
-37
] |
McCulloch, C. J.
There is a special stock law in Miller County, enacted by the General Assembly of 1921 (Special Acts 1921, p. 1), which provides, in substance, that whenever twenty-five per cent, of the electors of any township shall petition the county court for the privilege to vote on the question of restraining’ stock in that township, “the county court, or the judge thereof, shall make an order for an election in such township,” the election to be held at the general election, if there be one within six months of the date of the filing of the petition, and if not, at a special election to be held within ninety days after the filing of the petition; that notice of the election shall be given by. publication in a newspaper, and that the election shall be held in accordance with the general election laws of the State. The statute further provides that the judges of the election shall make returns to the county election commissioners, who shall canvass the returns and make and file a certificate of the result with the county clerk, and publish the same for one insertion in a newspaper having a circulation in the township. It is further provided that, if a majority of the vote be in favor of restraining stock in the township, “the county court, or judge thereof, shall, immediately after the filing of said certificate by the county election commissioners. make ail order restraining such animals specified in the petition from running at large in said township.”
A petition was filed with the county court of Miller County, asking that an election be held in Sulphur Township, pursuant to the terms of said statute, for the purpose of putting the law into effect in that township. An election was ordered by the county judge, or county court, and was held in accordance with the order, the majority of the votes, as certified by the election commissioners, being in favor of putting the law into effect in the township.
Immediately after the filing of the certificate by the election commissioners, appellees, who are residents and property owners in Sulphur Township, filed in the county court a petition alleging errors, irregularities and fraudulent voting in the election, and alleging that a majority of the qualified electors voting at the election did not vote in favor of putting the law into operation. The appellants appeared in response to this petition and asked that they be made parties for the purpose of resisting it, which was done.
Appellants demurred to the petition in the county court on the ground that there was no authority for the county court to hear a contest of the election, and the county court sustained the demurrer, and entered an order, in accordance with the statute, restraining the running at large of stock in the township. Appellees then filed their petition in the circuit court of Miller County, praying for a writ of certiorari to bring up and quash Ihe order of the county court ordering the election and entering the order restraining the running at large of stock. They alleged in their petition that the order of the county court for the election was void for the reason that twenty-five per cent, of the electors of Sulphur Township had not petitioned the court, and that the election was void for the reason that notice had not been published in the manner prescribed by the statute.
Appellants appeared and demurred to the petition, and the court overruled the demurrer, and appellants stood upon the demurrer without pleading further, whereupon the circuit court entered a judgment quashing the orders of the county court, and an appeal has been prosecuted from that judgment.
The county court, or the. judge thereof, in making the order for the election and entering the order pursuant to the election acted ministerially, and not in a judicial or quasi-judicial capacity. Thompson v. Trice, 145 Ark. 143; Capps v. Judsonia-Steprock Road Improvement District, 154 Ark. 46.
The order restraining the running at large of stock was a mere entry of the result of the election as certified by the election commissioners, and was likewise ministerial in its nature.
Certiorari will not lie to correct a purely ministerial act, even though the performance of the act involves- discretion. Pine Bluff Water & Light Co. v. Pine Bluff, 62 Ark. 196; McConnell v. Ark. Brick & Mfg. Co., 70 Ark. 568: State v. Railroad Commission, 109 Ark. 100; Hall v. Bledsoe, 126 Ark. 125.
The statute contains no provision conferring upon the county court authority to hear a contest over the result of the election, but if that court-possesses jurisdiction to hear such a contest — which We do not deem it necessary to decide at this time — a review of the judgment in such a contest must be by appeal and not by certiorari, unless the judgment is void on its face. Pritchett v. Road Improvement District, 142 Ark. 509.
Conceding, as before stated, that the county court had jurisdiction to hear a contest, the judgment of that court sustaining the demurrer and dismissing the petition was not void on its face, however erroneous it might have been.
The general statutes of the State provide for appeals from all judgments of the county court, and an appeal might have been prosecuted under that statute. Crawford & Moses’ Digest, § 2287; Missouri Pacific R. Co. v. Conway County Bridge District, 134 Ark. 292.
It follows therefore that the judgment of the circuit court is erroneous, and the same is reversed, with instructions to sustain the demurrer of appellants and quash the writ.
It is so ordered.
McCulloch, C. J.,
(on motion to modify the judgment and opinion of this court). Counsel for appellants insist that the directions to the lower court should be to. quash the writ of certiorari which brought up for review the proceedings in the county court, and affirm the judgment of the county court, in accordance with the rule of practice announced in the case of Bertig Bros. v. Independent Gin Co., 147 Ark. 581.
In the case referred to there was a judgment of the circuit court, and, after reviewing it on certiorari, we found that the judgment was valid on its face, and we not only quashed the writ but affirmed the judgment. The difficulty, however, in the present case is that, according to the views expressed in the original opinion, there was no judgment of the county court to affirm. There was merely the order' of the county court, or county judge, made in a ministerial capacity and not in any judicial or quasi-judicial capacity. All that can be done now is to quash the writ of certiorari, as was directed in the former opinion and judgment of this court.
It is insisted, further, that we should decide whether or not the county court had jurisdiction to hear the contest, and, if not, where the jurisdiction vas vested.
The statute under which the proceedings were had in the organization of the district makes no provision for a contest before any court or other tribunal, nor is there any other statute which provides for a contest of an election of this kind. The provisions of the Constitution of 1874 and all of our general statutes on the subject of contests of elections relate solely to contests of 'elections of public officers. It is clear therefore that, since there is no statutory provision for hearing a contest of this sort in the comity court, such jurisdiction cannot be there exercised. In the former opinion we refrained from passing on that question, but we deem it proper now to extend the opinion by expressly holding that there is no authority for such a contest in the county court.
The further inquiry presents itself as to where the jurisdiction rests. In Harrington v. White, 131 Ark. 291, we permitted the exercise of jurisdiction in such a ease by the chancery court, without deciding whether the jurisdiction should properly have been exercised by the circuit court or by the chancery, court. All unassigned jurisdiction under the Constitution is vested in the circuit court (art. 7, § 11, Constitution of 1874), and it has been held by this court that jurisdiction in election contests not otherwise provided for fall within the jurisdiction of the circuit court under this provision of the Constitution. Payne v. Rittman, 66 Ark. 201; Whittaker v. Watson, 68 Ark. 555; Sumpter v. Duffie, 80 Ark. 369.
It follows from these decisions that, where nothing is involved except a contest of the result of an election, the circuit court has jurisdiction. This, however, does not exclude the jurisdiction of the chancery court under all circumstances. On the contrary; we are of the opinion that where property or contractual rights are involved in the result of an election putting into force a statute like the one involved-in this inquiry, the chancery court has jurisdiction to hear and determine the contest and to afford relief where the statute has not been properly put into force. 8 Standard Proc. p. 16; Red River Furnace Co. v. Tenn. Central R. Co., 113 Tenn. 697; Pickett v. Russell, 42 Fla. 116; Wilton v. Pierce County, 61 Wash. 386.
It would be premature to discuss now the limitations upon the exercise of this jurisdiction, but we merely content ourselves by deciding that either the circuit court or the .chancery court has jurisdiction under certain circum- ' stances to hear and determine a contest like the one involved in this case.
We do not think that the validity of the statute authorizing the formation of the district is affected by the fact that the statute makes no provision for a contest-of the election. If a remedy exists in any of the courts under the Constitution and general laws of the State, the spécial statute is not invalid by reason of its failure to provide a remedy.
'The motion to modify the judgment of this court is overruled. | [
-13,
-26,
56,
-52,
-86,
-32,
42,
-102,
90,
-31,
101,
-45,
-17,
-16,
21,
113,
-1,
45,
117,
123,
-12,
-105,
87,
-62,
51,
-45,
-125,
-57,
-77,
75,
-10,
119,
24,
32,
10,
93,
-58,
36,
-123,
-36,
6,
7,
-119,
-64,
88,
80,
62,
107,
112,
75,
49,
18,
-30,
46,
20,
99,
105,
40,
-7,
13,
-63,
-5,
-69,
70,
127,
6,
-93,
66,
-104,
-121,
-40,
42,
26,
20,
-16,
-23,
91,
-90,
-106,
84,
41,
-39,
44,
102,
39,
19,
-84,
-83,
-92,
-87,
12,
91,
9,
-122,
-46,
9,
-94,
2,
-78,
-97,
100,
82,
70,
-6,
-21,
5,
29,
56,
4,
-42,
-74,
-73,
15,
-68,
-102,
3,
-29,
49,
48,
113,
-52,
-74,
94,
15,
114,
27,
-50,
-63
] |
Hart, J.,
(after stating the facts). It is insisted by counsel for the plaintiff that the court erred in giving instruction No. 1 at the request of the defendant. The instruction reads as follows:
“You are instructed that if you find that the plaintiff failed to comply with the contract in that he failed to. pay the defendant for work done under the contract as required by the terms of the contract, then the defendant had the right to treat the contract as null and void, and your verdict will be for the defendant.”
The instruction is erroneous because it gives the defendant the right to recover if the plaintiff failed to pay him for the land which he had already cleared, regardless of the fact of whether or not the defendant committed a breach of the contract on his part. The contract provides that the clearing of the land should be completed by .April 1, 1918, by the defendant. It appears from the letters passed between the parties that the time for the performance of the contract was extended until January, 1920. The undisputed'evidence shows that sixty-five acres of the land remains to be cleared, and, according to the testimony of the plaintiff, the defendant did not in all respects comply with the terms of' the contract in the land which he did clear.
Then too, according to the plaintiff’s testimony, the defendant did not demand payment for the land which he had cleared until some time after the time limit for finishing the clearing had expired. If the defendant committed a breach of the contract oil his part by not clearing the land, the plaintiff would be entitled to recover damages on this account, and might offset the amount which was due the defendant for work already done by the damages which he was entitled to recover from the defendant for the non-performance of the contract by the defendant. In this connection it may be stated that the damages claimed and testified to by the plaintiff for the alleged breach of the contract by the defendant would amount to more than the amount allowed the defendant by the verdict of the jury. Hence the court erred in giving this instruction.
In view of another trial of the case we call attention to the fact that instruction No. 3, given by the court at the request of the plaintiff, is erroneous, although no assignment of error is predicated upon the action of the court iii giving this instruction. The instruction reads as follows :
“You are instructed that if you find that the parties made and entered into the written contract sued on in this case, the defendant cannot, under the law, excuse a breach of said contract by setting up a different and verbal contract claimed to have been made by the defendant with the plaintiff at a different time and subsequent to the written contract sued on.”
It is well settled in this State that no rule of evidence is violated by allowing proof of a subsequent parol agreement changing the terms of a prior written contract. Caldwell v. Dunn, 156 Ark. 126..
In view of a new trial of the case and the fact that additional testimony may be introduced by the parties, we do not pass upon the assignment of error that the evidence is not sufficient to support the verdict.
For the error in instructing the jury, as indicated in the opinion, the judgment must be reversed, and the cause remanded for a new trial. | [
-78,
124,
-40,
-83,
-120,
96,
42,
-104,
85,
-119,
35,
87,
-17,
-121,
28,
107,
-31,
121,
112,
96,
84,
-93,
3,
18,
-10,
-77,
80,
-43,
53,
79,
-12,
94,
78,
48,
-62,
-43,
102,
67,
-59,
-40,
-118,
-122,
-120,
102,
-47,
97,
48,
57,
68,
75,
49,
-114,
-29,
46,
25,
-57,
-18,
40,
105,
61,
64,
-16,
-69,
13,
111,
1,
-79,
-123,
-98,
3,
-40,
110,
-112,
61,
-127,
-40,
114,
54,
-57,
116,
5,
11,
-120,
98,
102,
48,
76,
111,
-36,
-72,
47,
-66,
-113,
-94,
-111,
72,
11,
78,
-74,
-99,
60,
22,
-90,
126,
-26,
-99,
29,
108,
3,
-61,
-44,
-13,
-33,
-92,
-102,
-119,
-17,
-125,
49,
112,
-49,
-94,
92,
101,
91,
-37,
-97,
-119
] |
McCulloch, C. J.
Finis Gallion, a young man residing in Grant County, Arkansas, entered the military service of our government during the war with the Central Powers of Europe, and was sent to 'Camp Beauregard for training. Later he went to France, and died there while still in the military service.
A letter purporting to have been written by Finis Gallion during hisi stay at 'Camp Beauregard to his brother, Ed Gallion, was offered for probate in Grant County as a last will and testament, and the probate court admitted the instrument of writing as a holographic will of Finis Gallion, on proof that the signature and .'body of the instrument were in the handwriting óf the alleged testator. There was an infant son of the alleged testator, and his guardian prosecuted an appeal to the circuit court of Grant County from the order admitting the instrument to probate as a will, and on the trial of the issue before a jury the following verdict was returned:
“We; the jury, find that the instrument purporting to he the will of Finis Gallion, deceased, was not executed hy him, or, if executed by him, is not a valid will, as it was not his intention, at the time it was written, that it should be his will, therefore we find for the contestant, Mrs. G. N. Brown, as guardian of Carl Gallion, a minor.”
The court rendered a judgment upon the verdict to the effect that the instrument offered was not the will of Finis Gallion, and an appeal has been prosecuted by the executor and by Ed Gallion, the legatee under the will.
At the trial of the cause appellant introduced three witnesses, who testified that they were familiar with the handwriting- of Finis Gallion, and that the offered instrument was in his handwriting. One of the witnesses testified that he was present at Camp Beauregard when the letter was written, and that he recognized it as one which Gallion had handed him to read before he mailed it.
Our statute provides that an unattested will, written in the handwriting of the testator, “may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting- and signature * * V’ Crawford & Moses’-Digest, § 10494.
There was no testimony directly impeaching the credibility of the witnesses offered in support of the will, and, in the absence of any evidence tending to contradict the fact that the instrument is in the handwriting of the alleged testator, the testimony must be treated as undisputed and the. will established. Arendt v. Arendt, 80 Ark. 240. In the present case, however, there is testimony tending- to show that the instrument in question is not in the handwriting of Finis Gallion. The letter is on two separate sheets, the testamentary portion of the letter being found entirely on the second sheet.
Tom Gallion, a brother of Finis, testified that he was familiar with his brother’s handwriting, and that the second sheet of the letter was not in his brother’s hand writing. The contestant also introduced three other witnesses, who testified as experts, and stated that they had examined the letter,- and that the two sheets were not in the same handwriting.
There are other circumstances adduced in evidence which tend to contradict the fact that the whole of the letter was in the handwriting of Finis Gallion. There was sufficient evidence, therefore, to support the finding of the jury.
The only objection made by appellant in regard to the court’s charge to the jury is the objection to the refusal to give a peremptory instruction. This ruling was-correct, as there was sufficient evidence to submit the issues to the jury.
Objections are urged here to several of the instructions given by the court at the request of the contestant, but as timely objection was not made at the trial below, we cannot consider these assignments.
It is also urged here, for the first time, that the verdict is in the alternative and does not support the judgment. There is a slight ambiguity in the form of the verdict, but the court interpreted it to be a finding against the execution of the will, and appellant made no objection to the form of the verdict. It is reasonably certain, from the language of the verdict, that the jury meant to find that the instrument was not executed by Finis Gallion, and if it was thought to be in doubt there should have been objection made to its form.
Finding no error on the record of the trial, the judgment must be affirmed, and it is so ordered. | [
50,
-4,
-32,
29,
-118,
96,
-56,
-70,
-14,
-127,
5,
83,
-19,
74,
1,
97,
-29,
79,
116,
121,
-2,
-77,
22,
65,
82,
-13,
-9,
-43,
53,
-51,
-4,
17,
88,
100,
-86,
-44,
-58,
10,
-125,
-40,
78,
61,
-87,
-15,
89,
-47,
48,
35,
28,
-49,
69,
-66,
-29,
46,
31,
-53,
40,
44,
-53,
-87,
-40,
-95,
-101,
13,
125,
23,
-128,
6,
-100,
75,
74,
14,
-112,
49,
-128,
-8,
54,
50,
22,
84,
43,
61,
40,
100,
98,
56,
-3,
-3,
-88,
-120,
7,
78,
-123,
-89,
-106,
105,
41,
101,
-106,
-99,
125,
80,
39,
116,
106,
37,
29,
104,
10,
-113,
-60,
-91,
56,
40,
-100,
41,
-5,
-71,
52,
112,
-52,
-42,
93,
71,
57,
-102,
-122,
-77
] |
Humphreys, J.
Appellant was indicted, tried, and convide;] of the crime of embezzlement in the First Division of the Pulaski Circuit Court, and as punishment therefor was adjudged to- serve one year in the State Penitentiary, from which judgment an appeal has been duly prosecuted to- this court.
The indictment, omitting formal parts, is as follows: “The said J. A. Gurley on the 1st day of May, 1922, in the county and State aforesaid, then and there being over the -age of sixteen years, and being the agent of E. T. Foster, and having then and there in his custody and possession, as such agent as aforesaid, eight hundred dollars ($800), gold, silver and paper money of a value of eight hundred dollars ($800), the property of the said E. T. Foster, did unlawfully, fraudulently and feloniously make away with and embezzle and convert to his own use the said sum of eight hundred dollars ($800) as aforesaid, without the consent of the said E. T. Foster, against the peace and dignity of the State of Arkansas.”
The facts pertinent to the questions presented by this appeal for determination are as follows: E. T. Foster, at the instance of appellant, loaned Mrs. Anna Grantham $800, taking her note due January 1, 1921, to which bank stock was attached as collateral security. On December 8, 1920, appellant, as vice-president of J. A. Gurley Company, a -corporation, advised E. T. Foster, who was then residing in Oklahoma City, Oklahoma, that Mrs. Grantham wanted to know where she could pay the note, offering to handle the collection according to Foster’s wishes. The note and attached collateral were in a lock box in a Memphis bank. E. T. Foster directed a friend to forward the note and collateral to appellant by registered letter, and wrote appellant to have Mrs. Grant-ham purchase and mail him a cashier’s check for the amount due, and, when she did so, to deliver the note and collateral to her. Instead of doing this, appellant procured a check for the amount from Mrs. Grantham, payable to the J. A. Gurley Company, which he owned and managed, and upon receipt of said check delivered the note and bank stock to her. The check was deposited to the credit of' J. A. Gurley Company, and checked out for company purposes, and not for a cashier’s check, payable to E. T. Foster. J. A. Gurley, as vice-president of J. A. Gurley Company, notified E. T. Foster of the collection by letter, stating therein, “as soon as we g'et a return on her cheek, will forward cashier’s check to you.” After the expiration of a month, failing to receive a remittance, E. T. Foster made written request of appellant to forward cashier’s check, to which he received the following íeply.
“J. A. Gurley Company
“Investment Bankers
“Little Bock, Ark., 3-1-21.
“Mr. E. T. Foster,
“Dear sir:
“I have your letter of February 17th and have carefully noted contents of same. I am going to tell it to you just as it is. I received bank stock just as they were sent from Memphis by registered mail, delivered same and bank check for collection. Now in the meantime my company issued stock, and it was up to me to take the majority of the stock or lose control of my company, and in doing so I drew my bank balance below the $800 mark, and it was continued below. I have about $5,000 in collections that are past due and have been'expecting to get at least a sufficient amount of this to remit to you, but have so far failed. I am responsible for the rule not to allow any officer of our company to borrow any money from the company, consequently I have not asked them to advance it to me.
“Now, Mr. Foster, I am attaching a 10 per cent, note to $3,000 worth of my stock and am leaving the time open. I would like to have you make it six months, if entirely satisfactory to you. If you will give me the time you prefer, I will mail you a- check for the interest. It has not and is not my intention to misuse you in this matter, and if the above arrangement is not entirely satisfactory I want you to notify me at once, and will make a sacrifice somewhere and raise the money for you.
“With best personal regards, I remain,
“Yours truly,
“J. A. Gurley.”
Foster returned tlie 10 per cent, note and stock immediately, stating that he could not use them, and again requested appellant to forward cashier’s check for $800. Foster was unable to get any further response or to collect the account from appellant. The company subsequently went into the hands of a receiver.
At the conclusion of the testimony, appellant requested the court to direct a verdict of not guilty, and now insists that the court committed reversible error, in not doing so, for two alleged reasons. First, because there is a variance between the indictment and the proof. Second, because there is no evidence in the record showing any criminal intent on the part of appellant in his transaction with reference to the money referred to in the indictment.
The indictment, charged appellant with embezzling $800, gold, silver and paper money, of the value of $800, the property of E. T. Foster. The proof shows that the company which he owned and managed collected $800, in the form a check for E. T. Foster from Mrs. Anna Grantham, received credit therefor in the bank with which the company did business, and expended same, contrary to instructions, for the private use and benefit of said company. The transaction, in substance, amounted to the same thing as if appellant had drawn the money out on the check and deposited it in the bank to his company’s credit, thereby converting it to the use of his company, contrary to instructions. It is common knowledge that banks deal in money only when giving credit to their depositors. “The giving of credit is practically and legally the same as paying the money to the depositor and then receiving the money again on deposit. The intent of the parties must govern, and presenting a check on the bank with a pass book in which the receiving teller notes the amount of the check is sufficient indication of intent to deposit and to receive as cash.” Morse on Banks, and Banking, § 569. The rule quoted from Morse wa,s adopted by this court in the case of Skarda v. State, 118 Ark. 176. In that case Joe Skarda, cashier of The Bluff City Bank, was indicted for receiving on deposit from Joe Janet fifty-five dollars, gold, silver, and paper money, knowing at the time that the hank was insolvent. The proof showed that Joe Janet presented a check to the bank for $70, receiving a credit for $55. and the balance in cash. The court treated the credit as cash money, and held that there was no variance between the indictment and the proof. The rule thus announced is not in conflict with the rule in Wilborn v. State, 60 Ark. 14, and the reiteration thereof in Starchman v. State, 62 Ark. 538; Marshall v. State, 71 Ark. 418; and Silvie v. State, 117 Ark. 108, but is in harmony with them. The cases last cited enunciate the doctrine that the State must prove the character of money alleged to avoid a variance between the indictment and the proof, and the Skarda case, the doctrine that the State must prove what amounts in fact to a transaction in money of the character alleged.
According to appellant’s interpretation of the testimony, there is nothing to show a felonious intent on his part because he made no concealment of the amount in his hands belonging to E. T. Poster. We are unable to adopt appellant’s construction of the testimony, but, if his construction is correct, it is not the law that some degree of concealment must be shown in order to establish a felonious intent, where the property has been wrongfully converted or appropriated. The case of Fleener v. State, 58 Ark. 98, cited by appellant in support of Ms contention, that the concealment of the fund was necessary to establish a felonious intent on his part, is not in point. In that case there had been no misappropriation of the property. Upon this point the instant case is ruled by Russell v. State, 112 Ark. 282, in which it was said that “one guilty of embezzlement cannot claim immunity because he did not attempt to conceal the evidence of his crime.” Where there has been a wrongful conversion of a fund charged, a jury may infer a criminal intent from the act itself, and proof of the concealment of the fund is unnecessary.
No error appearing, the judgment is affirmed. | [
16,
77,
-20,
-99,
-54,
64,
42,
58,
1,
-127,
-11,
82,
-21,
100,
0,
109,
69,
45,
117,
121,
-59,
-109,
21,
97,
-46,
-13,
121,
-43,
-80,
79,
-12,
-44,
9,
48,
-54,
17,
70,
-64,
-31,
30,
-118,
-127,
41,
-24,
-39,
-96,
32,
-89,
117,
7,
97,
-66,
-78,
106,
52,
90,
73,
111,
-33,
-85,
80,
-79,
-126,
69,
-3,
87,
16,
101,
-102,
1,
-56,
44,
-104,
55,
1,
-24,
50,
-126,
-122,
84,
109,
25,
12,
36,
34,
18,
-27,
-93,
56,
8,
54,
-2,
-99,
-73,
-8,
97,
75,
109,
63,
-99,
58,
16,
7,
-48,
127,
-107,
29,
104,
-127,
-113,
-106,
-109,
13,
44,
-98,
-101,
-13,
-83,
48,
97,
-50,
-30,
92,
7,
120,
-101,
-81,
-46
] |
Wood, J.
The appellant obtained judgment in the circuit court of Lee County against the appellees, which recites as follows: “Now on this the 11th day of April, 1921, the same being a regular day of the April, 1921, term of said court, this cause coming on to be heard, the plaintiff appeared by its attorneys, Bogle & Sharp, and the defendants, although having been duly served with summons, in manner and form as provided by law, failed to appear, plead, answer or demur, but wholly made default, whereupon the cause is submitted to the court upon the complaint and the original note sued upon, and, after being well and sufficiently advised in the premises, doth find that plaintiff is entitled to recover on said notes the sum of $2,498.23 from said defendants.” Then follows the formal entry of the judgment in favor of the appellant against the appellees.
The present action was instituted by the appellees against the appellant to set aside the above judgment. The appellees in their complaint set out the judgment, and alleged that the same was obtained against them by the appellant through fraud, in that appellant represented to the court in which the judgment was rendered “that due .and legal summons had been served, giving these plaintiffs, defendants in said suit, notice of the pendency of such action, when, as a matter of fact, neither of said defendants in said action, plaintiffs here, were ever at any time served with proper summons or any notice whatever giving them notice of the pendency of such suit against them on the part of the First National Bank of Manchester, Iowa, defendant herein, but these plaintiffs now further aver and allege that at no time was the notice of the pendency of such suit given them in the manner provided by law, or in any other manner.” Then follow allegations which it is unnecessary to set forth at length, but which -set out that the defendants had a meritorious defense to the action in which the judgment was rendered against them.
The appellant, in its answer, admitted that it obtained the judgment for the sum alleged. It denied that plaintiffs had no notice of the pendency of the action, and that no legal service was had on them, and denied the other allegations of the complaint, and set up that it was an innocent purchaser of the notes upon which the judgment in its favor was rendered. The appellees introduced the original docket entries, which show the following: “Complaint filed and process issued 16th day of November, 1920, service had........................day of........................ ........................, 19.......” The sheriff of Lee County,- Arthur Cotter, at the time the original action of the • appellant against the appellees was instituted, and whose duty it was to serve the summons, kept a record in his office in which he entered the process for service received by him from the clerk of the circuit court for the period beginning Nov. 15, 1920, and ending Jan. 2, 1921. This record did not show any receipt of summons in the original action by the appellant against the appellees in which the judgment here sought to be set aside was rendered.
The appellees also introduced one G-alloway, who testified that he was the then sheriff of Lee County. He assumed the duties of the office January 17, 1921. He did not, until the April term, 1921, serve a summons on the appellees in the original action by the appellant against them. He did not find the original summons in' that case in his office, but a copy thereof, and there was no return service on the copy. He did not know whether the sheriff who preceded him served the summons or not.
The appellant introduced one of its attorneys in the original action, who testified that on the day the judgment was taken the court was in session, and he asked the court for judgment by default against the defendants in the original action, and the court rendered a judgment in accordance with his request, and he prepared the precedent of the judgment, as disclosed by the record.
Upon the above facts the court found that the defendants in the original action were not served with process and did not have notice of the pendency of that action. The court further found that the plaintiffs (appellees in the present action) had a meritorious defense. Thereupon the court entered a judgment setting aside the judgment of April 11, 1921, in favor of the appellant against the appellees rendered in the original action. The appellant duly prosecutes this appeal.
This is a direct attack by the appellees upon the judgment of the circuit court rendered in favor of the appellant against tbe appellees on April 11, 1921, under § 6290 of Crawford & Moses’ Digest, subdiv. 4th. But the recitals in the judgment that the defendants, “although having been duly served with summons in manner and form as provided by law, failed to appear,” etc., were prima facie evidence of the fact's stated and must-be taken as true, unless there is testimony to contradict them, or tending to show to the contrary. Sec. 6239, C. & M. Digest; White v. Smith, 63 Ark. 513; Love v. Coffman, 72 Ark. 265.
The original docket entry in the case made by the clerk shows that the complaint was filed and that process was issued on the 16th day of November, 1920. Sec. 3280 of Crawford & Moses’ Digest provides that “the entry on the law docket shall also show whether or not the summons has been fully served in due time for trial, and whether or not the issue has been formed.” There is no entry by the clerk showing that the summons had been served in time for trial. The absence of such entry by the clerk on the law docket which he is required to keep, to be sure, is evidence to be considered in determining the issue as to whether or not the summons was served on the appellees in the original action in which judgment was rendered against them. Likewise the fact that no original summons was found with the return of the sheriff showing service, nor any return on the copies that were in evidence, are to be considered in determining the issue as to whether or not the defendants in the original action were served with summons. Conceding, without deciding, that these facts, with the presumptions attending them that the officers had performed their statutory duty, might be sufficient, if there were nothing else in the record to sustain the finding of the trial court that the appellees were not served with process in the original suit, nevertheless appellees have failed to sustain their cause of action because they have utterly failed to show that they did not know of the proceedings in the original action in which judgment was rendered against them in time to make a defense. This was essential. In State v. Hill, 50 Ark. 458, Judge Cockrell, speaking for the court, said: “One who is aggrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceeding in time to make a defense.” This language was also quoted by us in the case of Moore v. Price, 101 Ark. 142-145.
The appellees alleged in their complaint that “neither of said defendants in said action were ever at any time served with proper summons, or any notice whatever giving them notice of the pendency of such suit against them,” and further, “that at no time was notice of the pendency of such suit given them in the manner provided by law, or in any other manner.” The appellant specifically “denies that the plaintiff had no notice of the pendency of the action and that no legal service was had on them.” It will be observed that the appellees did not allege in their complaint that they did not know of the pendency of the action in which judgment was rendered against them in time to make a de fense thereto, and there is no testimony in the record to show that the appellees did not know of the pendency of the action and the proceedings that were had therein in time to make defense. It is a very significant fact in this record that none of the appellees testified that they did not know that the action was pending and of the proceedings had therein. Their verified complaint was denied, and therefore its allegations are not testimony and cannot be accepted as facts proved, even if it had been therein stated that the appellees did not know of the pendency of the action.
The findings and judgment of the circuit court are therefore erroneous. The judgment is reversed, and the cause is remanded for a new trial. | [
-14,
-28,
-8,
-52,
11,
-32,
42,
-118,
81,
-127,
55,
83,
-19,
-61,
0,
101,
-10,
-51,
-43,
120,
69,
-77,
15,
99,
-46,
-77,
-37,
85,
-79,
79,
36,
85,
77,
48,
-22,
-107,
70,
-62,
-59,
-112,
14,
-124,
41,
76,
-39,
-60,
48,
-85,
68,
73,
113,
-114,
-5,
40,
52,
67,
73,
45,
-1,
57,
-16,
-8,
-118,
7,
125,
23,
49,
38,
-120,
67,
88,
40,
-112,
49,
3,
-23,
114,
-74,
2,
85,
105,
-103,
13,
38,
102,
33,
-11,
-17,
-104,
-103,
46,
-2,
-97,
-90,
-112,
40,
67,
13,
-74,
-99,
116,
17,
7,
-4,
-19,
-123,
29,
108,
7,
-54,
-12,
-77,
-113,
116,
-102,
11,
-17,
3,
52,
97,
-51,
16,
92,
7,
122,
-69,
-114,
-79
] |
McCulloch, C. J.
Appellee instituted this action against appellant, under the name of Home Mutual Benefit Association, to recover on a benefit certificate issued to appellee’s husband, and payable to her on the latter’s death.
Appellant is a fraternal society, organized under the laws of this State in the year 1914, with its principal office at Fayetteville, and it does business on the assess ment plan, the members being divided into groups, or circles, according to age, and when a death occurs an assessment is levied on the members of the circle to which the deceased belonged. The by-laws provide that the society “ shall not be liable for the full face value of the certificate unless full and prompt payment of all assessments shall have been made by all the members of the group to which the deceased member belonged, and in no event shall said certificate have a greater value than the amount paid in by the whole, membership of said group on the last-assessment preceding the death of the insured, after deducting the cost of collecting -said assessment. ’ ’
Appellant filed its answer in its true name, Home Mutual Life Association, and raised no question as to being sued in the wrong name. In some parts of the record the appellant is referred to as the Home Mutual Benefit Association, and in some places it is referred to as the Home Mutual Life Association.
It appears from the proof that, since the organization of appellant society and since the issuance of the benefit certificate to appellee’s husband, the by-laws were amended so as to change the name of appellant from Home Mutual Benefit Association to Home Mutual Life Association, and changing the domicile and principal office from Fayetteville to Little Rock.
Appellant, in its answer, pleaded as a defense an alleged misrepresentation 'by Rownd, the member, with respect to his age, and.also pleaded that, in accordance with the by-laws, appellee could only recover the amount of one assessment upon the members in the group of which Mr. Rownd was a member.
In the trial of the case, after the evidence had been adduced, the court peremptorily instructed the jury to return a verdict in favor of appellee for the amount stated in the policy, without regard to the amount which was raised by the collection of the last assessment prior to the death of appellee’s husband.
The evidence in the case is undisputed that the last assessment preceding the death of W. W. Rownd raised the sum of $382.05, and, according to the by-laws, liability was restricted to this amount. The case is ruled on this subject by our decision in the recent case of Home Mutual Benefit Association v. Rowland, 155 Ark. 450.
The trial court erroneously assumed that it had been showfn by the testimony that appellant, Home Mutual Life Association, 'was a corporation distinct from the Home Mutual Benefit Association, and was the successor of the latter under consolidation proceedings whereby appellant, Home Mutual Life Association, assumed all liabilities of the other corporation. The fact is, however, as shown indisputably by the record, that there are not two distinct corporations involved, 'but that there was a mere change in the by-laws of the Home Mutual Benefit Association so as to substitute a new name and to change the place of business. The court, acting upon the erroneous assumption, refused to let a witness testify as to the contents of the by-laws of the Home Mutual Benefit Association. The court ruled that the witness could not testify on the subject, and that the bylaws could only be proved by the introduction of a properly certified copy.' That ruling would undoubtedly have been correct if there had been another corporation, but appellant introduced the by-laws of the association, properly certified, and the witness should have been permitted to state that there were no other by-laws except those, and that the only change that had been made was with respect to the change of the name and location.
The judgment will therefore be reversed, and judgment will be entered here in favor of appellee for $382.05 as of the date of the judgment 'below. It is so ordered. | [
-80,
108,
-71,
-84,
8,
96,
40,
-102,
82,
-128,
-91,
83,
-23,
-58,
69,
103,
-21,
45,
97,
104,
-75,
-77,
23,
0,
-38,
-77,
-7,
-59,
-79,
95,
-74,
-41,
12,
32,
-22,
68,
-62,
34,
-51,
20,
-126,
-114,
-118,
101,
-7,
76,
48,
-13,
92,
75,
117,
-97,
-93,
46,
21,
-62,
41,
44,
73,
56,
80,
-15,
-118,
13,
-1,
3,
49,
6,
-72,
5,
104,
10,
-100,
53,
0,
-8,
114,
38,
-122,
116,
123,
-104,
13,
102,
102,
-96,
49,
-25,
-72,
-103,
15,
30,
-99,
6,
-78,
81,
17,
15,
-74,
-99,
126,
0,
31,
124,
-12,
-108,
24,
40,
9,
-49,
-42,
-79,
-51,
116,
-99,
-125,
-17,
-89,
52,
113,
-51,
-30,
85,
-57,
58,
-101,
6,
-48
] |
Humphreys, J.
Appellee, J. Chisholm, instituted suit in the Union Chancery Court against appellant to cancel a State deed to T. E. Wilson for the following described real estate in said county: N. W. ¼, sec. 33, tp. 19 S. R. 18 W., and to quiet and confirm the title to said real estate in him as against said appellants. In the bill filed appellee deraigned his title to said land through mesne conveyances from the State of Arkansas, the origin of his alleged title being a certificate of donation of date August 19, 1882, and deed issued thereon of date March 21, 1884, which were based upon an alleged forfeiture of said land to the State of Arkansas, for failing to pay the taxes, due and assessed for the years 1869 and 1870. It was also alleged that appellee, and those through whom he claimed, had been in the. actual possession of said land, making improvements thereon continuously since August 19, 1882, and had paid the taxes each and every year from and including the year 1885, the year following the date of the donation deed. Appellants interposed the defense in an an swer and cross-petition that the land in question was included in an overdue tax proceeding instituted on July 15, 1882, in the chancery court of Union County; that in said suit the alleged forfeiture was declared by the court to be void and of no effect., and that said land* be sold for taxes, due and unpaid, for the years 1869 and 1870; that, pursuant to said order of sale, the land was sold on the 15th day of June, 1883, and that thereafter the sale was duly confirmed by the court; that the donation certificate relied upon by appellee was issued by the State after the institution of said suit, and that the donation deed executed in pursuance thereto was delivered prior to the expiration of the period of redemption allowed in the overdue tax act of March 12, 1881, under which the overdue tax suit aforesaid was instituted ; that the lands were sold and certified to the State in the overdue tax suit, and on December 20, 1919, the State issued a patent to appellant, T. E. Wilson, for-said land, based upon the overdue tax proceeding; that on December 22, 1921, said patent was recorded; that subsequent thereto T. E. Wilson conveyed said land to appellant, A. J. Marsh. Appellants prayed for a dismissal of appellee’s bill and possession of the land.
A demurrer was filed to the answer and cross-petition, which was sustained by the court, and, upon failure of appellants to plead further, the decree was rendered canceling the State deed to T. E. Wilson and quieting and confirming the title in appellee as against appellants. From that decree an appeal has been duly prosecuted to this court.
The facts as gleaned from the -pleadings are as follows : The land in question was certified to the State under a void forfeiture of 1869 and 1870. On July 15, 1882, a suit was filed in the chancery court of Union County under the overdue tax act. of 1881, in which this land was included. On August 19,1882, the State issued a certificate of donation for said land to James M. Owen. James M. Owen took immediate possession thereof, and made the necessary improvements to procure the donation deed which lie obtained, on March 21, 1884. During the time of his occupancy it was adjudged in the overdue tax suit that the tax forfeiture to the. State upon which the donation deed was based was void and of no effect. The land was thereupon ordered sold for the taxes of 1869 and 1870, and on June 15, 1883, was sold under the overdue tax decree to the State, which sale was confirmed by the court. In 1885 after the issuance of the donation deed to James M. Owen the land was assessed to James M. Owen, and he and his successors in title paid the taxes each and every year on said land after and including’ the taxes for the year 1885, and held the actual, peaceful, and uninterrupted possession thereof down to the present time. On December 20, 1919, the State issued patent for said land to T. E. Wilson, based upon the overdue tax proceeding. The record fails to show that James M. Owen or his successors in title ever redeemed the land from the overdue tax foreclosure.
The only question presented by this appeal is whether the presumption will be indulged that the land was redeemed from the overdue tax foreclosure for the taxes of 1869 and 1870 by James M. Owen or his successors in title. Appellants take the position that James M. Owen and his successors in title had ho right to redeem the land because they acquired no interest therein under the donation certificate and the donation deed made pursuant thereto. The case of St. Louis Refrigerator & Wooden Gutter Co. v. Langley, 66 Ark. 48, is cited in support of their contention that they acquired no interest whatever in said land under said certificate and deed.' That case does hold that the State by purchase at such sale acquired no title which the State Land Commissioner had power to convey until after the redemption period expired; and that during the pendency of the overdue tax suit the Commissioner of State Lands had no authority to issue a donation certificate and deed based upon a forfeiture of land for the nonpayment of taxes; and also that after acquired titles had no application to conveyances made by the State. It is true that James M. Owen and his successors in title acquired no interest in the land as against the true owner under the donation certificate, but it served the purpose of showing that he went into possession of the land in good faith, and not as a squatter or mere trespasser. His possession and claim of title in good faith constituted such an interest in the land as gave Mm a right to redeem the land from the sale in the overdue tax foreclosure against any one other than the true owner. It was held in the cases of Woodward v. Campbell, 39 Ark. 580, and Sanders v. Hill, 42 Ark. 215, and reaffirmed in the case of Hodges v. Harkleroad, 74 Ark. 343, “that almost any right either in law or equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrance on land, amounts to such an ownership as will entitle the party holding it to redeem.” The facts in this case bring it well within the' rule of a presumptive redemption from an overdue tax forfeiture announced in the cases of Wallace v. Hill, 135 Ark. 353, and Lloyd v. Thornton, 147 Ark. 247. Appellants insist that the rule in those cases relates to real owners only, and that a redemption will not be presumed in favor of any other than absolute owners. We cannot agree with them in this contention. Those cases had in mind redemption laws when they used the word ‘ ‘ owner, ’ ’ and used it as a generic term, embracing even a possessory right. The trial court was correct in indulging a presumption that James M. Owen or his successors in title redeemed the land from the overdue tax foreclosure before appellant, T. E. Wilson, procured a patent to said land from the State.
The decree is therefore affirmed. | [
-74,
108,
-80,
12,
-6,
-64,
106,
-118,
67,
-95,
-75,
83,
-7,
86,
16,
61,
-29,
109,
117,
121,
-58,
-73,
23,
34,
18,
-77,
-39,
-59,
49,
-55,
-28,
86,
76,
33,
74,
21,
-60,
-30,
-51,
88,
14,
8,
15,
76,
-39,
64,
52,
-23,
18,
75,
113,
-82,
-5,
43,
57,
67,
105,
44,
-37,
26,
81,
-71,
-102,
-107,
127,
6,
17,
101,
-102,
3,
72,
-70,
-112,
49,
12,
-104,
115,
-90,
-126,
84,
73,
25,
40,
102,
38,
34,
-60,
-1,
-72,
-104,
14,
-9,
29,
-90,
-30,
121,
75,
8,
-65,
-99,
116,
-112,
77,
-10,
-32,
-123,
-99,
104,
37,
-49,
-106,
-73,
-115,
-72,
-116,
19,
-13,
31,
48,
113,
-49,
-26,
92,
71,
50,
27,
14,
-15
] |
Smith, J.
B. F. West owned a farm of 550 acres in Pope County, which he rented to J. A. Savage for the year 1920 for $5,500. Savage subrented 140 acres of the land to J. M. May for $1,400. To obtain supplies and assistance to make a crop, May gave a mortgage on his crop and certain livestock and other personal property which he owned, to the E. V. Cook Mercantile Co. Advances secured by this mortgage, amounting, with interest, to $289, were made to May. Savage subrented 172 acres of the land to T. J. Hankins for $1,700. Han-kins cultivated the land and made a crop, but after doing so sold his interest therein to W. I), and O. J. Whitlock, and took a mortgage back to secure the purchase money. The sum claimed bv Hankins under his mortgage was $614.25.
Savage received from the subtenants 84 bales of cotton, all of which he turned over to West first, under a-writing signed by Savage, dated April 21, 1921, authorizing West to sell the cotton when he thought best. West did not sell under this authority, and on July 2, 1921, Savage executed to West a bill of sale for the 84 bales of cotton in satisfaction of his rent, except that as to two of the bales West was to account to one Oscar Wilson for one-fourth of each of the two bales. At the date of this bill of sale the market price of the cotton was so low that, had it been sold at the prevailing price, the proceeds would not have paid the rent due West, who claims he should not be charged with a higher price for the cotton, although he admits that, after holding for some months, he sold it for $7,451.74.
The Cook Mercantile Co., as mortgagee of May’s interest, sued West to recover the value of May’s crop in excess of the rent due by May, and Hankins brought a similar suit as to the Whitlocks’ crop. The cases were consolidated and tried together, and there was a decree for each of the plaintiffs, and the cases are here as one appeal.
The -controlling question in the case is whether West should be required to account for the cotton at the market price prevailing on July 2, 1921, or at the price he received for it.
There is testimony to the effect that West did not claim to have bought the cotton from Savage,- but was holding it for the benefit of the tenants, until the price of the cotton went up. This was denied by both West •and Savage, and may not have been true, but we find -it unnecessary to decide that question, for the reason hereinafter stated.
It was contended on behalf of Hankins that he offered to pay West the rent dUe on the land he had rented from Savage, but that West declined to receive the rent. There was some conversation between West and Han- kins on this subject, but we do not think {he testimony shows any tender of this rent.
It does appear, however, that Hankins did not consent to the sale of the cotton by Savage to West. There is conflict in the testimony on this question, but such is the fact, as we interpret the testimony. It is also true that May’s cotton was sold by Savage without May’s consent.
The rent was past due when Savage executed the bill of sale. West had the right, therefore, to demand that his rent be paid, or that the cotton be sold and its proceeds applied to his rent. But West did hot sell the cotton at that time, or have it sold. His contention is that he bought it from Savage.
If Savage had been the owner of the cotton, this sale would have been the end of the matter. But he was not the owner. He'was West’s tenant, and his subtenants had an interest in the cotton which he turned over to West, and which he could not dispose of in this manner.
If, in the usual course of business, West had sold the cotton, he would be chargeable only with its proceeds; but he was chargeable with its proceeds when it was sold, and the purpose of this suit is to charge him with the proceeds of the sale. West admits that he received $7,451.74 for the cotton, and, after allowing him credit for interest, insurance, hauling, and storage, the cotton netted him $6,252.07, which is $1,199.72 in excess of his rent with all charges included for holding and handling the cotton.
The average price of the 84 bales which West sold was $88.71 per bale, and if he is charged with the cotton at that price there was a sum due both May and the Whitlocks sufficient to discharge their respective mortgages.
The briefs discuss numerous items of account be tween Savage and the subtenants, consisting chiefly of a controversy about the quantity and value of hay and corn received by Savage. We do not review these figures in detail, for, with credits to which the subtenants are unquestionably entitled, the Whitlock and May cotton turned over to Savage, and by him delivered to West, brought enough, if accounted for at $88.71 per bale, to pay the rent and the mortgages; and, as there is no controversy about the amount due the mortgagees who have sued for the conversion, West must be held liable to them as having converted the cotton. Peoples v. Hayley-Beine & Co., 89 Ark. 252.
The court below so found, and that finding does not appear to he clearly against the preponderance of the evidence, and the decree is affirmed. | [
49,
106,
-83,
15,
26,
104,
10,
26,
-54,
-30,
-28,
83,
-55,
70,
9,
101,
-25,
29,
21,
105,
-58,
-73,
19,
-27,
18,
-5,
-53,
-51,
57,
77,
-92,
-41,
77,
28,
10,
-99,
98,
-64,
-55,
92,
-98,
-127,
-81,
-20,
-43,
80,
48,
-17,
20,
73,
81,
63,
-13,
46,
61,
67,
105,
46,
-65,
41,
-56,
120,
58,
-114,
-49,
14,
16,
102,
-78,
1,
-54,
78,
-104,
49,
0,
-23,
91,
38,
-122,
116,
5,
-119,
8,
38,
103,
19,
-91,
-17,
72,
-118,
47,
-37,
-51,
-90,
-128,
88,
3,
32,
-66,
-97,
110,
20,
-121,
-38,
-32,
-115,
29,
104,
1,
-113,
-106,
-93,
13,
-72,
-100,
-109,
-5,
7,
53,
115,
-49,
-93,
93,
5,
53,
-101,
-121,
-7
] |
McCulloch, C. J.
Appellee is a corporation engaged in the business of compressing cotton and storing cotton for hire at Magnolia, Arkansas, and it received from appellant, for storage, two bales of cotton, and executed a receipt therefor, stipulating that the cotton would “be delivered to bearer only upon return of this receipt and payment of all charges,” and the receipt also contained a stipulation exempting the company from liability for loss or injury on account of “accidents, concealed damages, water packs, acts of Providence, acts of the public enemy, or for damage or loss by fire, even when caused by negligence-.” Appellee failed to redeliver the cotton to appellant on demand, and this suit was instituted to recover the value of the cotton. There was a trial before a jury, which resulted in a verdict in favor of appellee.
•The testimony adduced by appellee tended to show that the cotton belonging to appellant was destroyed by fire when one of the buildings, the one in which this particular cotton was stored, was destroyed by fire.
Appellee also introduced testimony tending to show that it had exercised due care to protect the cotton and to prevent the occurrence of fire, and that the cotton was not lost on account of any negligence on the part of appellee or its servants. In other words, appellee, in its testimony, accounted for the cotton and showed that- it was destroyed by fire without negligence on the part of appellee.
There was, however, testimony introduced by appellant which tended to show that the cotton was not in the particular building that was destroyed by fire, and, if the jury accepted this testimony as true, there might have been a finding that appellee had failed to account for the loss of the cotton, and was therefore in default in failing to redeliver the cotton on demand.
The issues as to the loss of the cotton was submitted to the jury upon instructions requested at the instance of the respective parties.
The court instructed the jury that the stipulation in the receipt against liability arising from negligence was void, and that, if the property was lost through any act of negligence of appellee or its servants, appellee would be liable for the value of the cotton.
The instructions given by the court told the jury, in substance, that the 'burden of proof rested upon appellee to account for the loss of the cotton, 'but that, if it was shown that it was destroyed by fire, the burden was upon appellant to establish negligence on the part of appellee or its servants in permitting the cotton to be thus destroyed. These instructions were in accordance with repeated decisions of this court. James v. Orrell, 68 Ark. 284; Bertig v. Norman, 100 Ark. 75; Phoenix Cotton Oil Co. v. Pettus, 134 Ark. 76.
The refusal of the court to give the following instruction, requested by appellant, is assigned as error:
• “2. You are instructed that if you find from the evidence that the receipt issued plaintiff when he delivered the cotton in question to defendant was written by defendant or by some one for it at its request, then it should be construed more strongly against the defendant.”
The refused instruction correctly stated an abstract proposition of law, but the refusal to give it was not prejudicial, for the reason that the court correctly interpreted the contract, and there was no ambiguity in it.
Again, it is contended that the court erred in refusing to give the following instruction:
“6.. The receipt in this case constituted the contract between plaintiff and defendant, and if you find from a preponderance of the evidence that there was a contract between plaintiff and defendant, and under that contract the defendant was bailee for hire, yon are instructed that, if the plaintiff has shown that the defendant is unable to comply with its part of the contract by returning the cotton to plaintiff when called for, the plaintiff should recover, unless the defendant is able to explain the loss why it is unable to return the property.”
This instruction was substantially covered by the preceding one, No. 5.
There are other assignments in regard to the court’s charge, which we do not deem of sufficient importance to discuss. We are of the opinion that the charge was correct, and that the issues have been settled against appellant upon legally sufficient evidence and correct charge concerning the law.
Judgment affirmed. | [
-80,
100,
-4,
-115,
56,
-32,
104,
-70,
70,
-123,
55,
83,
-7,
-26,
21,
71,
-25,
89,
-59,
43,
-26,
-78,
3,
112,
-61,
-105,
-13,
-57,
-108,
-53,
-11,
-34,
72,
48,
74,
-127,
-62,
-64,
-47,
-100,
-114,
9,
-56,
-32,
-7,
-56,
52,
-85,
20,
75,
113,
30,
-93,
40,
17,
-57,
11,
63,
109,
61,
113,
-7,
10,
5,
127,
-105,
49,
38,
-110,
7,
-22,
58,
-104,
23,
16,
-20,
122,
-74,
-122,
84,
43,
-101,
76,
102,
98,
8,
-88,
-81,
-102,
4,
38,
-66,
-99,
-90,
-112,
73,
75,
75,
-74,
-99,
108,
-58,
-105,
118,
-2,
-99,
92,
108,
3,
-49,
-76,
-73,
45,
100,
30,
19,
-49,
-94,
48,
101,
-49,
-94,
88,
71,
59,
-101,
-58,
-61
] |
McCulloch, C. J.
This is an action instituted by appellee against appellant to recover damages alleged to have accrued on account of delay in the transportation of eleven carloads of cattle which appellant undertook, as the initial carrier, to transport from Hazen, Carlisle and Lonoke stations to Fort Worth, Texas. Damages were alleged arising from the killing and crippling of a certain number of the cattle of the value of $434.07, and damages in the sum of $650 for overcharge for feed during the period of unnecessary delay, and the sum of $1,900 for shrinkage in weight and depreciation in the grade of the cattle, and the further sum of $900 on account of loss by reason of the decline in the market during the period of the delay.
Liability for the sum claimed on account of killing and crippling the cattle is conceded, but liability for the other items is disputed.
On the trial of the cause the court excluded from the jury the question of liability on account of decline in the market, but submitted the issues to the jury as to liability for damages from other causes mentioned. There was a verdict in favor of appellee in the sum of $2,339.50, and an appeal has been duly prosecuted from the judgment.
Appellant accepted the carloads of cattle at its stations at Hazen, Carlisle and Lonoke, and gave through bills of lading over its own line to North Little Rock, thence over the line of the Missouri Pacific Railroad Company to Texarkana, and thence over the line of the Texas & Pacific Railway Company to Port Worth. The bill of lading contained a stipulation that the carrier should “be exempt from all liability for loss or damage to person or persons or live stock covered by this contract caused by mobs, strikes, or violence from any source.”
The sole defense made below was that the delay in the shipments was caused by a switchmen’s strike on the Texas & Pacific Railway Company, which caused an embargo to be laid on all shipments over that road for the period during which the delay in these shipments occurred.
The cattle were received and the movement thereof started on the morning of April 10, 1920, and reached North Little Rook about 7 o’clock on the evening of that day, and were delivered to the Missouri Pacific Railroad Company. Shortly after the cattle were received at North Little Rock, the Missouri Pacific received notice of an embargo being placed by the Texas & Pacific Railway Company on account of a switchmen’s strike, and the cattle were unloaded and placed in stock pens in North Little Rock, and remained there until the evening of April 16, when the embargo was raised and the cattle were reloaded and went forward, reaching destination on April 19, 1920.
It is not contended on behalf of appellee that the exemption clause in the bill of lading on account of delay caused by strikes is invalid, but liability is sought to be imposed on the carrier on the ground that, the shipment could have been diverted at Little Rock to the St. Louis Southwestern Railway Company (Cotton Belt Route) and forwarded through to destination without delay, it being claimed that there was no strike on that line.
Appellee testified that on April 12, 1920, he received a telegram from his broker at Port Worth informing him that the Cotton Belt Route was open, and that he at once presented this telegram to the proper agents of the Missouri Pacific Railroad Company at North Little Rock and requested diversion of the shipment over the Cotton Belt. Appellee testified that he repeatedly made demand on these agents that such diversion be made over that route. There was other proof adduced tending to show that there was no strike on the Cotton Belt Route and that the shipment could have been forwarded without delay if there had been a diversion in accordance the request of appellee.
We think there was proof sufficient to show that appellee made demand for a diversion of the shipment on April 12, and that if his request had been granted the shipment would have gone through without any further delay and the injury would thereby have' been averted.
The case was submitted to the jury upon the issue whether or not there could have been a diversion of the shipment over another route so as to avoid the strike and the consequent delay therefrom.
Without questioning the validity of the contract concerning the exemption from liability on account of the strike, yet it was the duty of the carrier to exercise reasonable diligence to prevent injury by finding another route over which safe and undelayed transportation might be had. The carrier had no right, even though exempt from liability, to withhold the shipment indefinitely when other means of transportation of the same character could be found.
The negligence in failing, to divert the shipment was that of the Missouri Pacific Railroad Company and con necting carrier, but appellant is responsible, under the Federal statute, for the negligence of the connecting carrier. 34 stat. 584, chap. 3591.
The Carmack Amendment, supra, declares the liability of the initial carrier for “any loss, damage or injury to- such property caused by it or any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass,” and we perceive no reason why there should not be liability under this statute on the part of the initial carrier for negligence of the connecting carrier in failing to adopt available means for forwarding the shipment over another route.
It is contended further that the proof fails to establish injury and the extent thereof on account of the delay, but we are of the opinion that there is enough evidence to warrant the jury in finding that the delay caused damages by reason of shrinkage in weight of the cattle and the additional cost of feed during the period of delay up to the amount of the -award of the jury.
Finding no error in the record, the judgment is affirmed. | [
-16,
85,
-80,
-115,
42,
104,
8,
-102,
69,
-85,
101,
83,
-55,
-48,
-124,
97,
-17,
125,
-27,
111,
-92,
-73,
69,
114,
-45,
-105,
3,
-57,
50,
73,
108,
87,
73,
16,
-54,
17,
-122,
-62,
-63,
28,
-50,
37,
-23,
-20,
121,
24,
60,
107,
22,
102,
17,
62,
-22,
42,
28,
-61,
45,
62,
-23,
45,
-63,
113,
-78,
6,
119,
22,
33,
70,
-108,
5,
-56,
62,
-104,
49,
24,
-8,
122,
36,
-121,
84,
37,
-39,
8,
38,
103,
41,
76,
-49,
12,
-88,
111,
-102,
-117,
-122,
-128,
16,
35,
35,
-106,
29,
4,
-58,
6,
126,
-2,
-115,
25,
36,
-121,
-1,
-108,
-93,
47,
116,
-100,
23,
-21,
-73,
54,
113,
-51,
-78,
92,
71,
126,
-101,
-121,
-41
] |
Wood, J.
In 1917 a suit was instituted by the State of Arkansas in the Drew Chancery Court against Mrs. Kate C. Parkinson. The object of the suit was to cancel the alleged title of Mrs. Parkinson to numerous tracts of land which she acquired from the State through mesne conveyances. The lands were situated in Drew, Ashley and Union counties. The chancery court entered a decree dismissing the complaint of the State for want of equity, and quieting the title to the lands in Mrs. Parkinson. No appeal was prosecuted from that decree. Some of the lands embraced in the decree Mrs. Parkinson still owns. Some she has sold, executing warranty deeds therefor. The records of the Commissioner of State Lands, Highways and Improvements do not in any manner refer to the decree of the Drew Chancery Court above mentioned. This action was instituted by Mrs. Parkinson in the Drew Chancery Court in November, 1922, against the Commissioner of State Lands, Highways and Improvements. She attached as an exhibit to, and made a part of, her complaint, the decree of the Drew Chancery Court; also certificates of the records of Drew, Ashley and Union counties, respectively, showing that the decree had been recorded in those counties, and also the order of the Drew Chancery Court showing that the appeal prayed therefrom had been dismissed. Mrs Parkinson alleged, among other things, that in spite of the decree and the proceedings had thereunder, as shown by the exhibit attached to the complaint, the Commissioner of State Lands, Highways and Improvements threatened to issue deeds to lands embraced in the decree mentioned, to those who might apply to him for the purchase of the same from, the State. Mrs. Parkinson alleged that the Commissioner was in receipt of applications, accompanied by the purchase price, from persons who,do not claim by, through, or under her, for the purchase of various parcels of land from the State as swamp lands. She alleged that any deeds which he might issue would cloud her title and the title of those to whom she might convey. She prayed that the Commissioner be required to show the decree of the Drew Chancery Court above referred to on the records of his office, and that he be enjoined from issuing deeds to any of the lands embraced in that-decree.
Herbert R. Wilson, Commissioner of State Lands, Highways and Improvements, was made defendant in the action. He, through the Attorney General, entered his appearance and demurred to the complaint, setting up, among other things, that the complaint failed to state a cause of action; that the court was without jurisdiction of the subject-matter. The cause was heard unon the demurrer, and, the defendant refusing to plead further, the court entered a decree perpetually enjoining the defendant from issuing deeds or other instruments of conveyance affecting the lands embraced in the decree' of the Drew Chancery Court entered January 4, 1917, and directing the Commissioner to execute to the plaintiff, Mrs. Parkinson, a deed or other instrument of conveyance in the name of the State of Arkansas, to each and all the tracts and parcels of land to which her title was quieted by the decree of January 4, 1917, and to enter upon the records of his -office a memorandum of the disposition made of such lands by the decree of the Drew Chancery Court of January 4, 1917, to the end that the records of his office might show that the State of Arkansas does not have or claim any right, title or interest in and to any of said tracts of land embraced in that decree. From the decree is this appeal.
This appeal is from the decree of the Drew Chancery Court between the same parties in interest and pertaining to the same subject-matter that was embraced in the original decree of the Drew Chancery Court of January 4, 1917. By this action the appellee seeks to enforce that decree, by enjoining the appellant from selling any of the lands involved in that decree, and by entering upon the records in his office a memorandum or notation showing the effect of the decree of the Drew Chancery Court as to the lands that were the subject-matter of that decree. The allegations of the complaint bring it well within the original and undoubted powers of a- court of chancery to entertain an action ancillary to the original proceeding in the same, or a different, court, and dependent upon such proceeding, and which has for its purpose the enforcement of a judgment or -decree previously rendered, in order that complete justice may be done to the parties in interest, as the exigencies of the case may require. 10 R. C. L. p. 357, § 10»; Coltrane v. Templeton, 106 Fed. 370-74, and cases there cited. 21 C. J., § 867.
“Where a decree is incomplete and ineffective for want of provision of any means for its execution, a bill in equity will lie to supply the imperfection so as to render the decree effective.- For the purpose of determining whether there is ground for equitable interposition, the court may look to the real nature and character of the decree as it may appear in the light of surrounding circumstances.” Gay v. Parpart, 106 U. S. 679-699. The chancery court unquestionably had jurisdiction of the subject-matter - of this action, and it had jurisdiction of the appellant, who was the Commissioner of State Lands, Highways and Improvements. The original action in which the decree of the Drew Chancery Court of January 4, 1917, was rendered, quieting title to the lands embraced and described therein in the appellee, was brought by the State, through her Attorney General and her special counsel, for that purpose. In 15 R. C. L., § 504, p. 1029, it is said: “Although neither the United States nor a State can be sued without its consent, yet if an action is instituted by the State or the United States, or against either, in a case where the law permits it to be sued, the judgment therein rendered will have the same effect as res judicata against it and all its-officers and agencies as would a judgment in an action against a private person in an action brought by or against him.”
The present ancillary action cannot be classed as a suit against the State. The rights of the State were adjudicated in the original chancery action. The decree in that action is now sought to be rendered effective by the present action because of the failure of one of the officers of the State to do certain things in order that the 'beneficiary of the decree in the original action may have that decree completely enforced so as to give her the relief to which she is entitled under it. Should the Commissioner of State Lands execute deeds to lands owned 'by the appellee, and whose title to which was quieted by the original decree, he would be performing an unauthor ized and illegal act. The complaint alleges that he threatens, and will do so, because the effect of the original decree is not reflected by the records of his office; that, so far as the records of his office are concerned, title to the lands appears yet to be in the State, notwithstanding the decree; that, should he execute deeds to these lands, it would $:oud title of the appellee. The alleged threatened acts of the Commissioner of State Lands, if done by him, would be in contravention of any authority lodged in him by virtue of his office, and the present action is therefore one against him to prevent him from doing an illegal or unauthorized act, and to require him to make the necessary memorandum or notations of record to preserve the rights of the appellee secured to her by the original decree, and to make those rights effective.
As the title of the State has already been adjudicated, its Commissioner of State Lands, Highways and Improvements, by this action, can and should be required to do the things necessary to give the appellee the complete relief which she seeks and to which she is entitled under the original decree. As said in Johnson v. Lankford, 245 U. S. 541, “surety an officer of a State may be delinquent without involving the State in delinquency, indeed, may injure the State by delinquency as well as some resident of the State, and be amenable to both.” See also 25 R. C. L. § 50, p. 414. In this action no relief is sought against the State. It is not charged that the State owes to the appellee any duty or that there is any liability on the part of the State growing out of any obligation to the appellee. The suit is not against the State.
In the original action in the Drew Chancery Court that court had jurisdiction of all the lands mentioned and described in the complaint and the decree. Section 1164 of Crawford & Moses’ Digest provides as follows: “Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof, is situated: First: For the re covery of real property, or of an estate or interest therein. Second: For the partition of real property. Third: For the sale of real property under a mortgage,, lien or other incumbrance or charge. Fourth: For an injury to real property.”
The cause of action, as shown by the allegations of the complaint, is single and entire. It affects all the lands embraced in the original decree in the same manner, although these lands were situated in different counties, and some of them not within the territorial boundaries of the chancery district where the action was instituted. Since the lands situated in Drew County constituted a part'of the subject of the action, the action instituted in that county drew to it, under the statute, jurisdiction over the lands situated in other counties. Under our decisions there is no distinction as to venue between the jurisdiction of courts of law and chancery. The jurisdiction of either cannot be made to depend upon the territorial boundaries of the district of which the particular court may be a part. So far as venue is concerned under the statute, it is the same whether the action be brought in the circuit court or in the chancery court. Cox v. Railroad Company, 55 Ark. 454.
The allegations of the complaint and the exhibits thereto show that the original action was brought in the chancery court of Drew County, where a part of the lands was situated. As between the State and the appellee, all of the lands embraced in the action, including those in Ashley and Union counties, as well as those in Drew were similarly affected by the decree, and the present action, which is ancillary to that, likewise involves and affects all of the lands in the same way. See Harris v. Smith, 133 Ark. 250-255. The subject of the action is the enforcement of the decree of the Drew Chancery Court. That decree was recorded in each of the several counties where the lands were situated, under the provisions of § 6283 of C. & M. Digest. As the subject-matter of this action involves all the lands embraced in the original action, and decree in the Drew Chancery Court in precisely the same manner, it is in the nature of a proceeding in rem operating directly upon the estate or title to the lands involved; and therefore a local action could have been brought in any county in which a part of the lands were situated. Jones-McDowell & Co. v. Fletcher, 42 Ark. 422-439 ; McLaughlin v. McCrory, 55 Ark. 442-445; Harris v. Smith, supra.
As we have shown, the action, having been ¡brought in the Drew Chancery Court, where a part of the lands were situated, drew to it and gave that court jurisdiction over all the lands similarly affected, although situated in different counties, that were described in the complaint and embraced in the decree of the Drew Chancery Court of January 4, 1917.
The decree is in all things correct, and it is therefore affirmed. | [
-73,
-19,
-44,
108,
-24,
-64,
48,
-126,
83,
-117,
-76,
83,
-81,
66,
8,
41,
99,
-51,
81,
107,
-57,
-78,
83,
38,
82,
-45,
123,
79,
-67,
77,
-28,
-41,
72,
56,
-54,
21,
-58,
-32,
-49,
88,
-50,
0,
-117,
-52,
89,
-64,
60,
45,
114,
15,
117,
47,
-15,
45,
117,
67,
109,
44,
95,
40,
89,
114,
-103,
87,
127,
19,
33,
-92,
-118,
1,
72,
42,
-112,
52,
0,
-4,
115,
-94,
-122,
116,
5,
-103,
8,
102,
102,
43,
-124,
-25,
-96,
8,
46,
62,
13,
-90,
-86,
40,
67,
73,
-66,
-112,
125,
24,
-57,
-6,
-26,
-51,
85,
44,
-115,
-21,
-108,
-95,
77,
-68,
-104,
19,
-29,
-85,
52,
112,
-63,
-29,
92,
71,
50,
-101,
-58,
-11
] |
Hart, J.,
(after stating the facts). The change in the road in question was made in conformity with the statutes relating to the establishment and alteration of public highways. No appeal was taken from the decision of the county court establishing the road as laid out by the viewers. Hence the present suit is a collateral attack on the judgment of the' county court in changing the public road.
It is well settled in this State that a judgment may only be attacked collaterally where, by the record, it is shown that there is a want of jurisdiction in the court rendering it, either of the subject-matter or of the person of the defendant. Crittenden Lbr. Co. v. McDougal, 101 Ark. 390, and Blanton v. Forrest City Mfg. Co., 138 Ark. 508.
The special act which created the special road district in question provided that the county court might make changes or alterations in the existing highway by following the method of procedure prescribed by the statute in such cases.
In Sloan v. Lawrence County, 134 Ark. 121, the act' of 1911 relating to the power of the county court to open new roads and to make such changes in old roads as it might deem necessary and proper was held valid, in so far as provides for the taking of private property by order of the county court for a public road, without notice to the interested landowner or a determination of the necessity therefor.
Again, in Dickerson v. Tri-County Drainage Dist., 138 Ark. 471, the court held that taking property for a drainage ditch falls within the State’s right of eminent domain, and the right may be exercised without notice to the property owner and without giving a hearing upon that question. Hence the contention that the judgment of the county court changing the public highway is void because no jurisdiction was acquired over the railroad company is not well taken.
It is next insisted that the judgment of the county court was void because the county court had no jurisdiction to change the existing highway so as to place a. part of it longitudinally upon the right-of-way of the railroad company. We do not think that this fact rendered the judgment of the county court void. The county court was not laying out an entirely new system of highways. The improvement district was organized for the purpose of improving an existing highway, and the county court, under the special act creating the improvement district, was authorized to change the existing highway if it should be found necessary and proper to do so. The special act provided that the method of procedure adopted by the general statute for laying out and altering public highways should be adopted in case a change in the public road should be asked. We must presume that the Legislature knew where the old highway was, and that it was in some places in the county close to and parallel with the right-of-way of the railroad company, and that when it authorized the county court to make the necessary changes in the existing highway it had in mind its location.
In testing the right to attack the judgment of the county court collaterally, the question is one of jurisdiction. If the county court had jurisdiction of the subject-matter, then the injunction will not lie in the present case. As we have just seen, the statute creating the road improvement district authorized the county court to change the existing public highway when it was found necessary to do so. Bearing in mind that the Legislature must be treated to have knowledge of its location with reference to the railroad’s right-of-way, the statute, by necessary implication, authorized the county court to change the highway so as to run along the right-of-way of the railroad company, if necessary to do so and if such use would not deprive the railroad of its use of the right-of-way, or materially affect such use.
Therefore the remedy of the railroad company, if aggrieved by the act of the county court, was to take an appeal from its judgment to the circuit court, and there, on a trial ele novo, to show the court that the laying out of a public highway longitudinally, even for a short distance, on its right-of-way would operate to deprive it of its right-of-way or to materially lessen its use for that purpose. See also Lonoke County v. Carl-Lee, 98 Ark. 345.
It follows that the chancery court was right in dismissing the plaintiff’s complaint for want of equity, and its decree will be affirmed. | [
-16,
-18,
-44,
124,
-54,
-64,
18,
-120,
81,
-85,
-27,
-45,
-81,
-54,
0,
49,
-26,
-81,
117,
57,
117,
-94,
67,
35,
50,
-13,
-45,
70,
-77,
77,
102,
71,
76,
16,
74,
85,
71,
74,
-59,
-36,
-114,
-114,
-102,
76,
72,
-64,
52,
107,
82,
79,
85,
-115,
-13,
46,
28,
-61,
105,
44,
89,
-68,
81,
114,
-98,
-105,
125,
4,
33,
6,
-104,
3,
-24,
42,
-104,
49,
25,
-72,
119,
-90,
-106,
117,
13,
-101,
8,
-30,
99,
1,
36,
-49,
-68,
-104,
14,
-2,
45,
-90,
-124,
24,
-53,
3,
-73,
-99,
121,
22,
-57,
-2,
-26,
5,
91,
44,
5,
-54,
-78,
-77,
-121,
116,
-104,
67,
-61,
1,
16,
113,
-62,
-62,
95,
69,
48,
-37,
-113,
-80
] |
Smith, J.
Appellant is a corporation doing business as a cotton factor in Memphis, Tennessee, and appellee is a farmer residing in Mississippi County, Arkansas. During the season of 1920-1921 appellee shipped to appellant fourteen bales of cotton to be sold for appellee’s account. There were three consignments of this cotton. There were nine bales in the first shipment, two in the second, and three-in the third. Appellee and one Martin shipped a few bales of cotton later for their joint account, but that cotton is not involved in this litigation.
Appellee testified that at the time of the first shipment he visited the office of appellant, and talked with Mr. Wynne, its president, and explained to him that he had taken the cotton over in settlement with his share croppers, with whom lie must settle for their interest, and that he explained to Wynne that, while he wanted the largest advance that could be made on the consignment, he- did not want an advance which would exceed the price the cotton would bring. In other words, after settling with his share-croppers, he did not want to be put in position where he would have to call on the -sharecroppers to return money he had paid them for their interest in the cotton.
Appellee testified that Wynne told him that advances of $125 per bale were being made on cotton at that time, and would be made on the nine bales appellee had ready for shipment, and that Wynne also stated he would guarantee to sell the cotton for a sum not less than the amount advanced, and that there would be money coming to appellee after the cotton was sold. He further testified that, in reliance upon this guaranty, the nine bales were shipped, and an advance of $125 was made on each bale. When the next two bales were shipped an advance of $100 per bale was made; and-when the last three were shipped an advance amounting to $250 was made, and appellee testified that he was told by Wynne that the same guaranty -would apply to the remaining shipments. Appellee is substantially corroborated by the testimony of one Kinmann, who accompained him to appellant’s office before the first shipment was made.
The cotton was finally sold by appellant, and lacked $1,104.(87 of bringing the amount of the advances, and appellee was sued for this difference.
Two defenses were set up: the first that the cotton had been shipped under the guaranty stated; and the second that appellant had negligently failed to sell the cotton when it could have been advantageously sold, and the loss incurred was a result of this negligence;
Both of these defenses were submitted to the jury in a single instruction, and there was a verdict for appellee — the defendant. It does not appear upon which de fense the jury found for the defendant; hut it does not appear to us that either defense was established, for the reasons hereinafter stated.
Upon the defense of the guaranty, that appellant could, and would, sell the cotton for a sum not less than the advances made thereon, it may be said that if, in fact, the cotton was shipped under the guaranty that it could, and would, be sold for a sum equaling the advance then to be made, as a consideration for the shipment, we know of no reason why that agreement should not be enforced. Pugh v. Porter Bros. Co., 118 Cal. 628. But appellee’s own testimony shows that he did not rely on this guaranty contract, and that he abrogated it.
Appellant insists, however, that the testimony, in its entirety, shows that no such agreement was made, and that the cotton was shipped to it, to be sold by it as a cotton factor, in the usual and ordinary course of business; and it may be said that the correspondence between the parties strongly supports that view.
It is insisted that a particular letter from appellee is an admission of the indebtedness, sued on, and constitutes an account stated. Appellant had sold, on May 18, 1920, six bales of the cotton for sixteen cents a pound, and five bales for twenty cents. Appellee was notified of this sale in the usual manner, and declined to accept that price for his cotton. Appellant canceled the sale except as to one bale, which had brought twenty cents and had been prematurely delivered to the purchaser through error. After appellee repudiated the sale, appellant wrote to appellee advising that it could not continue to carry this advance, and if the sale was not to be confirmed a deposit of $500 would be required to cover the decline in price, and an anticipated future decline. In reply, appellee wrote appellant the following letter dated May 27, 1920: “I received your letter of 24th. I am not able to send you any money. I am expecting my cotton to pay itself out of debt. I saw in paper the Memphis market where blue stained cotton was all the way from eighteen to thirty-five cents, and you sold mine for sixteen and twenty cents, and it is not satisfactory at all, so hold my cotton for better price. Now, I would love to send you check to cover all I owe you but I am not able, and I am expecting the cotton to pay itself out of debt.”
Appellee explained this letter by saying that what he meant was that he would have been glad to have returned the advance and have taken possession of his cotton, but he was not able to return the advance, and he was not therefore in position to demand that appellant surrender the cotton to be sold by some other cotton factor. The letter admits the amount advanced; but this was not in dispute.
The letter was not, however, a part of the contract; but was merely evidentiary of it, and its interpretation was therefore for the jury in connection with appellee’s explanation of it. The rule in such cases is stated by Mr. Thompson as follows: “Where a writing thus put in evidence is-not a dispositive instrument, but is merely offered for the purpose of showing an extrinsic fact, it will be for the jury to say what inference of fact is to be drawn from it.” Thompson on Trials, § 1098, and cases cited; Barker v. Lewis Pub. Co. (Mo. App.), 131 S. W. 929.
It appears, however, that, even though the testimony is legally sufficient to support a finding that there was a guaranty on appellant’s part as to the price for which the cotton would be sold, appellee could not hold appellant liable as a guarantor unless appellant had authority to sell in g’ood faith at the best price obtainable. The rights and duties of a factor in regard to the sale of cotton consigned for that purpose are fully discussed by Judge Battle in the case of Wynne v. Schnabaum, 78 Ark. 402, the appellant there being the appellant here. And when we speak of the rights and duties of a factor we mean as there defined, and they need not be restated here.
It is obvious that appellee seeks to hold appellant liable as occupying the .dual relation towards him of factor and guarantor, and, this being true, appellee would have had no right.to speculate at appellant’s expense by holding the cotton for a higher price than the sum advanced if appellant believed the price would not go higher, and that the best price obtainable had been offered. If appellant, acting with due diligence, in good faith, and with the ordinary discretion required of a factor, believed, at the time the first sale was made, that the best obtainable price had been offered, then it had the right to accept that price and account to appellee for the difference between that price and the guaranteed price.
The factor has the right, and it is his duty, as stated in Wynne v. Schnabaum, supra, to exercise good faith, due diligence, and ordinary discretion in selling the goods consigned for sale; and, if appellant did this in making the first sale, appellee should have acquiesced therein, holding appellant accountable for the difference between the sale price and the guaranteed price, and if, under the circumstances stated, appellee failed to do so, he released appellant from the obligation of the guaranty.
This is true because it is a well settled principle of the law of guaranty that a material alteration in the obligation assumed, made without the assent of the guarantor, discharges him, and it would have been an alteration of the contract to deprive appellant of the right to sell the cotton. See § 35 of the article on Guaranty in 12 R. C. L. p. 1083, and the numerous cases cited in the text; J. R. Watkins Medical Co. v. Montgomery, 140 Ark. 487; Snodgrass v. Shader, 113 Ark. 429, and numerous cases therein cited.
We think there was no testimony to warrant- the submission of the question of negligence on the part of appellant in selling the cotton.- It -appears from the undisputed testimony now before us that, upon the receipt of the cotton in Memphis, it was stored in the warehouse of the Memphis Terminal Company. This is a large cotton warehouse designed for the storage of cotton, used by appellant and a number of other cotton factors for that purpose. Upon placing the cotton in the warehouse, a sample of each bale was obtained and rolled in a piece of paper, upon which the marks and number of the bale from which it was taken were written. The warehouse number was also placed thereon to enable the warehouse company to identify it, and under that number the shipper’s mark and number were also placed. After that the sample thus wrapped was placed on the sample table, in the salesroom, and each bale was sold on its merits by those samples. Buyers were shown these samples, and sale were made from them when possible.
Wynne testified — and there is no contradiction of his testimony — that there was but little demand for cotton from and after the time of the receipt of appellee’s cotton, and the prevailing' quotations could not be obtained because of the lack of demand. This lack of demand was accentuated by the constant decline in price, and the first sale made, on May 18, was the most advantageous one that could have been made under all the circumstances. The cotton was finally sold on January 30, thereafter, or at still later dates, for the following prices: Two bales for 16 cents; four bales for 11 cents; two bales for 10 cents; one bale for 15 cents; one bale for 16 cents; two bales for 11 cents; one bale for 12 cents.
The fact that there was a guaranty did not alone deprive the appellant of the right to sell below the guaranteed price, and appellee had no right to impose an arbitrary price and thereby deprive appellant of the right to make an advantageous sale. Appellee was afforded the opportunity to repay the advances and retake the cotton, and declined to do so. Refusing to do this, he had no right to arbitrarily fix the price he would accept for the cotton and continue to hold appellant liable under the guaranty. 2 Mechera on Agency (2d ed.) § 2527.
Wynne was asked if he had made any special effort to sell this cotton, and he answered that the same effort was made to sell all the cotton consigned to his company. Appellee insists that this was negligence, as special effort should have been made to sell the cotton in view of the declining market. We do not think so. As a factor, appellant owed the same duty to all consignors, and had no right to make any concession at the expense of some other consignor in order to sell appellee’s cotton, and the testimony shows that equal and customary attention was given to the sale of all the cotton.
We conclude therefore that, if appellee desired to rely on appellant’s guaranty, he should have done so. He had the right to do so. He could have accepted the proceeds of the first sale and have required appellant to account to him for the difference between these proceeds and the guaranteed price, thereby extinguishing his debt for the advances. But he had no right to enlarge the guaranty by depriving appellant of its right to sell if that right was exercised by appellant in good faith, and we find no testimony to the contrary. The undisputed proof shows that the best price was received which could have been obtained, and it is not shown that the second sale was not made at the best price then obtainable. The loss resulted from a collapse in the price of cotton, for which the appellant was not responsible, and the judgment of the court below must therefore be reversed and judgment rendered here for the sum sued for. | [
48,
108,
-68,
-115,
26,
96,
40,
-70,
-39,
33,
101,
83,
-23,
87,
81,
109,
-93,
29,
85,
106,
-28,
-93,
5,
112,
-45,
-77,
-5,
-43,
-79,
-51,
-92,
-34,
13,
52,
74,
-111,
-30,
-64,
-59,
-98,
-50,
-127,
-81,
110,
125,
-64,
56,
-85,
20,
79,
97,
-74,
-5,
40,
25,
67,
9,
46,
-17,
56,
64,
-23,
-118,
12,
127,
23,
49,
100,
-102,
1,
-56,
106,
-112,
53,
0,
-24,
82,
-90,
-126,
84,
43,
-103,
8,
38,
103,
16,
-92,
-19,
-38,
12,
62,
-2,
-99,
-90,
33,
88,
67,
72,
-66,
28,
126,
69,
-106,
-10,
-8,
-99,
20,
108,
3,
-113,
-76,
-94,
45,
112,
-98,
19,
-53,
38,
50,
113,
-49,
-94,
93,
69,
54,
-101,
-122,
-56
] |
Hart, J.
W. V. Tompkins, administrator of the estate of J. U. Brown, deceased, brought this suit against the Missouri Pacific Railroad Company to recover damages in the sum of $30,000 on account of his intestate being negligently killed by one of the defendant’s trains.
On December 3, 1920, J. U. Brown, while driving Ins automobile across a public railroad crossing over the defendant’s railroad in the city of Prescott, Ark., was struck by one of the defendant’s passenger trains, with the result that the automobile was demolished and Brown was instantly killed. Brown left a widow and two minor children dependent upon him.
The case was tried before a jury in the Clark Circuit Court, and there was a verdict and judgment for the plaintiff in the sum of $7,500.
The Missouri Pacific Railroad Company duly filed its petition for removal of the action to the District Court of the United States, and as grounds therefor alleged that it was a corporation organized under the laws of the State of Missouri, with its general officers and principal place of business in the city of St. Louis, in said State.
The petition further alleged that the plaintiff is a citizen and resident of the State of Arkansas, and that the amount in controversy in this action exceeds $3,000, exclusive of interest and costs.
The petition further alleges ’that J. U. Brown.was killed by one of the defendant’s passenger trains while attempting to drive an automobile across a public street crossing in the city-of Prescott, Ark., and that said acci dent happened without fault or carelessness on the part of the defendant.
The petitioner also filed its bond for the removal of the action, as required by law.
The Clark Circuit Court denied the petition of the defendant for the removal of the cause, and proceeded with its trial, with the result above stated.
The case is here on appeal.
If the cause was removable, the circuit court was without jurisdiction to proceed with the trial, and its judgment must be reversed for this reason, whether it might otherwise be sustained or not.
The ground of removal was the diverse citizenship of the parties. The petition for removal alleged that the plaintiff was a citizen of the State of Arkansas and the defendant was a corporation organized under the laws of the State of Missouri, and a citizen of that State within the meaning of the Federal statute providing for the removal of causes on account of' diverse citizenship.
The right to remove is derived from the laws of the United States, and whether a case is made for removal is a Federal question. Hence we are bound by the decisions of the United States Supreme Court on the question. K. C. S. Ry. Co, v. Wade, 132 Ark. 551, and Chesapeake & Ohio Ry. Co. v. McCabe, 213 U. S. 207.
Sec. 28 of the Judicial Code enacted by the 'Congress of the United States provides:
“Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought in any State court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State. ”
According to the interpretation placed upon this section by the Supreme Court of the United States, in General Investment Company v. Lake Shore & Michigan Southern Railway Company, 43 S. C. Rep. 106, and Lee v. Chesapeake & Ohio Railway Company, 43 S. C. Rep. 230, if the plaintiff brings suit in a State court not in his district, the defendant, being a nonresident of such State, can remove such suit to the Federal court, whether the plaintiff objects or does not object, if the other conditions of removability are complied with.
Following these decisions, we hold that the case was removable to the Federal court, and, for the error in refusing to transfer it to the proper Federal court, the judgment of the Clark Circuit Court must be reversed, and the cause will be remanded for further proceedings according to law. | [
-16,
105,
-11,
44,
58,
-104,
26,
-104,
118,
-29,
-25,
83,
-23,
91,
0,
61,
99,
61,
-11,
59,
-28,
-109,
71,
-126,
-109,
-109,
57,
-123,
56,
73,
-28,
-58,
76,
40,
2,
17,
-121,
66,
-51,
28,
-50,
8,
-56,
-24,
25,
121,
48,
107,
86,
79,
97,
-81,
-1,
42,
17,
-13,
76,
60,
123,
-87,
123,
81,
-118,
69,
124,
18,
33,
32,
-102,
-125,
64,
27,
-104,
-79,
112,
-24,
119,
-90,
-122,
-12,
103,
-103,
8,
-30,
103,
33,
21,
-89,
-104,
-104,
15,
-86,
13,
-121,
-96,
16,
75,
43,
-98,
-107,
123,
-124,
-121,
-6,
-12,
-52,
24,
44,
5,
-49,
-106,
-95,
-1,
-95,
-98,
3,
-21,
-121,
32,
100,
-50,
-30,
93,
71,
126,
-101,
79,
-1
] |
McCulloch, C. J.
At a special term of the circuit court of Baxter County held in May, 1922, the petitioner, Herbert Sease, was convicted of the crime of murder in the first degree and sentenced to death by electrocution. The judgment of conviction was, on appeal, affirmed by this court. Sease v. State, 155 Ark. 130. After the judgment of affirmance by this court the date of the execution was fixed by executive proclamation, and on December 12 the petitioner, through his counsel, presented to the judge of the circuit court in vacation a petition for a writ of error coram nobis for the purpose of inquiring Into appellant’s sanity at the time of his trial and conviction. Numerous affidavits were presented to the circuit judge in support of the petition, but upon examination thereof he refused to issue the writ. The record made be fore the judge in vacation has been brought here on certiorari for review.
The case is, we think, ruled by the principles announced by this court in the recent case of Kelley v. State, 156 Ark. 188. We decided in the case just cited that, where the question of the -insanity of the accused was suggested, either formally or informally, at or before the trial, the writ of error coram nobis was not available after conviction to raise that question for the purpose of setting aside the judgment.
The testimony offered in support of this writ was merely cumulative of the testimony that was offered in the trial and tended to show general insanity dating back prior to the day of the homicide. The accused, at the trial, asked for a continuance of the cause on the ground that he was insane, and the refusal of the court to grant the continuance was one of the assignments, of error on the appeal to this court. If the trial court erred in failing to suspend the trial on account of the alleged insanity of appellant, it was an error which could only be corrected by appeal. .
The petition now before us is sufficiently broad, however, to constitute an allegation of insanity at the present time and to invoke relief by suspension of the sentence as long as the condition of insanity of the accused exists.
In our former decisions we have recognized the power of the court to grant relief in capital cases, where the convict is insane when the time comes for executing the judgment. This remedy, however, as shown in the Kelley case, supra, must be exercised with caution, and the court determines, as a preliminary question, whether there is sufficient ground for entering upon an investigation of the question of the insanity of the convict. As we have already said, the testimony, now adduced is merely cumulative of that which was adduced at the trial, and tends only to show general insanity, which began long before the commission of the homicide. It is true there were introduced the affidavits of physicians who testified as experts, but that testimony is merely cumulative. There was no showing of a substantial change in petitioner’s condition since the original trial.
We are of the opinion that the circuit judge was justified, under the circumstances, in refusing to grant the writ. The writ of certiorari is therefore quashed, and the judgment of the circuit judge in vacation is affirmed. | [
-80,
-24,
-40,
-98,
42,
-64,
74,
28,
-13,
-30,
98,
83,
-83,
-33,
68,
113,
-21,
111,
117,
105,
-28,
-73,
102,
97,
51,
-13,
-97,
-41,
-74,
-51,
-2,
-43,
72,
-32,
-62,
84,
-58,
72,
-127,
-100,
-114,
-107,
-119,
-32,
88,
-110,
48,
118,
92,
15,
53,
62,
-29,
43,
23,
75,
-24,
44,
73,
-114,
-64,
-72,
-102,
5,
109,
21,
-77,
22,
-100,
-125,
98,
62,
-38,
17,
8,
-8,
50,
-106,
-126,
84,
109,
-71,
-116,
102,
102,
41,
125,
-17,
-87,
-24,
31,
-66,
-115,
-90,
-102,
73,
107,
5,
-110,
-35,
118,
84,
12,
116,
98,
-124,
116,
-28,
9,
-33,
-112,
-93,
-113,
61,
-106,
67,
-21,
35,
48,
81,
-34,
-30,
84,
7,
120,
-101,
-114,
-80
] |
McCulloch, C. J.
The Director General of Railroads instituted against City Fuel Company, in the circuit court of Pulaski County, two suits, which were consolidated and tried together, to recover freight charges on twenty-one carloads of material shipped during the year 1918 from various points in and outside of this State to Camp Pike. The material was purchased by the fuel company from vendors at the'several points of shipment, the terms of the purchases being f. o. b. at those points, and the fuel company resold the same to the quartermaster at Camp Pike. All of the carloads, save three, were shipped by the original vendors consigned to the quartermaster, to whom delivery was made by the carrier without collecting the freight charges. The bill of lading in each instance named the original vendor as consignor and the quartermaster as consignee. The three cars mentioned were consigned by the original vendors to the fuel company at Little Rock; the latter resold them while in transit, and the consignments were diverted to the quartermaster at Camp Pike.
The trial of the consolidated cases in the circuit court resulted in judgments against the fuel company, but the court granted new trials, and this is an appeal from the order, a stipulation being filed, in accordance with the statute, that “if the order be affirmed, judgment absolute shall be rendered against the appellant.” Crawford & Moses’ Digest, § 2129.
The contention of the plaintiff is that ‘ ‘ although ~the City Fuel Company was not named on the billing, either as consignor or consignee, it had sold the goods to the consignee named, and, being the owner of the goods, had caused them to be transported to Camp Pike, consigned to the quartermaster * * * for the purpose of making delivery of its goods to the consignee, it became liable for the transportation charges.”
The law on this subject, which is, in a large measure, controlling in the present case, was stated in St. Louis S. W. Ry. Co. v. Gramling, 97 Ark. 353, as follows:
“The owner of goods under whose direction they are shipped is liable for the freight. The consignee who actually receives the goods becomes responsible for the carriage charges on the ground that the goods are delivered to him upon the condition that he will pay such charges; and, from his acceptance of the goods, the .law implies a promise upon his part to pay such charges. But where the consignee is only the agent of the owner, and this fact is known to the carrier, such contract to pay the freight by the consignee will not be implied. * * * The carrier has the right to look to the consignor or owner of the goods for the payment of the freight, and he may waive his lien upon the goods by delivering them to the consignee and still hold the consignor liable upon the contract of shipment.”
In this statement of the law the court manifestly used the words “consignor or owner” interchangeably as meaning the same, unless the consignor is a different person from the owner and made the contract of shipment as agent for the owner, in which case the owner would be liable as an undisclosed principal.
The determination of this case turns, then, on the question whether, under the facts, the original vendors, as the consignors under the recitals of the bills of lading, acted for themselves or as agent of the fuel company. Under the contracts between the vendors and the fuel company the deliveries were to be made f. o. b. at point of shipment, consigned to the quartermaster at Camp Pike. The consignment was a part of the duty of the vendors in making delivery, and they were acting for themselves, not as agents for the fuel company. This is true, notwithstanding the fact that, under the contract of sale, the freight charges were to be paid by the purchaser at destination. The fuel company was not the undisclosed-consignor, for it did not make the consignment, either in its own name or through an agent. Nor was the fuel company the consignee, either in name or undisclosed. There is evidence to show that the quartermaster was to receive the goods and pay the freight, not as agent for the fuel company, but on his own behalf as purchaser and consignee.
All that has been said thus far relates to the charges on the carloads other than the three which were consigned to the fuel company at Little Rock and resold and diverted in transit. The question of liability or nonliability for the charges on those three carloads rests on other grounds. It falls squarely within the principles announced in St. Louis S. W. Ry. Co. v. Gramling, supra.
The fuel company was originally the consignee, and by acceptance of the goods at destination would, by implied contract, have become liable for the freight charges. But there was, with consent of the carrier, a diversion to another consignee at another destination, and the consignment thereby became, in effect, one from the original point of origin to the last-named destination. It was a single consignment, and liability for the entire .charges could not be split. The fuel company, or the last named consignee, is liable for all or none. The fuel company was consignee only during a part of the period of transit, ceasing to be such before the transportation service was complete. This does not make the fuel company liable for the charges for service.
The decision of the United States Circuit Court of Appeals for the Eighth Circuit in the case of Wallingford v. Bush, 255 Fed. 949, is directly in point and supports our conclusion in the instant case. The only difference between the two cases is that the consignment in the Wallingford case was under contract of sale to shipper’s own order with bill of lading attached to draft, and the purchaser paid the draft and received the bill of lading during transit and then resold the goods and assigned the bills of lading to his purchaser. The court decided that the first purchasers did not, by becoming the owners during a brief period during transit, render themselves liable for the freight charges. There is no difference in principle between the question of liability in that case and in the present case. Our conclusion also finds direct support in the decision of a Texas Court of Appeals in the case of St. Louis S. W. Ry. Co. v. Browne Grain Co., 166 S. W. 40.
The question of liability for freight charges, as between the quartermaster and the fuel company under this contract of sale, is not involved further than is necessary to determine whether or not the former received the consignment as agent of the latter, and, as before stated, there was sufficient evidence to show that there .was no agency.
The judgment is therefore affirmed, and judgment absolute will be rendered here against the plaintiff’s right to recover.
Smith, J., dissents. | [
-76,
-7,
-20,
-52,
58,
96,
42,
-70,
84,
-5,
37,
83,
-19,
-60,
1,
97,
-29,
125,
-11,
59,
-92,
-73,
3,
115,
83,
-105,
51,
-121,
54,
75,
109,
70,
72,
116,
74,
-123,
6,
-62,
-59,
28,
-50,
33,
-5,
-24,
-39,
73,
52,
42,
22,
79,
81,
-114,
-21,
40,
16,
67,
41,
46,
-19,
-119,
-48,
115,
-117,
79,
55,
22,
1,
100,
-100,
7,
-24,
30,
-104,
49,
88,
-71,
122,
-89,
-122,
-12,
9,
-35,
8,
46,
-26,
97,
5,
-19,
-120,
-88,
46,
-70,
-121,
-90,
-80,
17,
35,
67,
-106,
21,
68,
83,
22,
-6,
-22,
5,
19,
108,
7,
-81,
-112,
-31,
46,
100,
-36,
19,
-50,
-89,
48,
80,
-51,
-10,
92,
71,
63,
-113,
6,
-57
] |
Mr. Justice Scott
delivered the opinion of the Court.
The testimony rejected was clearly competent: indeed no other evidence was competent, unless a foundation had been laid for secondary evidence by proof of the loss of this that the court rejected. Those proceedings before the justice were the very foundation of the complaint, and by these the plaintiff proposed to make out the first point in his case, to wit: his prosecution and acquittal. (2 Greenl. Ev., p. 427, § 449. 4 Phil. Ev., p. 253. Beebe v. De Baun, 3 Eng., p. 570.)
Let the judgment be reversed, and the cause remanded. | [
-80,
-22,
-51,
-66,
42,
96,
-94,
-38,
69,
34,
119,
-13,
-83,
-61,
16,
111,
-66,
63,
-43,
106,
-34,
-73,
23,
-61,
-14,
-45,
-37,
-43,
-79,
126,
-25,
93,
76,
48,
-62,
-43,
102,
9,
-57,
80,
-122,
-114,
-71,
-24,
-40,
84,
36,
43,
50,
75,
-16,
30,
-13,
42,
24,
-61,
-23,
40,
-53,
-67,
104,
48,
-118,
-121,
77,
0,
-77,
54,
-98,
71,
88,
46,
-112,
49,
1,
-8,
123,
-74,
6,
-44,
107,
-71,
8,
96,
96,
1,
57,
-24,
-72,
-104,
43,
127,
31,
-90,
-111,
8,
-55,
97,
-74,
-39,
101,
116,
14,
102,
-29,
-35,
31,
108,
3,
-113,
-108,
-79,
-81,
60,
-102,
88,
-25,
-125,
16,
112,
-51,
-14,
92,
71,
19,
-5,
-106,
-73
] |
Mr. Justice Walker,
delivered the opinion of the Court.
To the plea of the statute of limitations, the plaintiff replied a former action commenced within the statute bar, a non-suit and the commencement of the present action, upon which issue was taken.
Upon the trial, the plaintiff offered as evidence of the commencement of her first action, the petition and summons issued upon it: but the defendant objected to its introduction for vari-rance, and the circuit court sustained his objection. The only perceivable ground of objection to the record is, that the first action was commenced against other makers of the same note which are not sued in the present action. The defendants in this suit, were, however, parties also to the first suit. As we have repeatedly decided, the question is not whether a joint liability exists against the makers of the note, but whether a former suit was commenced against the defendants in this suit on the same cause of action. In such case, it has been decided that it is no variance that other parties appear to have been sued in the first action not declared against in the second. State Bank v. Magness et al., 6 Eng. 344. State Bank v. Sherrill, 6 Eng. 334. State Bankv. Isaac Gray, decided at the present term. {Ante.)
The circuit court erred in excluding the record as evidence; and for this error the judgment must be reversed, and the cause remanded to be proceeded, in according to law. | [
-16,
122,
-20,
62,
-118,
96,
-94,
-70,
65,
-128,
39,
51,
-19,
-61,
20,
117,
-25,
105,
81,
122,
71,
51,
55,
65,
-10,
-77,
-40,
85,
-79,
-33,
-26,
95,
12,
48,
-54,
-11,
102,
-54,
-27,
86,
74,
-116,
25,
76,
-15,
-56,
48,
43,
84,
77,
117,
71,
-31,
43,
-100,
71,
105,
41,
75,
61,
-48,
-80,
-102,
77,
125,
20,
-79,
-73,
-100,
71,
-8,
46,
-128,
49,
-127,
-24,
114,
-90,
-122,
116,
107,
57,
8,
102,
98,
34,
65,
-17,
-100,
-104,
39,
118,
63,
-122,
-80,
72,
9,
61,
-65,
-99,
126,
16,
-89,
126,
-2,
-107,
19,
-20,
1,
-113,
-42,
-78,
-81,
118,
26,
67,
-29,
-125,
48,
113,
-59,
97,
92,
71,
59,
-101,
-98,
-108
] |
Mr. Justice Scott
delivered the opinion of the Court.
To this action of debt on a sealed instrument — a single bill for $200, payable the first day of March, 1848, the defendant below interposed a special plea of partial failure of its consideration, which, as he alleged, was the sale and purchase of some lands and of an improvement upon the public lands. To this plea a demurrer was overruled, and the plaintiff below refusing to answer further, judgment was rendered accordingly.
The main question presented is a new one in this court in its present aspect, and is by no means free from difficulty. We think however, it may bo solved in the light of general princples and of the adjudged cases as satisfactorily to the professional mind as any that can come up, although it is undeniably embarrassed by some highly respectable decisions. The greater number of these, however, will be found to have departed from the true principles and spirit of the legal doctrine in question only in restricting two much the field of its legitimate operation. As urn must, in order to arrive at a clear comprehension of the main question before us, look somewhat radically at the doctrines of the law involved, we shall prefer to postpone the consideration of several minor questions until after we shall have examined the general question of the validity of the defence in the common law courts, of partial failure of consideration, in general reference to pleading and the interpretation of contracts beyond the sphere of merely local jurisprudence, as affected by our statutory regulations.
When a defendant, in a suit upon a contract in a common law court, comes in and asks to be permitted to interpose a defence founded upon a partial failure of its consideration, he certainly applies for a kind of relief that would have been refused him there peremptorily at one period in the history of those courts, and which at that period could have been obtained only in the equity courts. And it was during that period that the rule obtained as to this doctrine, which is now so often spoken of in our books, as the “old rule.” Hence, the doctrine in queston is in its nature and essence an equity doctrine; although now administered in the common law courts. And. this no less so, although in truth and in fact it might have been originally a doctrine of the ancient common law, stifled by artificial technical rules and driven for refuge into the equity courts. It is far more probable, however, from its essential properties and appropriate adaptation to a condition of advanced civilization, that itis a pure equity doctrine derived by these courts from the civil law. And this probability is strengthened by the circumstance that no common law term expresses with exactness the true legal idea of this doctrine,, while one derived from the civil law, in its present received signification, does so with great clearness.
The almost obsolete word “defalk,” falls far short, and although “discount” and “mitigation of damages” approach more nearly, still the one does not fully express the idea, and the other does somewhat more. And like the term “equitable off-set,” fails to present to the mind the essential, that the matter that is to be the foundation of the mitigation or the off-set, to be within the doctrine, must a,rise out of the transaction only on which the suit is founded, and cannot come out of a different affair. “Recoupment,” however, as it is now understood, expresses all this, as it is the keeping back of something that is due, because there is an equitable reason to withhold it, and is now uniformly applied where a man brings an action for a breach of a contract between him and the defendant, and the latter can show that some stipulation in the same contract was made by the plaintiff which he has violated; when the defendant may, if He choose, instead of suing in his turn, recoup his damages arising from the breach committed by the plaintiff whether they be liquidated or not. And thus the law will cut off so much of the plaintiff’s claims as the cross damages will come to, and in effect hold that cross claims arising out of the same transactions shall compensate each other, and the balance only be recoverable by the plaintiff. (Toml. Law Dic., Recoup. Ives v. Van Epps, 22 Wend. Rep. p. 156.)
With this understanding of the essence and nature of the doctrine of recoupment, we will proceed to trace rapidly its recognition and gradually development in the common law courts, both in England and in this country, premising first, however, two particulars worthy to be kept in mind, as tending to aid materially in the elucidation of the subject:
1st. That this doctrine has not grown up in the common law courts, upon the ground that the express contract upon which the suit is brought is to be considere d void, and that the recovery is allowed as upon a quantum meruit or quantum valebat upon an implied contract: or that such express contract has been rescinded, and thus a return or an offer to return or its equivalent must be required as a pre-requisite to the admission of the defence. On the contrary, it has grown up under the auspices of quite another and distinct principle of the common law, that has been always operative and of late years has not only been a great favorite of the courts both of law and equity, but of the legislature — that of the law’s abhorance of multiplicity and circuity of action, which can never legitimately tolerate a second litigation on the same matter, where a fair opportunity can be afforded by the first to do final and complete justice between the parties. (McAlister v. Reab, 4 Wend., at p. 492. Caswell v. Coare, 1 Taunt. 566 p., Mansfield.
2d. That recoupment differs from off-set in two essential particulars, that is to say, in being confined to matters only arising out of and connected with the contract upon which the suit is brought, and in having no regard to whether or not such matters be liquidated or unliquidated.
There canbe no doubt but that by the ancient common law, it was a fixed principle that if a contract was shown to be tainted with fraud, it could not be made the foundation of a recovery to any extent whatever. And it was also a principle equally well established that if a party was injured by partial failure of the consideration for the contract, or by the non-fulfillment of any of its stipulations, or of a warranty touching its subject matter, the injured party could not defend himself in an action on the contract by proving those facts, but could obtain redress only by a cross action. So, it was a like fixed principle that if one contracted to employ one for a certain time, at a specified price for the whole time, and discharged him without sufficient cause before the expiration of the time, he was bound to pay the whole amor» at of wages for the full time.
Nevertheless, it is equally well known that all these rigid rules of the common law courts have materially yielded by a gradual process to the influence of common justice, common sense and common convenience. Thus, the last mentioned rule is now held to have more especial reference to the sustaining of the action than to the admeasurement of the damages to be recovered thereby, and it has become settled that although the whole wages is prima facie the measure, yet the true rule of damages in such cases is the actual loss or injury sustained by the party ready and willing to perform. (Walworth v. Pool, 4 Eng. 394.
And so of the first rule, the technical notion that the contract was entire, and that therefore it could not be apportioned and made a ground of recovery in any case where it was tainted with fraud, has long ago been abandoned as a universal rule, although in some cases it may be still insisted on, as where the transaction present ingredients so grossly offensive, or so complicated and connected as to be incapable of clear and definite separation, on the ground that, in such cases, the parties have so much offended against good morals, or have so intricatély woven a web of fraud as to exonerate the courts of justice from the duty of “unraveling the threads so as to separate the sound from the unsound.” .And it is in cases where fraud entered into, but did not equitably go to the entire prevention of a recovery by the plaintiff, that we find the first traces of the defence in question by the common law courts of England. (The cases of Ledger v. Erver, Peak's cases 206. Fleming v. Simpson, 1 Camp. 40, note, are cases of this description.) And the cases both English and American, where the defence was allowed when there was a warranty mala Jides, and refused when the warranty was bona fides, rest upon the same foundation, the courts seeming, for a while, not to he willing to allow it except only in cases where fraud was an ingredient.
This distinction and consequent limitation upon the defence, although it had been before challenged and'in several cases disallowed, was not effectually exploded in this country until the case of McAlister v. Reab, (4 Wend. 483,) came up before the Supreme Court of New York, in the year 1831, in which Judge Maucy (in one of those clear judicial judgments, for which he was sometimes so remarkable when upon that bench) reviewed the more prominent English and American authorities, and having shown the falacy of the idea that recoupment proceeded either upon the ground of set-off, or of the nullity of the original contract and exhibited its true ground — the prevention of multiplicity and circuity of action — refused emphatically to restrict its operation to cases merely where fraud was an ingredient. That case was taken to the court of errors in the ensuing year, and the judgment was affirmed by a vote of 18 to 3. (18 Wend. R. 111.) After learned opinions in favor of the doctrines it inculcates by the Chancellor and Senator Allen, who cite various authorities in its support, not noticed by Judge Marcy. The dissenting senators having been evidently mystified as to the general doctrine in placing it upon the ground of set-off.
The Chancellor, in his opinion, incidently alludes to a further distinction as “taken by the English Judges between a suit upon the original contract of sale and a suit upon a note or other security taken for the contract price of such sale,” and remarks as to the latter class of cases, “it has been' held that the whole amount of the note or other security may be there recovered where there is no fraud, unless the warranty goes to the whole consideration.” We have looked into the English cases for this distinction, but have not been able to find that it is clearly marked. On the contrary, the cases, when closely scrutinized, seem generally to turn, not upon whether or not the suit was upon the original contract, or a bill or note taken for the contract price of the sale, but upon the question whether or not there was fraud. The case of King v. Boster, (7 East 481,) was upon a note given for a horse, and the cases of Barber v. Backhorn, (Peak's Cases 61,) and of Ledger v. Erver, (ib. 216,) were upon bills of exchange; and in those cases, certainly, fraud was the ground on which the defence was admitted.
But be this as it may, inasmuch as the defence that was once admitted only in cases of fraud, and in such cases was admitted as well against a bill or note as when the suit was on the original contract of sale, is now extended to cases where fraud is not an ingredient, by a parity of reasoning, it should be admitted in such additional cases, as well in the one predicament as in the other of the contract. And such seems to have been the universal understanding of the American courts. The cases of Frisbe v. Hoffnagle, (11 John. R. 50), Becker v. Vroman, (13 ib. 302), Spalding v. Vandercook, (2 Wend. R. 431), and Barton v. Steward, (3 id. 286), as remarked by the Chancellor, having disregarded the distinction; and all the subsequent cases in this country have followed this lead, as far as they have come under our observation.
The case of Peden v. Moore, (1 Steward & Porter R. 71), was also an action upon a promissory note. This case was decided by the Supreme- Court of Alabama in July, 1831, and without the light thrown upon the subject by the case of McAlister v. Real, which, although previously passed upon by the Supreme Court of New York, was then pending in the Court of Errors of that State. From the truly learned and able opinion of Chief Justice Collier delivered in this case, the Supreme Court of the United States, in the recent case of Withers v. Greene, (9 Howard R. 226), has made some very copious extracts, “on account of the intrinsic force of the reasoning they contain.” And the entire opinion commends itself to the profession in an eminent degree, as containing a discriminating review of the authorities, and a body of reasoning that throws a flood of light upon the general doctrine of partial failure of consideration. The result was that the Supreme Court of Alabama was “of opinion that whenever a defendant can maintain a cross action for damages on account of a defect in personal property purchased by him, or for a non-compliance by the plaintiff with his part of the contract, he may in a defence to an action upon his note made in consequence of such purchase or contract, claim a deduction corresponding with the injury he has sustained. When real estate is the' consideration, the law perhaps is different, and a partial defect in title, so long as the contract is unrescinded, could not be alleged as a defence to an action for the purchase money, and this difference is to be attributed to the extensive jurisdiction exercised by chancery over the title to real estate by causing it to be perfected; and to the additional cause that the vendee sus tains no injury by a defect of title so long as he retains possession.” Thus the boundary of mere cases of fraud, as a limitation for the toleration of the defence, was passed, as in New York; and in both States it was allowed in the common law courts, as will be found by an examination of the authorities cited, upon co-incident grounds of reason and exposition of authority; and it will be borne in mind, that each State had her equity courts of general jurisdiction.
The defence is also allowed in Mississippi, where there are also' like equity courts, upon the same limitation as in New York, Williams v. Harris, Ferguson &c., 2 Howard R. 627, Brewer v. Harris et al., 2 Sm. Mar. 85, Harmon v. Sanderson, 6 Sm. & Mar. 41: and the case cited by the counsel from 8 Sm. & Mar. 336, (Ferguson v. Oliver), to show the contrary, is only an enforcement of the New York rule, that nothing short of total failure or want of consideration will be allowed to be set up under the plea of the general issue, unless previous notice be given of an intention to rely upon a special defence amounting to only a partial failure.
Without any remark, therefore, upon the more recent elementary writers, who in general, now all lay down the doctrine to be that, “The objection to a note or bill of exchange may be that there is a total want of consideration to support it, or that there is only a partial want of consideration. In the first case, it goes to the entire validity of the note, and avoids it. In the latter case, it affects the note with nullity only pro tanto. The same rule applies to cases where there was originally no want of consideration, but there has since been a subsequent failure thereof, either in whole or in part.” (Story on Prom. Notes, p. 204, 5, sec. 187, citing two Editions of Bailey on bills and other authorities; (Story on Bills (2 ed.)p. 214, sec. 184. Story on Cont. p. 99, sec. 153, 154. 2 Green. Ev.,p. 124, 125, sec. 136, & notes, 2 ed.); or any observations on the various cases decided in State or Federal courts, in the States where there were nonequity courts, (14 Pick. R. 198, 22 Pick. R. 510, 23 Pick. R. 283, 1 Mason R. 437, ib. 93), we will conclude this array of authority in favor of the validity of the defence in question, in the general view in which we have been considering it, by citing the case of Withers v. Greene, before alluded to, decided by the Supreme Court of the United States at the January Term, 1850, which was, like the case at bar, an action of debt upon a single bill under seal. And in this case, the defence in question was allowed under pleas of fraud, praying a general discharge from the debt, although they were held bad, as pleas going to the entire discharge, because they omitted a disclaimer of the contract, and a proffer to return the property; but was held good, however, in substance (though bad in form) as pleas under which partial failure of the consideration could be set up in evidence.
After an examination of some of the American, and most of the English authorities, that court say, and we think that such is clearly established, “It would seem then to be fairly deducible from the reasoning of the English Judges, from the case of Boston v. Butler, in 7 East decided in 1806, to that of Boulton v. Lattimore, 9 Barn. & Cres., ruled in 1829, that this defence would, by those judges themselves, be deemed permissible, whenever it could be alleged, without danger of surprise and consistently with safety to the rights of the parties; and it appears to be a deduction equally regular, that where notice of the defence was given either by pleading or by any other effectual proceeding, neither surprise nor any other invasion of the rights of the parties could occur or, be reasonably apprehended. But however the rule laid down by the English courts should be understood, it has been repeatedly decided, by learned and able judges in our own country, when acting too, not in virtue of a statutory license oipprovision, but upon principles of justice and convenience and with a view of preventing litigation and expense, that where fraud has occurred in obtaining, or in the performance of contracts, or where there has been a failure of consideration, total or partial, or a breach of warranty, fraudulent or otherwise, all or any of these facts may be relied on in defence by a party when sued upon such contract; and that he shall not be driven to assert them either for protection or as a ground for compensation in a cross action.”
In holding the law thus, we have not failed to examine the decisions of some of the other States where it is held otherwise. The Kentucky decisions, mainly relied upon by the counsel in this case, present but little reasoning on the subject, and no authorities are cited. Kentucky probably received the law as her courts enforce it from her mother, Virginia, where in 1830, it was provided by statute that a defendant might allege by plea, not only fraud in the consideration or procurement of any contract, but any such failure in the consideration thereof, or any breach of warranty of the title or soundness of personal property, as would entitle him in any form of action to recover damages at law or relief in equity.'
But although we have found the defence in question admissible as to contracts respecting personal property, the case before us makes it necessary that we should go further and determine as to its validity in a court of law when real estate is, the consideration of the contract.
Upon one branch of this latter inquiry, the authorities are so nearly uniform, and the reasoning by which they are sustained is so cogent that there can be no great difficulty in arriving at a satisfactory conclusion. We mean that predicament of this question where the partial failure relates to title merely. In this class of cases, both upon principle and authority, no defect of title that does not amount to a total failure of consideration can be set up as a defence to the suit for the purchase money. (Greenleaf v. Cook, 2 Wheat. R. 13. Peden v. Moore, 1 Stew. & Port. R. 81. Frisbee v. Hoffnagle, 11 John. R. 50. Kemp. v. Lee, 3 Pick. R. 452.) And perhaps not even then without eviction. (Bumpass v. Platner, 1 John. Ch. R. 213.) And the denial of the defence in cases where there is but a partial defect of title, is predicated upon the exclusive and peculiar jurisdiction of equity over the title to real estate in causing it to be perfected, and upon the further consideration that the vendee in general sustains no injury by a partial defect of title so long as he retains possession, as also because it would be without the principle upon which recoupment is allowed at all in the common law courts; inasmuch as for want of that peculiar jurisdiction of the equity courts, to cause defective titles to be perfected, they could not do final and complete justice in the premises and terminate all possible further litigation touching the contract.
When, however, the partial failure of consideration arises not from a defect of title, but from a defect in the quantity or quality of the land sold, the authorities are not so harmonius. Chancellor Kent, in his commentaries, (2 Kent’s Com., 3 Ed. part 5, led. 39,p. 470, 471,) after alluding to the want of harmony among authorities, then existing on the point as to the defect of title, says, “The principles which govern (the contract) as to defects in the quality or quantiy of the thing sold, are the same in their application to sales of lands or chattels.” And in this he is fully sustained by the New York decisions, and also, in principle, by the South Carolina and Pennsylvania decisions cited by him. And although the question does not seem to have been expressly raised or decided in Mississippi, yet there are several cases there where the New York doctrine, as to this, seems to be taken for granted or countenanced. (Brewer v. Harris et al., 2 Sm. & Mar. 84. Ellis v. Martin, use, &c., ib. 187.) In Alabama, although the New York doctrine was recognized in the case of Wilson v. Jordan, (3 Stew. & Porter, 72), it was afterwards repudiated in the case of Dun, use, &c. v. White & Mc Clardy, 1 Ala. (N. S.) 645,) where it was held that a partial failure of consideration would not be allowed to be set up by a purchaser of land in possession, with warranty when sued for the purchase money, and that decision has been ever since followed in that State. This case, however, is not based upon authority, and the reasoning by which it is sustained, is any thing but satisfactory. It is true the Alabama court cited 5 Cow. R. 195, where the New York court held that an action could not be maintained upon a promissory note executed by Watson, on the following foundation, that is to say, Watson had sold lands to Miller, and conveyed with covenants of general warrant}'-. Afterwards Watson, admitting that the title had failed, executed the note in question to Miller for the amount settled between them as the sum due Miller because of the failure of title. The court put the point upon the ground that the promissory note was in judgment of law, but a promise to pay a subsisting covenant of warranty, which was technically a security of a higher grade, and therefore the action could be sustained only upon that higher security, and for that reason would not lay upon the note. From these premises, the Alabama court concluded that recoupment could not be allowed when there was a subsisting covenant of warranty, because such was a higher security than the note sued on.
Now, without placing any stress upon the several statutory regulations of Alabama, which, for most purposes, in effect place promissory notes and covenants and other writings under seal upon the same level as to technical priority, dignity and impeach-ability as to consideration, it will be sufficient answer to this conclusion to say that if this reasoning is good for the conclusion arrived at, it is equally good to overturn a most important part of the doctrine of their previous leading case of Pedan v. Moore, because it will equally exclude recoupment in all cases of personal property where the warranty was in writing under seal. The Alabama court also cited the leading case of Bumpers v. Plainer, (1 John. Ch. R. 213,) and upon this foundation argued that inasmuch as even a total failure of consideration cannot be allowed before eviction from land, ergo, a partial failure cannot be thought of for a moment. But in thus reasoning, they fail to remember that the case related to a failure of title, and that the reason of its rule utterly fails when the rule itself is attempted to be applied to a failure of consideration either total or partial of quantity or quality (not title) of the subject mattere of the sale and warranty. '
When the failure relates to title merely, so long as the vendee holds possesion, he has a title growing up daily, which by mere efflux of time may ultimately ripen, and cannot, therefore, in his conscience say that he has received no advantage from the vendor under whom he came into the possession, and makes it difficult to say that the consideration has indeed totally failed. And we have seen that partial failure of title as to land is not within the principle of the common law, under the auspices of which re-coupment has been recognized and grown up in her courts for want of power in the common law courts to compel the perfection of title which alone exists in the equity courts. When, however, the failure of consideration either total or partial relates to quantity or quality, efflux of time, however great, cannot repair it, and consequently the case cited had no application to any other than cases of failure in the title.
If the reasoning of the Alabama court be correct, and the doctrine thereupon establisued as to land, when the partial failure is of quantiy or quality, be sound, then must not only their own case of Pedan v. Moore, be overturned in its greater scope, but also almost all the English and other cases. Because the same reasoning will apply to all cases whatsoever as well when the warranty is mala fides. as when bona fides, provided it be a warranty under seal. We have seen that recoupment does not proceed upon the ground that the contract is a nullity and the recovery is upon a quantum meruit or quantum vedebat, but that the contract stands and the recovery is mitigated to the extent, and because of the fraud or failure. Such a distinction as that developed by the Alabama, court was never taken in England or elsewhere, so far as we have discovered. In England, the objection was not that the warranty was under seal and therefore a security higher in grade than a bill or a promissory note, but simply that it was a subsisting cause of action, on which an independent cross action could be maintained, and that for this reason to admit it as a defence under the general issue was not only obnoxious to the objection that the plaintiff might be surprised; but also to the further one that the record would not, in such case, exhibit that this matter had been once adjudicated by way of recoupment, and thus enable the party to show this former recovery in bar of an after action on the warranty. And no court has gone further to obviate both of these objections than the Alabama court, (see the cases of Robinson v. Windam, 9 Porter R. 397, where the court hold a special plea good which sits up “thatthe matter complained of hadbeen enquired into as a defence to the note, and judgment rendered accordingly, which remains unreversed.”)
We cannot therefore adopt so much of the doctrine of the Alabama courts as disallows recoupment in all cases where the subject of the sale and purchase is real estate; but shall follow principle, vindicated as it is by the New York decisions as to this point, (Van Epps v. Harrison, 5 Hill’s R. 63;) and hold that as to real estate, when the partial- failure is in quantity or quality of the subject, recoupment is allowable just as it would be for any partial failure in the sale and purchase of personal property.
Upon the next question involved in the case before us,- we are clear that, under our statute, recoupment is as well allowable when the action is upon “any instrument or note in writing under' the seal of the party charged therewith,” as when it is upon a quantum meruit or quantum valcbat, or upon a promissory note, or bill of exchange. (Dig. p. 808, sec. 75. The case of Van Epps v. Harrison, 6 Hill, at page 66, decides a like point as to the New York statute.)
The remaining question relates to the sufficiency of the plea filed in this case, which we think is good. It is not even obnoxious to the technical objection that the plea must answer the whole declaration as the failure set up is averred to be to an amount equal to the amount sought to be recovered — one other writing obligatory in addition to this having been (as it appears by the plea) executed on one entire consideration. If, however, it had been otherwise, and had been in form somewhat like this, “And the said defendant as to all said sum of money in the declaration mentioned except as to the sum of one hundred dollars, says actio non,” &c., we should have still held it good under the operation of our statute requiring all pleas “impeaching the consideration of any instrument or note in writing, whether sealed or not,” (Dig. p. 808, sec. 76,) to be supported by affidavit, and the preceding section authorizing a defendant, when sued on a sealed instrument “by special plea to impeach or go into the consideration of such writing in the same manner as if such writing had not been sealed.” (Sec. 75, ib.) The one provision was to enable a defendant to have the same defence against a sealed instrument, so far as it could be founded upon its consideration, or want, or failure, as he already had against an instrument not under seal; and this was granted upon condition that he would present such defence by “special” sworn plea. The other provision restricted the right of the defendant in so far as to take from him any de-fence of this character against any instrument or note in writing not under seal, unless presented by “-special” sworn plea. Thus removing the objection of surprise so long urged against recoupment, when allowed under the plea of the general issue; to obviate which the courts have required previous notice to be given to the plaintiff. And leaving in this State, as under the latter rule, such contracts only as have not been reduced to writing, all others being within the statute requiring the special sworn plea, which dispenses with notice.
As aplea of partial failure of consideration would,in legal effect, confess so much as it did not deny, the correct practice doubtless would be to take a default as to this plea, for the .sum confessed, subject to but one final judgment on the whole case at the cost of the losing party as usual: And this, although the general issue might be also filed along with this special plea, because of the general rule that the several distinct pleas in bar authorized under our statute, stand independent of one another. (Williams v. Harris, Ferguson & Co., 2 How. Miss. R. 634.
As the plea, in the case before us, does not set up a defect in the title of the subject sold and purchased, but a defect in quantity, it is within the rule that we have adopted for the allowance of recoupment in the law courts. The plea does not set up any want of title in the plaintiff to the improvement in question: on the contrary, it alleges that he was legally entitled to it and in possession of it, by way of showing him to be without excuse for not passing over the possession of it, of which failure the defendant complains, because he has not received this part of the thing he purchased, and for which he executed the note sued on as well as another note!
The first cause of demurrer is that the defendant, by his plea, set up an independent contract. This objection is certainly not sustained by the record; because the plea emphatically alleges that the note sued on, as well as another note was executed not only in consideration of certain lands specified, but “also for and in consideration of a certain improvement,” &c.
The other cause of demurrer is that as the plea must be taken strongest against the pleader, it must be intended that the promise to deliver the possession of the improvement on the public lands alleged in the plea was a verbal promise, and being such and a “contract” for an interest concerning lands, was void under the statute, (Dig. p. 540, sec. 1,) and consequently could not be the ground of a cross action, so as to bring it within the rule of re-coupment. To admit all this would avail the plaintiff nothing at all, because a cross action would still lay to recover back such portion of the consideration as was made void by law and not against public morals: and besides, we have seen, in the case of Withers v. Green, (9 How. R. 230,) that in a proper case a party may recoupe as well for protection as for compensation.
The record shows that Whorton was present in court, prayed an appeal, and filed his affidavit.
Finding no error in the record, the judgment must be affirmed, | [
-78,
124,
-44,
-3,
-54,
96,
-86,
-102,
89,
-96,
-89,
-45,
-87,
-53,
-108,
113,
-10,
107,
113,
106,
93,
-74,
23,
67,
-14,
-13,
-47,
-59,
49,
124,
-18,
93,
76,
48,
-62,
-43,
102,
-54,
-63,
-110,
-50,
-115,
9,
-27,
-7,
64,
48,
121,
16,
75,
85,
-98,
-93,
38,
29,
75,
41,
60,
-21,
57,
-16,
-80,
-66,
-123,
127,
21,
-109,
103,
-100,
71,
-54,
46,
-112,
49,
1,
-8,
122,
-74,
-122,
84,
45,
-71,
-120,
98,
98,
0,
97,
107,
-40,
-104,
46,
-34,
13,
-122,
22,
88,
11,
73,
-74,
-99,
124,
20,
39,
126,
-26,
-99,
29,
44,
19,
-117,
-106,
-79,
-97,
126,
-104,
83,
-42,
-29,
48,
112,
-58,
-14,
92,
71,
123,
19,
-98,
-4
] |
Mr. Justice Walker
delivered the opinion of the Court.
To this action, the defendant pleaded in abatement the pen-dency of another suit between the same parties for the same cause of action. The plea was in the usual form but not verified^by affidavit, and for that reason was on motion stricken from the files.
The only question presented is, whether the truth of the facts set forth in the plea appears of record. If not, the statute expressly declares (unless it is a plea to the jurisdiction of the court) that it shall not be admitted. It no doubt sufficiently appears of record that another suit is pending, the nature of the action and the names of the parties. But whether it is the same identical cause of action in suit in the second action, or whether these are the same parties, although of like names, does not appear of record, and although an identity in the amount, date, &c., of the contract, or a similarity of names in the two actions, might raise a strong presumption that such might be the case, yet this does not satisfy the strictness of the rule in regard to issues in abatement. The plea' itself indicates very clearly the extent to which the record is to be relied upon. After describing the action and the parties to it minutely, the plea proceeds, “ As by the record and proceedings thereof remaining in the said circuit court, &c., more fully appeals. And said defendant further saith that the parties in this and the former suit are the same and not other or different persons; and that the former suit so brought, &c.,is still pending,” &c. It is evident that these latter averments are not intended to be verified by the record; but are distinct matters requiring other proof.
But few adjudicated cases, either in England or America, are to be found directly in point. The case of Gardner vs. Buckbee, (3 Cow. 127,) has some bearing on the question. Upon an issue of former recovery, it was, in that case, held, “That the record of recovery merely proved the pleadings, and that judgment was rendered for the defendant, but without other proofs it would not make out the defence.” And this court, in the case of The State vs. Murphy, who was indicted for an escape after conviction, held that the record of the conviction was not evidence sufficient to establish the fact that the prisoner was the same person convicted of record; but that other proof should have been offered upon that point. (5 Eng. 77.) And, to this effect are the decisions of the English' courts. 1 Strange 522.
Whilst, therefore, part of the facts constituting this defence appeared of record, other facts equally necessary did not so appear; and under the rules of strictness required in framing a defence in abatement an affidavit was necessary, at least as to those facts not evidenced by the record. Let the judgment of the Circuit Court be affirmed, with costs. | [
112,
-24,
108,
108,
8,
-32,
42,
-18,
-55,
-125,
103,
51,
-19,
71,
0,
117,
-21,
123,
113,
123,
-33,
-73,
114,
-63,
-14,
-77,
-21,
85,
-71,
-51,
-18,
-66,
76,
-80,
-62,
-11,
102,
-54,
-59,
94,
-50,
1,
-104,
-59,
-53,
64,
52,
8,
84,
15,
113,
22,
-109,
58,
16,
-49,
-23,
44,
-53,
-3,
112,
-128,
-98,
13,
61,
38,
-79,
118,
-100,
-59,
-8,
42,
-112,
57,
1,
-24,
115,
-74,
6,
-12,
111,
-71,
0,
98,
98,
3,
-63,
111,
-100,
-112,
39,
42,
29,
-90,
-112,
80,
105,
41,
-106,
-35,
119,
16,
36,
126,
-4,
-43,
29,
108,
1,
-113,
-106,
-77,
-53,
118,
30,
107,
-25,
33,
20,
117,
-59,
-30,
92,
119,
17,
-45,
30,
-98
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court.
The great and indeed the controlling question involved in this cause relates to the precise period of time at which the cause of action accrued, as upon this point hangs the fate of the defence of the statute bar. The decision of this question-will necessarily turn upon the construction which shall be placed upon the obligation executed by Royster and his sureties to Martin.
The same instrument was before this court in the case of Martin v. Royster ct al., reported in 3d Eng., at page 79 et seq., and its legal character was there settled. If the legal operation of the instrument, as settled in that case, be the true and legitimate one, it is conclusive upon the question here, and there is no longer any room for controversy in relation to it. We will therefore proceed to examine the doctrine of that case upon that subject, and see whether it is sustained by the authorities.
It is contended that, in contemplation of law, the instrument declared upon is nothing more nor less than a pure and simple bond of indemnity against damage, and that consequently nothing short of actual damage incurred by the payment of money or its equivalent, can authorize a recovery against Royster or his sureties. It is conceded by the counsel for the defendant that if the cause of action accrued to Martin when Royster, as deputy, failed to pay over the money to Reider, and when Martin as sheriff became legally liable for the same, the present action is barred, and that the plaintiff should have the benefit of the statute. This court, in the case already referred to, where the same instrument was under examination, said, “The ground as sumed by Ashley, one of the defendants, is, that the bond executed by Royster to Martin, is merely a bond of indemnity, and that in order to entitle him to a recovery against Royster or his securities, he is bound to show that he has sustained actual damage. The condition of the bond' is that Royster, the defendant, will well and truly do and perform all the duties appertaining to the office of sheriff of Pulaski county, during the time he should continue the lawful deputy of Martin. In looking through the cases cited at the bar, we have not been able to find any one where the condition was precisely the same as the that contained in the instrument upon which this suit is founded.
In the case of Hughes v. Smith & Miller, reported in 5th Johnson, p. 167, the bond was conditioned that the under sheriff should execute the office during his continuance therein, according to law, and without fraud or oppression, so that the sheriff should not be made liable for the payment of any damages or money in consequence of any act or thing, which the under sheriff should do by virtue of the office. In that case, the court held that a breach in general terms averring that Smith had collected moneys as under sheriff to the amount of f1,000, which he had refused to account for and pay, was sufficient, and that it was admitted in order to avoid a cumbersome prolixity upon the record.
The same rule was acknowledged and applied by that court in the case of The Post Master General v. Lackran, 2 John. R. 413, and a reference was there made to the English authorities, of which Thurm v. Farrington, and Barton v. Welb, (1 Bos. & Pul. 646, 8 Term Rep. 493,) are the latest and most pointed on the subject. The language used in the instrument now under discussion, though not so specific, yet, in its legal import, it clearly covers as much ground as that in the case referred to. Royster covenants to do and perform all the duties appertaining to the office of sheriff. It will certainly be conceded that no one of the duties of the sheriff is more plain and positive than that which requires him to .pay over money to the party entitled to it, when collected under an execution. There can be no doubt but that, if the facts charged in the declaration are true, and that they are, stands admitted by the demurrer, the condition is broken and the plaintiff’s cause of action is complete.”
The Supreme Court of the State of New York, in the matter of Negus, (7 Wend. 502,) said, “The first objection urged against the decision of the trustees is, that the bond executed by Negus to Sinnott is simply a bond of indemnity, and that therefore Sin-nott must show that he has been damnified by payment of the debts which Negus assumed to pay, or that he has been damni-fied in some other way. From the whole transaction taken together, it is plain that the bond was intended as a bond of indemnity. HadNegus completed the job, andpaidthe debts which Sinnott was liable to pay, Sinnott would have had no further claims upon him or the job: the object of taking the bond was therefore to indemnify Sinnott; but it does not therefore follow that no action lies until actual damages have accrued. Whether an action lies or not, depends upon the true intent and meaning of the covenant; if it is simply to indemnify and nothing more, then damages must be shown before the plaintiff can recover; but if there is an affirmative covenant to do a certain act, or to pay certain sums of money, then it is no defence in such an action to say that the plaintiff has not been damnified. In such case, it is the duty of the defendant to perform his own contract; if he does not, an action lies for the breach, and the measure of damage is the amount of the sums agreed to be paid, or the injury sustained by the plaintiff, arising either from liability incurred, or advantages which would have accrued from the performance of the acts which the defendant had covenanted to perform.”
The same court, in the case of Chace v. Hinman, (8 Wend. 456,) said, “There is no doubt as to the general proposition that in order to recover upon a mere bond of indemnity, actual damage must be shown. If the indemnity be against the payment of money, the plaintiff must, in general, prove actual payment; or that which the law considers equivalent to actual payment. A' mere legal liability to pay is not in such case sufficient; but if the indemnity be not only against actual damage or expense, but also against any liability for damages or expenses, then the party need not wait until he has actually paid such damages, but his right of action is complete, when he becomes legally liable for them.”
In the matter of Negus, already referred to, the court further said that, “Where indemnity alone is expressed, it has always been held that damage must be sustained before a recovery can be had; but where there is a positive agreement to do the act which is to prevent damage to the plaintiff, there an action lies, if the defendant neglects or refuses to do such act; and’ where the covenant is both to do the act and to indemnify, we must resort to the intention of the parties. Whatever may be said of the case of Douglas v. Clark, it is sufficient that this is distinguishable: and it is difficult for me to conceive of a case where one assumes to do what was before the duty of another, where it is not the intention of the parties that the party, contracting to perform, shall perform, in the first instance according to his agreement. I presume to say that it never was the intention of the parties in such a case, that the party to be indemnified-is first to be damnified.”
We have looked extensively and carefully into the authorities cited by the counsel of the defendant in error, and we think that it may be safely said that no one of them calls in question the doctrine of the cases above quoted. The distinction running through all the books to which we had access, and we have given the subject a thorough examination, is between conditions for , mere indemnity against actual loss or damage, and such as guard against the mere liability of damage. The true question is, what was the intention of the parties? Was it that Martin should first pay over to the plaintiffs in execution, such moneys, as Royster should collect, and then to seek a re-imbursement from Royster, or was it that Royster should pay the money himself, and thereby prevent even the liability of a suit against Mar-; tin? The latter would seem to be the most reasonable construction of the covenant. Royster did not merely engage to save Martin harmless against damages, but he positively and emphatically undertook to perform a certain act, the performance of which would not only have saved him harmless from actual damage, but it would have also .prevented the slightest liability from resting upon him. He engaged well and truly to do and perform all the duties appertaining to the office of sheriff of Pulaski county, during the time he should continue the lawful deputy of Martin. By reference to the statute by which the duties of the sheriff are prescribed and enumerated, it will be seen that among the first and most prominent is that which enjoins the payment of such moneys as shall be collected up on execution. When Royster covenanted to do and perform all the duties appertaining to the office of sheriff, he most unquestionably, in contemplation of law .and to all intents and purposes, engaged that he would pay over to the rightful owner, all such moneys as should .come into his hands by virtue of legal process, and according to the command of the writ. If this is a legitimate interpretation .of the undertaking, and that it is, we think no one will seriously dispute, we consider it perfectly clear that it is not a matter of consequence whether Martin has been damnified or not, provided he can show that Royster has failed to perform the act which he has stipulated to do. We are therefore satisfied that the c.onstrutction given to this covenant, in the case referred to in 3d English, is well sustained by the principles applicable to such contracts, and that consequently the cause of action which js now sought to be enforced, did not arise at the time of the actual payment of the money by Martin, but that, on the contrary, it accrued and became perfect the moment that Martin’s legal liability became fixed by Royster’s failure to pay it over according to the command of the writ.
If Royster had engaged, in so many words, to pay over on the return day of the execution, and according to the command of the writ, all such moneys as he should collect from time to time by virtue of his office of deputy sheriff, it is presumed that, in the face of the authorities cited, no one would seriously insist that it was a covenant for mere indemnity against actual damage; and if so, we consider it equally clear that the bond in suit .cannot be so regarded, as its legal operation and effect are pre cisely Ibe same as it would have been in case the exact words of the statute touching that official duty had been adopted. We feel perfectly satisfied therefore, both upon principle and authority, that the undertaking of Royster was not merely to re-imburse Martin such damages as he might be compelled to .pay in consequence of his acts or omissions, whilst acting in the capacity of deputy, but that, on the contrary, it‘was to pay over all such moneys as he should collect, and thereby prevent even the possibility of loss or damage resulting to Martin.
The instrument under consideration being a joint and several obligation, it is manifest that the right of action accrued against Royster and his sureties at the same time, and that consequently Badgett, as one of those sureties, stands upon the same ground as his principal in respect to the benefit of the statute bar. It appears from the testimony that the money was collected by Royster in 1838, upon excutions returnable to the April term of that year, and that the present suit was not instituted until April, 1849, showing a lapse of more than ten years.
The plaintiff interposed in the court below his three several pleas of the statute of limitations, setting up in the first a lapse of two, in the second four, and in the third five years after the accrual of the cause of action, and before the institution of the suit. The court sustained a motion to strike out the first two and overruled it as to the third. The act of the court in thus sustaining the defendant’s motion to strike out the first two pleas as also the sixth, constitute one of the assignments of error. The correctness of this assignment we will now proceed to determine.
We have made a strict examination of all the statutes as well of the territorial, as the State government, touching the limitation of actions, and we have not been able to find any one which can be construed to embrace the instrument before us until the 20th of March, 1839. Prior to the passage of this act, there was no statute in force as to limitations upon such instruments. The bond declared upon, though executed by a deputy sheriff to his principal for his indemnity and security, cannot be said to be in .any sense official in its character, but simply and purely private and an individual obligation. This being the case, it cannot fall within the description of any of the several official bonds enumerated in the statute, and it is equally clear that it cannot legitimately come within any of the specified contracts or liabilities therein set forth. The eleventh section of the act referred to is the one which applies to the cause of action in question, and that declares that “all actions not included in the foregoing provisions shall be commenced within five years after the cause of action shall have accrued.?
This Court in the case of Baldwin v. Cross, 5 Ark. Rep. 512, when passing upon the legal effect and operation of this act, said, “the statute of limitations took effect on the 20th of March, 1839, and this suit was brought upon the 15th of June, 1843. Prior to the passage of this act, there was nb statute in force, in the territorial government, as to limitations upon foreign judgments. The operation of the act upon demands existing at the time of its passage is the same as it would be upon those accruing upon the day it took effect. All Ihe demands existing when the act went into operation, must be sued for within the time prescribed, or they will be barred.” The statute creates a new rule upon the subject, and the essence of a new rule is its application to future cases that may arise under it. In The People v. The Supervisors of the Columbia College, 10 Wend. 365, the court said, the statute of limitations like all other acts, are prospective, and so ought to be construed unless otherwise expressed, or that they cannot have the intended operation by any other than a retrospective construction. The general rule is, that no statute is to have aretrospective operationbeyondits commencement. Sayre v. Wisner, 8 Wend. 663. And in Dash v. Van Kleek, 7 J. R., it is held that no statute can be construed retrospectively when it takes away subsisting vested rights. It cannot cut off all remedy and deprive a party of his right of action. Our revised statutes apply to limitations of actions or causes of action accruing or existing subsequent to their taking effect. The.rule relates to future contracts, which would be barred according to its provisions, or to existing demands, as if they had accrued at the time tbe statute commenced its operation. The demurrer to the plea relates back to the declaration, and the record shows that five years have not elapsed since the passage of the act of limitations.” The instrument in suit falling within the same statute, of course the rule of construction there laid down is strictly applicable to it and, consequently, the 20th of March, 1839, is the day from which the statute commenced running, and a lapse of five years from that time will form a complete bar.
In this view of the law, it is obvious that the first and second pleas tendered issues which were wholly immaterial, and that consequently they were defective as a defence to the action, yet they were not so utterly frivolous as to be struck out upon mere motion, but should have been met by demurrer. (See Crayry v. Ashley and Beebe, 4 Ark. R. 206, and 6 Eng. R. 480, Wayland et al. v. Coulter et aZ.) This court in the first case said, “the rule upon the subject we take to be this, that if the pleas are informal, but still go to the substance of the action, that the plaintiff will not be allowed to sign judgment, but must demur: and the reason given for the demurrer is that the defendant might obtain leave to amend, but if they are without color of truth to support them, or where they are intended as mere instruments of delay, they ought to be stricken out. (12 Wend. 196, 223; 10 ib. 624, 672,) and in the last, the following language was held, viz: “The plea interposed was very different from one that might set up one year as a bar to an action bound by the lapse of five, because in such a case, inasmuch as lapse of time properly presented, would have been a bar, that plea although defective, would have been of a nature appropriate to present a defence to the action, and would therefore be properly met by a demurrer. But inasmuch as our statute of limitations does not apply to proceedings like those in the case at bar, as was settled in the case we have cited, the plea settingup that bar was totally inappropriate, and therefore might have been as well met by motion as by demurrer.” The rule to be extracted from those cases is, that in order to render a plea a proper subject of a motion to stike out, it must not only fail to tender a material issue, but it must also be wholly unadapted to the nature of the action. Lapse of time, as has already been shown, might constitute a full and valid defence to this action if well pleaded, and consequently the first and second pleas, though defective in not settling up the requisite time, were still appropriate pleas, and consequntly could only be met by demurrer. The court below consequently erred in sustaining the motion to strike out the first and second pleas of the plaintiff in error.
The only remaining question relates to the propriety of striking out the sixth plea. This is a general denial of the existence of the deputyship of Royster, at the time of the alleged default. It is contended that this plea was properly stricken out, as the same matter of defence had been previously set up in other pleas. This is not true in point of fact, as neither the fourth nor the fifth pleas deny the existence of the deputyship; but, on the contrary, they both expressy admit it, but seek to defeat the action by impeaching the consideration of the bond as being against the policy of the law. It did not lie in his mouth to deny the original appointment of deputy as recited in the bond. From this, he was most clearly estopped by his deed. (See Outlaw et al. v. Yell, Governor, &c., 3 Eng. 351, and Sullivan v. Pierce et al., 5 Eng. 502.) But he is not so estopped to deny its continuance down to the time of the failure of duty which is now charged upon him, and upon the truth or falsity of which his liability is- made to depend. According to the terms of the bond, Royster is only to be held responsible to Martin under it for the acts or omissions of the former whilst he acts under the authority of the deputyship conferred by the latter. It is therefore clear that, although Royster could not deny the original appointment in consequence of the legal estoppel, yet either he or his sureties could show that such authority had ceased before the commission of the act charged against him. That Royster acted during the continuance of his authority as deputy and by virtue of it, is of the very.essence of the charge, and as a matter of course to show that the falsity of such charge must be of the essence of the defence. This plea therefore sets up matter which is appropriate in its nature as a defence to the action, though it must be admitted the subject matter thus presented is defectively stated, and would have been held bad upon demurrer. He having admitted the original appointment, or which is tantamount to the same thing, being es-topped to deny it, he could not in general terms deny its continuance, but could only do so by setting up special matter by way of avoidance. This plea, therefore, though defective in form, is of a nature appropriate to present a defence to the action, and consequently could not be stricken out upon mere motion, but could only be met by demurrer. The court below consequently erred also in striking out the sixth plea.-
We come now to consider of the instructions, given and refused by the court. The first one asked by the plaintiff in error was, “that the plaintiff’s cause of action in this behalf accrued to him, whenever Royster as his deputy committed, default, or in other words, whenever Martin as sheriff became leg'ally liable for damages or expenses occasioned by the neglect of duty on the part of Royster, as his deputy.” This instruction was clearly right, and consequently the court erred in refusing to give it in charge.- The second is “that so soon as Royster, as Martin’s deputy, collected money on execution Martin became liable to the party entitled to the money, and at the same time his cause of action on the bond here sued on, would be complete, and the statute of limitations would commence running from that period. This was properly overruled for two reasons. In the first place, Martin’s legal liability was not fixed the instant the money was collected by Royster, but his failure to pay it over on the return day of the execution, and according to the command of the writ fixed his liability to a suit; and secondly, the statute did not commence running from that time as there was none in existence that could operate upon it, but from the 20th March, 1839, the day that the act went into operation. The third is that, “if the jury are satisfied from the evidence that Royster received the money and failed to account for it, and that Martin became liable to the party entitled to the money collected by Royster, as his deputy, more than five years next before the institution of the suit, they are bound to find for the defendant Badgett on the issue to his third plea.” This was properly overruled as it looked to the time that fixed the liability of Martin, and not to the passage of the act of the 20th March, 1839, as forming the periodfrom which the statute commenced running. The court then instructed the jury on the motion of the plaintiff below that “although the plaintiff might have had a right of action for nominal damages, yet that the causes of action in the declaration did not accrue, nor did the statute of limitations commence running until the payment of the money by the plaintiff to the said Jacob Reider. This was manifestly wrong, as the cause of action did commence running long before the actual, payment of the money by Martin to Reider.
We are satisfied then that there is error in the judgment of the circuit court in this case rendered, and that therefore the same ought to be and the same is hereby reversed, annulled and set aside with cost, and it is ordered that this cause be remanded to to said circuit court, to be proceeded in according to law and not inconsistent with this opinion, and also that both parties have leave to amend their pleading or file additional pleas, if they shall desire to do so. | [
-12,
-6,
-8,
-68,
26,
96,
35,
-102,
-63,
-119,
-9,
-13,
-87,
10,
4,
101,
-74,
-1,
117,
123,
-57,
-73,
119,
105,
-80,
-13,
-47,
-35,
-79,
76,
-10,
87,
12,
48,
-54,
85,
102,
-56,
-55,
-98,
-50,
5,
58,
-27,
-47,
120,
52,
58,
112,
79,
21,
-113,
-29,
34,
29,
-57,
109,
40,
-53,
41,
80,
120,
-104,
-115,
95,
21,
-111,
1,
-100,
7,
-8,
46,
-104,
53,
1,
-24,
115,
-122,
-122,
-12,
109,
-117,
40,
98,
98,
0,
-27,
111,
-120,
-120,
6,
-6,
-99,
-90,
16,
72,
43,
8,
-74,
-99,
110,
20,
-91,
124,
-14,
21,
85,
108,
5,
-53,
-42,
-95,
-49,
60,
-102,
5,
-49,
-127,
48,
116,
-50,
-32,
76,
101,
59,
27,
-113,
-35
] |
Mr. Justice Scott
delivered the opinion of the Court.
The first objection we held untenable in the case of Brown v. The State, just decided; and the second cannot be sustained either upon principle or authority. The accused might have challenged for cause before the indictment against him was preferred to the grand jury who found it, and after it was found he might have pleaded in abatement of it, any constitutional disqualification of any of the grand jurors which showed them to be not good and lawful men. After pleading to the indictment, however, and standing his trial on the merits, it was too late to make this objection in any form.
There is no error in the record, and the judgment must be affirmed. | [
-76,
106,
-7,
-98,
10,
96,
42,
-98,
69,
-80,
-26,
-13,
-19,
-37,
-108,
123,
-71,
61,
117,
106,
-50,
-73,
23,
-63,
-14,
-13,
-37,
-43,
49,
127,
-25,
125,
76,
48,
74,
-43,
102,
40,
69,
28,
-58,
-89,
57,
-51,
-48,
114,
32,
42,
114,
11,
81,
30,
-29,
46,
26,
-61,
-23,
40,
-53,
43,
96,
-79,
-116,
-115,
109,
20,
-77,
-92,
-98,
-125,
-40,
46,
24,
-111,
0,
-8,
115,
-90,
-126,
-44,
107,
-71,
12,
-30,
98,
1,
-71,
-18,
-104,
-47,
14,
126,
-113,
-90,
16,
8,
-55,
108,
-74,
-99,
101,
52,
-90,
110,
-29,
-36,
17,
44,
39,
-113,
-76,
-77,
-51,
108,
-110,
64,
-29,
-127,
16,
48,
-50,
-26,
76,
71,
23,
-37,
-98,
-66
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court.
The question first presented in this case is whether the appellant has been surprised by the appellee, and that too without any negligence on his part; and secondly, in case that such surprise has been shown, whether it has been productive of any injury. The whole case must turn upon the fairness or unfairness of the conduct of the appellee’s counsel in procuring the judgment at law, and this can be determined alone by the testimony as it is exhibited upon the record. The bill charges in substance that in consequence of an understanding between the counsel of both parties that the case should be settled out of Court, he was thrown off his guard and that therefore it was that he failed to defend at law. The respondent on his part denies that any unfairness has been practised, but on the contrary insists that he has had the benefit of a fair and regular trial at law, and that consequently such a case does not exist as to call for the intervention of this Court. We will now proceed to look into the testimony and to ascertain if practicable how this matter really stands^ David J; Baldwin,*the partner of Albert Pike, and one of the attorneys of the appellant expressly admits that Col. Fowler, (the attorney of the appellee,) notified him at a term of the Court previous to the trial, that he intended to exact the full penalty. He also stated that when the case was called, he (Baldwin) was arranging the papers for the purpose of discussing a demurrer, and that whilst thus engaged Col. Fowler spoke to him of some arrangement or understanding between himself and Major Lawson, but that if he (Baldwin) desired to go on and settle the case upon the record as shown he had no objection. He stated that he then told him (Fowler,) that Major Lawson had before told him the same thing, but that, as the case had been called for trial he supposed that he (Fowler,) intended to go on with it. He then stated that in the existing state of things and as the matters involved in the case which lay entirely within the knowledge of himself (Fowler) and Lawson, that for himself he would rather not have anythingTur-ther to do with it, and finally that as Mr. Pike had previously managed the case, and as he did not understand the merits of jt he would positively have nothing to do with it. Daniel Pdngo also a witness for the appellant, stated that he was present at the trial in the court of law, and that he had no recollection that Mr. Baldwin appeared in the case, but that, on the contrary, his best recollection was that no person appeared on the part of Lawson. This is the substance of the testimony on the part of the appellant touching the alleged surprise. The appellant appeared before the Court at the time of the trial and the rendition of the judgment. The first piece of evidence, in order, on the part of the appellee is the record, which is as follows, to-wit: “And now at this day came the said parties by their respective attorneys, and the Court being now well and sufficiently advised of the matters of law arising on the demurrer of said_defendants to the plaintiff’s first and second replications, to their fifth plea in this case, doth consider and adjudge that said demurrer be overruled: whereupon the said parties waived their right to have a jury in this case expressly, and by consent, submitted the cause and the issue joined to the Court in place of a jury, &c.
Gordon N. Peay testified that he was the clerk of the Court, and present at the trial of the case at law between Bettison and Lawson and Thorn, that he distinctly recollected that on the trial of said case both parties appeared by their attorneys, Col. A. Fow- . ler for the plaintiff (Bettison,) and David J. Baldwin for the defendants, (Lawson & Thorn,) that after the judgment was rendered on the demurrer in said case, the parties waived their right to a jury, and the cause was submitted by consent of parties to the Court, in the place of a jury, and that David J. Baldwin, as the attorney for the defendants, Lawson and Thorn, was present, at the trial and submitted the case to the Court for them. Charles P. Bertrand, another witness introduced by the appellee, testified that he was present at the trial of the case between the same parties, in the Pulaski Circuit Court, that D. J. Baldwin, as attorney, represented the defendants, that according to his best recollection a jury was waived by him and the cause submitted to the Court sitting as a jury. Absalom Fowler, the last witness introduced, testified that he instituted the suit at law mentioned in the bill and answer for Bettison against Lawson & Thorn, who filed several pleas in bar thereof and thereto, signed by Pike & Baldwin, their attorneys, that said suit was continued from term to 'term on request of said Lawson and especially at one term on his request made through Albert Pike, one of his said attorneys, that he would settle up by the next term, and pay over whatever might be found due from him to said Bettison, which he believed to be the April term, 1845 ; that at the April term,. 1847, a demurrer, which said Lawson & Thorn had filed to a part of the pleadings, was overruled: that Mr. Baldwin, one of said attorneys and who had argued the demurrer, being then present, and on the overruling of said demurrer, said Baldwin rested thereon, but voluntarily consented to submit, and did then and there voluntarily and freely submit the issues joined and the whole cause to the court sitting as a jury, and waived the right to a trial and assessment of damages by a jury. He further stated that said Pike never proposed to make a settlement of the matter with him for ■ Lawson, and that he never at any time agreed that theprogress of tbesuit atlawshouldbesuspendeduntilsuchsettle ment was made, and that at the term previous to the judgment he sent a message to Lawson by his said attorney, Baldwin, to come and pay up as he expected or intended to exact of him all that the law would give to Bettison, specifying ten per cent, per month and lawful interest. The current of testimony tending to show that Baldwin appeared and represented Lawson at the trial of the cause in the court of law, is wholly irresistible and consequently that fact must be regarded as fixed and unalterably established. (See 11, Illinois 91.)
It will not be necessary, under the state of case here presented, to discuss the legal effect of an appearance by an attorney at law, who is a mere volunteer and acts without the authority of the party, whom he assumes to represent. The attorney, who is proved to have represented Lawson in this case was not only authorized to practice law in the Court where the trial was had and the judgment rendered, but he was likewise the attorney of record regularly employed and retained by Lawson to represent his interests and to protect his rights in the defence of the case. This proposition being true, it would seem to be quite immaterial whether Lawson actually knew that the trial would take place at the term of the Court at which it was brought on or not. The Court" of Appeals of the State of Kentucky, in the case of Barrow v. Jones (10th J. J. Marshall, 470) said, “We are of opinion that the bill does not present a case which authorized the relief given. It was the fault of the complainant’s attorney, to go into trial unprepared, or if he did, to suffer a verdict to be rendered in the absence of the complainant, or any authorized agent. For injuries resulting to clients from negligence or inattention on the part of their attorneys, Courts cannot give redress against the other party to the suit. Redress must be sought in a new action against a new party. The discovery of evidence or new testimony relevant to the point in issue, which, by reasonable diligence, could have been produced, is no cause for a new trial; going into trial unprepared should rather operate against an application for a new trial, instead of in its favor. Where it does not clearly appear that the result of a new trial ought to be in favor of the applicant, it should be awarded with much caution if at all. The case of Green v. Robinson (5 Howard Rep. Mississippi, 105) is to the same effect. The Court in that case said, that “It is a general principle that the judgment or decree of a Court of competent jurisdiction shall be final as to the subject matter decided, and not as to that merely, but as to every other which might have been decided. The law abhors multiplicity of suits, and it is a cherished object with Courts of Justice to put an end to litigation. Some period must be prescribed to controversies of this sort, and what period can be more proper than that which affords a full and fair opportunity to examine and decide all claims of the litigants. This imposes no hardship since it only requires a reasonable degree of vigilance and attention. But a contrary course might be highly oppressive and endanger the stability of titles and the security of all our rights. Hence it has become an established rule that equity never will interfere to grant a new trial of a matter which has already been discussed in a Court of law, a matter capable of being discussed there, and one of which a Court of Law has full jurisdiction. 2 Story's Eq. 179. It is not sufficient to show that injustice has been done, but that.it has been done under circumstances which authorize the Court to intefere. Equity, then, as a general rule, will not interfere where the party could have availed himself of the defence on which he seeks a new trial or injunction, and neglected to make it on the trial. Neither will he be relieved, if he was prevented from doing so by the mistake of his counsel in filing the plea which does not cover his defence. 2 Story 180.” “In Bateman v. Willac, 1 School & Lefroy, 201, Lord Redesdale observed that a bill for a new trial was watched with extreme jealousy. The Courts must not only be satisfied that injustice has been done, but that it was not owing to the mere inattention of the party. In Williams v. Lee, 3 Atkins 224, Lord HaRdwick lays down the same rule, and remarks that relief will only be granted after verdict in cases where the plaintiff knew the fact to be otherwise than what the jury have found and the defendant was ignorant of it at the trial. The case of Young v. Donner is also strongly in point. See 5 Litt. p. 10. The Court, in that case, said that “ Where by fraud or any artful contrivance of one party, or by unavoidable accident, a valid de-fence is kept out of sight, the Chancellor may interpose. But it is not sufficient for the party applying to the Court of Equity for a new trial, to exhibit good grounds; he must also show that it was out of his power, owing to some substantial cause, to make the application to the Court of Law in due time. In this case the complainant was represented upon the trial by an attorney at law of his own selection, and of course, one in whom he had confidence to manage his defence and to guard his rights. This being the case the legal presumption is that he was duly and fully advised of every fact and circumstance which could be used in behalf of his client, and also that his client was kept duly advised as to any matter that would make either for or against him, and which had come to the knowledge of the attorney. The fact that the attorney consented to the trial and joined in the submission of the cause to the Court, and that too after having been apprised of an understanding that it was to be settled out of Court, raises a presumption, which is scarcely resistible, that he had previously apprised his client of the intention of his adversary to exact the penalty given by the statute. But the ground of surprise charged and relied upon in this case is that Fowler, the attorney of Bettison, in violation of his agreement to settle the case out of Court, brought on the trial and obtained the judgment, and that too without ever having' given any notice of such his intention. This allegation is utterly unsupported by the proof. The testimony shows most clearly that no such intention ever was entertained by Fowler, until after the cause was actually called by the Court. Baldwin testifies himself that when the cause was reached upon the docket and called by the Court, that Fowler spoke to him of some arrangement or understanding between himself and Lawson, but that if he (Baldwin) wished to go on and settle upon the record as shown, he had no objection. He further stated that he then told him (Fowler) that Lawson had before told Mm the same thing, but that as the case had been called for trial he supposed that he (Fowler) intended to go on with it. TMs is the testimony of the appellant’s own witness and as a matter of course, he cannot object to abide its legal effect. It most assuredly would not be contended that here is any evidence that Fowler intended prior to the calling of the cause to urge or insist upon a trial at that term. It is perfectly apparent that so far from Fowler intending to urge a trial at the term at which the judgment was rendered, the proof is strong that such was not the case; but that, on the contrary, his expectation was to continue it over, and that he only consented to take it up and to dispose of it, when Baldwin, in rather a .taunting manner, intimated his readiness to go into the trial. It will be found, upon a close scrutiny of the testimony of both Fowler and Baldwin, that Fowler did not say that unless Lawson came forward and settled that he would progress with the suit, and exact the full penalty, but that the purport of his message was that he must come and pay up, as he intended or expected to exact the full penalty. What was the necessary inference which Fowler must have drawn from the conduct of Baldwin, when he found him in the case arguing a demurrer, and'after the law arising upon the same was adjudged against his client, resting upon it, and submitting the cause to the Court to be tried upon the issues joined? Was he not fully authorized to conclude that Baldwin had delivered his message and that upon a consultation between him and his client, Lawson, they had waived the privilege of a private settlement, and preferring to take the chances of a trial in Court, had resolved to do so ? This is the only rational conclusion to which he could arrive, in view of all the facts and circumstances connected with this transaction. Indeed the plaintiff in the suit at law would seem to have better ground of complaint than the opposite party, for it is obvious that he did not anticipate a trial and that it was necessarily forced upon him. True it is, that Baldwin stated that after having taken up the case for the purpose of arguing a demurrer, it was suggested to him by Fowler that there was an understanding between the parties that it should be settled out of Court, and that upon such suggestion he first expressed a desire to get out of the trial, and, that finally, he absolutely refused to go into it. This portion of his testimony is completely nullified by the record and the other proof introduced upon the trial, and consequently must be regarded as being entirely out of the view of this Court. Under this view of the evidence, it is clear that there is not the slightest groud of surprise that can fairly be predicated upon the conduct of Fowler, but on the contrary he is shown to have acted with the most perfect fairness and consistency throughout the whole transaction; at least, so far as bringing on the trial is concerned. We are therefore clear, that so far from Fowler intending to take any advantage of Lawson by bringing on the trial, at a time when he was not present and prepared to make his defence, he did every thing that could have been required of him, when he signified his willingness to continue it again, and only consented to take it up when he was invited to it by Lawson’s attorney.
When a party employs an attorney at law, either to prosecute or to defend his suit in the Courts of the country, he presents him to the opposite party and to the world as his accredited agent, and as such, ho must be concluded by his acts, or omissions, where no fraud or unfairness is made to appear. But upon the supposition that fraud or unfairness has been shown, so as to occasion a surprise, the point to be determined then is whether the appellant has been injured thereby. If he has failed to disclose a legal defence to the action instituted by the appel-lee up on his official bond, then it is that although he may have been the victim of fraud or contrivance, still he is not entitled to relief in a Court of Equity. That this is the law, is fully established by the authorities already referred to, as well as numerous others which might be cited. By his return upon the several executions exhibited, the appellant has furnished ample evidence from which the Court was fully warranted in finding the amount against him, which is specified in the judgment.
The point now to he decided is, whether the showing which he has made in his bill, admitting that he had availed himself of its entire benefit, would have discharged him from his legal liability. It was expressly adjudged by this Court, in the case of Randolph v. Ringgold et al., (5 Eng. Rep. 282,) that an attorney at law, who acts under his general authority as such, has no power to receive nor to give directions for the receipt of anything but legal current money upon executions for their clients, and that in such a case the debt remained unpaid, and that the plaintiff in execution might elect to set aside the sheriff’s return, and sue out an alias execution, or sue the attorney for the value of the debt collected.” This doctrine is well supported by authority, and its soundness is believed not to admit of a single doubt. What then is the state of case in relation to payment as disclosed by this bill? The allegation in the bill is that Presley, a friend of Whitmore, paid Fowler, the attorney of the appellee, two hundred and sixty-five dollars in Arkansas bank paper, and that such payment entitled the judgment to a credit of one hundred and ninety-five dollars and seventy-five cents, and further that he was advised that he had a valid defence to the whole action, and that if Fowler had given him any notice of his intention to prosecute his suit, and thereby enabled to set forth his de-fence on the trial, that 'Bettison could not have obtained judgment for one cent. Admitting the payment to have been made in Arkansas paper as represented in the bill, it is clear that Bet-tison was not precluded by it from a recovery against Lawson, unless it has been shown that Fowler was vested with a special authority to receive such payment by Bettison. The answer of Bettison, which is the only evidence touching that matter, is that, “ In the summer or fall of 1847, Lawson, in Louisville, Kentucky, stated that it was a hard case for him to pay the damages embraced in said judgment, but that he was willing to pay the principal and legal interest if he (Bettison) would compromise at that, which he refused to do, but referred him to his attorney, Fowler, as having the control of the case, and stated he did not mean to interfere at all, but would leave it entirely to said Fowler. We do not understand from what .Bettison said upon that occasion that he admitted that Fowler had authority to receive the amount actually and justly due in depreciated paper, but simply that if he should deem it unjust to exact the penalty, he might remit the same, and this would seem to be the full extent of his admission, as that was all that Lawson requested. If this be the extent of his admission, then it is, that under the authority already cited, the payment in Arkansas paper, even though it had been the whole amount of the debt, would not have amounted to an extinguishment, and as such it would have been inadmissible as evidence of payment on the trial at law. True it is that he further alleges that had he been advised of Fowler’s intention to insist upon a trial, that from the advice which he had received, he believed that he could have made a complete defence! What the character of this full defence was, does not appear, and consequently it is not entitled to any consideration whatever. Upon an application of this nature, it is indispensable that the particular facts constituting the defence should be disclosed in order that the Chancellor may determine whether it could have availed the party or not on the trial at law, and consequently, whether he has suffered any injury by not being permitted to have the benefit of it. Hut there is yet another view of this case, which, if it stood alone upon it, would leave it a doubtful question whether the relief sought ought to be granted. The law is well settled that the complainant is required to present himself under circumstances, showing clearly that the facts which he charges as the foundation of his surprise, are unmixed with negligence on his part, (See Town v. Sneed, 4 Eng. Rep. 540, and. the au-' thorities there cited.) What then are the facts of this case as presented by the proof? In April, 1844, Bcttison instituted his suit against Lawson upon Ms official bond, and at the April term, 1847, the judgment complained of was rendered by the Court. Here then are just three years permitted to elapse by Lawson in order to bring about a settlement of the case out of court, and that too without one scintilla of showing, that he ever, during the whole of that time, came forward and made the slightest effort to effect such settlement. It certainly cannot be that he supposed he would be permitted to keep the cause forever pending upon a mere matter of favor and indulgence, and that extended too without any apparent motive, or the least consideration by his adversary. It cannot be reasonably contended that Fowler, by consenting to continue the case from term to term for the space of three years, was therefore under kny legal obligation to continue it forever. This would be a most unreasonable and unfair construction of the understanding as disclosed by the testimony, and all that could be claimed either in law or morals, would be a reasonable time for Lawson to procure his proof and to come forward. Jf Fowler consented to a continuance of the cause for three years, as a matter of favor to Lawson, and solely to give him an opportunity to prepare himself for the settlement, we consider that'in all conscience he can have no just cause of complaint, and more especially when it is not made to appear that Lawson ever, during the whole time, used the least exertion to bring about the object for which he had caused so great delay. This state of fact, it seems to us, cannot be said to show that kind of diligence which the law favors, but, on the contrary, a high degree of negligence. Upon this ground, therefore, we think, to say the least of it, that Chancery would not regard his application in a very favorable light. In view of the apparent harshness of the penalty which the law visits upon the sheriff, who retains money in his hands and in order to afford all the relief which could be granted in accordance with the principles of equity, we have looked into this case in all its various phases, and after a full and thorough investigation, we have been forced to the conclusions already announced. This being the case, the decree must in all things be" affirmed. | [
-80,
-8,
-16,
-51,
42,
34,
42,
-104,
73,
-127,
-25,
-13,
-23,
79,
0,
115,
-94,
63,
-64,
107,
95,
-73,
39,
-23,
-78,
-13,
-5,
-99,
-79,
-18,
-25,
127,
76,
32,
-118,
-43,
102,
74,
-59,
20,
-50,
38,
8,
-19,
80,
96,
36,
57,
92,
79,
21,
-97,
-29,
42,
29,
-41,
-19,
44,
123,
61,
-48,
112,
-114,
-99,
95,
20,
-79,
32,
-98,
37,
-40,
62,
24,
49,
8,
-8,
112,
-90,
-122,
116,
45,
-69,
72,
98,
98,
0,
105,
106,
56,
-56,
62,
-4,
-99,
-90,
21,
72,
-23,
-115,
-108,
-99,
46,
20,
-90,
126,
-5,
29,
-104,
36,
27,
-101,
-112,
-77,
77,
124,
-102,
90,
-21,
-127,
52,
113,
-51,
-30,
92,
69,
58,
25,
-99,
-110
] |
Mr. Justice Scott
delivered the opinion of the Court.
The writ of certiorari, having been improvidently issued in this ease, must be dismissed. (Marr Ex parte, Ante.) | [
-76,
96,
-76,
-100,
43,
96,
48,
-98,
73,
81,
-25,
83,
109,
67,
20,
99,
119,
111,
85,
106,
94,
-94,
55,
-45,
114,
-13,
-39,
-37,
53,
126,
-25,
93,
76,
112,
-30,
-43,
102,
-119,
-63,
16,
-58,
39,
41,
-19,
-15,
-88,
-76,
43,
112,
75,
85,
30,
-29,
46,
25,
-61,
-56,
56,
-37,
-3,
64,
56,
-114,
-123,
93,
18,
-77,
38,
-34,
-61,
24,
46,
24,
49,
0,
-4,
114,
-74,
6,
-44,
107,
-5,
8,
-12,
106,
3,
-47,
-17,
-104,
-40,
27,
110,
31,
-30,
23,
88,
-53,
73,
-74,
-103,
101,
16,
-89,
-2,
-29,
-115,
29,
44,
26,
-53,
-122,
-93,
-113,
124,
-102,
72,
-59,
-93,
16,
48,
-123,
-14,
92,
87,
31,
-101,
-98,
-10
] |
Mr. Justice Scott
delivered the opinion of the Court.
The question to be determined in this case is, whether or not the court below erred in refusing to allow an entry to be read in evidence from one of the regular books of the bank, under the state of facts presented in the bill of exceptions. To comprehend clearly the force of the objection urged against the competency of this proposed testimony, it will be well to remember that even when part payment, and its appropriation is directly proven, that even then, the main fact necessary to be established, to wit, the continued existence of the debt, notwithstanding the lapse of time since its creation, is but a presumption upon which the law implies a promise to pay it. When, then, this part payment, and its appropriation by the debtor is sought to be established to this end, by an endorsement upon the security, to be sustained on the basis of proof, aliunde, that this endorsement was in fact made at a period of time when it would be against the interest of the holder of the security to make it or have it made, still another link is added to this chain of successive presumptions.
In such case, on the primitive foundation so fixed that the endorsement was in fact made at a time when against the interest of the holder of the security, the following presumptions are successively made:
1st, The purport of the endorsement is presumed true:
2d, That the part payment was made:
3d, That it was appropriated by the debtor:
4th, That he promised to pay the residue; each of course liable to be repelled.
In the case of Alston v. The State Bank, (4 Eng. 455,) it was submitted to us that the law allowed still another link to this chain of presumptions, forged by English judges, before they fully comprehended the true character of the statute of limitations? and that was supposed to be that where the endorsement purported upon its face to have been made at' a time when to make it would be against the interest of the holder of the security, that the law would, upon this foundation, as a primitive one, presume the date true, and then that the other presumptions would follow in succession, and several English authorities were cited to sustain this position. Upon a careful examination of them, however, we found that all of them, except perhaps one or two, were cases where the evidence had been offered by the defendant, and not by the plaintiff, and that those of the other class had been distinctly and emphatically repudiated by Lord Ellenborough in the case of Rose v. Byant, (3 Cam. 321,) whom, on this point, the ' English courts have followed to the present day, as well as the American courts which we cited. And we held therefore, that the date of the endorsement must be proven as a starting point.
In the case at bar, however, it is submitted that we should allow even greater latitude than was asked in The State Bank v. Alston: because here we are asked to presume, upon the foundaion that the book from which the entry was proposed to be read, was “a regular book of the bank, kept by her expressly for such entries:” 1st, That the book was correctly and honestly kept; 2d, From ibis, presume the truthfulness of the purport of the entry, and then gó on in succession. It is manifest, therefore, without further observation that the testimony proposed was clearly incompetent for the purpose offered.
And certainly the necessity of the case did not demand it because it was not shown that by the death of Thornton, it was impossible to obtain his testimony ; nor did it appear alike improbable to obtain discovery from the defendants, and had both been shown, we know of no principle of law which makes the proposed testimony admissible to prove a part payment, the rules of law as to which having already gone to the extreme confines of law and equity: and we certainly have no statute providing for such a case. Burr v. Byers, admr., 5 Eng. 402, 403.
Finding no error in the record, the judgment must be affirmed with costs. | [
-80,
108,
-40,
-2,
90,
96,
-86,
-102,
113,
-96,
-89,
-45,
-87,
66,
-108,
99,
-9,
63,
80,
66,
-34,
-77,
39,
73,
-14,
-13,
-7,
-43,
-79,
124,
-28,
93,
12,
48,
-62,
-43,
102,
-101,
-63,
-106,
-50,
-116,
57,
-59,
-7,
0,
48,
41,
112,
79,
85,
20,
35,
38,
24,
-49,
105,
43,
107,
125,
80,
-16,
-114,
-123,
95,
21,
-77,
37,
-114,
69,
-40,
46,
16,
49,
1,
-8,
115,
-74,
-122,
-44,
47,
-71,
41,
98,
98,
0,
112,
111,
-36,
-104,
46,
-34,
31,
-90,
-110,
88,
11,
105,
-74,
-99,
124,
20,
39,
-10,
-10,
-99,
25,
44,
31,
-53,
-106,
-93,
-115,
124,
-102,
72,
-9,
-95,
16,
113,
-52,
-30,
76,
-57,
58,
-111,
-98,
-3
] |
Mr. Justice Walker
delivered the opinion of the Court.
This was an action of assumpsit on a promissory note executed by the plaintiff in error to the Bank, to which they plead non assumpsit, and nul tiel corporation; on which pleas issues were formed, and a trial by jury, verdict and judgment for plaintiff in the court below.
The errors assigned and which we are called upon to decide, arise out of the instructions given by the circuit court to the jury. As the propriety of giving or refusing the instructions given or refused, must depend upon the nature of the issue and the amount of evidence necessary to sustain it, these become preliminary considerations, and will first be determined. Under the general issue, the contract was the only subject of consideration, and the note was sufficient evidence to sustain the issue on the part of the plaintiff'.
It is a question not altogether free from doubt whether mil iiel corporation should be plead in abatement or in bar of the action. For, although it relates to the disability of the plaintiff to sue, and in that respect partakes of the nature of abatement, yet as it is a. perpetual, not a temporary disability, it is in that respect like a plea in bar, and we are inclined to believe comes within that class of defences which Chitty says may be plead either in abatement or in bar. 1 Chilly Pl. 446. At all events, it was in this case treated as a defence in bar by the parties in the court below and will be so considered here. Unlike the case of Alderman and Council of Washington v. Finley, 5 Eng. 423, this suit was commenced by a foreign corporation, and its corporate existence and powers put directly in issue by special plea.
As the court could not take judicial notice of the act of incorporation of a sister State, or that the Bank had gone into operation under it, it became necessary under this issue for the plaintiff to establish these facts by proof. The duly authenticated act of the General Assembly of Mississippi, read in evidence by the plaintiff-, was certainly sufficient evidence to prove the grant of corporate pow er and its extent, but not that it actually went into existence as a coaporation. To establish this latter fact, it was not necessary to show a compliance with the conditions of the charter under which it assumed to act, but that the corporation acted and transacted business as such, and for this purpose proof of one or more such acts was sufficient. The execution of the note in this instance by the defendants to the Bank as such corporation, which was the only evidence of user, was in our opinion sufficient to sustain the issue, so far as proof that the Bank went into operation was concerned. In support of this position, we find several decisions directly in point. In Kentucky, it has been held that by executing a note to a corporation, Ihe defendants wer'e estopped from denying its existence at that time. Jones v. Bank of Tennessee, 8 B. Mon. 123. 1 J. J. Marsh. 380. 6 B. Mon. 601.
In New York, it has been held that transactions of business with a Bank by the defendant was an admission that it had capacity to transact business as a corporation. Bank United States v. Stevens, 15 Wend. 316.
And in Alabama, where like issues were formed as in this case, the court in delivering- its opinion said, “The plea of nul tiel corporation did doubtless put in issue the corporate existence of the plaintiff. But the notes themselves being executed to the corporation by its corporate name, was an admission by the defendant of the fact and prima facie evidence of the charter of the company, and user under it.” Montgomery Rail Rood Company, use, &c., v. Hunt, 9 Ala. Rep. 516.
From the view which we have taken of the issues and the evidence adduced to sustain it, we are of opinion that the only error committed by the circuit court in giving and refusing instructions to the jury, was in giving the last instruction given on the court’s own motion. The effect of that instruction was to withdraw from the jury the consideration of the issue of nul tiel corporation. The instruction was, that by executing the note in suit, the defendants could not deny the existence of the Bank. It is true that the Kentucky decisions would, under the rule of estop-pel, seem to sustain the circuit court to the full extent to which the instruction went; and even the Alabama courts give countenance to some extent to this rule, yet we cannot, in view of the decision in that case, taken all together, consider it a-. going that far. But allowing the execution of the note to be an estoppel, it is evident that the plaintiff should have replied setting it up. An estoppel cannot be taken by inference, but must be relied on in pleading. Co. Litt. 227, a 352. And Starkie says an estop-pel should be pleaded, and if not done, the court and jury are not bound by it: but the jury may find the matter according to the fact, and the court will give judgment, accordingly. 1 Stark. Ev. 303. There is but little doubt that the note was competent, though, perhaps, not conclusive evidence of user under the charter, and in connection with the other evidence, was no doubt, sufficient to warrant a verdict in favor of the plaintiff; but of the sufficiency of this evidence, the jury were the judges, and to tell the jury that a material fact in issue could not be denied, did in effect withdraw that fact from their consideration, or was an instruction that no proof was required upon it. In this there was error.
Because, therefore, the court erred in giving this instruction, the judgment must be reversed, and the cause remanded, tobe proceeded in according to law. | [
112,
-8,
-8,
-98,
26,
-32,
48,
-70,
29,
0,
-89,
-13,
-23,
79,
4,
113,
-25,
123,
113,
122,
87,
-93,
39,
105,
-46,
-77,
-15,
-123,
-80,
78,
-12,
127,
76,
48,
-54,
-43,
-26,
-54,
-61,
-34,
78,
37,
27,
68,
-7,
-112,
48,
26,
84,
79,
113,
-36,
-29,
40,
31,
67,
105,
42,
-55,
61,
-16,
120,
-120,
5,
125,
21,
-79,
37,
-100,
39,
-24,
46,
-120,
-79,
17,
-24,
120,
-74,
-122,
116,
107,
57,
8,
102,
98,
2,
33,
-17,
-36,
-104,
38,
-2,
-99,
-90,
-112,
8,
-85,
73,
-73,
29,
126,
0,
-122,
-2,
-2,
-107,
19,
108,
3,
-53,
-10,
-77,
15,
116,
30,
1,
-17,
-125,
48,
112,
-50,
-14,
92,
3,
59,
-101,
-114,
-47
] |
Mr. Justice Scott
delivered the opinion of the Court.
This case is within the principle enforced in the case of Burton's ad'm. v. Lockhart's Ex'r., (4 Eng. Rep. 416.} The statute of non-claim, like the statute of limitations, does not operate to extinguish the claim but simply to bar the remedy. Indeed the two statutes differ in language more than in substance. In one instance the bar arises on a failure to sue, in the other on a failure to present.
In the case at bar, the right to recover from the principal arose from the payment of the debt, and is not unpaid by the ommission of the creditor to make due presentment to the representative of the deceased principal debtor. This point was expressly ruled in Alabama in the case of Cawthorn v. Weisinger, (6 Ala. Rep. 716.) See also Hook & Wright v. Branch Bank at Mobile, 8 Ala. 580; and in Missouri, in the case of Miller v. Woodward et al. ad’m., (8 Mo. Rep. 169.) And the same is intimated by Sharkey, C. J., in the case of Cohea et al. v. Cosa, &c., (7 Sm. & Mar. R. at p. 442,) upon statutes of non-claim full as strong as our own.
The appellant having presented his claim within two years after a cause of action accrued in his favor as between him and the representative of the estate, it ought to have been allowed.
Let the judgment be reversed, and the cause be remanded. | [
-14,
106,
-35,
-68,
91,
96,
34,
-102,
89,
-30,
39,
-45,
-19,
-62,
20,
117,
-32,
105,
113,
90,
95,
-73,
39,
105,
-42,
-69,
-48,
93,
-80,
-17,
-28,
-1,
76,
48,
-62,
-43,
102,
-119,
-51,
-44,
78,
-124,
25,
69,
121,
-124,
52,
43,
68,
15,
1,
13,
99,
47,
24,
79,
105,
40,
73,
61,
-48,
48,
-120,
5,
111,
21,
49,
87,
-36,
7,
72,
40,
16,
-103,
1,
-24,
114,
-74,
-58,
84,
109,
-103,
41,
98,
98,
-95,
113,
-21,
-104,
-104,
15,
-104,
31,
-122,
-48,
24,
11,
73,
-66,
-99,
110,
12,
-92,
-2,
-26,
84,
95,
44,
5,
-50,
-108,
-79,
-49,
116,
-102,
74,
-25,
35,
50,
112,
-50,
-14,
92,
71,
123,
27,
6,
-67
] |
Mr. Justice JohnsoN
delivered the opinion of the Court.
This was a bill filed to set aside a sale of land for fraud. The fraud complained of consisted in certain promises which were charged to have been made by the defendant Harrington, to the complainants’ agent, that in case he would not bid for the land, but would permit him to become the purchaser, he would give a reasonable time for its redemption, and further that the defendant Nix purchased the same land of Harrington with a knowledge of the justice of the complainant’s claim. The answer of Harrington admits that aspecified time was given by him for the complainant to redeem the land by the payment of his entire debt and also all the expenses of the sale, &c., but he positively denies that he either paid or offered to pay the same within the time specified, and further that he made no promises to prevent any person from bidding for the property at the time of his purchase.
This answer is opposed by the testimony of a single witness, and that, too, without the aid of any corroborating circumstances, indeed it is very questionable whether, even admitting the testimony in its fullest force, it could have availed the complainant, as all that he claimed was a reasonable time to redeem, and although a long time had elapsed, he utterly failed to show that he had made any effort to pay the debt and to avail himself of his privilege. We are satisfied, however, from the proof as presented by the record, that the essential allegations of the bill were not sustained, and that therefore the decree was properly rendered in favor of Harrington. Harrington having succeeded upon his answer, which went to the entire equity of the bill, it is clear that no decree could be taken against Nix, and that consequently the decree is right in giving costs to both defendants. The cases of Harrison's heirs v. Dererniah, (2 Bibb., p. 349) and Cunningham's heirs v. Steele, (1 Litt. 52,) are directly in point. In the former of which cases the court said “It was contended that the Circuit Coui't should have decreed against the defendant,Friend, against whom the bill had been taken for confessed. It is a general rule in suits at law that if one defendant plead to the whole cause of action and the other suffers judgment to go by default, if a verdict be in favor of the plea judgment shall be entered for both defendants. From analogy, the rule must be the same in chancery. The sufficiency of the complainant’s claim was put in issue by the answer of one of the defendants, who holds under the same claim with Friend. Their equity being defective the court did right in dismissing the bill as to all the defendants.” And in the latter, the same court said “Nor do we suppose the decree can be sustained against such of the appellants as failed to answer the bill. If there had been no answer by either of the appellants, the allegations of the bill, after being taken for confessed, might be sufficient to authorize a decree against all, but after an answer by any, denying the equity asserted by the appellee and putting him on the proof of his allegations, without proving his equity, the appellee can have no relief decreed against any of the appellants, as was held by this court in the case of Harrison's heirs v. Dererniah, 2 Bibb. 349. The two cases referred to are directly in point, and are believed to be based upon sound principles. The decree of the Circuit Court of Arkansas county, herein rendered, is in all things affirmed. | [
113,
-2,
-40,
-66,
10,
-32,
32,
-88,
121,
-86,
-89,
83,
109,
66,
0,
113,
-9,
43,
112,
106,
86,
-93,
71,
107,
-14,
-77,
-45,
-35,
-79,
76,
-26,
87,
76,
48,
-54,
117,
102,
74,
-59,
82,
14,
10,
9,
69,
-39,
64,
52,
91,
84,
15,
69,
-113,
-13,
46,
17,
74,
105,
44,
107,
49,
-48,
-8,
-97,
-123,
95,
21,
-78,
103,
-100,
-57,
74,
-82,
-112,
49,
1,
-40,
123,
-74,
6,
116,
73,
-69,
40,
102,
98,
32,
101,
111,
-12,
-120,
46,
94,
-115,
-89,
80,
88,
11,
104,
-76,
-99,
124,
16,
39,
118,
-18,
-107,
-99,
108,
9,
-113,
-42,
-94,
-97,
126,
-102,
74,
-9,
49,
17,
96,
-49,
-30,
92,
103,
50,
-101,
-113,
-33
] |
Mr. Justice Scott
delivered the opinion of the Court.
This petition presents no proper ground for the action of this court in the premises. If the petitioner had desired to submit his alleged grounds for revision by appellate power, as regulated by law, he should have shown his interest in the subject matter to the Probate Court, and upon that foundation mq.de himself a party to the proceedings therein, wherein by bill of exceptions he might have placed upon the record all the evidence and facts upon which the judgment and decree of the court was based; and from these proceedings he might have taken an appeal to the Circuit Court, (Digest, page 142, ch. 4, sec. 176, and Pamphlet Acts 1849, page 59,) and from thence the case might have been brought here. But he failed to take any such steps, and now asks to be relieved here by our powers of superintendency and control from the effects of a judgment of a superior court in a proceeding in rem on a subject matter clearly within its jurisdiction, (see the case of Adamson et al. vs. Cummins ad., at p. 549, that case in 5 Eng.,) which cannot be a nullity, as we have held in Borden et al. vs. The State, use, &c., (6 Eng. R.,) and when in consequence all reasonable presumptions of law are in favor of the regularity of the proceedings.
Having, during the present term, in the case of John Carnall vs. The County of Crawford, (6 Eng.,) expressed our views as to the time nature and character of the powers of superintendency and control entrusted by the framers of the constitution to this court over all inferior tribunals; and to the Circuit Court over County Courts and Justices of the Peace (in the former of which two latter the Probate Courts are clearly included); and having overruled so much of the cases of Ex parte Anthony (5 Ark., at p. 363 to 364) and Levy vs. Lychinski, (3 Eng. 113,) as conflict with these views; and approved so much of the doctrine of the dissenting opinion in. Amour Hunt Ex parte (5 Eng. 288) as sustains them, we have now occasion to adopt the residue of the doctrines of that opinion, and especially those relating to the contingency, on the happening of which this court will exercise those powers, sustained as these doctrines are by the Alabama decisions cited by us in the case of Carnall vs. Crawford County. And, in doing so, we must overrule the doctrine of Webb & Estell vs. Hanger & Winston, (1 Ark. 122,) and of the cases based upon it, where the doctrine is laid down in substance that a party aggrieved by the decision of a County, Probate, or Justice’s Court may apply directly to this court without having first made application to a Circuit Court or showing any reason for not having done so.
And as the case before us presents a case for the application of the doctrine that we have above adopted as the true constitutional doctrine, as to when our power of superintendency and control shall be exercised, we shall put our refusal of action in this case upon the ground that the petitioner has no right to such a remedy as he applies for here, until he has first sought it at the hands of the Circuit Court, or can show us that that court is incompetent to act in the premises, either in consequence of some inherent defect in the tribunal or of some incompetency of its incumbent.
Let the application be refused. | [
-76,
-24,
-44,
-66,
-70,
-32,
58,
-98,
81,
-16,
-25,
115,
-23,
-45,
4,
99,
-6,
63,
81,
107,
84,
-78,
22,
-55,
114,
-13,
-47,
-44,
49,
-23,
-25,
95,
76,
32,
-118,
-43,
102,
76,
-61,
-42,
-50,
-81,
25,
-27,
-40,
0,
56,
41,
114,
79,
21,
30,
-29,
46,
25,
-61,
-23,
44,
-39,
-67,
80,
-72,
-100,
-121,
93,
6,
-77,
35,
-98,
-61,
72,
46,
-104,
57,
0,
-2,
115,
-74,
6,
84,
11,
-7,
8,
102,
99,
1,
-24,
-17,
-104,
-104,
14,
94,
-99,
38,
-110,
24,
-21,
1,
-74,
-99,
109,
20,
-113,
-2,
-29,
-123,
83,
44,
5,
-113,
-106,
-79,
-49,
120,
-110,
80,
-29,
-93,
16,
113,
-123,
-10,
77,
-57,
19,
25,
-114,
-98
] |
Mr. Justice Scott
delivered the opinion of the Court.
The declaration in this case is radically defective both in form and substance!
Let the judgment be reversed, and the cause remanded, with leave to the plaintiff below to file an amended declaration. | [
-78,
-20,
-43,
-68,
42,
32,
32,
-34,
65,
80,
-73,
-45,
-81,
-61,
4,
107,
-13,
127,
113,
122,
95,
-93,
23,
-29,
82,
-45,
-45,
-43,
49,
126,
-26,
93,
76,
96,
-102,
-43,
102,
-119,
-59,
84,
-58,
-89,
9,
-28,
-39,
76,
52,
57,
80,
79,
117,
22,
-29,
46,
27,
-61,
-24,
40,
-21,
121,
97,
-72,
-116,
-123,
121,
16,
-79,
51,
-98,
71,
90,
44,
-120,
49,
1,
-8,
123,
-74,
2,
-44,
43,
-5,
12,
102,
106,
1,
89,
-17,
-104,
-104,
11,
110,
45,
-61,
-105,
41,
-55,
77,
-74,
-99,
117,
16,
15,
124,
-22,
-99,
21,
44,
11,
-54,
-112,
-79,
-49,
124,
-104,
75,
-2,
-125,
16,
112,
-59,
-16,
92,
67,
51,
-69,
-66,
-2
] |
Mr. Justice Walker
delivered tbe opinion of the Court.
In this case a scire facias issued to revive a judgment. The defendants plead the statute bar of limitation of five years. A motion was made to strike the plea from the files as interposing no defence to the action. The motion should have been sustained. The plea is no bar'to an action of sci.fa. Brown, Robb & Co. v. Byrd, 5 Eng. 534.
Let the judgment be reversed with costs, and the cause remanded to be proceeded in according to law. | [
116,
-2,
92,
62,
2,
-32,
-94,
-66,
72,
40,
38,
19,
-19,
-54,
20,
113,
-21,
125,
-11,
107,
95,
-73,
23,
97,
-9,
-13,
-46,
-43,
53,
-34,
-10,
-10,
12,
48,
-62,
-43,
102,
-56,
-115,
92,
-50,
13,
24,
-19,
-47,
72,
-80,
40,
100,
15,
-79,
93,
-29,
46,
28,
-49,
41,
41,
73,
57,
80,
-71,
-110,
13,
109,
20,
-79,
37,
-100,
71,
120,
62,
4,
49,
0,
-24,
114,
-90,
-122,
84,
107,
57,
12,
102,
98,
-95,
69,
111,
-100,
-120,
14,
122,
-99,
-122,
-112,
24,
73,
97,
-106,
-67,
108,
16,
39,
124,
-18,
-108,
81,
108,
3,
-53,
-108,
-77,
-17,
116,
24,
95,
-22,
-95,
16,
116,
-51,
-21,
92,
119,
51,
-101,
-98,
-66
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court.
The first objection taken to the judgment of the Circuit Court in this case is, that the caption to the indictment fails to show that the grand jury, by whom it was found, were legally empan-neled. This ground of objection has been removed by the transcript sent up upon the return of the writ of certiorari which was issued by this Court upon its own motion to perfect the record.
It was next intimated by the counsel for the defendant that the Court below erred in proceeding with the prosecution without having first assigned counsel to conduct the defence. Whether the defendant had the aid of counsel or not in the Court below, we have no means of ascertaining, as the record is wholly silent upon the subject. The statute, it is admitted, makes it the duty of the court to assign counsel to conduct the defence of any person about to be arraigned upon an indictment for a felony, in case he shall be without counsel, and shall also be unable to employ any, and in case he shall request the same. The record does not show a request of the court to assign counsel, nor any disinclination on the part of the court to discharge its duty in that respect, and consequently, if the defendant has suffered for the want of counsel to aid him in his defence, he has no means upon this record of obtaining relief. In the absence of any show ing of record to the contrary, the legal presumption is that the court discharged every duty incumbent upon it. The objections urged to the time and manner of summoning the jury who tried the case, are all too late to avail any thing. If the venire issued prematurely, or was not directed generally to the whole body of the county, the exception might have' been taken before the jurors were sworn; and if so taken, might or might not have prevailed according to circumstances; but it is most unquestionably too late to raise such objections after the jurors have been sworn and returned a verdict upon the merits of the case.
The last objection relates to the judgment, in giving the State all her costs in that behalf expended against the defendant. If the State has expended other costs, besides those which she incurred in the prosecution of the present defendant, she cannot collect them from him, as she can only collect such costs under this judgment as she is entitled to from him, and not such as she may be entitled to from other defendants. (See Brown's ad’m. v. Hill & Co., 5 Ark. 80, and Carlock v. Spencer and wife, 2 Eng. Rep. 24.)
We have not been able to discover any error in the judgment of the Circuit Court, and consequently it must be in all things affirmed. | [
-16,
-16,
-20,
-68,
42,
96,
34,
-102,
65,
-93,
-78,
-45,
-83,
14,
16,
121,
122,
63,
85,
107,
-59,
-77,
55,
105,
-74,
-13,
-39,
-43,
-77,
-54,
-28,
-3,
76,
-80,
74,
-43,
102,
74,
-63,
80,
-114,
-75,
-71,
-28,
64,
-94,
48,
59,
118,
15,
21,
-98,
-29,
42,
29,
67,
105,
40,
75,
61,
-64,
-16,
-114,
-123,
77,
20,
-79,
38,
-98,
-125,
-38,
46,
-120,
49,
0,
-8,
123,
-106,
-126,
84,
75,
27,
8,
102,
98,
1,
125,
79,
-120,
-119,
14,
126,
-99,
-89,
16,
73,
73,
0,
-74,
-99,
125,
48,
-90,
126,
-1,
-36,
25,
108,
9,
-113,
-108,
-77,
-113,
116,
-102,
74,
-21,
-127,
20,
49,
-50,
-30,
92,
6,
51,
-101,
-98,
-108
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court.
This was an application to this court for an alternative writ of Mandamus to be directed to the Hon. Beaufort H. Neely, judge of the Independence Circuit Court, commanding him to take cognizance of, and proceed to hear and determine a certain cause therein pending, or to show cause why he would not do so. The writ was issued in accordance with the prayer of the petition, and returned with the judge’s answer endorsed thereon, and in which he shows for cause why he had not, and why he still refuses to take cognizance thereof, that Joseph H. Egner, who is one of the defendants in said cause, is the husband of Euphemia Egner, and that said Euphemia is the maternal aunt of Margaret F. Neeley, who is the wife of the respondent. From these facts, he insists that he is related to Egner by affinity within the prohibited degrees, and that therefore he is legally disqualified to preside upon the trial.
The 12th sec. of the 6th Article of the Constitution, declares that, “No judge shall preside on the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by affinity or consanguinity within such degrees as may be prescribed by law, or in which he may have been of counsel, or have presided in any inferior court except by consent of all the parties.” The 16th sec. of chapter 50, of the Digest, declares that “No judge of the circuit court, justice of the county court, or judge of the court of probate, shall sit on the determination of any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity, or shall have been of counsel without consent of parties.” The method of computing the degrees of consanguinity in the canon has been adopted by the common law, and is as follows: We begin at the common ancestor, and reckon downwards, and in whatsoever degree the two persons or the most remote of them is distant from the common ancestor, that is the degree in which they are related to each other. Thus, Titius and his brother are related in the first degree, for from the father to each of them is counted only one. Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor; viz. his own grand father, the father of Titius. (See Co. Litt. 23, and Bl. Com., vol. 2, 207.) This rule, applied to Mrs. Egner and Mrs. Neely, the latter being the niece of the former, will necessarily place them in the second degree of consanguinity to each other.
Affinity is a connection formed by marriage, which places the husband in the same degree of nominal propinquity to the relations of the wife, as that in which she herself stands towards them, and gives to the wife the same reciprocal connection with the relations of the husband. It is used in contradistinction to consanguinity. (G. Y.) It is no real kindred. A person cannot by legal succession receive an inheritance from a relation by affinity, neither does it extend to the nearest relations of husband and wife, so as to create a mutual relation between them. The degrees of affinity are computed in the same way as those of consanguinity. (See Bouvier’s Law Dictionary, page 89, and the cases there cited.) The degrees of affinity being computed in the same way as those of consanguinity, it follows, as a necessary consequence, that in case there is any affinity whatever as between Neeley and Egner, it must be of the second degree, as that is the relation of their wives by consanguinity. The question then is whether there is any affinity whatever as between the husbands of the aunt and neice. The counsel on both sides have referred us to several cases, which we will now proceed to notice.
The case of Blodgett v. Brinsmaid ad., (9 Vermont 30,) does not come fully up to the facts as disclosed in this. There, the objection taken was founded upon an affinity arising out of a marriage between the party who was alleged to have performed a judicial function, and the sister of the real defendant in the execution, whose property he had appraised. The appraiser having intermarried with the sister of the party, there could be no doubt of the existence of an affinity so long as the marriage continued, and consequeetly the only question for the court to determine in that case, was whether such marriage was undissolved at the time of the performance of the judicial act. The rule, as applicable to the facts of that case, was there correctly laid down, and under it there could be no doubt of the affinity, in case the marriage still subsisted. It is there said that, “consanguinity is the having the blood of some common ancestor. Affinity arises from marriage only, by which each party becomes related to all the con-sanguinei of the other party to the marriage, but in such case these respective consanguinei do not become related by affinity to each other. In this respect, these modes of relationship are dissimilar. 1 Bl. Com., ch. 15, p. 434, Christian’s Notes to do. 15 Viner’s Air. 256. The relationship by consanguinity is in its nature incapable of dissolution, but the relationship by affinity ceases with the dissolution of the marriage which produced it. Therefore though a man is by affinity brother to his wife’s sister, yet upon the death of his wife, he may lawfully marry her sister.”
In the case of Higbe v. Leonard, (1 Denio 187,) the objection to the acts of the justice was, that his two brothers had married two sisters of the plaintiff, and it was also alleged that such marriage had taken place before the commencement of the suit before the justice, and that the persons so connected were still living. The Supreme Court sustained the action of the justice upon the ground that, although he was related by affinity to the two sisters of Higbe, the plaintiff, yet there was no such relation between him and Higbe. The court in that case laid down the same rule that was stated in the case already referred to in 9 Vermont, and as a matter of course, under that rule, there could exist no relationship whatever between the party and the justice.
In the case of Edwards v. Russell, the proof was that the justice and the plaintiff were cousins, (21 Wend. 63.) There no doubt could exist as to the disqualification, as they were related by consanguinity, and that within the prohibited degrees.
In the case of Cain v. Ingham, the substance of the decision is, that the marriage having been dissolved by death, there was no principal cause of challenge, but that under the circumstances actual favor or influence might have been shown by evidence, and if so shown, might have rendered the juror incompetent.
The case of Foot v. Morgan, (1 Hill 654,) would seem to throw more light upon the question before us than any that has yet been brought to our view. In that case, a motion was made to set ofF a judgment in favor of the defendant obtained in the name of H. M. in a justice’s court, against a judgment rendered in favor of the plaintiff in that (Supreme) court. The motion was opposed on the ground that the justice’s judgment was void for want of jurisdiction, and an affidavit was produced showing that Morgan, the then defendant, was the real plaintiff before the justice, and was related to the justice; the said Morgan and the justice having married sisters, and both their wives being alive at the time of the commencement of the suit before the justice and the rendition of the judgment therein. It appeared that Morgan recovered the judgment before a justice in the name of H. M., his brother, but that the brother had no interest in it. The court in that case, by Cowekt J., said, “It was said by counsel in behalf of the motion, that aparty and juror having married sisters would be no cause of challenge, but, I presume, hastily, for it is put among the commonest cases in the books, as an instance of affinity which disqualifies. It was holden very early, on writ of error to parliament, that the sheriff’s wife, being a sister to the plaintiff’s wife, was good cause of principal challenge to the array, (Markham v. Lee, cited in Mounson and West’s case, 1 Leon. 89.) We are free to confess that the question involved is somewhat subtle, far from being clear of difficulty, and the only means by which we have been enabled to solve it, as we think, has been by keeping steadily in view the principle as held in most of the cases referred to, and by looking entirely beyond and outside of it for the real merits of the question. The proposition is that “Affinity arises from marriage only, by which each party becomes related to all the consanguinei of the other party to the marriage, but in such case these respective consanguinei do not become re lated by affinity to each other.” It is said in Higbe v. Leonard, (1 Denio 186,) that, “A husband is related by affinity to all the consanguinei of his wife, and vice versa the wife to the husband’s consanguinei; for the husband and wife being considered one flesh, those who are related to the one by blood are related to the other by affinity. But the consanguinei of the husband are not at all related to the consanguinei. of the wife. It is contended that according to this rule, the respondent cannot be in any manner related to the defendant, Egner, inasmuch as his wife is only related to him by affinity, and that consequently to hold that an affinity exists as between them, would be in effect to put one affinity upon another, and that the law does not sanction such a process. This, it must be conceded, is plausible, and the rule itself, if strictly confined to its letter, and at the same time so construed as to exclude the idea of a further extension, would strongly incline to such a result. But in holding that the consanguinei of the respective parties to the marriage do not become related to each other either by consanguinity or affinity, it does not follow that the immediate parties themselves may not become related, not only to the consanguinei of each other, but also to all such of their relations as may arise from the tie of affinity. If the tie of affinity exists at all between the husbands of the aunt and neice, and that it does would seem to be established by the case in 1 Leonard 88, then it is that it must arise out of the rule as laid down in respect to the consanguinei of the respective parties to the marriage, when thus extended so as to embrace the relations contracted by the parties themselves. That the immediate parties to the marriage, by the very act of entering into that relation, impart properties to each other, which simultaneously run through all the ramifications of each other, would seem necessarily to result from the origin and nature of the institution of marriage itself, and also from the theory which the common law has entertained in reference to it from the earliest period of Bible history down to the present day. When the woman, which was made of one of the ribs of Adam was brought and presented to him in Paradise, he said, “This is now bone of my bone and flesh of my flesh; she shall be called woman, because she was taken out of man.” (See Genesis, ch. 2, ver. 23.) The same notion of identity or unity is kept up and carried out by my Lord Coke, (Co. Litt. 112,) when he says that “By marriage the husband and wife are one person in law, that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of her husband, under whose wing, protection and cover she performs every thing, and is therefore called in our law French a feme covert, fa-mina viro co-operta, is said to be covert baron, or under the protection and influence of her husband, her baron or lord, and her condition, during her marriage, is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties and disabilities that either of them acquires by the marriage. E'or this reason, a man cannot grant any thing to his wife, or enter into covenant with her; for the grant would be to suppose her separate existence, and to covenant with her would be to covenant with himself. (See Co. Litt. 112, and Bl. Com., 1st vol. 442.) It is upon the principle of a complete merger or incorporation of the very being and existence of the wife in that of her husband, and upon that alone that the relationship contended for, can be conceded. The act of marriage therefore, though creating a private relation, cannot be said in strictness to create any relationship either by consanguinity or affinity; because those relations pre-suppose a separate legal existence between the parties thus related, which, as we have shown, is not the case in respect to husband and wife. We think therefore, that, by the marriage of the respondent with the niece of the defendant’s wife, he placed himself in the same degree of propinquity to all the relations of his wife, in which she actually stood towards them, and that consequently he falls within the fourth degree of affinity to the defendant, Egner. If we are correct in this, and that we are we feel satisfied, then it is that the respondent is incompetent to preside in the cause, and consequently acted correctly in refusing to do so! The demurrer to the answer is therefore overruled, and the rule discharged. | [
-12,
-32,
-19,
124,
26,
96,
6,
58,
-43,
-21,
-11,
115,
-23,
-38,
0,
119,
-5,
73,
81,
123,
-29,
-73,
23,
-63,
-48,
-13,
-41,
-36,
-80,
105,
-25,
-1,
72,
-80,
-118,
-43,
102,
-22,
-55,
-108,
-114,
28,
41,
-23,
88,
80,
48,
126,
82,
15,
21,
-81,
-29,
46,
60,
-53,
-24,
46,
-37,
-71,
0,
-104,
-113,
-121,
93,
30,
-109,
39,
-101,
-123,
88,
46,
-120,
49,
-128,
-7,
115,
-108,
-122,
-44,
75,
57,
9,
118,
38,
1,
-83,
-17,
-72,
-118,
14,
127,
-99,
-89,
-109,
80,
73,
-20,
-65,
-99,
117,
80,
35,
124,
-90,
-124,
20,
124,
-88,
-113,
-106,
-95,
-115,
122,
-100,
18,
-30,
101,
112,
113,
-39,
112,
76,
6,
59,
57,
-122,
-68
] |
Mr. Justice Walker
delivered the opinion of the Court.
In the investigation of the numerous questions which arise in this complicated case, we find it most convenient to dispose of them in the order in which they are presented on the record, referring to the facts as they stand in connexion with ¿he particular points raised.
De Baun, a resident of the county of Pulaski, was, in the year 1840, the owner of a large amount of real estate, situate in said county, and was indebted to numerous creditors, who then, and subsequent to that time, obtained judgments against him, or secured the payment of their debts by mortgages and deeds of trust, thereby creating liens on his real estate, according to date of record. Prior in date was the judgment of Gray & Bouton, rendered the 23d March, 1840; that of Lewis Beach next, rendered the 27th March, 1840; and next in order was the mortgage of Whiting & Slark, (the complainants.) filed the 13th February, 1841!
As the first and most important question grows out of the contest between Whiting & Slark and Beebe, for the property embraced in the mortgage, and upon which there existed prior judgment liens in the above cases, it is not important at this time to enumerate the other claims. They will be referred to as they incidentally arise. Whiting & Slark claim under their mortgage, and as purchasers under senior judgment liens of Gray & Bou-ton and Beach, at the May term, 1843. Beebe, on the other hand, contends that the sales at the May term were void, and that he, at the November term, 1843, acquired a valid title by purchase under these, and other liens, senior in right to the claim under the mortgage.
Our first inquiry is, did Whiting & Slark acquire such title under their purchase at May term, 1843?
Writs of fieri facias issued on the Gray & Bouton and Beach judgments, on the 19th of February, 1841, which were levied on real estate and returned without sale: subsequently writs of ven-ditioni exponas issued with clauses offi.fa., which were levied on the mortgaged property. These writs were also returned without sale; and in the case of Gray & Bouton a writ of ven. ex. issued, directing the sale of the property first levied upon alone. In the case of Beach, a writ of ven. ex., directing a sale of the property first levied upon, with a clause of Ji. fa., which was levied on the mortgaged property. Under these writs, Whiting & Slark purchased and claim title.
To the validity of this title, it is objected, first: That the original ji. fa. issued in favor of Gray & Bouton was void, because it was not signed by the Clerk. The writ was valid, endorsed and perfect in every other respect.
We have repeatedly held original writs void for this and like defects. The question comes up for the first time as to the effect of like omissions in judicial process, with regard to which there is said to be a marked difference. The first is connected with the inception of the suit. It is that by which the defendant is brought into court. It is the ministerial act of the Clerk, before the Court has gained jurisdiction of the party or the case. The latter is-an act after the Court has acquired full j urisdiction of the whole case and the parties, who are presumed to be present and privy to what transpires. In the latter class of cases, such defects as this-have almost invariably been amended. Campbell v. Styles, 9 Mass. Rep. 218 Young v. Hesmer, 11 id. 90. Brummell v. Rush, 10 id. 222. 2 Brock. 14.
In the case of The People v. Sherborn, 5 Wend. 103, where a wrong seal had been affixed to a writ of certiorari, an amendment was permitted by affixing the proper seal. So where a writ of scire facias had no seal one was affixed. Chamberlain v. Skinner, 4 Cow. Rep. 550. And where a fieri facias issued without a seal, it was amended by affixing the proper seal. 3 Green. 29, Sanger v. Baker. And this even after levy and sale of property. 1 Iredell 34.
And in a very late case, Brewer v. Sibley, 13 Met. 176, Dewey, Judge, held that, although a seal was one of the requisites of a proper writ, yet the want of it furnished no cause for a motion in arrest of judgment, and said, “It is a mere defect in form which if relied upon, must be taken in due season, and if not thus taken, the exception is waived.” And the teste of writs, whether original or judicial, have almost invariably been held amendable. Bronson v. Alpin, 1 Cow. 203. Ross v. Luther, 4 Cow. 158. Barber v. Smith, 4 Yeates 185. United States v. Camp, 5 How. (Miss.) 516. Shumaker v. Knorr, 1 Dallas 197.
And in the case of Nash v. Brophy & Truler, 13 Met. 478, Shaw, Chief Justice, said, “The allowance of the amendment of the writ,- so as to make it bear teste of Daniel Wells instead of John M. Williams as Chief Justice, was right and fully authorized by the Revised Statutes.” “The teste is a mere matter of form.” Ripley v. Warren, 2 Pick. 592. It is worthy of remark in these latter cases, that the constitution of Massachusetts requires that writs shall bear teste in the name of the Chief Justice.
And in the case of Davis v. Wood, 7 Misso. Rep. 164, where their constitution, like ours, required that “all writs and other process should ran in the name of the State, bear teste and be signed by the clerk of the court from whence it issues,” the question was whether an execution, which did not run in the name of the State, could be read in evidence. ;The court in that case’ said, “It may well be questioned whether that clause which directs that all writs and other process shall run in the name of the State, as it also requires all writs to be tested by the clerk, is not applicable alone to writs issued from the higher courts and courts having a clerk. But however this may be, the statute concerning writs directs that those emanating from justices’ courts, shall ran in the name of the State. In our government, jurisdiction is conferred by the constitution on the superior and inferior courts, and writs are only part of the machinery employed by the courts for the exercise of the jurisdiction with which they are invested. It is not perceived how a writ wanting a constitutional requisite is more defective than a writ wanting a statutory one. The constitution, as well as the statute, is merely directory, and neither the one nor the other expressly makes void a writ not in conformity to its provisions.”
And in a case like the one under consideration, where the writ only lacked the signature of the clerk to make it perfect and formal, it was held by the Supreme Court of Indiana amendable. Woolbright v. Wise, 4 Blackf. 137.
These various instances of amendment will suffice to show the opinions entertained by most of the American Courts.
We are fully aware of the close connection in principle between this case and some of our former decisions upon the question involved. And whether, if this court was now for the first time called upon to construe the constitution and the statute prescribing the requisites of a writ, and to decide how far and under what circumstances writs would be declared void or amendable, it would adopt a more liberal rule of construction than that heretofore established, we are not called upon in this case to declare. But in the case before us, where judicial process is the subject of consideration, in view of the enlarged powers of courts in amending such process (and no statute confers more ample authority for that purpose than ours does) we are of opinion that although a writ without a signature of the clerk, as required by the constitution, is erroneous, yet it is not necessarily void, and the court from whence it issued, upon application for that purpose, might either quash or amend it as the circumstances of the case might require.
There can be no doubt but that some of the former decisions of this court were made under an erroneous impression with regard to the effect which tile constitution had upon the validity of the process, that as the constitution required the signing, &c., it could not be dispensed with, and being a constitutional defect is void. Now, upon a moment’s reflection, it will at once be perceived that a directory Enactment of the constitution is of no more validity as a law than a like enactment by statute. Both are laws, though emanating from different law making powers. The only difference between the two is that the legislature cannot pass a law dispensing with the requisites prescribed by the constitution, whilst it could repeal that made by its own body. In other respects, they are equal. Instead therefore of looking to these, the true inquiry is, is the writ so totally defective as not to perform the offices of a writ, and what will be the effect of the amendment upon the rights of the parties ? The writ in this case being amendable, when collaterally questioned, as this is, will be considered as amended. Stevens v. White, 2 Wash. Rep. 203.
. The next question presented for consideration is, as to the effect of an undischarged, subsisting levy on land. It is contended on the one side that a subsisting undischarged levy, whether upon goods or land, is a satisfaction of the judgment until discharged according, to law and found insufficient. On the other side, it is said that such is not the effect of a levy, or if such should be its effect when made on personal property, that the rule does not apply to a levy on land.
There are but two writs given the creditor by the common law for enforcing, satisfaction of his judgment; that offi. fa., by which he levied on the goods of the debtor^ and levare facias, by which-he not only took the goods, but also the issues and profits of the land.- By statute, he was allowed also the writ of ca. sa. against the body of the debtor,, and the writ of Elegit against his lands: {Plow. 441;) and the levy on goods. (Clerk v. Withers, 2 Ld. Raym. 1072;) the arrest of the body of the debtor, (Foster v. Jackson, Hob. 124;) and the delivery .of a moiety of the land. (Bri. Err. 257,) were each held an unqualified satisfaction of the judgment. And the rule as laid down in the case of Clerk v. Withers, was recognized by most of the American courts for a long while. Thus in New York, Kent, Chief Justice, in the case of Denton v. Livingston, as early as 1812, recognized and approved the decision in that case, after which for 27 years, in a series of uniform decisions, it was adhered to, until, in the case of Green v. Burk, 23 Wend. 490, Cowan, J., for the first time in that State, questioned the propriety of the rule in its unqualified sense, after which Bkonson, C. J., in the case of The People v. Hopson, 1 Denio, distinctly announced a change in the rule, which has since been generally acquiesced in by most, ,indeed all of the courts of the • United States, so far as we are advised. In that case, he said, “If the broad ground has not yet been taken, it is time it should be, asserted, that a mere levy on sufficient personal property, without any thing more, never amounts to a satisfaction of the judgment. So long as the properly remains in legal custody, the other remedies of the creditor will be suspended. He cannot have a new execution against the person or property of the debtor, nor maintain an action on the judgment, nor use it for the purpose of becoming a redeeming creditor.”
It would be a useless consumption of time to refer at length to the numerous decisions which substantially affirm this decision. Kershaw v. Merchant's Bank New York, 7 How. (Miss.) Rep. 386. Walker v. Mc Donald, 4 S. & M. (Miss.) R. 133. Laslie v. Moore, 1 Blackf. 226. McIntosh et al. v. Chew et al., id. 286. Murry v. Ashton, 7 Blackf. 289. May v. Hollingsworth, id. 350. Merchants Bank v. Kempley, 2 Doug. R. 279. Reynolds et al. v. Executors of Rogers et al., 5 Ohio 174. Miller v. Estel, 8 Yerg. 450. Hopkins v. Chambers, 7 Mon. 260, are all cases in point. So that we may say, so far as a levy on personal property is concerned, that the question is settled. Indeed the counsel seem to have virtually conceded the rule to this extent, but argue strenuously that it does not'apply to a levy on land. Because, they say, the reason upon which the rule rests in regard to levies on goods, does not apply to levies on land.
Is this true? The officer acts under the same authority. The property whether lands or goods is alike liable to be levied on; every act necessary to constitute a valid levy in the one instance is also necessary in the other. In either, the officer in making his levy identifies, sets apart and estimates the value of the property taken. When this is done, the levy is complete. It is not necessary to the validity of the levy that the 'sheriff should take actual possession of the goods. Ray v. Herbert, 19 Wend. 495. It is all sufficient, if he has the*goods within his power at the time. The officer by virtue of his levy, acquires a special interest in the goods arising out of his obligation to protect them and hold them subject to sale. This interest is common to bailees, yet they have no title for any other purpose than that of protection. The property is in the custody of the law. The sheriff is its officer. The title is not changed but remains in the debtor until it is sold, just as the title to land does. Can it be said then that, because the officer exercises this right, which itisunnecessary for him to exercise, when the levy is on land, the whole legal effect of the levy is changed. The old rule was not based on a change of possession but of title. The modified rule abandoned the reason and the rule together, and left them on the same footing. Thus in the same opinion, in which the rule is changed, the court denies to a levy the effect before then given to it. It is there said, “the mere levy neither gives any thing to the creditor nor takes any thing from the debtor. It does not divest a title. It only creates alien on the^property.”
The old rule that a levy was an absolute satisfaction, was established by this process of reasoning. That a levy divested the owner of the possession of his goods, and that possession under the levy was in law a change of title to the property, and as the debtor had lost his title to the property, that the debt was satisfied. The modern decisions, we have seen, hold that a levy and possession under it produce no such effect, and are not an absolute but a prima facie satisfaction. Possession then was only relied upon under the old rule in connexion with the levy as effecting a change of title. Beyond that, it was a mere matter of convenience or inconvenience to the holder, for the law, as now settled, is that a “levy neither gives any thing to the creditor nor takes any thing from the debtor.” It does not divest a title but merely confers a right to sell; and this light to sell is alike conferred in all cases whether made on goods or land; and as lands and goods are placed on an equal footing as to the effect of the levy, they must be equally so as a satisfaction; and to concede the rule of prima facie satisfaction in regard to goods, is, in principle, to concede it also in regard to lands, for a*! the possession does not confer any quality upon the levy which makes it a change of title to the property and thereby a satisfaction, possession ceases to be more than a mere question of convenience with the debtor, with which the creditor has nothing to do.
So, under the English and American practice, where lands were taken by digit or levare facias, as in the case of Ladd v. Blunt, they were held to be a complete and unqualified satisfaction, and upon the same grounds which a levy on goods was so held, the change of title to the property. And this was the case with regard to a levy on lands by fi. fa. until the case of Shepperd v. Rowe, 14 Wend., where for the first time the distinction was made between the effect of a levy on land and goods. That case is entitled to particular attention as the earliest and leading case for the distinction contended for. Let it be borne in mind that up to that date and in that case and long after, the courts of New York held a levy on goods an absolute satisfaction and extin-guishment of the judgment. And in that case admitted such to be the effect of a levy on goods. They denied, however, that a levy on lands went to that extent. The court in that case said, “by the levy on goods, the debtor is deprived of his property; it is not so in the case of a levy on real estate, the debtor notwithstanding the levy holds the title and the possession, and is in the enjoyment of the profits of the land.” And again the court says, “The defendant is not without a remedy, for the court on application would stay the suit on the judgment until the sale and return of the execution. We cannot allow, however, a seizure and levy of execution on land to be per se an extinguishment of the j udgment.” Thus, it is distinctly announced that the Court would have stayed the proceeding on the judgment until the sale and return of execution, but would not allow it the effect to extinguish the judgment, as they would had it been a levy on goods instead of land, but they gave it all the effect which was allowed to a levy on goods according to the rule as subsequently settled in the case of Green v. Burk, and The People v. Hopson. It materially weakens the force of the decisions after this case, which deny that a levy on land is even prima facie a satisfaction of the judgment, when it is seen that in almost every instance they quote this case as authority for their decisions, and assign as a reason for the distinction the temporary possession of the property by the ofii-» cer, between the levy and the sale, the mere exercise of a right resulting from the levy.
An attempt is made in argument to weaken the force of a levy on land because the j udgment lien existed at the time it was made. It is true that there is a general lien thereby created on all lands of the debtor, and it is equally true that, from the delivery of the writ, there is a general lien on all the goods of the debtor: these general liens must in either case necessarily exist at the time the levy is made. But the necessity of the levy is just as great in the one case as in the other. In order to effect a sale of either, it is necessary to select, identify and set apart the particular property taken in satisfaction of the judgment. The creditor is not permitted to take all the property, because it is all bound for his debt, but in the language of his writ, “sufficient to satisfy the debt,” and it is, we apprehend, this setting apart and taking in satisfaction which constitute it a satisfaction. The claims or demands of the law on the debtor are then satisfied. To illustrate this point: Suppose A. should covenant with B. that out of his whole estate of land and negroes, B. should select and set apart enough to satisfy his demand of $1,000, to be sold at the expiration of thirty days, unless before that time A. should pay the $1,000, A. reserving to himself the right to say whether land or negroes should be set apart, and also what particular slaves or tracts of land should be taken, provided it should be sufficient in value to satisfy the debt. Upon this covenant, B., in the first instance, would hold a general lien or right to select out of the whole estate of A. This the covenant gives; it is no satisfaction; but when A., in the exercise of his reserved right, points out the property to be set apart and taken, B. is bound to take that alone if of sufficient value, and when taken, the covenant is satisfied, and he cannot come back on A. for other property until it is ascertained by sale that that given up is not sufficient. Nor does it at all change the result that land is given up which B. could not take into actual possession or slaves which he could. Should B. after this, return and take other property of A. before disposing of the first, he would certainly be a trespasser, and if so in the case stated, why not in the case of a levy ? The execution was in the first instance a lien on the whole estate of the debtor; the law gave to the creditor a right to have out of his whole estate, whether of land or goods, sufficient taken and set apart to satisfy his debt and constitutes the officer his agent to do this, but at the same time gives to the debtor the right to say which particular piece of property shall be taken, whether real or personal, and if of sufficient value denies to the officer the right to take any other. Can it be less a satisfaction of the demands of the law because it is land which cannot be removed into possession of the officer ? If the creditor may abandon this land, after he has accepted it as satisfaction, and come upon the debtor’s property again, is it not evident that he could in the first instance have refused to accept it as satisfaction, for then he had not ac . cepted, yet the law says he shall take it if of sufficient value, and that alone.
We must believe it a violation of law and the rights of the debtor to return upon him for a further satisfaction until the first is found to be insufficient, in due course of law, and if this right to abandon a levy and return upon the debtor be conceded in one instance, where is it to stop? Upon the same grounds, the creditor might return upon the debtor until his whole estate would be either encumbered or withdrawn from him. The statute has expressly provided against this, and this course of reasoning would result in its virtual repeal'.
We have been referred to an array of decisions which, it is said, uphold the distinction between the effect of a levy on goods and land. Upon reviewing them, it is found that 14 Wend., 4 Hill, 5 Ohio, 10 S. & M. (Miss.), 4 Mass., 9 Serg. & Rawle 16, are the only cases in which the question of a levy on lands was presented. The other cases turn upon other points. Thus, in 2 Ark. Rep., the question was whether a levy on the goods of one defendant which were subsequently re-delivered to him without sale, could be pleaded in satisfaction of the judgment by a co-defendant. 5 Gill & John, was not a case of levy on land; so far as may be learned from the record, nothing whatever is said about land, or the effect of a levy upon it. 23 Wend, was a case of a supposed levy on personal property, it turned out, however, that there was no valid levy made. The case of Miller v. Estill, 8 Ycrger 460, since decided in Tennessee, holds a different doctrine from that contended for by counsel in 5 Yerger; 2 Dev. was a case of a levy on a lot and slaves; 2 Douglass was a case of a levy on goods; 9 Serg. & Rawle was a case under the Pennsylvania statute where recognizance was entered into which operated as a stay on the judgment. After the stay had expired, execution issued and was levied on land, and returned without sale, suit was brought on the recognizance; the court held that the creditor has his election to proceed on the judgment or the recognizance, and if on the latter the levy was no satisfaction and could not be so plead, and also that such would have been the effect as between the parties to the original judgment. The same court, in the case of The Bank of Pennsylvania v. Lalshaw, 9 Serg. & Rawle 9, held that a levy on land could not be abandoned whilst in force, so as to permit a ca. sa. and arrest of the person of the defendant. It is true that importance is given to the statute in regard to issuing writs of ca. sa., yet in spirit that statute is not more stringent than ours, which denies any other satisfaction than the property selected by the debtor, if of esteemed sufficient value. So that, taken all together, the decision in this case is of doubtful authority. The case of Shepperd v. Rowe, 14 Wend., has already been examined. It went no further when fairly considered than to place a levy on land just where the subsequent decisions placed a levy on goods. The case in 4 Hill was decided upon the authority of this case alone, and doubtless without a close examination of it. The case in 5 Ohio, clearly makes the distinction contended for, but is placed distinctly upon the ground of a change of possession of the goods in the one instance and not in the other, and quotes as authority the English authorities, the early New York authorities and the case of Ladd. v. Blunt, 4 Mass., all of which cases upheld and sustained the doctrine of absolute satisfaction, and were made before the rule had been modified as it was in the case of Green v. Burk, 23 Wend., and all the after decisions. This change of possession in all these cases was closely associated with an idea of change of property, indeed supposed to have that effect. So far as the case of Ladd v. Blunt, could be held as authority in regard to a levy on land, it will be seen that that case was governed by a statutory proceeding in the nature of Elegit, the writ of Extendi Facias by which the property was delivered up to the creditor without sale; but even that too was considered and upheld on the ground of change of property. 10 S. & M. (Miss.) Rep., is a case fully in point. It was made without reference to authority,’ and fully sustains the position assumed by counsel.
After reviewing these authorities then, we find the Courts of New York, upon the credit of Shepherd v. Rowe, 14 Wend.; of Ohio, upon the authorities of the old cases which rested the rule upon a supposed change of property effected by a levy; the Mississippi and perhaps the Maryland courts may be said to sus-* tain the distinction between the effect, of a levy on goods and land. And opposed to these decisions, are the courts of Kentucky and Indiana, Michigan and Tennessee, as will be found by reference to the cases of Hopkins v. Chambers, 7 Mon. R. 262. Lessell v. Moore, 1 Blackf. R. 226. McIntosh et al. v. Chew et al., id. 289. Miller v. Ashton, 7 Blackf. 30. Marcy v. Hollingsworth, id. 350. Safford v. Beach, 2 Day 153. Miller v. Estill, 8 Yerger 460.
Thus, in the case of Hopkins v. Chambers, it is said, “The first execution on the bond was levied upon a tract of land which does not appear ever to have been sold or released from the execution, and of course no other execution could regularly thereafter issue to take other estate of the defendant, whilst the land seized under the first remained undisposed of and subject to that execution.” In Lessell v. Moore it was held “that where real estate of the defendant was held by a ven. ex., the plaintiff could not take out an execution offi./a. and levy on other property, and if done the Court would set it aside as illegal.” In McIntosh v. Chew it is held “that a levy on goods or land is a satisfaction of the judgment, and may be pleaded in bar of any other action until the insufficiency of the levy appear by sale and return.” And so in Miller v. Ashton; and in Marcy v. Hollinsworth, it was held “that after fi. /a. levied on land and before the levy is disposed of, if a second fi. /a. issue, it is irregular and void.” In the case of Sqfford v. Beach, although the court denies to the levy the same effect as if made on goods, yet it still treats a second levy as an irregularity, for which even a sale under it might have been set aside upon motion for that purpose in due time, but that a motion after five years was too late. In Miller v. E still, the Court deny to the levy on land the same effect as if made on goods, but hold it to be the inception to a right of satisfaction. From this hasty review of these decisions, it will be seen that the courts of Kentucky and Indiana, in full and unqualified terms, sustain the former decisions of this Court in Anderson v. Fowler, and Anthony v. Humphries, whilst the later cases in Michigan and Tennessee in qualified terms, but in each case the qualification grows out of an effort to discriminate between absolute and qualified satisfaction, which they concede to be the effect of a levy on goods but deny to a levy on lands the same effect; just as in the case of Shepherd v. Rowe.
Upon á review, therefore, of all the authorities on both sides, to which we have had access, it is evident that, if resting upon the number of decisions by the several State courts the preponderance might be in favor of the distinction, the strength of the argument and reason for a different conclusion is however against the distinction; but even if otherwise, unless clearly so, we would not feel at liberty to change the rule as laid down in Anderson v. Fowler, and we are far less inclined to do so, when we come to consider the effect which a different rule would have upon the rights of the debtor secured to him by statute, as well as the inroad which it would make upon a general principle which seems to pervade our whole system, that the creditor is entitled to but one satisfaction, and that when he elects which he will take, he shall be bound by such election.
Our statute gives to the debtor the privilege of selecting the property to be surrendered in satisfaction, and if of sufficient value it denies to the creditor the right to take any other. This may be and often is an important privilege to the debtor, a shield thrown ^around him to protect him from oppression and wrong, and at the same time does no injustice whatever to the creditor. for it is of no consequence to him what particular property is taken, so that it is of value sufficient to pay his debt. Lands and personal property are alike liable to be taken. The debtor has a right to give up either, and when selected and accepted they alike satisfy the demand of the law, and there is no way by which to preserve unimpaired the provision of the statute, without so considering them. Rid this question of satisfaction of the misti-fication which is thrown around it by atttempting to connect with it reasons and considerations which were alone applicable to the rule of absolute satisfaction, and it amounts to this, that as the law recognizes but on satisfaction, when the creditor comes upon his debtor for the amount of his debt in money, or property, sufficient, when sold, to bring the money, and takes at his discretion in value property sufficient for that purpose, the property in effect stands until it is sold and the money made, in the place and stead of that much money, and must be presumed to be enough — the creditor has accepted it as such — and it has fully satisfied the demands of the creditor upon the debtor (until upon sale it otherwise appears) as payment would, and where this property is in the mean time, whether in the hands of the officer or immoveable as lands are, has nothing whatever to do with satisfaction; if lands, it is if any thing the more satisfaction, because not subject to waste or total destruction as goods are, and as to this matter of inconvenience in taking from the debtor his property and special property in the officer and change of title, however they might have served as reasons for the old rule of satisfaction in the absence of statute such as ours, yet surely when we consider that the debtor has his election to give up whatever property he chooses and does so, being his own voluntary act whether the one or the other, is matter of choice and convenience to himi
Thus considered, the rule for which we contend harmonizes with a train of decisions upon other branches of the same subject.
The law gives to the creditor the right to select which of the several means of enforcing satisfaction he will avail himself of but when he has made such selection, will never permit him to abandon it capricously. He may prefer to take his debtor into custody on ca. sa., and whilst so held all other satisfaction is denied him. But if the debtor should escape, the creditor may resort to other process for his satisfaction. Taylor v. Thompson, 5 Peters 358. So the creditor may elect to take goods by fi.fa. in satisfaction, and when he has done so, the satisfaction is precisely the same in principle as if he had taken the body of the defendant in custody, whilst he holds them in execution the law gives him no other indemnity. But should they by acts not the fault of the creditor be lost to the debtor or appropriated according to law, and found insufficient, then on the same principle that the escape of the debtor from prison entitles the creditor to further process, he he may sue out an alias fi. fa., yet like a voluntary discharge of the debtor from custody, if the goods are appropriated or wasted by the acts of the creditor, or his accredited agent, the satisfaction would become complete, at least to the amount of the value of the goods so wasted. People v. Hopson, 1 Denio 578. So, also, where a levy is made and a delivery bond (which by statute has the force of a judgment when forfeited) is taken and forfeited, the levy is discharged and the bond so forfeited held to be a satisfaction of the former judgment. Taylor v. Dundass, 1 Wash. 94. Cook v. Pills, 2 Munf. 153. Lusky v. Ramsey, 3 Munf. 433. United States v. Graves, 2 Brock. 385. Joyce v. Ferguar, 1 A. K. Mar. 20. Justices of Mason County v. Lee, id. 248. Chitty v. Glenn, 3 Mon. 425. Young v. Reed, 3 Yerger 298. Davis v. Dickinson. 1 How. (Miss.) Rep. 68. McNutt et al. v. Wilcox & Fearn, 3 How. (Miss.) Rep. 419. Sanders v. McDowell's ad'm., 1 How. (Miss.) Rep. 9. Minor v. Lancashire, 4 How. Miss. 350. Wanger v. Baker, id. 369. United States v. Patton, 5 How. Miss. R. 280. Barker v. Planter's Bank, 5 How. Miss. Rep. 566. Field v. Moss & Harrod, 1 S. & M. Rep. 349. Barns Ex. v. Stanton et al., 2 S. & M. Rep. 461. Clark v. Anderson, 2 How. 852. Stewart v. Fergua, Walk. R. 175. Connell v. Lewis, id. 251. Annis v. Smith, 16 Peters Rep. 304. 4 How. U. S. S. C. Rep. 12. Yet should the bond be quashed, the effect thereof would be to revive the former judgment just as setting aside the first judgment would revive tbe original cause of action which had been merged in it, and which remained so, so long as the judgment was in force.
And so effectual is this satisfaction that after a delivery bond has been taken and forfeited, it has been held that a second execution, levy and bond on the original judgment are void. Witherspoon v. Spring, 3 How. 60. In McNutt v. Wilcox & Fame, 3 How. 419, the court said, “The forfeiture of a forthcoming bond extinguishes or satisfies, as it is said, the original judgment,because it is a proceeding arising on it and has in itself the force and effect, and is of equal dignity with a judgment, and a plaintiff is not entitled to two subsisting judgments on the same cause of action against the same individuals. It is like a second judgment obtained by an action on the first; the plaintiff cannot proceed to enforce the first, but must rely upon the second.” Chief Justice Shahkey has here assigned the reason which extends not alone to judgments but to contracts and the process, to final payment, which upon one cause of action looks to one satisfaction, and in each step closes up the avenues to retroaction to final payment. Thus the account is merged in the bond, the bond in the judgment, the judgment in the further judgment, the levy, prima facie, satisfied the judgment ; and the payment which is the end of the law discharges them all. These various references however are not to be held as settling the rule in either of them, but to illustrate a general principle.
And in precise analogy to this, do we find the same principles pervading our beautiful system of pleading, the prominent features of which are progressiveness, singleness of issue by confession and avoidance, by which, there is secured to the defendant the full benefit of his defence, and yet compels him to abandon his former ground before he shall rely upon another. The law truly “ makes no step backward.” So satisfaction is a de-fence — a plea in bar of a recovery. The law gives but one satisfaction, and when the party takes it, he must abide by it if sufficient. It must, however, be sufficient; if partial, it is not a good bar, and as the debtor could not plead it in bar, so the creditor is not bound by it. The law presumes the debtor able to pay his.,debts, and commands the officer to take property of sufficient value to make him a full satisfaction. We must presume that he has done this; and therefore, until the levy is legally discharged, it must be considered and held as such. The creditor, until it is shown to be otherwise, can make no step backwards.
Such being our views of the effect of the first levy, it necessarily follows that the writs of ven. ex. with Ji. fa. clauses were improperly issued; a simple ven. ex., directing the sale of the property, which, by the return of the sheriff upon the original fi. fas. appeared to be in his hands unsold, was the appropriate writ.
We are not of opinion, however, that these writs were absolutely void, or that a sale made of property levied upon under the fi. fa. clause of the writ, whilst the first levy remained in force, should in all cases be set aside. Had there been an actual payment and satisfaction of the judgment, there would have been much reason for holding the subsequent writs and sale void, this would have been at least equivalent to a perpetual supersedeas or injunction. Such was not the nature of the satisfaction in this case: it was dependent upon a contingency which might or might not happen. The decision of this Court in the case of Dixon v. Watkins et al., 4 Eng. 139, is in principle the same as the one under present consideration. There, an appeal was prayed, and recognizance entered into, the legal effect of which was to stay all further proceedings on the judgment, after which, and before the final determination of the case in the appellate court, the appellee sued out a writ of retorno habendo. The question presented under this state of facts was whether a writ thus issued was void or voidable, and this involved the further inquiry as to whether the judgment was annulled by the grant of appeal and recognizance or merely stayed. It was held (and we thing correctly,) that the judgment was stayed, that a legal prohibition rested on the Circuit Court from executing the judgment appealed from, until by the action of the Supreme Court it should be removed by an affirmance or perpetuated by a reversal, and consequently, that process issued whilst this pro hibition existed was erroneous and voidable but not absolutely void, as it would have been had the judgment been annulled or reversed. So, in the case before us, the levy upon sufficient property to satisfy the judgment, imposes a legal prohibition upon the creditor to forego all further process of satisfaction until upon appropriation of the property levied, it is found to be insufficient in value to satisfy the judgment. The cases are strictly analogous in principle, and the rule laid down in Dixon v. Watkins decisive of this point. The writs of ven. ex. with ji-ja. clauses, though not absolutely void, were issued whilst a legal prohibition rested on the creditor from pursuing his remedy upon the judgments, and they will be held voidable, and should, on proper application for that purpose, have been set asidel This was not done, however, and we are brought, in the next-place, to consider the effect of these errors upon the titles set up by virtue of the sheriff’s sale under them.
And, first, of the title of Whiting & Slark, who have filed their bill for a specific execution of their contract of purchase at sheriff’s sale. They say, that through their attorney and agent, they bought the property in dispute, being the highest and last bidders for the same; that it was knocked off to them as such, and so entered by the sheriff in his book of sales kept for that purpose, and so also returned by the sheriff on his executions; that the purchase money was in good faith paid, but that the sheriff, subsequently, upon an order of the Chancery Court (which they allege to be void,) setting aside the sales, refused to make to them a deed; that the sheriff still retains the money so paid.
Bills for specific performance are addrassed to the sound discretion of the Chancellor, to be exercised of course under general well recognized principles, and will be granted or refused according to the circumstances of the case presented, when tested by such principles. The first and most important of which is that the contract shall be so certain and definite that it may be clearly understood, capable of being executed, and just and fair in all its parts. And it is said upon high authority (Story Com. Eq. 53) that “ Courts of Equity will not interfere to decree a spe cific performance except in cases where it would be strictly equitable to make such decree.” It is not a matter of right then, but of discretion; and it is said by the same author that it requires a much less strength of case “to resist a bill to perform than to enforce a specific performance.” This rul e harmonizes with another, which is, that the court will not, in many instances, disturb a right acquired, even though it would not have lent its aid for the purpose of enabling the party to acquire it; because at the very point where fraud, illegality and wrong enters, it may cease to be just and fair in all its parts, and for that reason the Chancellor will stop and refuse to lend his aid in the consummation of that which, perhaps, he would not lend his aid to set aside. It is upon this principle that when a purchaser, who has acquired title, and seeks to protect himself against the effect of illegal or fraudulent acts connected with his title, must not only deny all notice at the time of making his contract, but also that he had no such notice at the time.he paid the purchase money and accepted the deed, for if he should discover the fraud or illegality before his contract is fully consummated, it becomes his duty to desist at once from all further ratification of the contract, for if he presists in doing so, he becomes a particeps criminis in the fraud or wrong, and his plea of innocence and want of knowledge a falsehood.
Turning to the facts of the case on this point, and testing the equitable rights of Whiting & Slark to specific performance, by the rules to which we have adverted, can it be said that they are innocent purchasers, without notice of the legal prohibition which rested on the execution of the process under which they purchased? It is very clear that they cannot, for they not only aver the facts in their bill and make it a ground of equity, but exhibit the writs as part of the bill, and evidence to sustain such allegation! It is moreover shown that their agent, who purchased for them, was well advised of the whole proceeding. They, however, attempt to evade the force of this rule of notice, by setting up the necessity of the act on their part, that they were forced to buy in protection of their rights. It seems, however, from the evi dence, that the sale was made in the order dictated by themselves, and at the remonstrance of other parties; nor were they, as they allege, compelled to act for fear of the consequences arising- out of the purchase at this sale under the senior liens, for the irregularity of the sale was well known to them, and they are required to take notice of the legal consequences which would flow from such irregularity, and could, by communicating their knowledge to others, have prevented a salé, which could have defeated their junior lien.
Whilst therefore innocent purchasers who buy in good faith without notice, are favorites of Courts of Chancery, and are by them covered with a broad mantle of protection founded in public policy, which is designed to give assurance to purchasers at judicial sales as well as to do justice to the innocent purchaser, yet, this is upon the supposition that in good faith they are such, for at the instant that knowledge is brought home to them, should they still persist in purchasing, public policy not only does not require that they should be protected, but, on the contrary, that their effort at fraud, oppression, or wrong should be rebuked.
Under all the circumstances of the case, the complainants, in the further examination of the case, will be held as purchasers with notice, and thereby connected with the other actors, participants in enforcing the execution of a judgment known to rest under legal prohibition.
There are other grounds of objection to the validity of the sale under those writs, which we will next proceed to notice. The writ in the case of Gray & Bouton, under which the sale is claimed to have been made, was a ven. ex. directing the sheriff to expose to sale the property levied upon by virtue of the first fi. fa. without any reference to the corner property in dispute and which complainants claim to have purchased by virtue of this and other writs. The question is, (aside from all other considerations,) could the sheriff sell other property under this writ than that set forth in it, and which he was therein commanded to sell.
It has been held upon high authority that the only questions which can arise between an individual claiming a right under the acts done and one denying their validity, are, power in the officer and fraud in the party. United States v. Arredondo, 6 Peters 729. Vorhees v. The Bank of the United States, 10 Pet. 478. In the case which we are considering, had the sheriff power to sell the property in dispute? This involves an inquiry into the source and extent of his power. Chief Justice Sharkey, in the case of Minor v. The Select men of Natchez, 4 S. & M. 631, investigated this point with much care and concludes his opinion by saying, “The judgment is evidence of the liability of the property, and the execution is evidence of the sheriff’s general authority ;” and in an earlier part of his opinion he expressly denies that the officer derives his authority from the statute, but limits it to the .judgment and execution. He says, “The. truth is, the sheriff derives his power not from the statute but from the judgment and execution.” And such also was our decision in the case of Adamson et al. v. Cummins’ ad’r., reported in 5 Eng. 545. Assuming it to be true, then, that the sheriff’s power to sell is thus derived, and looking to the evidences of that authority, we find him commanded to expose certain lands to sale, which had been before that time taken in execution. No power is given to levy on other property or to sell property previously levied upon and not embraced in his writ. But it is contended by counsel that, as the judgment created a lien upon the whole of the defendant’s lands, there was no necessity for a levy. We have already dissented from the truth of this proposition. But if this be true, for what purpose does the writ offi. fa. issue? Not to place the property in custody of the law if the lien has effected this purpose, nor to ascertain the amount of the debt, the same judgment that gives the lien furnishes the highest evidence of this; nor to confer power to advertise the property, for the law requires this to be done; nor to ascertain what is “sufficient property” to satisfy the debt, for all of the lands are alike bound, and if any part of it is in custody of the law, it is all equally so. In short, there can be, under the doctrine contended for, no pos- Bible use for the writ offi.fa., and all the statutory provisions in regard to a levy and sale of land under judicial process, is a mere dead letter, for the same law, which places the property in legal custody, upon principle may also be said to confer power on the officer to sell. The sale then would be under the authority of law, and not of judicial process, which would be alike contrary to the statute, the rights of the defendant under its provisions allowing him to select and point out property at his pleasure if of sufficient value, and the opinion of Chief Justice Sharkey and the array of authorities he presented in the case of Minor v. The President and Select men of Natchez, as well as our own opinion in the case of Adamson v. Cummins' ad'r. In each of which, after full investigation, it was held that the sheriff derived his power to levy and sell property not from the statute but from his writ. The lien therefore, in our opinion, neither supplies the necessity for, nor office of a writ, to which we must look for power in the officer to sell.
It is argued again, if the judgment lien is not of itself sufficient for this purpose, that when a levy is once made the sheriff acquires such an interest in the property as to enable him to sell without a writ after the return day thereof. It is true that there is a rule to that effect in regard to the sale of goods, which was founded on the supposed change of title in the goods by virtue of the levy, and in the fact that they were presumed to be in the sheriff’s possession, and the title to which after sale passed by delivery. Yet even this rule when applied to goods (and we will not say that it does not apply to them), was founded upon principles and grounds which no longer exist. The old rule that a levy divested the owner of title to the property, fell with the doctrine of absolute satisfaction. The reasons for the distinction are, that the purchaser of lands at judicial sale derives title from the judgment, the writ and the proceedings under it; and the law requires that such proceedings shall be returned upon the writ and filed as part of the records under which title is derived. Not so in a sale of goods under a levy; they pass by delivery, not by written record evidence. This point, however, is settled by nu merous decisions, amongst which are the cases of Falkington v. Alexander, 2 Dev. & Bat. 87. Smith v. Spencer, 3 Iredell 265. Badham v. Cox, 11 N. C. Rep. 458.
And it is equally clear that the office of the writ of ven. ex. is not, in the case of the sale of lands, a mere command to hasten the action of the sheriff, to require him to do that which he had power to do independent of the writ of ven. ex.; but it confers upon him the power to sell as well as commands him to proceed to do so. The levy was made under the first writ, which, when returned, was functus officio. The ven. ex. relates back to the ji-fa. and the levy and return upon it, and the power of the officer commences under the ven. ex. just where the sheriff under the ji. fa. stopped. He had levied whilst the ji.fa. was in force, but his power was revoked by limitation before sale; the ven. ex. therefore does not confer power to levy; that had already been done; but it does confer power to sell, because the power under the ji. fa. had not been executed in that particular. These two writs are in fact but one writ, the latter being designed to complete what had been commenced. Hence the recital of the proceeding on the Ji. fa. in the ven. ex., and following it the command not to levy, but to expose to sale the property heretofore levied upon.
If any doubt could arise from the nature of the trust or the language of the writ, there are many adjudications sustaining the view which we have taken. In the case of Lessees of Bowl v. King, 6 Ohio Rep. 3, the question arose just as it does in the case before us, as to whether a levy under a voidji.fa. could be executed under a valid ven. ex. The court said “The valid vendi. does not supply the defect of the original ji. fa.. The prelude of the vendi. is a previous valid writ of ji. fa. and a valid levy upon it: there must have been a seizure in execution upon authority to seize. This the vendi. could not confer. The direction to sell is not an authority to take.” 11 N. C. Rep. 458. 4 Bibb 344. 4 Teates 108.
We think it evident, therefore, that the sheriff derived his power to sell from the writ and not by force of a previous levy, admitting such levy to have been made under valid process: and that the writ of ven. ex. conferred upon him no power to levy, but simply to sell the lands described in his writ as having been previously levied upon and remaining unsold. It follows therefore that either a levy or sale of other property than that described in his writ, were acts beyond his authority; not an erroneous exercise of power granted, but an assumption of power not granted; and is for that reason void. Pitman v. Wiscolt, 19 John. Rep. 76. Whiting & Slark therefore could acquire no title under this process.
We will next enquire whether they acquired title under the judgment lien of Beach. The only difference between the writs in this and the Gray & Bouton case was, that the last writ contained also afi. fa. clause authorizing a further levy and sale, if the first should prove insufficient. Several of the questions which might arise on this writ, we have already disposed of whilst considering the like condition of the writs in the case of Gray & Bouton. We will therefore turn our attention directly to the consideration of a point raised with regard to the sufficiency of this writ which may of itself determine its validity and the effect of a sale under it independent of any other consideration.
It is contended that a written release and acknowledgment of satisfaction was entered of record by the plaintiffs by which Thorn, the joint judgment debtor with De Baun, was discharged and that this discharge as to one was in law a discharge and satisfaction as to both.
The record entry is as follows:
Lewis Beach, Plaintiff,
vs.
James De Baun & Thomas Thorn, Defendants.)
Judgment entered 27th March, 1840, for $1,988 50 debt, and costs.
The said defendant Thomas Thorn having arranged and secured to the satisfaction of the attorney of said plaintiffs (Trap-nail & Cocke) the judgment in this case, they do hereby and with the consent and agreement of said James De Baun, acknowledge full satisfaction of the said judgment so far as the said Thomas Thorn is concerned, without prejudice to the rights of the said plaintiff to sue out executions and recover the said judgment and costs of the said James De Baun.
TRAPNALL & COCKE, Atfys
May 27, 1840. for Plaintiff.
Test: Lemuel R. Lincoln, Cleric.
I, James De Baun, do consent to the above satisfaction in the manner and form as therein provided.
' May 27, 1840. JAMES DE BAUN.
This entry is in accordance with the provisions of the statute, Pig. p. 625, which authorizes the entry of satisfaction of judgments by the plaintiff or his attorney of record, the 26th section of which provides that a satisfaction entered in accordance with the provisions of the act shall forever discharge and release the judgment. If the discharge had been made by the plaintiffs in person, there is no doubt but that it would have been in law a full satisfaction and discharge as to both defendants; upon the principle that as the creditor is entitled to but one satisfaction, though made by one it enures to the benefit of both. Coke Litt. 232, a. note 164. Rowley v. Stewart, 8 John. 209. Ferguson v. State Bank, 6 Eng. 514. Bruton v. Gregory, 3 Eng. 180. Bozeman v. State Bank, 2 Eng. 333. And even where it is expressly understood and is made part of the terms of release and satisfaction, that such shall not be its effect as against other defendants, it has been held to extend to all. 2 Ham. Ohio Rep. 263.
In the case before us, the satisfaction was not enteredby the plaintiffs but by the attorneys of record; and it is a matter of doubt whether they, for the consideration expressed, could make a release which would bind their clients. We have repeatedly held that any attorney under his general retainer as such could not accept in satisfaction of a money demand, property or depreciated paper. Jackson v. Bartlett, 8 John. 361. Nenaus & January v. Lindsey, 1 Row. (Miss.) 577. Keller, use, &c. v. Scott, 2 S. & M. (Miss.) 82. Kellogg & Co. v. Norris, 5 Eng. 18. Norris v. Kellogg & Co., 2 Eng. 112. Griffin v. Thompson, 2 How. (U. S.) 257. Codwin v. Field, 9 John. 263. Johnson v. Cunningham, 1 Ala. R. 258. Wickliff v. Davis, 2 J. J. Marsh 71. Randolph v. Ring gold et al., 5 Eng. 281., And if the consideration was expressed in the instrument executed by the attorney, it might readily be seen whether in this respect objectionable or not; but the language, whilst full and unqualified as to the discharge of Thorn and the sufficiency of satisfaction, leaves it a matter of doubt whether they were paid in money or property, or whether other security had been given. They say, “Thomas Thorn having arranged and secured to the satisfaction of the attorneys.” We may readily infer from the language used that something besides money was received, and this may be met by the presumption that the attorneys would not act without authority, and that they were specially empowered to receive other satisfaction than money; or that they would not have received it. If left without other considerations than such as are to be drawn from the instrument itself, we would very much question the sufficiency of the satisfaction. It appears, however, Beebe, who has succeeded to the rights of the plaintiff by assignment, fully recognizes and affirms this act of the attorneys, and asserts and sets up in his answer, that it is a full and complete satisfaction as to Thorn, and if so as to Thorn then also by operation of law as to De Baun. It is true that De Baun might and in this instance probably has estopped himself from setting up this satisfaction; yet it is not the less true that the satisfaction is complete. Estoppel is not the denial of the existence of a fact, but a denial of the right to interpose it.
It is unnecessary to press this enquiry further. The plaintiff had an undoubted right to recognize and affirm the acts of their attorneys, whether they had at the time power to have thus acted or not; and that they have done so to the fullest extent, is beyond all doubt. And therefore in the further consideration of this case, the judgment, so far as third persons, lien creditors, are concerned, will be considered as satisfied and the lien discharged. Whiting & Slark therefore could acquire no title to the property in dispute under a judicial sale based upon the judgment and excution in this case. There was no valid judgment in force, and of course no valid sale could be predicated upon it.
Having thus disposed of the judgments and the process which issued upon them, it is apparent that a consideration of the acts of the chancellor or the parties in,conducting the sale could in no respect change the result, and would be a useless consumption of time. We will therefore pass them. There was evidently no valid levy and sale of the property in dispute, and of course no specific execution of the contract of purchase should be decreed.
The next question for consideration is, as to whether adverse title to the mortgaged property has been acquired by purchase' under senior judgment liens. If so, there is an end to the matter, so far as complainants’ title to the property is concerned.
The bill as originally framed was intended to control the order of sales under judicial process, so as to protect the junior lien of the complainants, whose mortgage embraced only a portion of the mortgager’s real estate, and to foreclose the mortgage and subject the lots of land to sale for the payment of their debts. Subsequently, the complainants themselves bought under the senior judgment liens, and subsequent to their purchase, defendant Beebe also bought under the same senior liens: whereupon, on leave previously given, complainants filed their supplemental bill reciting in substance the material allegations in their former bill and setting out their purchase under the senior lien and the sale thereafter made to Beebe, which they allege to be fraudulent. They repeat the prayer for the relief asked in the original bill, and that the title so acquired by defendants be set aside, that defendants account for rents and profits, and that the sheriff be compelled to execute a deed to them, or that the court will decree them a title to the property in dispute.
The bill, and the supplemental or amended bill, are to be considered one complaint, setting forth two grounds of equity; the one arising under the claim as purchasers at judicial sale; the other as creditors under a mortgage, junior to several other claimants. Upon the first ground, we have already decided. Our consideration is now to be directed to the rights of the complainants under the mortgage. If there existed a senior lien under which Beebe pm-chased, then there can be no doubt (u nles the proceedings were void,) that he acquired a legal title to the property, which can only be overturned by the complainants’ superior equity. If, however, there was no such lien, then of course the complainants would become the senior in time, and hold without showing other equities.
Conceding such senior lien on the part of the defendants to exist, (which they deny), complainants say that the lien of Gray & Bouton was discharged by payment of the judgment; and if not by payment, it was suspended by a prior subsisting levy: that the purchase was pendente lite and void; and that it was also discharged by the fraudulent conduct of the defendant.
These several grounds of equity we will proceed to examine.Preliminary to this, however, arises a question of the admissibility of evidence. It is contended that Trapnall’s answer cannot be used as evidence against Beebe; and upon this point we are referred to authorities. As a general rule, it is true, that the answer of one defendant cannot be used against another. To this rule there are exceptions; one of which is thus laid down in Daniel's Chancery Pleading and Practice, Vol. 2, page 982: “ In case, however, where the rights of the plaintiffs, as against one defendant, are only prevented from being complete by some question between the plaintiff and a second defendant, it seems that the plaintiff is permitted to read the answer of such second defendant for the purpose of completing his claim against the first.”
In Morse v. Royal, 12 Vesy 355, the answer of an executor was offered as evidence against the residuary legatee who had been made a party to the suit, was received to show that funds came to the hands of the executors, what debts there were and the value of the estate. And in a case where the question arose' under circumstances very similar to those in the case before us,Chief Justice Marshall held, that where one defendant was called upon to discover facts designed to be used by the complainants, to fix a liability on, or defeat the title of a co-defendant, that such co-defendant may use the answer of his co-defendant as evidence against the complainant; and, of course, if the answer had been favorable to the complainant, he might have used it against the other defendant. As this is the first time the question has been presented for the consideration of this court, it may not be amiss here, to present the precise state of case before Judge Marshall at the time he delivered his opinion, together with a brief extract from it, that its weight, as an authority, may be more clearly felt. Holland, in 1793, obtained judgment against Cox, which, from that date became a lien upon his real estate. On the 3d of September, 1794, Shepperd bought certain lands of Cox, and took from him a deed, by which he acquired a legal title, subj ect however, to the prior lien of Holland. In 1799, executions issued, and the lands so sold to Shepperd were levied on and bought at sheriff’s sale by Chilton — Gibbons, the agent of the plaintiffs, objecting to the sale. The bill was filed by Shepperd against Holland and Cox, Chilton and others, to set aside the sale made by the sheriff, and the deed under it, on the ground, that before the sale so made, the judgment had been fully satisfied. Holland, Cox, Milton, plaintiff, defendant and purchaser, are in the case before us represented by Gray & Bouton, De Baun and Beebe. And Whiting & Slark, that of Shepperd, with this difference, that they held by deed of mortgage, whilst Shepperd held by deed in fee simple. In that case, the question was, whether Holland’s answer could be used as evidence for Milton, and in this, whether Trapnall’s answer, the representative and agent who transacted the business for the plaintiffs can be used as evidence against Beebe, the purchaser. Under this state of case, Chief Justice Marshall said: " The whole equity of the plaintiffs depends on the state of accounts between Holland and Cox. They undertake to prove that the judgments obtained by Holland against Cox are satisfied. Surely, to a suit instituted for this purpose; Holland and Cox are not only necessary, but proper parties. Had they been omitted, it would be incumbent on the plaintiffs to account for the omission, by showing that it was not in their power to make them parties. Not only are they essential to a settlement, but in a possible state of things, a decree might have been rendered against one or both of them. Nor is it to be admitted, that the answer of Holland is not testimony against plaintiff. He is the party against whom the fact that the judgments were discharged is to be established, and against whom it is to operate. This fact, when established, it is true, affects the purchasers also, but affects them consequentially, and through him. It affects them as representinghim. Consequently, where the fact is established for or against him, it binds them.” Field et al. v. Holland et al., 2 U. S. Con. Rep. page 290.
And in the case of Osborn et al. v. The Bank of the United States, 9 Wheaton's Rep. 733, the same court said: “It is generally but not universally true, that the answer of one defendant cannot be read against another. Where one defendant succeeds to another, so that the right of one devolves upon the other, the rule does not apply. Thus, if a defendant die pending a suit and the proceedings be revived against his heir, ror against his executor or administrator, the answsr of the deceased person, or any other evidence establishing the fact against him, may be read against his representatives. So, a pendente lite purchaser is bound by the decree without being made a party to the suit; a fortiori, he would, if made a party, be bound by the testimony taken against the vendor.”
Looking to the issue formed, and the relative position of the parties in interest, we think it very clear that the answer does come within several of the exceptions stated: First, as under the exception stated in 2 Daniel. The rights of Whiting & Slark as against Beebe, are only prevented from being complete by the question of satisfaction, between complainants and Gray & Bouton and their agent: and in the second instance, as in the case in 12 Vesy, 355. The object of the evidence is to show the amount of credit to which the judgment was entitled.”
In the case in 2 Cond. Rep., the counsel for Beebe contend that the answer of Holland was to be used against the complainant, not the defendant; and, therefore, it is not an authority in point, although the reporter so considered it, and placed it in his head note of the report. We think in this the reporter was not mistaken. Chief Justice Marshall placed it on the ground of a discovery sought by the complainant upon a point which would '.affect the defendant answering, directly, and the purchaser, consequentially. The right to the discovery is expressly recognized by judge Marshall as well as its effect upon the defendant. Can any one believe that the complainant would have a right to a discovery, but not a right to use it when made? Certainly not. Why was it that the co-defendant had a right to use it against the plaintiff? Surely for the very reason that if it had established facts against such defendant, it would have been evidence against him, and this is what the judge meant when he said, “ This fact when established, it is true, affects the purchaser also, but it affects him consequentially, and through him it affects them as representing him. Consequently, where the fact is established against or for him it binds them.”
The case in 9 Wheaton still presents another, and, if possible, a still stronger ground of exception than either of the others. It is “that a purchaser pendente lite is bound by the decree, and if by the decree, he is bound by the testimony when against the vendor, even though he be not made party to the suit. And here, before we further proceed to investigate the admissibility of the answer as evidence, we are met by another preliminary question: Was Beebe a purchaser pendente Hie ? If so, in what attitude does it place him in the investigation of the merits of this case.
A purchaser pendente lite is one who, by purchase, acquires an interest in the matter in litigation pending the suit. The reason of the rule is, that if a transfer of interest pending the suit was to be allowed to affect the proceedings, there would be no end to litigation; for as soon as the new party was brought in he might transfer it to another, and render it necessary to bring that other before the court: so that if this interference be allowed a suit might be interminable. And the rule, it would seem, applies with increased force to suits in rem, or where the title to the property purchased pendente is in litigation. Some decisions go so far as to declare all such titles absolutely void.
The rule, says Gheen, Judge, in the case of Newman v. Chapman, 2 Rand. R. 100, as to the effect of lis pendens is founded on the necessity of such rule to give effect to the proceedings of & court of justice; without which every judgment and decree for specific property might be rendered abortive by successive alien-ations.” This rule is particularly applicable to proceedings in rem and in contests for the title to property, where the decree or judgment of the court is to affect the title to such property. For the reasons above given, the title acquired by a purchaser pending such litigation has, by some of the courts, been held absolutely void, Gordon v. Payne, 9 Dana 190. Briscoe v. Bronaugh, 1 Texas Rep. 333. Worsley v. Scarborough, 3 Atk. 392.
These decisions, if restricted to the effect of the title thus acquired upon the rights of the parties to the subject matter at issue at the time of the purchase, are sustained upon high authority. Thus, in the case of Murry v. Lyburn, 2 John. Ch. Rep. 445, Chancellor Kent said: “There is no principle better established, nor one founded on more indispensable necessity, than that the purchaser of the subject matter in controversy pendente lite does not vary the rights of the parties in that suit, who are not to receive any prejudice from the alienation.” In the case of Gordon v. Payne,it was said, “The sale made by him was clearly invalid upon two grounds: First, it was made pendente lite and after the jurisdiction of the Chancellor had attached; consequently, no sale or other act of the executor afterwards, could change the attitude of the party or the right of the parties.” Gordon v. Payne, 9 Dana 190. “ He who purchases during the pendency of a suit, is bound,” says Sir William Giiant, “by the decree that may be made against the person from whom he derives title. The litigating parties are exempt from the necessity of taking notice of a title so acquired. As to them, it is as if no such title existed; otherwise, suits would be interminable, or, which would be the same in effect, it would be in the pleasure of one party at what period the suit should be terminated. The rule may sometimes operate with hardship, but general convenience requires it.” The Bisdop of Winchester v. Payne, 11 Ves. 194.
In the case of Scott v. McMellen, 1 Littell 307, the court took a distinction between suits for mere preliminary demands, and a ,suit where the court was investigating rights to property by pro ceedings in rem. After considering the first class of cases the court proceeds: “Here the complainant was compelled to resort for relief to a court possessing no jurisdiction over the person of the debtor, but possessing competent power over the property Here the property gives jurisdiction to the court; the right of property is in the court, and during the pendency of such a contest no transfer of the property by the debtor can be admitted to produce any prejudicial effect on the complainants demand. In this case we attach no consequence to the circumstances of an injunction having'been granted by the court to restrain the defendant from conveying the property. But we go upon the broad and general principle, that after the commencement of Scott’s suit, and a lis pendens created as to the property, no conveyance of the property by Sam. McMillen can prevail. This principle was adopted at an early period in the history of chancery jurisprudence, has been followed and acted on ever since, by various successive Chancellors, and finally is admitted by all elementary writers on the subject to be the established doctrine of the court.”
These authorities, we think, clearly establish the following positions : First, That the institution of the suit (particularly where it relates to the title or disposition of property) is constructive notice to all purchasers after suit commenced. Second, That a purchaser pendente lite acquires no title by his purchase, which he can set up or assert to the prejudice of the rights of the pai'ties litigant, and that the suit will be heard and determined upon the merits as it stood between the parties litigant, perfectly irrespective of any rights which he may have acquired by such purchase, which, if valid for any purpose, can only be so as between himself and his vendor, to enable him upon the determination of the suit to succeed to the rights of such vendor, or, perhaps if a party to the suit, to enable the court after determining the rights of his vendor favorably, to decree them to him.
The counsel for Beebe, for the purpose of avoiding the force of these authorities contend, first, That although Beebe, if a third person, would have been subject to the rule governing the rights of purchasers pendente lite, yet, as he was the purchaser of the judgment before the institution of suit by Whiting & Slark, that he succeeded to the equitable rights of Gray & Bouton, who were senior judgment creditors, and that as such he had a right to pursue his remedy as fully and to the same extent as they could have done. Conceding this to be true, or even put it on a stronger ground, and say that Gray & Bouton had themselves been the purchasers under their own senior lien, the question recurs as to whether (after the institution of a suit contesting their right to sell, claiming that their judgment had been satisfied by a prior levy, which was undisposed of, that there was also other sufficient estate out of which to satisfy the senior judgment lien, without coming upon the property embraced in the complainants’ mortgage; that $2,800 had been paid on said judgments, but which had not been credited thereon: all of which was distinctly averred in the original bill filed against them,) they could until these rights were settled and determined, sell the property, the title to which was thus fairly put at issue between the senior and junior lien creditors, and acquire, under such purchase a title superior to that which they held under their judgment lien, or which could aid or strengthen it. If so, then it amounts to an infringement of a rule, a maxim founded in reason, that the vendee can, by his purchase acquire no greater title than his vendor possessed. It would be, in effect, offering a title derived solely under his equitable right then at issue, in defence of those rights. Such could never be the case. On the contrary, the rights of this property were fairly put at issue, turning upon the fact as to whether there was other property belonging to.De Baun, sufficient to satisfy the senior lien which covered his whole real estate, and the junior mortgage lien which extended only to a small portion of it: and the further independent fact as to whether the judgment had been discharged by payment. And upon the soundest principles of equity, we feel fully warranted in going further, and saying even if all of the judgment had not been discharged by payment, if a considerable amount of it had been paid, but which from carelessness or design, the plaintiffs in the senior judgment had failed to enter as a credit, that the junior creditor would have a right to demand that these credits be made out and entered before sale; because he would have the right to pay off the senior encumbrances, and thereby disencumber his junior lien, which he could not do, nor could he be prepared to elect whether he would or not, until the credits were entered. That Gray & Bouton could not have acquired a title under such purchase, which would have in any wise aided their equitable defence, we think very evident. And if they could not do so, Beebe, who claims under them and assumes to cover himself from the effects of the rule as purchaser pendente lite, cannot. But then the counsel have assumed another ground, which, though not at all reconcilable with their first position, we will for a moment consider. They say that Beebe purchased of Gray & Bouton, before the commencement of the suit. That is true. They took the judgment by assignment. By that we apprehend they only purchased the right to the judgment, that is, took the place and stead of Gray & Bouton, but not the property in dispute. After the most attentive examination of the grounds assumed by the counsel of Beebe, we find nothing which will relieve him from the necessity of relying solely upon the equitable right at issue between Gray & Bouton on the one hand, and Whiting & Slark on the other, so far as his title rests upon the equity growing out of their prior lien.
When therefore the complainants call upon Gray & Bouton and their agent to answer as to whether this judgment has in fact been paid, what right has Beebe to object and say you are not entitled to use their answer, because I am a co-defendant, and it may cause them to lose their suit, and then I shall get no title under my deed from them ? Viewed as a third person he need not even have been made a party. His rights are wholly depen-dant on the merits of the issue between the original parties. It is their suit, not his; or if viewed in the stead of Gray & Bouton their answer is his answer, their defence his. Thus considered there is no doubt but that this is a clear exception to the general rule, for it is only in a limited sense that Beebe can be called a party to this suit. Whiting & Slark then call on Gray & Bouton, and Trapnall,their agent, to answer andsay whether this judgmentwas or not paid. Gray & Bouton entered their appearance but failed to answer, and the allegations, if they alone had been called to answer touching their interests, would have been taken as true; but in this case, the complainants have also made their attorney and agent, Trapnall, a party, who transacted the whole business and whose answer must be considered as in effect their answer. It will bereceived then, as evidence for and against the complainants and defendant as fully and to the same extent as if made by them.
Upon the question of payment, the records and the answers of Trapnall and of Beebe (for that like the answer of Trapnall has been called out by the bill and so far as it is responsive to the issue between the parties, upon the merits of the respective cl aims of Gray & Bouton, and Whiting & Slark to the property in dispute, will be received with like effect as the answer of the party in original interest would) comprise the whole of the evidence. Turning first to the record, we find the original debt by note to be $1,811 89 due 19th March, 1837, at 6 per cent.interest after due. Beebe admits thathe was apprised at the time of his purchase that credits for payments before that time made, should have been but were not entered upon the judgments; but does not remember whether before or after the complainants’ mortgage was executed, nor does he give the amount, but states that excluding costs he paid in December, 1843, to Trapnall, $2,400, or thereabouts for both judgments. Trapnall’s statement is definite and gives precise dates by which we may arrive at the sum due on this judgment. He says that there was paid on the note $1,025 14, on the 25th of January, 1839, which should have been credited on it. It will be seen by calculating the interest up to Hie payment and crediting the note by the $1,025 14, as should have been done, that there was at the time judgment was rendei*ed, only due about $996 15 instead of $2,137 89, besides costs, and on the day that Beebe purchased the property in dispute at the November term, 1843, there was due, debt, interest and costs, about $1,301 53. Itfurther appears from the return on the writ of ven. ex. with fi. fa. clause that there was sold under the Gray & Bouton judgments property to the amount of $1,875, of which the property in dispute sold for $325, and that after deducting this amount and the whole costs of sales left a balance of $1,528 82, being $22,7 29 more than sufficient to satisfy the whole balance of the Gray & Bouton judgment; and that other property of De Baun on the same day, was sold on other process to the amount of $685.
Suppose these facts had been presented to the chancellor, can there be any doubt what his decision would have been ? Surely no one will contend but that the senior lien creditor, when he had sold enough to satisfy his demand, should have stopped and left the junior creditor to the benefit of his lien; but if not, it was clearly the privilege of the junior lien creditor to have paid up the senior lien debt and have protected himself from the utter loss of his debt when the property, from data abundant in this record, was worth more than twenty times what it sold for, and which has rented for more every year since (as far as reports of rents are before us) than it sold for, and the withholding proper credits, whereby there was presented a demand of $2,346, or about that sum, instead of $1,301 53, the amount really due, was a gross violation of the rights of creditors, thus saying to them, my demand is $2,346, which you must pay in order to avail yourself of the benefit of your lien. Beebe and Trapnall both knew of these credits : they were claimed and relied upon in the bill of complaint in this suit and a failure to enter them, whether intentional or not, cannot be viewed otherwise than unjust and oppressive, if not grossly fraudulent.
Turning from this to another ground of objection to the validity of this sale, we will proceed to inquire whether in point of fact, there was any existing lien at the time of the levy and sale.
A lien is a right by law, says Chief Justice Shaekey, to have a debt satisfied out of a particular thing. It may originate by contract, or by operation of law. In either case the effect is the same. It is a right given by law to have the debt satisfied out of all or anymf the defendant’s property. Anderson v. Doe ex dem. Wilkins, 6 How. 562. Chancellor Kent, in his commentaries, vol. 4, page 437, when referring to judgment liens, says “the lien, after all, amounts to but a security against purchasers and encumbran- cers, for as the Master of the Rolls said, in Bruce v. The Duchess of Marlborough, it is neither jus in re nor jus in rent. The judgment creditor gets no estate in the land, and although he might release all his right to the land, he might afterwards extend it by execution.” A judgment creditor has no jus in re but a mere power to make his general lien effectual by following up the steps of the law. A failure to do this releases the charge on the property.” Massengill et al. v. Down, 7 How. U. S. Rep. 767.
From these authorities it may be said that a judgment lien is a security against subsequent purchasers and incumbrancers, which denies to the debtor the right to alien or encumber his property, to the prejudice of the rights of the judgment creditor for a given period (in most instances fixed by the statute.) It is also a right springing out of, and dependent upon, the judgment for its existence and follows the condition of the judgment. If the judgment is reversed or set aside, the lien is co instanti discharged; if paid, it is merged in the payment; if suspended by injunction or su-persedeas, the lien is also suspended; and therefore asa levy operates as a prima facie satisfaction and whilst undischarged satisfies and suspends the judgment, the lien must also be suspended with it, and should the lien prove insufficient to satisfy the judgment, as by the discharge of the levy, the judgment is restored to its full effect upon the estate of the debtor, so also does the lien, unless in the mean time it has expired by limitation, or has been discharged by the act of the creditor, upon the return of the creditor for further satisfaction, maintain its grasp upon the whole estate of the debtor to the full extent that it did when first created, (Estill v. Mitchell, 8 Yerger 452), and intermediate sales of property by junior lien creditors, or by the debtor between the first levy and the discharge thereof, if such discharge takes place before the statute- limitation, will be held subject to such lien. 2 S & M. (Miss.) Rep. 436, Perkins v. Marlow.
This brief review of the definition of a lien and of its dependencies, is designed to illustrate more clearly our views of its nature and the foundation upon which it rests, which, we have said, is a right, a security given by law to the creditor upon the property of the debtor, which is not an intrinsic quality of the judgment itself but is a quality added to it — an effect of the mere existence of the judgment, which can have no independent existence, but is dependent upon the judgment and follows it as a shadow does a substance; hence if it is cut off from it either by the act of the party, the satisfaction or extinguishment of the judgment, or by limitation of time, upon general principles it is lost, for then there ceases to be any thing to which it can be attached. This rule will be found in perfect harmony with the common law rule in relation to liens on personal property. Liens at common law only attach to property in actual possession; remove the property and the lien is lost. Bouvier’s Law Dictionary, vol, 2,page 54. In fine a lien being a mere contingency or right dependent upon a subsisting thing, of course cannot rest upon a contingency, no more than a presumption can rest upon another presumption, or one contingency upon another or a shadow exist without a substance.
Having premised this much in regard to the nature and effect of a lien we will proceed to apply these rules to the facts of the case before us!
The lien on the Gray & Bouton judgment expired on the 23d of March, 1843. On the 20th of March, three days before the lien expired scire facias issues to revive the lien, and it was revived on the 16th Jaffy, 1846. In June, 1843, after the lien had expired and before it was revived, the property in dispute was levied upon, and sold atthe November term, 1843, by virtue of the judicial process so levied. Under a purchase at this sale Beebe claims to hold the senior lien of Gray & Bouton. It will be seen that both the levy and the sale were made after the lien had expired by limilation and before it was revived by sci.fa. The question is, did the revival of the judgment in 1846, relate back to his purchase so as to constitute him a purchaser under a senior lien. If so, it must be by force of the statute alone, to which we will presently revert. At the time of the levy and sale no lien attached to the judgment, because the lien had ceased to exist by limitation, aqd if it did not exist in the judgment, to what else could it attach ? Not in the sci. fa., that was the mere process of the court to bring the debtor before it. Under this state of case it could, at best, be said to rest upon a contingency, which might or not happen; and we have seen that from its very nature it cannot thus exist, or it must have lain dormant at the time of the levy and sale dependent still upon the same contingency. Concede however, that it could rest upon a contingency and that a sale might be effected under such lien: let us for a moment glance at the practical operation of such a proceeding, and a more apt illustration of disastrous consequences and confusion which would follow could scarcely be presented than the case before us. Here we have some ten or twenty judgment creditors with liens in force, deeds of trust and a mortgage, all except the two last covering the whole of the real estate of a debtor consisting of numerous lots and tracts of land brought up to be sold. The senior lien has expired but a writ has been sued out to revive it. Whether it ever is revived or not must depend upon the chances of future legal determination and the mere will of the plaintiffs in that suit. If they buy the property they may prosecute their sci. fa. to judgment; if they do not, it is a matter of no concern to them: they pocket the money which should or not be theirs, dependent upon the same contingency. Other creditors are told to pay off this debt and admit them to be the senior lien creditors, when they certainly are not then and may never be such. They must do this or stand by as was done in the present case and see property admitted to be worth from ten to twenty thousand dollars sold for three hundred and twenty-five. Should it be said that this proceeding is likened to the purchase under a junior lien, that it is held subject to the claims of the senior, the response is, that there is an existing right upon which such contingency may rest, but here there is none. As we have before remarked, it is a contingency upon a contingency.
But how long shall these creditors wait to ascertain the happening of the contingency which overshadows their rights ? How long shall the debtor himself be perplexed with such encumbrances? It must be apparent that this doctrine if allowed, gains no credit for its equity and overshadows a pervading principle in our administration of the law, which encourages bidders at judicial sales by giving them assurance of a good title and also relieves the oppressed debtor from the utter sacrifice of his property. We repeat therefore, that if such is the case it must be by force of the statute and not from any of the known principles or rules applicable to liens.
The statute makes the judgment, from its date, a lien on the lands of the debtor situate in the county in which it is rendered, for the term of three years from its date. It also confers a right on the creditor to revive his judgment lien by suing out a scire facias at any time before the lien expires: and then, in the 13th section, provides, that if the sci. fa. be sued out before the lien expires, the lien of the judgment revived shall have relation to the day on which the sci. fa. issued; or if it issued after the lien has expired, then from the date of the judgment of revival. The only important question arising under the statute is as to the effect which the judgment lien when revived is to have upon the propei’ty of the debtor at the date when the scire facias issued. Shall we give it effect over all the debtor’s property which the former lien had, irrespective of intervening equities which may have arisen between the creditors themselves during the suspension of the lien ? or shall we so construe the act as to protect those rights ?
That the Legislature intended to connect the revived with the former lien, so as to continue its existence is very evident; but there is no language used by which to determine the extent of the revival. If they meant to restore the lien as fully as it at first existed, it must evidently have been with reference also to the rights as between creditors which accrue to the junior creditor by extinguishment, by acts of the parties, or otherwise, for these might have accrued under the first lien. There are two distinct features in a statute judgment lien. The first and paramount object of the lien is, to prevent the debtor from alienating or encumbering his property to the prejudice of the rights of his creditors: The second object is, to discriminate in priority of right between the creditors themselves. And this latter is an equitable distinction founded on the rule that, equities being otherwise equal, he, who is first in time, is prior in right. In the first'instance, the rights are as between the debtor and his creditors: in the second; as between the creditors themselves, which latter provision has no reference whatever to the debtor, but relates solely as between the creditors themselves, and are purely equitable, giving preference, as between the creditors whose equities are in other respects equal, according to priority of time. And the same principles of equity are applied to, and govern the rights of creditors in every contest for satisfaction. Thus, when the senior creditor, by contracting for other security, by fraud or other act, forfeits his right of lien, it is so considered upon the ground that he thereby sinks his equity in degree, so that it ceases to be equal to that of the junior lien and therefore time does not give prior right. For the rule as to time only applies where equities are equal.
It is also worthy of remark that this rule of discharge of lien by the act of the party has no application as between debtor and creditor. As respects the debtor the lien is only discharged by limitation or satisfaction of the judgment. When therefore the Legislature declared that the judgment lien when revived, should relate back to the date of the sci. fa., we may well suppose thatit intended the lien when revived to act upon the whole estate of the debtor, to the same extent that it did prior to its suspension by limitation, in an unqualified sense, as related to the debtor; and that it also revived all the secondary rights of the senior creditor as between himself and the junior creditor, subject however to such intervening equities as might have arisen between the time of the suspension and the revival of the judgment, for these rights might have accrued to him even under the first lien. Any other construction than this would place the creditor under the junior judgment liens, in a worse condition than he was, under the lien before it expired and would defeat the principles of equity which have universal application in such cases.
We must not presume therefore that the Legislature intended to cut the creditor off from the benefit of intervening equities which might constitute his the better equity. There he had no opportunity to protect them. The issue upon the sci. fa. was between the seilior creditor and the debtor, and as to him, even though the debt may have been paid (as was the fact in the cases before us) if he failed to plead such payment, the judgment is good against him. But shall we say that it is also good against the junior creditor, who could not be heard in that suit? And yet, if the lien when revived, is to act alike upon the rights of the debtor and the creditor as they existed at the time when the sci. fa. issued, the result must be that even though the senior judgment be fully paid and discharged, this revived judgment lien would override and defeat the equities of the junior creditor arising therefrom. Such never could have been the intention of the Legislature; nor have they in this instance used language which necessarily implies that such should be the case. We therefore hold the true construction of the act to be that the revived judgment lien is held subject to such intervening equities as may have arisen between the creditors themselves, between the date of the sci. fa. and the rendition of the judgment reviving such lien.
In the case before us, at the time the levy and sale were made the lien had expired by limitation. The plaintiffs’ rights under it were, if existing to any extent, dormant or suspended, dependent upon a contingency which might or not happen at an indefinite time. Suppose such to have been the case at the outset, would the plaintiffs’ have been held a better equity than one whose claim, though junior in time, was in full force and ready for execution? We should say not. And if not, then is there any good reason for holding it to be a superior equity, if such should become the case at a future time? If so, it would be upon the ground that an equity once acquired could not thereafter be lost.
In this case the sale was not made under a junior judgment lien; but the senior judgment creditor, during the suspension of his lien, sells the property and becomes himself the purchaser, or rather Beebe, who succeeded him in interest, did so. Under this state of case, the question is, did he acquire a title as senior lien creditor? At that time the lien ceased to attach to the judgment. The purchaser therefore under such judgment acquired no title with such qualities superadded. But it may be said that when the lien was revived, it related back and gave effect to the purchase by way of affirmance of an imperfect title, as one who sells an imperfect title and subsequently acquires a perfect title affirms the first title. The application of this rule must depend upon the fact as to whether Gray & Bouton by the act of revival acquired a title to the property. We apprehend not. A lien is neither jus in re nor a jus in rem. It conferred no right of property, but a right to sell De Baun’s property. If this was not De Baun’s property, then the lien did not attach to it. If it was, then it must be sold before he can be divested of title to it. No subsequent sale has been made, and of course no valid lien sale can exist in the purchaser.
Such are the conclusions at which we have arrived; in the correctness of which, we are sustained by the decisions of other courts, not only with regard to the distinction which we have taken, between the relative position of the debtor and his creditors, and between the creditors themselves; but also with regard to the effect of a sale made between the time of the issuance of the sci. fa. and the revival of the judgment lien. And although these decisions were made in several instances where the statutes were different from ours, yet the general principles apply with full force.
In the case of Norton v. Beaver, 5 Ohio Rep. 180, it is said, “When the judgment becomes dormant, the means of enforcing the lien are suspended because they necessai'ily slumber with the judgment, but when the judgment is revived, it is revived with all its incidents. There is no new judgment recovered on the scire facias, but the old one is called into action. The form of execution adopted in practice requires the sheriff to make the money, for want of goods and chattels, from'lands owned by the debtor at the date of the judgment. The statute declares that the sale shall vest as good a title in the purchaser as the debtor' had, whilst the land was liable to satisfaction by the judgment. So far as the debtor is concerned the lien of the revived judgment exists in all its original force. But it does not follow that the rights of others acquired or subsisting under the dormancy of the judgment are subordinate to the revived lien. In a country where land is one of the most familiar and ordinary subjects-of trade, the policy of the law does not favor liens which impose embarrassment on their transfer. The purchaser who acquires title to land, at a time when no lien exists, or at a time when by the creditor’s delay a once existing lien becomes dormant, appears to us to have an equity preferable to him who has indulged in delay. In treating with the debtor he has a right to rely upon the presumption that a dormant judgment is satisfied, The lien of the creditor at this time is indefinite and contingent. It is not a subsisting interest in the lands, but a power to set up an interest that may never be exercised.” The case of Epps & others v. Randolph, 2 Call 103, sustains this opinion.
In the case of The Bank of Missouri v. Wills & Bates, 12 Missouri Rep. 364, the question came up under a statute like ours, and under very similar circumstances to those in this case, in which.it was said, “The judgment, reviving the lien of the junior judgment, was not rendered until after the sale of the premises in dispute. The party thus by his own act having disposed of the property on which he wished to impose or continue his lien, it is obvious that the judgment of revival could not relate back and give the purchaser at sheriff’s sale a right which did not exist at the time of the purchase. The party suing out the scire facias to recover the .judgment was under no obligations to continue the proceedings after the sale. He might have discontinued it at his pleasure. The purchaser therefore could not have been influenced in his conduct by any assurance of the revival of the lien. If the sale of the property did not satisfy the judgment, the revival would have had the effect of reviving the lien on the real estate owned by the defendant in the execution, or which he had disposed of whilst subject to it, but surely a creditor could not thereby entitle himself to a lien on. property of the defend ant, which bad been disposed of by his own act.” These authorities will sustain the views which we have already expressed.
We are next called to consider the claims of Beebe as derived through his purchase from Ringo; in considering which under the rule we have laid down in regard to Beebe’s position as purchaser pendente lite, we will enquire what prior legal or equitable interest Ringo had at the time of Beebe’s purchase. Ringo was called to answer, and says that he held a subsisting debt against De Baun and Thorn, which was one of the partnership debts, from which De Baun agreed with Thorn to save him harmless and absolve him from the payment of, which is the same debt on which judgment was recovered. That he sold the judgment to Beebe, and has no interest in the matter. Beebe is also called to answer, and so far as it is responsive to the issue between the claim of Ringo and Whiting & Slark for priority will be held as in effect part of the defence to the original cause of action, and although Ringo disclaims any present interest, his answer, so far as it tends to sustain the equity of his case, will enure to the benefit of Beebei The interest claimed under this sale arises out of the claim which Thorn has reserved to himself in transferring his undivided half title to De Baun, and in any event only extended to such half interest. Ringo’s equity then must lie derived through Thorn’s equity. In order to establish this it becomes necessary on the part of Ringo or Beebe as his representative to show that the debt sued on was a partnership debt provided for in the transfer, and to predicate the subsequent proceedings upon it. To establish this point, Beebe, in behalf of Ringo, shows a declaration filed on 27th September, 1842, by Ringo against De Baun and Thorn, as partners, trading under the firm name of J. De Baun & Co. The suit was in debt on promissory note executed by the firm on the 29th of March, 1837, due six months after date for the sum of fifteeen hundred dollars with ten per cent, interest from date. Upon which declaration such proceedings were had that on the 23d of June, 1843, judgment was rendered for the plaintiff, Ringo, and thereafter under this judgment a sale was made to Beebe. There is also a note executed by J. De Baun & Co., to Bingo copied into the record, corresponding with that sued upon, but it was not brought there by oyer or otherwise: no notice is taken of it upon the record, therefore, as we have repeatedly held, it is no part o.f the record and consequently was not an exhibit iq tbe cpuse. At this point an issue is raised between Whiting &z Slark and Beebe, who for the purpose of proving that the note sued on was one of the debts embraced in the agreement between Thorn and De.Baun and was the foundation of the judgment exhibited in Beebe’s answer introduced on the trial of the cause the original note (as they allege) upon which Ringo had obtained his judgment; and against the objections of Whiting <Se Slark, the Court permitted Beebe to prove, first, the execution of the note; 2d, that it was marked and filed among the papers ip the case of Ringo v. De Baun & Thorn; and lastly, to read it as evidence in the case; to all of which exceptions were regularly taken and filed at the time.
It cannot be said that the original note was an exhibit in the cause. It was produced for the first time by the defendants on the final hearing of the cause. It has been decided, and we think correctly, that unless mad.e an exhibit, viva voce evidence is not admissible to prove its execution. Crist et al. v. Brashier, 3 A. K. Marsh. 170. And even where exhibits are thus proven on the trial the evidence is, in most instances, limited to the mere execution of the instrument. 2 Daniel's Ch. Pl. & Pr. 1,026; or where the instrument comes from the hands of a public officer its custody may be thus proven, b.ut nothing beyond this. And for; this reason it is that the execution of a w ill cannot be proven viva voce, because, besides the mere execution of- the wil^, the sanity of the testator must be established, id. 1,027: and so where aijy additional fact is to be established' in order to, make the exhibit evidence, as in, this case, th.e identifying it a,s the note sued on, the proof is inadmissible. And even when such evidence, offered to prove an, exhibit, is admitted it must be regularly upon application to the Court, and an. order for that purpose or notice to the,adverse party specifying the exhibit intended tp be proven. Parde, v. Deca, 7 Paige 134. Chandler's, Exrs. v. Real, 2 Hen. & Munf. 129. 2 Ban. Pl. & Pr. 1,028. The time given we apprehend, would be rather a matter of discretion with the chancellor.
But in this case where the instrument was not an exhibit and where it required not only proof of its execution but also proof to connect it with the judgment, we are satisfied that viva voce testimony was inadmissible.
There was no evidence then connecting any subsisting' debt referred to, or embraced in the agreement between Thorn & De Baun, with the judgment under which the sale to Beebe was made, and of course no prior lien existed to that of the judgment itself, which was junior to the claim of Whiting & Slark.
Whether the interest of Thorn was a trust or a mortgage interest (and we apprehend it could not extend beyond that) it is very questionable whether it is or not subject to sale under execution, even under the provisions of our statute, which subjects the real estate of the defendant, whether held by patent, or by a third person for his use, of which he was seized either in law or equity, to sale. How far a lien or security may be considered an equitable estate, or what class of equitable estates the legislature designed to embrace (if there is any distinction or reservation to be made) it is not necessary to determine in order to dispose of the rights of the parties in this case, as by our determination of a preliminary point, this question does not necessarily arise, we wall therefore express no opinion with, regard to it further than to remark that in several of our sister States, where these statutes are as broad as ours, such interests, have been held not subject to. sale.
In an equitable point of view there can be no- doubt but that the security afforded in a deed of trust or mortgage can only extend, to those debts set forth and recorded in the deed, or perhaps where notice is brought home to the purchaser of the estate thus pledged. The authorities upon this point are clear and conclusive. St. Andrew's Church v. Tompkins, 7 John. Ch. Rep. 16. 4 Kent Com. 176 Day v. Dunham, 2 John. Ch. Rep. 189. Frost v. Bukman, 1 John. Ch. Rep. 229. In the last case Chancellor Kent says, “The- only question with us- is, when, and to what extent, is the registry notice? Is it notice of a mortgage duly registered ? or is it notice beyond the contents of the registry ? The true construction of the act appears to be that the registry is notice of the contents of it, and no more, and that the purchaser is not to be charged with notice of the contents of the mortgage any further than they may be contained in the registry.” And in 4 Kent it is said, “It is necessary that the agreement contained in the record of the lien should, however, give all the requisite information as to the extent and certainty of the contract. So that a junior creditor may, by inspection of the record, and by common prudence and ordinary diligence, ascertain the extent of the incumbrance.”
The case in 2 John. Ch. Rep., above cited, is still more in point. The Chancell or, in delivering his opinion said, “All the notice in the case is contained in the schedule to the assignment, stating that the title to the fifty lots is, in the name of the defendant, given as collateral security to pay certain notes.” And in regard to the effect of this as notice, says, “In this case the notice arising from the schedule is lame and defective. There was no notice as to the amount of the notes, or how many, or when payable. The plaintiff in this case might not have inferred from the schedule that the defendant held any thing more than a nominal title, and perhaps as a mere trustee upon some extinguished debt.”
These cases go clearly to show that, in order to affect the rights of Whiting & Slark as junior lien, creditors it was necessary to have brought notice home to them, not alone of the existence of the transfer and reservation in favor of creditors, of that, the registry of the conveyance may afford ample constructive notice, but it was necessary to have set forth the identical debt upon which this prior equity is to be founded, so that the junior purchaser might take notice at his peril what he purchased. Such not being the case, upon this ground also the prior equity of Beebe, who holds under Bingo, must fail.
In regard to the tax titles, which Beebe also relies upon, as giving him prior equitable and legal right in the contest for this property, it will be perceived that they were acquired after both the original and amended bill had been filed and whilst he was in possession as tenant under the contested titles at issue in the suit, to which he had, by the amended bill, been made a party. Under these circumstances he bought them as outstanding adverse titles, not to sustain the claims of the parties litigant to the matter in dispute, but to assert an independent title superior to theirs. The principle which we have recognized in regard to his position as purchaser pendente lite denies to him all aid from adverse claims for the purpose of strengthening their title or his through them: or, if placed upon the ground of an independent title and properly established and presented, the purchase was for a charge upon the land if unoccupied, or upon the tenant if occupied. Beebe entered under the claims then in litigation and held subject to the final disposition of those cases. In that position his purchase was necessarily in trust and enured to the benefit of the cestui que trust, when the suit should determine who he really was. Burr v. McEwin et al. 1 Baldwin Rep. 162.
Taxes are a lien on property which is unoccupied, for which it may be sold. 9 Sergeant & Rawle 112; or, if occupied, the payment is enforced by a distress upon the tenants, 10 Serg. & Rawle 255, and if paid by the tenant it would be a charge upon the rents, and the purchase would enure to the benefit of the true owner of the property under whom he held, which was the very subject of contest in the suit under which he entered. So, when Beebe accounted for rents in his settlement of them with the master, he credited himself with taxes and repairs, and might also have presented the amount of taxes due on the lands for the years for which he had purchased. Upon either of these grounds then, independent of the consideration as to whether these are or not valid tax titles, there can be but little doubt that the defendant acquired no superior equity over the complainants from these purchases.
We have now closed our examination of the several claims of the defendants intended to assert a superior equity to that of the complainants. In the investigation of which we have derived much advantage from the research and industry of the counsel on both sides. And if in reference to the several interesting- questions discussed, we have not adverted in this opinion to all of the grounds assumed or by them deemed material, it has not been because they were not duly considered, or the authorities to which reference was made, examined when accessible. It only remains for us now to take a glance at the relative position of the parties and the probable motives which influenced the principal actors, and determine their rights in view of the several conclusions to which we arrived in the progress of our investigation.
In the development of the facts, in the outset, of the several transactions out of which the present contest arose, it is by no means improbable that De Baun, in view of the storm of bankruptcy which was thickening around him, was quite willing to take shelter under the judgments of Gray & Bouton and Beach, and shelter his property from the grasp of his other creditors; and for that purpose, and that it might be the more effectual, permitted judgment to be rendered nil dicet for $2,137 89 debt, and interest, when in fact he had previously paid the whole of it except the sum of $996 15. And the acquiescence in this is readily accounted for on the part of Trapnall & Cocke, when we consider the very ample security furnished by their judgment lien on so large an estate. If there had been no understanding upon this subject between the attorney and De Baun, it is scarcely to be presumed that De Baun would have appeared and suffered judgment to go for more than twice what was really due, or that the attorney's would not have entered all proper credits when they took their'judgment. And this conclusion gains much strength from the subsequent conduct of. the parties-. Nearly a year expired before writs issued on either of the judgments and then only in time to save a revival by sci. fa. So we find a release given to Thorn, and, with the full written assent of De Baun, execution is to run for the whole amount of the debt against him-. Why, if Thorn had paid the debt, not enter' credit in full; if only part, for that much or otherwise to the extent of the satisfaction ? A motive at once is found for this in accordance with the previous- conduct of the parties, for it is also shown that upwards of $1,100, on the Beach judgment was paid and yet no credit is entered on the judgment.
At this point, defendant Beebe’s position may be defined. It is due to him and it is but fair to presume that at the outset he acted in good faith and bought the property under the trust sale in April, 1843, to save himself from loss as DeBaun’s security and with no wish to wrong any one. After this purchase, he found that there was a probability that he might lose the benefit of his purchase and be defeated in his first object. He, no doubt, bought the Gray & Bouton and Beach judgments from motives and considerations of this kind. This he had a right to do. As a prudent man, looking to his rights and interest, it was perhaps his duty to do so. But when he took shelter under this wide spread cover of DeBaun’s property, and saw that about half of each of those judgments' had been paid, and one of them fully discharged, as to one of the creditors at least, he should have clipped the canvass to honest'dimensions, have credited each of these judgments by what was paid, and openly asserted and pressed his rights to the balance. By this means, the junior lien creditors might, if they chose, have paid off the balance really due, and thereby disencumbered their rights, or have bought with a knowledge of the amount they would be liable to pay, in order' to protect their title to the property so purchased. His failure to do this and his asserting a claim to the whole amount of the two judgments of about $6,000, which had only cost him some $2,400, and when in fact there was only due between $1,300 and $1,400, was in bad faith and oppressive towards the junior lien creditors if not a palpable fraud upon their rights.
If the purchase was limited, as stated by Trapnall, to the mortgaged property, it was a direct attack upon the rights of the complainants, theirs being a limited lien, and for that reason more flagrantly unjust. Of this, however, there is no positive proof, as Trapnall’s answer, in this respect, is not responsive to the allegations of the complainant’s bill. Still, all the circumstances tend strongly to show that such was the case. Beebe’s object in making the purchase was to multiply claims upon that particular property; and the subsequent conduct of the parties fully sustains this conclusion; for we see DeBaun, at the sale in May, 1843, acting in concert with Trapnall and Beebe, using his statute rights in directing the sale in such a manner as to defeat the claims of Whiting & Slark. It was also in bad faith to force a sale of this property until the first levy was discharged, and to revive the judgment of Gray & Bouton after it was paid by the sales in November. Beyond this, the struggle on the part of Beebe to protect himself by the purchase of other senior claims, was what might well have been done in good faith.
The main points to be considered, in determining, a question of fraud, arc, the act done, the circumstances under which it is done,, and the effect upon the rights of the opposite party.
In the case before us, Beebe succeeded to the rights of Gray & Bouton, and whether we consider the act as theirs, or theirs through their agent, is not material. The wrong consisted in the first instance in. causing a second levy to be made before the first was disposed of; in asserting a claim for the whole amount of the judgments, when they knew that there was but a small amount comparatively due; ill concealing from the junior creditors the true amount of their claims; in persisting in selling the property mortgaged, after the other property had sold for a sum sufficient to pay the whole amount really due; and in reviving a judgment which had really been paid, and extending an unjust claim of title over such other estate as might remain unsold — all of which, except the latter act, was clearly to the prejudice of the rights of the complainant; and for which, as well as for the reason that there was no subsisting lien at the time of the purchase by Beebe under the Gray & Bouton judgment, and the several other grounds with regard to the other claims, we are of opinion that the sales and the deeds under which Beebe sets up ■title to the property contained in the complainants’ mortgage ought to be set aside.
We are moreover of opinion,, that the complainants have the senior equitable lien on the property in dispute: and that next in order, Beirne & Burnside have the oldqst equitable lien, De fendant Beebe, has, no doubt, acquired a valid legal title to the property under several junior judgment liens and under the statute holds title to the property subject to the prior equitable liens of the complainants, and of Beirne & Burnside, who are entitled to decrees of foreclosure and sale of the property to satisfy their respective claims according to priority in equity: and that defendants Brown and Beebe account to complainants for the rents and profits thereon arising, from the time they respectively entered into possession until the date of such accounting, unless the said Beebe shall elect to pay off and satisfy the prior claims of said Whiting & Slark, and Beirne & Burnside with costs; in which event we see no necessity for holding defendant Beebe to account for rents, but, oh the contrary, he is entitled to the same.
Having closed the consideration of the case so far as relates to the issue between complainants and defendant Beebe, we will, before considering the cross-bill of De Baun, consider a collateral issue formed between the complainants and defendant Lawson. And, but for the connexion which the money in dispute has with the title of complainants, which we have decided against them, we would find no very good reason for entertaining the issue or rendering a decree thereon. The complainants have a clear legal right of action against the defendant if their allegations be true; but as equity has taken jurisdiction of the subject matter and the parties, and disposed of one branch of the subject connected with this, and out of which this liability arose, we may proceed to examine into the merits of the case and settle the issue between the parties.
The facts abundantly prove that Whiting & Slark, through Fowler, their agent and attorney, paid the defendant, as sheriff, the sum of $903 56, the amount bid for the property in dispute! Lawson, in his answer, admits the receipt of the money, but says that thereafter, on another day, he paid $756 14 of the money back to Fowler, and that he has $243 86 now in his hands, which he was prepared to pay, but that Fowler failed to call for it as he promised.
It seems that this and several other sales were set aside by the court, and that other moneys passed at that time between Fowler and the sheriff. Fowler’s deposition is taken, and he states positively that no part of the $903 56 is paid; that the whole amount remains yet,in Lawson’s hands. He says that the $756 draft was paid, but on other and different accounts, and shows as an exhibit, the receipt of Lawson for the payment of several sums, which he states was the money so refunded by the payment of the draft. He states that the draft exceeded the amount of the sums he had paid (except that of $903, which he refused to accept,) by $156, which sum it was agreed between himself and Lawson, should be settled on the same evening' at Lawson’s office; that he attended with the money but Lawson was not there. The receipts, and the positive evidence of Fowler, leave but little doubt of the retention of the money by Lawson, notwithstanding his answer, in which he claims to have repaid part of it. The answer, however, is affirmative in this respect, and he should have made the proof himself to support it. Where an answer admits the receipt of money at one time and sets up that at another tizne, and in another adjustment it was repaid, the repayment is the affirmance of a new act, and must be proved! Deducting the $156 from the purchase money, there would remain in Lawson’s hands $847 56, for which a decree should be rendered in favor of the complainants.
It now devolves upon us to consider the merits of the cross-bill of De Baun, the scope of which is to review the acts of the creditors, to set aside the sales made by them of his property, to re-sell the same and to have the proceeds of such sales appropriated according to their equitable right to the same. Pie says that, owing to impending circumstances and the acts of some of his creditors in their contest with each other for priority of right to the proceeds of the sale of his property, a most shameful sacrifice and waste of the property was made, alike prejudicial to the interest of other creditors and to himself, and that their acts he could not control. The Bill is drawn with much care, and the facts arranged with a distinctness and order highly creditable to tbe counsel who prepared the case; nor do the authorities to which he referred, in the main, fall far short of sustaining the grounds of equity upon which the bill rests. They will not avail the complainant any thing however unless he comes before us as an honest debtor, who has surrendered up his property to his creditors and in good faith endeavored, as far as he could, to protect their rights and his own against the effects of a fraud or injury perpetrated by a portion of them to the injury of himself and others. This we think he has not done, but so far from it, we have much reason to suspect that, in the first instance, he not only acquiesced in the very acts of which he now complains, but was an'active agent in producing them. Thus, at the outset he suffers judgment to be rendered in the case of Gray & Bouton for double what was due, took no discharge as to the Beach judgment, but expressly estopped himself from doing so by his written assent to the act, identified himself fully with Beebe and Trapnall in their course at the May term, and at the November term directed the sale of the property which he now says was sacrificed. With what show of equity can he call on the purchasers at that sale to give up the property which they purchased at his direction or otherwise, if made in good faith and without a knowledge of the fraudulent conduct of others? Before he can complain that injustice has been done to his creditors as between themselves, he must do justice to them himself; so far from this, he ran off his whole estate in slaves, although conveyed in trust for the benefit of part of them. When he comes therefore to ask for an equitable account between his creditors, or himself and them, he should at least have come with that property in his hand or tendered an equivalent for it. This he has not done. Under the circumstances of the case the only claims to equity which he may assert must be between himself and Wood-ruff and others, trustees, and that is a matter which may be inquired into apart from any equities in this case. He brings it here only by cross-bill; that bill we think should be dismissed with costs but without prejudice to such rights as he may have as between himself and the trustees.
Upon consideration of the whole case, let the decree of the Pulaski Circuit Court be reversed and set aside with costs; and a decree rendered in this court upon the equities of the several parties, upon the following points:
First, That the cross-bill of De Baun be dismissed at his costs, but without prejudice to his rights as between himself and others in regard to the deed of trust executed to Woodruff, Watkins and Reardon.
Second, That all of the defendants except De Baun, Beebe, Brown and Lawson be discharged with costs.
Third, That the complainants’ mortgage be foreclosed, and a decree rendered in their favor for the full amount of their debt in the mortgages set forth with interest thereon from the time the debts became due until the present time, and that defendant Beebe pay the costs in this behalf expended, so far as relates to his own defence, and also all the costs in behalf of all those defendants under whom he sets up title in defence of his claim against the .complainants: and that complainants pay the costs of all other defendants who disclaim an interest, or were not connected with the defence of defendant Beebe. And that the mortgaged property be sold for cash in hand to pay the amount of said decree; the sale to be made at the court-house door in the city of Little Rock, after giving 90 days notice in some newspaper published in said city; the proceeds of sale after paying the expenses of sale to be applied, 1st, to the satisfaction of the decree in this behalf; 2d, the decree of Beirne & Burnside; and lastly, any overplus, after paying each of these demands and costs, to be paid to defendant Beebe.
Fourth, A decree in favor of Beirne & Burnside upon their deed of mortgage for the debt therein set forth with the interest from due until the present time, with costs against the defendant Beebe; and that the estate therein mentioned be sold to pay the same upon the like terms (as regards the sale) as above prescribed: and the overplus, after paying the same with costs to be paid to defendant Beebe.
Fifth, That the several sales made to defendant Beebe, asser ting prior equitable liens upon the property in dispute, be set aside and the deeds and conveyances thereof to him, held for nought. But that holding a valid legal title subject to the prior equitable liens of the complainants, Whiting & Slark and Beirne & Burnside, he may, if he will, elect to pay the amount of their decrees with costs, and retain his title to the estate under such junior judgment liens as he claims to hold, and to afford time for doing so, he is allowed until the first Monday in June next, to make such payment, which when made and the evidences thereof shown to the satisfaction of the Chancellor in court sitting, he shall cause full satisfaction thereof to be entered of record in each of said decrees; and thereupon and in that event said defendant Beebe shall be entitled to all the rents and profits arising from the mortgaged premises from the date of his purchase at the November term, 1843: a decree shall be rendered in his favor according to the practice of said court against his co-defendant Brown. But should said Beebe fail to make such payment and cause such entry of satisfaction to be made within the time prescribed, that Beebe and Brown as tenants be held to account to Whiting & Slark, as mortgagees, for rents and profits, and for the purpose of ascertaining fully what may be due, said Circuit Court in chancery may cause proof to be taken in addition to that already taken, and ascertain the amount due for rents and profits (less taxes and necessary repairs to protect the property from waste or make it tenantable,) and render a decree for the same : and the money arising therefrom when received, shall be applied first, to the payment of the costs against complainants Whiting & Slark; secondly, to the payment of the interest and principal of their debt; thirdly, if an overplus, to the payment of Beirne & Burnsides’ decree, and if enough to pay one, and not both, then the one paid to be entered satisfied, and a sale to be had on the unsatisfied decree for the amount due thereon; or if not enough to satisfy either, then the sale will be made under both decrees, the overplus in any event, after paying both the prior claims and costs to be paid to Beebe.
Sixth, That a decree be rendered in this court against defend ant Lawson in favor of Whiting & Slark for the sum of eight hundred and forty-seven dollars and fifty-six cents, with costs.
And that this decree be certified to the Circuit Court, to be executed according to the several directions herein contained according to equity.
Note. — F. W. Trapnall, Esq., having complained, in open court, that unjust and unfounded imputations had been made against him, and his deceased partner, John W. Cocke, Esq., in the foregoing opinion, Mr. Justice WalkeR handed the Reporter the following note:
In alluding to the probable motives which may have influenced the parties (attorneys and defendant) in withholding certain credits, which should have been entered on the judgments at law, in favor of Gray & Bouton, and- Beach, against De Baun, I failed to express, as fully as should have been done, the opinion of the Court in regard to that subject. It is due as well to the attorneys as to Mr. De Baun, to say that the omissions referred to, might have been the result of inattention, or of confidence reposed by the defendant in the integrity of the attorneys, or of other cause, not apparent upon the record. It was certainly not the intention of the Court to impugn the motives of the parties, indeed it was wholly immaterial so far as the other creditors of De Baun were concerned, whether the omissions were the result of accident or design. The effect was the same to them. It presented a larger outstanding incumbrance, than was really due, which it was contrary to equity and good conscience, to assert against their junior liens.
The Reporter will append this as a note to this opinion. | [
116,
106,
-39,
62,
26,
96,
42,
-70,
74,
32,
-73,
115,
109,
83,
20,
97,
-30,
41,
113,
106,
-41,
-77,
23,
98,
-46,
-13,
-61,
-35,
-79,
-51,
-76,
-41,
12,
32,
-54,
-107,
102,
74,
-51,
84,
-50,
5,
59,
77,
-39,
80,
52,
107,
112,
72,
85,
-113,
-13,
44,
29,
75,
105,
44,
-39,
57,
-48,
-80,
-98,
-115,
-1,
6,
17,
38,
-104,
67,
-54,
14,
-112,
49,
-124,
-24,
123,
-90,
-122,
124,
15,
27,
9,
98,
103,
1,
105,
-17,
-8,
-104,
46,
94,
-115,
-90,
-110,
88,
11,
73,
-66,
-99,
108,
64,
7,
126,
-18,
-107,
25,
108,
5,
-114,
-42,
-95,
-113,
60,
-102,
17,
-57,
19,
52,
112,
-51,
-26,
93,
98,
17,
-101,
-114,
-16
] |
Mr. Justice Scott
delivered the opinion of the Court.
This case is substantially the same as that of Jno. McMeechen and other Ex parte, just decided.
■The application for the rule to show cause, &c., is refused. | [
-80,
-8,
-4,
-68,
42,
-32,
56,
-102,
73,
-16,
103,
-45,
-19,
-45,
4,
103,
127,
63,
113,
106,
-34,
-94,
118,
-61,
-14,
-45,
-37,
-44,
53,
123,
-26,
125,
72,
-24,
-117,
-43,
70,
-117,
-115,
28,
-58,
-90,
-80,
-49,
-40,
74,
52,
27,
112,
95,
117,
22,
-29,
46,
25,
-61,
-23,
40,
-37,
61,
-48,
48,
-118,
13,
85,
52,
-77,
48,
-34,
-61,
88,
46,
-104,
48,
17,
-8,
119,
-90,
-122,
-12,
45,
-71,
8,
-14,
98,
1,
-39,
-18,
-120,
-8,
43,
94,
-67,
-122,
-106,
56,
-23,
105,
-106,
-67,
117,
64,
-81,
126,
-30,
21,
30,
44,
14,
-113,
-80,
-95,
-119,
116,
-112,
72,
-18,
-126,
52,
113,
-55,
-6,
92,
71,
55,
119,
-105,
-100
] |
Mr. Justice Walker
delivered the opinion of the Court.
This suit was commenced on the 18th of February, 1850, on a promissory note, purporting, from the declaration, to be due on the 14th of October, 1844. The defendant pleaded nil deiet and the statute bar of limitation of three years; to which latter plea the plaintiff replied that the cause of action did accrue to her within three years next before the commencement of her suit. To sustain this issue the plaintiff offered to read what purported to be the commencement of former suits on the same cause of action between the same parties and judgment of non-suits therein. To the introduction of this record as evidence, the defendant objected, but his objections were overruled and the record admitted to be read to the court sitting as a jury. The defendant excepted and presented the evidence in his bill of exceptions. Judgment was rendered for the plaintiff.
The only question is, was this evidence admissible? And, first, if in other respects unexceptionable, was it competent evidence under the issue formed? It was no doubt intended to bring the case within the 24i/i sec. cli. 99, Dig., which provides “that if after the commencement of a suit within the time prescribed by the preceding sections of this act, the plaintiff elects to take a non-suit, he may commence anew his action within twelve months after the date of such non-suit.” But under this state of facts, should not the plaintiff have replied specially, confessing the lapse of time in the plea set forth, and by setting up the intermediate proceedings brought himself within the 24th section in avoidance of the effect of such lapse of time. Instead of this, he has simply denied the truth of the plea, that is, that three years had not intervened between the time when his right of action accrued and the commencement of his then pending suit. The record, therefore, in no event, could have sustained this issue, which is alone, to be determined by the contract itself and the record evidence as to when the suit was actually commenced, and it should have been excluded from the court sitting as a jury.
But, then, even if specially replied, the record offered in evidence did not show a cause of action commenced between the same parties, but distinct and different parties. A declaration, writ and judgment of non-suit against Ewing W. McClellan, is not of itself evidence of a suit against Evan W. McClellan. These are clearly different persons, so far as the record itself gives evidence (and whether other accompanying evidence explanatory of this discrepancy, could in any case be offered under such circumstances or in what they should consist, it does not become necessary for us here to determine.)
It is a rule of practice heretofore recognized by this Court, and well sustained by authority, that where evidence, not of itself strictly applicable or legal, may or not be so dependent upon the existence of other facts, such other facts must accompany the evidence offered, or at least there must be an offer or proposition to introduce them in connexion with it. State vs. Jennings, 5 Eng. 429.
Without this additional proof, if such in this instance was admissible, the record could not have been used in evidence. The first action and non-suit then aside, the second was commenced on the 4th May, 1848, more than three years after the cause of action had accrued; and therefore did not come within the pro visions of tbe 24th section. We are, therefore, of opinion that there was error in the judgment and decision of the Circuit Court in permitting said record to be read as evidence. And for this error the judgment must be reversed and the cause remanded to be proceeded in according to law. | [
-12,
106,
-52,
-34,
-102,
96,
32,
-102,
65,
3,
103,
19,
-19,
-61,
20,
97,
127,
41,
65,
107,
74,
51,
18,
65,
-14,
-45,
-45,
85,
53,
-20,
-10,
94,
76,
52,
74,
-43,
-58,
-54,
-59,
18,
-118,
-124,
-71,
-52,
-47,
72,
52,
91,
116,
13,
113,
94,
-29,
42,
28,
-57,
41,
61,
-54,
61,
-16,
-16,
-109,
-115,
125,
20,
-79,
38,
-98,
7,
104,
46,
-112,
-79,
-128,
-24,
114,
-74,
-122,
116,
107,
-119,
8,
102,
98,
33,
97,
111,
88,
-104,
7,
62,
31,
-90,
50,
72,
107,
105,
-98,
-99,
117,
16,
-89,
126,
-20,
-43,
24,
100,
3,
-117,
-44,
-77,
79,
126,
-66,
3,
-21,
-93,
17,
112,
-51,
96,
92,
99,
51,
-109,
-98,
-98
] |
Mr. Justice Scott
delivered the opinion of the Court.
The showing of the clerk is insufficient. When the writ of error goes down, its command must be obeyed. If there be hard ships growing out of the facts that the clerks have to wait for the fees allowed by law for the making out and certifying of the transcripts until the determination of causes in this court, and sometimes from the failure of the party or his attorney to file the transcripts in this court after they have been made out and certified in persuance of an appeal or in obedience to a writ of error, the remedy is with the Legislature, who may provide readily against them if it should be deemed proper. Our entire law of costs and fees is, in substance, statutory, The common law did not professedly allow any, the amercement of the vanquished party being his only punishment.
The writ of attachment must issue to bring up the body of the clerk of the Pulaski Circuit Court, to be dealt with for contempt. | [
-76,
104,
120,
-67,
42,
-30,
35,
-118,
-55,
1,
99,
83,
-27,
-61,
16,
99,
-13,
63,
117,
107,
79,
-73,
119,
105,
-14,
-13,
-13,
-44,
-75,
-2,
-27,
-33,
76,
56,
-22,
-43,
102,
72,
-59,
-44,
-50,
43,
9,
-27,
-15,
32,
52,
57,
-46,
15,
53,
14,
-29,
62,
28,
71,
-87,
41,
105,
-87,
-64,
-79,
-98,
-115,
95,
20,
-111,
54,
-100,
-58,
24,
46,
-72,
49,
0,
-1,
122,
-90,
-121,
84,
41,
-71,
44,
-32,
98,
33,
-119,
-1,
-120,
-56,
38,
-2,
-99,
-90,
-110,
105,
11,
13,
-74,
-99,
100,
80,
7,
118,
-29,
20,
89,
44,
67,
-114,
-66,
-77,
-113,
124,
-100,
122,
-29,
-93,
-112,
113,
-59,
-16,
92,
71,
59,
-101,
-34,
-66
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court.
The objection that an appeal will not lie from the judgment of a justice in garnishment, we think is not well taken. The statute we consider sufficiently broad to include such judgments. It is as follows, viz: “Any person aggrieved by any judgment rendered by any justice of the peace, except a judgment of non-suit, may, in person, or by his agent, make his appeal therefrom to the Circuit Court of the same county where the judgment was rendered.” (See Dig., ch. 95, p. 667, sec. 174.) The final action of a justice of the peace, setting as a court and acting in his judicial capacity in a proceeding by garnishment, is clearly a judgment within the meaning and contemplation of this act. The construction placed upon that act by this court in the case of Mitchell, use Rogers vs. Woods, (6 Eng. R. 182,) is believed of itself to be conclusive upon this point.
The first cause assigned why the court should grant a new trial was, that the verdict was contrary to law and evidence; 2d, because the verdict was in the teeth of the instructions of the court: and 3d, because the court refused to give to the jury the third instruction asked for by the garnishee. We will now proceed to determine upon these several grounds of objection as they are presented by the motion.
If the counsel for the appellant had interposed his objection in apt time, he could most unquestionably have excluded the whole evidence offered against his client, unless his objection had been obviated by the production oi the original judgment. That was the basis of the proceeding by garnishment, and, as a matter of course, was absolutely necessary to lay the foundation for the introduction of other testimony. The garnishee had a right to see it and also to have it before the jury, who were to pass upon and fix his liability, as it alone could serve as the measure of the recovery against him, and also to furnish a bar to any future action against him for the same subject matter. This, however, he did not do; but, on the contrary, waived his right in this respect, and permitted evidence without objection to be received tending tó show the amount in his hands belonging to the defendant in the supposed judgment. This court, in the case of Johnson vs. Ashley, (2 Eng. R. 473,) said: “It is the duty of a party who desires to have testimony offered by his adversary excluded from the jury, to move to that effect so soon as it is delivered, and if he fails to do so, but rests till other witnesses are examined, and then moves to exclude the whole, his motion will not be sustained in case any part of the testimony thus delivered shall be competent under the issue joined between the parties.” The rule will apply with equal force where a party has permitted evidence to be introduced which could not be legally received without first laying a foundation for its reception, as the law will presume that he waived his right thus to object. The evidence, therefore, tending to show what property the defendant below had in his hands belonging to the supposed judgment debtor, and also the value of the same having been properly received, we will now proceed to enquire into its sufficiency to authorize the verdict rendered by the jury.
The garnishee admitted in his answer, that he had some seventy bushels of corn in his possession belonging to the'judgment debtor, but that he had given him permission to retain it as a security for the performance of certain work and labor which he had agreed to do for him, and which he had failed and refused to perform up to the time of putting in his answer. It was proved by other witnesses, that corn, at the time referred to, was worth fifty cents per busheL It is contended that the defendant had a right to hold the corn as a pledge for the work and labor, which Jackson, the debtor in the judgment, had agreed to perform until it was fully completed. How this matter might have stood in the event that the defendant had shown that the judgment debtor was under any legal liability to perform the work, we do not feel ourselves called upon at present to decide. He has not shown, nor attempted to show, that he was indebted to him, and that he had agreed to perform work and labor to liquidate such debt, but the inference is strong, from the evasive language of his answer, that he was not so indebted, but that on the contrary, his claim was a mere pretext resorted to, to place the property beyond the grasp of the law. The answer, therefore, though not rebutted by other evidence, is strong in itself to fix a liability upon the defendant; at least it leaves the matter in that dubious state which would fully justify a jury in finding as they did.
But it is insisted that, even admitting that the jury had the right, under the proof, to find the corn in the hands of the defendant, yet they had no power to inquire into its value, and return a verdict for dollars. By the 3d sec. of the 78th chap. of the Digest, the plaintiff is authorized to file allegations and interrogatories upon which he may be desirous of obtaining the answer of the garnishee, touching the goods and chatties, moneys, credits and effects, of the defendant in the judgment and the value thereof in his hands and possession at the time of the service of the writ, or at any time thereafter. The 6th sec. provides that if the issue be found for the garniseee, he shall be discharged without further proceedings; but if the issue be found for the plaintiff, judgment shall be entered for the amount found due from the garnishee to the defendant in the original judgment, or so much thereof as will be sufficient to satisfy the plaintiff’s judgment with costs; and the 7ih see. further provides that if, on the return day of the garnishment, the garnishee shall surrender to the plaintiff all the goods and chatties, moneys, credits and effects which may be in his hands or possession belonging to the defendant, he shall be discharged with costs, and the court or justice shall enter up an order releasing and discharging such garnishee from all responsibility to the defendant, in relation to the goods and chatties, moneys, credits and effects so surrendered. The last section quoted, it will be perceived, gives the garnishee an election either to surrender or to retain fixe goods and effects, and in case he shall choose to make the surrender, he is thereby entitled to a release from all responsibility in relation thereto. It is very clear that he makes his election at his peril, and that in case he shall fail to avail himself of his pi'ivilege to surrender on the return day of the writ, he is liable for the value of the property found in his possession belonging to the judgment debtor, at least to the ex tent of the judgment in case it shall amount to so much. There is no error, therefore, in this respect.
It is also objected to the judgment that the Court refused to give in charge the third instruction asked by the defendant. This instruction is as follows, viz: “If the jury shall believe from the evidence, including the answer of the garnishee, that the corn in question was given up to the garnishee, by the judgment creditor (debtor) Jackson, as a pledge or security, no recovery for the corn or its value can be had until the lien created by the pledge or deposit is removed.” We think there can be no doubt but that the defendant was entitled to the benefit of this instruction. There was some evidence contained in the answer from which the jury might have been warranted in the inference that the corn was left with the garnishee as a pledge to secure a real subsisting debt;-and, if so, he was clearly entitled to retain it until his debt was paid. See Jones on Bailments, p. 86. The Court therefore erred in this particular, and for this error, the cause must be reserved and remanded, to be proceeded in according to law, and not inconsistent with this opinion. | [
-16,
-24,
-40,
60,
10,
-32,
3,
-40,
64,
41,
55,
83,
47,
74,
0,
127,
-14,
111,
117,
35,
87,
51,
23,
65,
-14,
-14,
-45,
-35,
-79,
108,
-27,
94,
76,
-80,
-22,
-11,
102,
-61,
65,
-42,
-114,
-121,
-72,
-19,
-15,
96,
48,
59,
20,
91,
-43,
-98,
-29,
46,
25,
67,
-24,
41,
-5,
-67,
112,
-80,
-66,
-113,
125,
21,
-109,
38,
-100,
39,
-6,
46,
-128,
49,
0,
-24,
114,
-74,
-126,
84,
73,
-69,
8,
118,
102,
-127,
109,
107,
-72,
-103,
14,
-36,
-97,
-90,
-103,
88,
-53,
41,
-74,
-67,
108,
48,
-121,
124,
-26,
-107,
-97,
44,
1,
-113,
-108,
-79,
-117,
61,
-118,
74,
-25,
-125,
-112,
97,
-51,
-22,
92,
68,
27,
-101,
-114,
-99
] |
Mr. Justice Walker
delivered the opinion of the Court.
Edith Pierce, Deborah Bloyd and Bedith Mills sued Edward S. Johnson on a bond with covenants, executed by Johnson and others to Mary Lowe or her heirs or legal representatives, assigned breaches of the conditions of the covenant and averred the death of Mary Lowe, and that the plaintiffs were her lawful heirs. The defendant failed to plead, and judgment was taken against him by default, and the court, without the intervention of a jury, proceeded to assess the damages and render final judgment for the plaintiffs.
It is evident that this was a personal covenant, not running with the land, and that an action for a breach of such covenant can only be maintained in the name of the executors or administrators of Mary Lowe. 1 Ch. PI. 19. But it is contended for the plaintiffs that, as there was no plea, the judgment by default admitted a right of action in the plaintiffs. It is true that by failing to defend, the defendant admitted the truth of the allegations contained in the declaration, that is, he admitted the existence of every fact which the plaintiff would have been called to prove in order to maintain his action, because by refusing to make an issue with the plaintiffs upon the facts set forth by them, he deprives them of an opportunity of making such proof, and therefore from necessity the facts must stand admitted upon the same principle that whatever is not traversed in pleading is admitted. Default, says Tidd/ is an admission of the cause of action, and therefore, when founded on a contract, the defendant cannot prove the contract fraudulent. And so when the action is on a note or bill; no proof of their execution is required. TiclcTs Pr. 522. So' that, when Tidd says, “Default is an Admission of the cause of action,” we see from the examples given by him what he means by “admitting the cause of action.” It evidently cannot* upon principle, mean more than that the facts alleged in the declaration are admitted, or, in other words, are considered as though they were proven.- And this is the extent to which we understand the case cited by counsel in 4 Humphries Reports, to go.
But suppose, when they are all admitted as fully as if proven, and still fail to show a legal right in the plaintiffs to recover after allowing the benefit of the statute of jeofails and amendments, shall we say that they are entitled to recover? Most clearly not; unless we could suppose that a default would not only confess the facts alleged, but also furnish additional facts by intendment to be confessed. In the case before us, if the facts, that Mary Lowe was dead and the plaintiffs were her heirs, gave them a right of action, then the admission of these facts, and of the contract and its breach would have entitled the plaintiff to judgment.But we have seen such is not the case. The administrators or executors of Mary Lowe and not her heirs had a right of action for a breach of the condition of the bond. The objection is in the pleading, not so much in form, as that it is a suit upon a cause of action in which the plaintiffs are affirmatively shown to have no interest whatever: and is consequently a defect which no admissions can cure,1 and which would have been fatal in arrest of judgment even after issue and trial.
As regards the assessment of damages, it is very evident that a jury should have been called to asses damages. Such has been the uniform decision of this Court under our statute. 2 Ark. R. 382. 1 Eng. R. 490. The Court can only pronounce a judgment upon an ascertained liquidated demand.
Upon both these grounds, the judgment of the Circuit Court was erroneous, and must be reversed. | [
-80,
124,
-36,
44,
-102,
96,
48,
-54,
-43,
-117,
-89,
91,
-19,
75,
4,
47,
118,
127,
81,
107,
65,
-77,
23,
1,
-10,
-109,
-46,
85,
-79,
79,
-32,
-33,
76,
-80,
-54,
-11,
-26,
-54,
-63,
18,
-50,
-97,
-88,
-32,
-119,
64,
48,
91,
84,
13,
81,
-66,
-13,
46,
21,
71,
-19,
42,
107,
-67,
-12,
-80,
-116,
13,
125,
21,
-79,
39,
-100,
7,
-6,
48,
-128,
49,
1,
-8,
114,
-74,
-58,
-44,
77,
27,
-120,
98,
98,
33,
105,
111,
-104,
-104,
111,
54,
-67,
-122,
-45,
80,
75,
109,
-74,
-99,
61,
0,
-89,
108,
-26,
-107,
92,
44,
17,
-53,
-10,
-79,
-117,
118,
-112,
3,
-26,
-126,
17,
112,
-51,
104,
93,
99,
58,
-109,
30,
-35
] |
Mr. Justice Walker
delivered the opinion of the Court.
This case comes before us upon the petition of Woodruff for attachment or other process against Trapnall, as the Attorney of the State, for having failed, as is alleged, to receive the amount of the judgment and the legal interest due thereon in Arkansas State Bank notes, in obedience to a permeptory mandamus issued by this Court commanding him to receive the same — the same having by Woodruff, by his attorney, been duly tendered to said attorney. The return made upon the writ admits the truth of the tender of $3,755, (the sum previously tendered on the 24th of February, 1847,) and the due service of the writ, but attempts to justify the refusal to accept upon the ground that legal interest was due on the judgment from the time of the tender on the 24th February, 1847, until the present time, which was not also tendered, and therefore the said Woodruff did not tender the amount of the judgment with the legal interest due thereon, as he was by the writ required to do, before he, as attorney, was bound to accept and receipt for the same.
Thus, it will be seen, that there is no dispute about facts, nor that the bank notes were a legal tender in discharge of this particular debt (as much so as gold and silver would have been.) The decision of the Supreme Court of the United States and the writ of mandamus from this Court are conclusive upon this point: leaving the effect of the tender in 1847, and a failure on the part of Woodruff to deposit in this Court, with his petition for alternative mandamus, the sum so tendered the only question to be decided.
It may safely be assumed upon principle that a legal tender always stops interest and costs, because where the party who contracts to pay, or is adjudged to pay, offers and tenders that which his obligation or the judgment of the Court under the law requires of him, he is no longer in default, and cannot be taxed with either interests or costs, for these only arise in consequence of default. The tender is not a payment, because, from that time forward, he who tenders must hold himself in readiness to pay. So when he pleads a tender, he avers that he did tender and now tenders. The whole question therefore resolves itself into this, was the tender on the 24-th of February, 1847, a valid legal tender? This point has been settled by the decision of the Supreme Court of the Unied States: because unless there had been a tender and refusal, no question could have arisen as to the kind of money tendered. The fact that the contest was narrowed down to a mere inquiry as to whether the notes were receivable, does not change the force and effect of the decision upon the plea of tender. That may have been the particular defect insisted upon to vitiate the plea, yet it was the legal sufficiency of the plea which was really before the Court. Just as if time or place omitted was the objection raised to the sufficiency of a plea, the Court would look to the plea as an entire defence or bar, and although the Court should decide that time or place was or not sufficiently pleaded, the judgment of the Court would be upon the plea.
If, as contended for the plaintiff, the money should have been deposited in this Court at the time the petition for an alternative mandamus was filed, instead of taking issue upon the fact ¡of tender, the objection should have then been made. By failing to do so, .(conceding the deposit to have been proper) the objection was waived as fully as if a plea of non est factum should be filed without affidavit and issue taken to it without moving to strike it out, the plea would be good, and so we apprehend would be .a plea of tender. But this case is more properly assimilated to a case of tender before suit. There the parly makes no deposite; he keeps the money and may use it if he will, but must hold himself in readiness to pay. There is no suit then in existence against him for the money. And so after judgment a like •duty rests upon him to pay, and the plaintiff has his right to a fi. fa. process upon his judgment, just as he had his right to an original writ upon his debt. It is the duty of the party to pay, and when he tenders the money, all that he is afterwards required to do is to hold himself in readiness to pay when called on.
But an effort is made to assimilate this proceeding to a suit at law by the plaintiff for the recovery of money which the plaintiff claims and the defendant refuses to pay, when in truth the very jreverse is the state of case. Here the defendant offers and the plaintiff refuses to accept. This is a proceeding on the part of the plaintiff, not the defendant: but moreover this was not a proceeding before us for money. It was no issue as to whether money was or not due; no appeal is made to this Court to have the money brought before us and paid over, but to compel a party to receive money upon a proceeding not before us. But upon principles of equity, if the creditor refuses to accept and use the money, why should he complain that the defendant has had the use of it. He is in no worse situation than he would have been if the money had been placed in Court. And if the creditor refuses to accept, it is certainly not the fault of the debtor that he has not his money or that it is yielding him no interest.
But it is unnecessary to discuss the equity of this case. The tender was made, and has been adjudged a good legal tender, and as such it is clear that the interest stopped at the date of the tender. Therefore, when we directed our process ofDJ mandamus to .the .attorney commanding him to receive the amount of the judg ment and the interest legally due thereon, we must be understood as meaning the interest up to the date of the tender.
It is admitted that this sum has been tendered, and consequently the attorney is in contempt of court for having refused to receive it and give the necessary acquittance. But as we are satisfied that the attorney in this instance intended no contempt, but acted in good faith under a misapprehension of the law, and as he has answered in fact what he would set up in excuse, if an attachment should issue, we, under the circustances of the case, impose only the costs of this proceeding upon him, and direct an alias writ to issue. | [
116,
-24,
-16,
-2,
90,
96,
34,
-102,
-38,
-95,
-11,
115,
-23,
-125,
20,
113,
118,
59,
49,
104,
-49,
-77,
55,
105,
-46,
-13,
-39,
-43,
49,
109,
-92,
-42,
76,
48,
-54,
-43,
103,
-56,
-61,
20,
-50,
-123,
41,
77,
-39,
-119,
48,
107,
86,
11,
49,
-92,
-29,
38,
24,
67,
109,
44,
91,
61,
-48,
-71,
-97,
-123,
125,
21,
-111,
103,
-104,
5,
-56,
46,
-112,
49,
1,
-8,
114,
-92,
6,
-12,
109,
-71,
9,
114,
34,
-127,
37,
109,
-104,
-120,
38,
-34,
-99,
-90,
-106,
89,
107,
105,
-98,
-99,
126,
28,
6,
-2,
-73,
13,
16,
108,
5,
-117,
-12,
-77,
-113,
124,
-98,
17,
-29,
39,
16,
97,
-50,
-66,
92,
71,
58,
-111,
-114,
-40
] |
Mr. Justice Scott
delivered the opinion of the Court.
It was laid down upon authority, by this Court, in the case of Williams Ex parte, (4 Ark. 540,) that “the rule was, at common law, that no prohibition lay to an inferior court in a cause arising out of its jurisdiction, until that matter had been pleaded in the original court and the plea refused, and that it must appear in the suggestion that the plea was verified and tendered in person during the sitting of the inferior court.” And the same doctrine was reiterated in the subsequent case of Blackburn Ex parte, 5 Ark. R. 22.
This rule is decisive of the application at bar, because it is in principle directly applicable to it. It does not appear in the suggestion that there has been any effort at relief in the court below. Although the parties may have in fact had no actual notice of the time and place of applying for the injunction, and thus had an opportunity to have guarded the judge against the error into which he has fallen; nevertheless they might have afterwards gone before the Circuit Court of Independence county, and, upon there showing that the whole proceedings were directly in the face of the statute, {Dig.,p. 592, sees. 5, 6, 7,) have doubtless had the injunction dissolved and the bill dismissed for want of jurisdiction, and thus have obtained the relief they seek here by these proceedings. And if that court had refused such relief, then the appropriate allegation of such refusal, in addition to the allegations contained in the suggestion before us, would have made a proper case for the interposition of this court in virtue of its powers of superintending control, which have in this case been invoked. There being no such allegation in the suggestion before us, the application for the rule to show cause why the writ of Prohibition should not issue, must be refused. | [
-80,
-30,
-4,
-68,
74,
-32,
40,
-70,
81,
-125,
-25,
-45,
-19,
91,
0,
113,
-73,
79,
117,
91,
-36,
-73,
22,
65,
98,
-45,
-37,
-43,
-67,
-21,
-25,
127,
76,
32,
-62,
-43,
70,
-55,
-127,
-44,
-58,
37,
25,
-59,
121,
-118,
48,
43,
82,
15,
21,
31,
-13,
46,
24,
-53,
-23,
40,
-53,
61,
-48,
-80,
-100,
-57,
79,
0,
49,
33,
-100,
-121,
88,
106,
-104,
49,
1,
-8,
115,
-74,
6,
84,
77,
-7,
9,
102,
102,
33,
117,
-21,
-116,
-104,
46,
121,
61,
-90,
-112,
89,
107,
-119,
-74,
-99,
117,
20,
-89,
-2,
-30,
-99,
87,
44,
32,
-50,
-106,
-73,
-113,
116,
-110,
66,
-61,
-26,
16,
101,
-58,
-10,
92,
87,
115,
-101,
-114,
-100
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court.
The evidence introduced by the appellees in the Court below, was fully sufficient to entitle them to a verdict as far as the issues on the two first pleas were concerned. The first was nul tiel record as to the judgment, and the second, the same as to the recognizance. To negative the truth of these pleas, the record introduced was full and conclusive. To the third, a demurrer was sustained, and the motion for a new trial not having brought the question of the correctness of that decision before the inferior court, it is consequently out of the case as it stands in this Court. (See Berry v. Singer, 5 Eng. Rep. 487.)
The investigation is therefore now narrowed down to the fourth plea and the proceedings thereon. This plea sets up, in substance, that after the affirmance of the judgment of the Supreme Court and before the institution of this suit, the plaintiffs below, for the purpose of obtaining satisfaction of said judgment, sued out a writ of fieri facias in the usual form, which was levied upon certain goods and chattels therein specified of the value of three thousand dollars, that said levy was also made before the commencement of the suit, that said goods and chattels had not been sold, and that no portion of them had been sold or otherwise disposed of under or by virtue of said writ of fieri facias, for the satisfaction of said debt, all of which was verified by reference to the writ and return thereon endorsed. To this plea, the plaintiffs below filed two replications: First, that they did not at the time and for the purpose in the plea alleged, sue out a writ of fieri facias; and secondly, that they did, at the time and for the purpose specified in the plea sue out a writ of fieri facias in due form of law, which writ was levied at the time and upon the property in the plea, and that said property had not then been sold; and then by way of avoiding the effect of the matter set up in the plea they proceed to set up new matter to the effect that the defendants, Kelly and Cox, after the making of the levy and before the sale, claimed the benefit of the two-third law, and demanded that said property should be appraised according to the provisions of that law, which was then and there done in due form, and further that the property was offered for sale, and that failing to bring two-thirds of the appraised value, the defendants entered into a bond with security, conditioned to deliver the property to the sheriff twelve months from the date thereof, to satisfy said debt, damages and costs; and further that the sheriff then and there delivered the said property to the defendants, Kelly and Cox, but that they had not nor had either of them delivered the property in accordance with the condition of the bond, and that it had not been delivered then or any part thereof to the said sheriff to be by him sold to satisfy said debt, damages and costs, and that the said defendants, Kelly and Cox, or any one else for them, had not paid off and discharged said debt, damages and costs, or any part thereof to said plaintiffs, nor had they paid the said sum of nine hundred dollars or any part thereof, and concluded with a verification. To this second replication, the defen- clants below interposed their demurrer, which was overruled by the Court and the defendants rested. This second replication therefore stands wholly undefended, and the facts therein alleged must be taken as confessed. The question, to be determined, therefore, is whether the plaintiffs below were entitled to.a verdict or not upon the assumption that every allegation in the second replication is admitted to be true. We think it perfectly manifest that they are not entitled to a judgment even upon that supposition. The' plea sets up matter which, if true, would only constitute a temporary bar, and the matter set up in the replication would not only operate as a temporary bar or mere suspension of other remedies, but it would also constitute a perpetual bar to this action inasmuch as it would amount to an utter extin-guishment of the original judgment. The note originally declared upon bears date of the 6th of October, 1840, and was made payable one day after date, consequently the act of the 23d of December, 1840, though repealed by that of 9th December, 1844, was in force as to this contract, under the saving clause by which it was provided that that act should be prospective in its operation, and should not affect debts or contracts then existing. The delivery bond set up and relied upon in the replication having been executed on the 13th of November, 1847, it necessarily falls within the provisions of the act of the 16th of December, 1846, the first section of which declares “that hereafter besides the conditions now provided by law, there shall be inserted in every delivery bond taken by any officer, a further condition that in case the property specified in said bond shall not be delivered as provided therein, the said bond shall have the force and effect of a judgment, on which an execution may be issued against all the obli-gors thereof.” The matter therefore set up in the replication by way of avoidance of the plea, is no answer to the plea, but on the contray goes to show that instead of a mere levy, which could only operate to suspend this action until such levy should be disposed of, it had been carried still further, and that it had been actually matured into a judgment, and consequently into a perpetual bar of this action. In respect to the legal effect of the matter set up in the plea, we will first advert to The People v. Hasson, 1 Denio 577 and 578. The court in that case said, “It is said that the levy upon sufficient personal property to pay the debt was a satis--faction of the judgment, and consequently that the renewal was void. We have repeatedly held such levy does not always satisfy the judgment. (Green v. Burk. 23 Wend. 490. Ostrander v. Walton, 3 Hill 329.) And if the broad ground has not yet been taken, it is time it should be asserted that a mere levy upon sufficient personal property without anything more, never amounts to a satisfaction of the judgment. So long as the property remains in legal custody, the other remedies of the creditor will be suspended. He cannot have a new execution against the person or property of the debtor, nor maintain an action on the judgment, nor use it for the purpose of becoming a redeeming creditor.” The doctrine of that case was referred to with approbation by this Court in the case of Whiting & Slark v. Beebe and others, decided at the last term. This Court in that case, said “The law gives to the creditor the right to select which of the several means of enforcing satisfaction he will avail himself, but when he has made such selection will never permit him to abandon it capriciously. He may prefer to take his debtor into custody on ca. sa., and whilst so held all other satisfaction is denied him. But if the debtor should escape, the creditor may resort to other process for his satisfaction. Taylor v. Thompson, 5 Peters 358. So the creditor may elect to taire goods by fi. fa. in satisfaction, and when he has done so the satisfaction is precisely the same in principle as if he had taken the body of the defendant in custody; whilst he holds them in execution the law gives him no other remedy. But should they by acts not the fault of the creditor, be lost to the debtor or appropriated according to law and found to be insufficient, then on the same principle that the escape of the debtor from prison entitles the creditor to further process, he may sue out an alias fi-fa. Yet like a voluntary dischai’ge of the debtor from custody, if the goods are appropriated or wasted by the acts of the creditor or his authorized agent, the satisfaction would become complete at least to the amount of the value of tbe goods so wasted (see People v. Hasson, 1 Denio 578.) So also where a levy is made and a delivery bond (which by statute has the force of a judgment when forfeited) is taken and forfeited, the levy is discharged and the bond so forfeited held to be a satisfaction of the former judgment. In support of this latter doctrine, numerous authorites are there cited. The replication therefore, admitting every allegation contained in it to be true, would not entitle the plaintiffs below to a verdict, as it not only shows an undisposed-of levy, but also an entire extinguishment of the original judgment, and the creation of a new one by force of the statute, and consequently that the plaintiffs below had voluntarily cut themselves off from all other remedies except upon the last judgment. It is clear therefore that the court below found contrary to law; for upon the supposition that the replication is true, which stands confessed, yet the law would not entitle the plaintiffs below to a judgment.
But it is contended by the counsel for the appellees, that it no where appears in the pleadings that the delivery bond was ever forfeited, and that consequently no new judgment has been taken which can operate to merge the one originally rendered by the Circuit Court. It is possible that the first special plea may not contain the necessary averments to amount to a forfeiture and as a consequence a statutory judgment. Whether this be true or not, we have no means of ascertaining, as its legal sufficiency is not made a question before us, as is already shown. It is conceded that no such defence is set up or relied upon in the second special plea, and all that could be claimed under it, if left to stand alone, would be a mere suspension of other remedies, until the levy therein specified should have been finally disposed of according to law. But the question that here arises is as to the effect of the second replication to this plea, which stands confessed as true in point of fact. The replication not only admits the issuance and levy of the execution as set up in the plea, but proceeds further to aver that upon such levy the defendants in the execu-cution claimed the benefit of the appraisement or two-third law, which was extended to them, and that after having executed their bond, with security, conditioned to return the property to the sheriff twelve months from the date thereof, they failed so to return and deliver it according to the condition of said bond. It may be true that the averments contained in this replication, if set up by the defendant by way of plea, would not be technically sufficient to show a forfeiture of the delivery bond, or a consequent merger of the old judgment into the new one thus created. But how would this rule of pleading operate when applied to the replication interposed by the plaintiff. He does not controvert the facts set up in the plea, but in order to avoid the effects of it, he undertakes to set up new matter, and in so doing, instead of nullifying the effect of the plea, he discloses matter which, if true, and taken in the strongest sense against himself, greatly strengthens the defence set up in the plea and changes it from a mere temporary to a perpetual bar. He has stated by way of replication all the essential facts to constitute a forfeiture, and he most unquestionably cannot complain if he is taken at his word, and if what he has there alleged shall be taken most strongly against himself. We would not hold that he is concluded by his replication, or that by his mode of meeting the plea he has forever barred himself of his remedy, but simply that his new matter is no answer to the plea, and that, if entertained at all, it must necessarily operate to the prejudice of the plaintiffs, or in other words, it being no response to the plea, even though strictly true in fact, it cannot avail the plaintiffs. But it is also contended that it is no where shown in the pleading, that upon the failure of the appellants to return the property levied upon to the sheriff, at the expiration of twelve months, to be sold by him, the sheriff made a return of such forfeiture or that the bond was in fact forfeited. It will be perceived by reference to the act of 1846, section first, that the binding effect of the delivery bond as a statutory judgment, is not left to depend upon the fact of the sheriff’s return to that effect, nor to the subsequent steps which are pointed out by the second section of that act. The first section declares, “That hereafter besides the conditions now provided by law, there shall be inserted in every delivery bond taken by any officer a further condition that in case the property specified in said bond shall not be delivered as provided therein, the said bond shall have the force and effect of a judgment, on which an execution may be issued against all the obligors thereof.” The instant the term elapses at which the property was to have been delivered, and it is not forthcoming, the bond, ipso facto, undergoes an entire change of character, and is at once elevated to the standing and dignity of a judgment, upon which an execution may be issued against all the obligors thereof. The force and effect of the bond therefore, as a judgment, does not in the least depend upon a compliance with the second section of the act. That section is merely directory to the sheriff pointing out the course to be pursued by him in order to take out an execution against all the obligors.
The cases of Walker v. Bradley, 2 Ark. 578, and Caudle, adm. of Poe v. Dare & Caruthers, cannot be considered as authority in this case, as the bonds in those cases did not mature into judgments upon the failure to deliver the property. It is manifest, therefore, that the plaintiffs have shown by their replication such a state of facts, as if true amount to a statutory judgment, and consequently an extinguishment of the first judgment, upon the principle that one party cannot have more than one judgment for the same subject matter, against another at the same time. But we are here met by the objection that, even admitting that the delivery bond was forfeited, and thereby became to all intents .and purposes a judgment, yet it cannot amount to an extinguishment of the first judgment because the bond is for a much less amount of money. The case of Ruddell v. McGuire, reported in 6 Eng., at pages 583-4, furnishes a full answer to this objection as well as to the one which we have just discussed. In that case, this court said, “When the bond has been forfeited, it has by operation of law, the force and effect of a judgment on which execution may issue, and the sheriff’s return to that effect is conclusive record evidence of the fact of forfeiture, and cannot be contradicted by parol evidence even at the return terml Thus, the non-delivery of the property transforms the bond by opera tion of law into a statutory judgment, on which statutory judgment execution may issue against all the obligors in the bond. The execution does not issue upon the bond but upon the statutory judgment which, by operation of law, springs into being upon the forfeiture, and then exists in contemplation of law. And the mode of executing this judgment so developed, is pointed out in the next succeeding section of the statute, which is by the issuance of an execution against all the obligors in the bond for the amount of the debt or damages, and all the interest and costs of suit remaining unpaid. Thus the amount of the bond is not the criterion for the amount of the execution to be issued, but that criterion is the amount of the debt or damages, and all the interest and costs of suit remaining unpaid. And should a case arise where the penalty of the bond might be less than the amount for which the execution should be issued under the express provisions of the statute, it will be time enough for us then to decide whether or not the obligors can have any relief for the excess, and if so, whether that relief can be had in a court of law, or would have to be sought at the hands of the Chancellor. Nor will the sheriff’s failure to make the return required of him within two days by the statute, invalidate the statutory judgment; because this is but a failure to produce the evidence of the forfeiture upon which the clerk is to act, and therefore does not make the forfeiture of the bond any the less so in fact. And upon his failure to make his return and endorsement within the two days, the court would compel him to do so by rule and attachment at the application of any party interested either for or against the validity of the bond.” We are satisfied, from a full and thorough investigation of this case, that the judgment of the court below is erroneous, and it is consequently reversed, annulled and set aside, and ordered to be remanded, and proceeded in according to law and not inconsistent with this opinion! | [
-16,
108,
-4,
-4,
26,
96,
42,
-102,
-63,
33,
55,
83,
45,
-61,
16,
117,
-26,
125,
84,
98,
67,
-77,
23,
-32,
-46,
-13,
-63,
-35,
-79,
76,
-26,
-10,
76,
48,
-54,
-43,
102,
-56,
-63,
22,
-50,
-115,
-104,
-51,
-39,
0,
-76,
121,
114,
11,
53,
78,
-29,
44,
25,
-49,
104,
44,
123,
57,
96,
-16,
-102,
-115,
93,
21,
17,
38,
-98,
-57,
-38,
14,
-128,
49,
0,
-24,
115,
-74,
2,
84,
9,
-85,
8,
102,
102,
1,
9,
106,
-4,
-120,
46,
124,
-99,
-90,
20,
88,
-63,
97,
-74,
-99,
124,
0,
-89,
126,
-13,
29,
29,
108,
13,
-117,
-106,
-93,
-97,
126,
-102,
26,
-21,
-93,
-112,
97,
-49,
-22,
92,
71,
49,
-101,
-113,
-97
] |
Mr. Justice Walkeh
delivered the op.
This suit is brought to procure a ¡m^Tof cros^^^nands under the following state of facts: &gJ^(^,|-M|tj|)^,inant) and one Stone are the joint owners of a/plaim al 1 ó wecr ana classed in the Probate Court against the estlffieloI^gb^^.-^IcMonald, deceased, upon a debt contracted by the^ajtegtate in hi^lfe time amounting to $1,310. Complainant also ownS^anoTher claim of $100 against said estate, which he acquired by purchase. At the sale of the intestate’s estate, complainant bought $1,388 worth of property, and executed his bond with security for the payment thereof to the administrators in their individual right, upon which judgment at law has been rendered against complainant and his securities. He charges that the estate is solvent, and that one half of the first claim, and the whole of the second, should be set-off against that much of the judgment at law, and for this prays a decree.
Under this state of case, the most important question is, can a debt contracted by the intestate be set-off against one contracted with the administrator in favor of the estate. We think it very evident that it cannot. Our statute provides for the allowance, classification and payment of debts against estates; so as to place all claims of equal grade upon the same footing. It provides for the sale of property, collection of debts, and a settlement in which the whole amount collected is charged against the administator, and pro rata distribution of the money collected is made amongst the several creditors of the estate having due regard to the classification and amount of the claim, so that each claimant of the same class receives an amount proportionate in amount to his claim.
In order to protect this equitable distribution of the assets of the intestate’s estate and give it effect, if is necessary to bring the whole of the assets before the court; for if one creditor has a right to withhold from the administrator the amount due by him to the éstate, on the ground of set-off, every other creditor under like circumstances might do the same, until the whole estate might be appropriated to the payment of a few debts to the exclusion of others of the same grade. For instance, suppose an estate to be worth $500, and A. B. and C. have each claims of equal grade for $500. At the sale of the property, A. buys it all: if this doctrine of set-off, be allowed, it follows that A. pleads his set-off, gets the whole estate, and leaves B. and C., whose claims are equally meritorious, unpaid.
But in this case it may be said the estate is solvent, and therefore, as there is enough to pay all of the debts, it is unjust and oppressive to withdraw means from the debtor which will necessarily be soon refunded to him. Aside from others, there is this objection to the ground assumed: an estate may be solvent today, that is there may be evidence of sufficient estate out of which to make payment, and yet by the presentation of other claims or a waste or destruction of the estate, it may become otherwise. It is moreover an effoit to withdraw from the Probate Court the determination of the question of solvency or insolvency, whose legitimate province it is to determine that fact. But admit that the chancellor had the power to determine this point, (and. we are free to admit that cases may arise where it might be his province to do so,) yet in this case there is a mere general statement of the fact, without attempting to set forth the facts and circumstances to sustain it. Whether or not the Probate Court has ever brought the administrator to an account, the time elapsed for the presentation of claims of the same class, or whether the debts, with the exception of this, are outstanding, does not appear.
Therefore, whether the estate be considered solvent or iiisol-vent, (unless under other additional equitable circumstances, the force' of which we cannot anticipate,) we must deny to the creditor the right of set-off. There is no mutual subsisting debt between the parties: indeed all of the parties are not before this court. We are not left to the statute and the force of reason alone for the correctness of our opinion; but find several adjudicated cases directly in point, to some of which it may suffice to refer. Dale et al., executors of Fulton v. Cooke, 4 J. Ch. Rep. 11, was a suit in chancery to set-oíf a debt due by the testator in his life-time against a debt contracted since his death. The court held that it was an established rule in the courts of law, that if Executors sue for a debt created to them since the testator’s death, the defendant cannot set-ofi‘ a debt due to himfrom the testator. In the case of Fry v. Evans, adm’r, &c., 8 Wend. 530, Nelson, Justice, said, “The plaintilf in both courts declared for a cause of action, which arose after the death of the intestate, and in such cases it is well settled that the defendant cannot set-off a demand against the intestate.” This case of Fry v. Evans, like that which we have under consideration, was a suit on contracts with the Executor for money had, and property bought since the death of the testator. The contract in this case places the question in even a stronger point of view than these. Here the note was not only taken since the death of the intestate, but made payable to the plaintiffs in their individual right. So that there was clearly no mutual subsisting debts between the parties. For these obvious reasons the demurrer to the bill was well taken.
Let the judgment of the Sevier Circuit Court be in all things affirmed. | [
-13,
124,
-40,
108,
26,
96,
43,
-118,
81,
65,
39,
-13,
109,
78,
16,
43,
-9,
-23,
112,
106,
85,
-29,
70,
1,
-42,
-69,
-79,
-35,
-71,
-19,
-28,
-33,
76,
32,
-86,
-43,
99,
-62,
-25,
84,
14,
0,
-101,
101,
-7,
64,
48,
-23,
83,
9,
117,
-113,
-13,
44,
25,
-19,
73,
40,
123,
41,
-16,
-80,
-81,
-115,
123,
15,
-112,
37,
-36,
100,
-56,
14,
-124,
17,
1,
-24,
115,
-74,
6,
116,
43,
57,
41,
98,
-30,
-128,
97,
-11,
-40,
-104,
46,
-20,
-113,
39,
19,
88,
-117,
45,
-98,
-99,
124,
64,
-89,
-2,
-10,
21,
94,
108,
7,
-114,
-42,
-111,
-3,
94,
-104,
-117,
-17,
-125,
114,
81,
-52,
-94,
92,
-25,
63,
-101,
-121,
-5
] |
Mr. Justice Walker
delivered the opinion of the Court.
There is certainly no good, ground for the demurrer in this case. The bond given on oyer was literally and truly copied into the petition. The fact that the petitioner in his petition called it a note, amounted to nothing when taken in connexion with the instrument itself set forth literally, by which it was shown to be a bond. The bond given on oyer brought no new or variant fact upon the record.
The omission of the dollar-mark and the figures representing the amount of the bond, superadded at the margin above the writing, was mere surplusage, constituting no part of the contract, and, whether there or not, in no respect varied, diminished, or enlarged it.
There is not a doubt of the correctness of the decision of the Circuit Court, nor can we conceive of any probable or plausible ground for the appeal on the score of wrong or grievance, unless it be such to make a clear and specific charge of indebtedness in the language of the contract, and a positive averment that it has been broken, and in the absence of any valid defence as to either to render judgment thereon.
Let the judgment be affirmed with costs; and, under the provisions of the 40/7/- sec., c-Ji. 127, p. 828, Dig., let six per cent, in damages be awarded on the amount of the judgment rendered in the Circuit Court. | [
50,
120,
88,
-1,
-118,
32,
42,
-102,
-47,
-127,
55,
83,
41,
-61,
20,
115,
-16,
127,
113,
106,
87,
-77,
55,
65,
-14,
-13,
-55,
-43,
-79,
127,
-26,
85,
76,
48,
-118,
-43,
-26,
-54,
-43,
84,
-50,
42,
-118,
69,
-7,
104,
48,
29,
84,
9,
117,
-98,
-29,
46,
24,
79,
45,
41,
105,
33,
-48,
-72,
-104,
-115,
95,
29,
-111,
101,
-100,
71,
-38,
44,
-128,
49,
1,
-24,
115,
-90,
-122,
84,
45,
-71,
8,
-30,
98,
-128,
-11,
125,
-100,
-24,
54,
-38,
29,
-89,
-110,
88,
11,
97,
-107,
-99,
124,
4,
39,
118,
-10,
21,
29,
109,
3,
-113,
-74,
-109,
-83,
124,
-104,
-119,
-18,
-125,
17,
113,
-51,
-30,
92,
101,
27,
-101,
-113,
-103
] |
Mr. Justice Scott
delivered the opinion of the Court.
The writ of certiorari in this case, having been improvidently issued must be dismissed. (Carnall v. Crawford County, 6 Eng. 605. Marr Ex parte, Ante, and Allis Ex parte, Ante) | [
-76,
96,
-12,
-100,
42,
-32,
48,
-98,
75,
-79,
55,
83,
41,
-62,
20,
107,
-9,
127,
85,
104,
94,
-78,
55,
99,
114,
-13,
-39,
-41,
53,
122,
-26,
125,
76,
48,
-94,
-43,
102,
-56,
-63,
82,
-58,
-90,
-87,
-51,
-47,
-88,
52,
33,
114,
75,
85,
14,
-29,
46,
24,
-61,
-119,
44,
-37,
57,
64,
-72,
-114,
-123,
-35,
18,
-77,
38,
-100,
-61,
40,
46,
24,
49,
0,
-4,
123,
-74,
6,
-44,
43,
-5,
12,
-4,
106,
1,
-99,
-17,
-40,
-40,
11,
126,
-97,
-90,
22,
88,
-29,
73,
-74,
-99,
101,
16,
-121,
-2,
-29,
-123,
81,
44,
11,
-50,
-106,
-77,
-113,
124,
-110,
74,
-57,
-93,
16,
20,
-123,
-10,
92,
71,
23,
-69,
-34,
-74
] |
Mi’. Chief Justice Johnsou
delivered the opinion of the Court.
The only question presented by the record in this case, is whether the part payment and new parol contract for the payment of the residue of the covenant in suit, are of such a character as to ope rate a release or extinguishment of such covenant. The substance of the matter set up as a bar to this action, is that before the principal debt secured by the covenant became due,Levy paid a part in jewelry, and entered into a parol contract to pay the residue in like property, within twelve months.then next following, and the pleas then aver that he was ready and willing and offered to deliver the same whenever called for within the twelve months, and that he is still ready and willing to do so, and then concludes by averring that said part payment and said new contract for the residue, were received and accepted by Very, in full satisfaction and discharge of the said covenant, and the money due, or to become due, in respect thereof, and of all damages accrued, or to accrue in respect thereof. The Supreme Court of New York, (see 13 Wend, p. 75) after collecting numerous cases bearing upon this question, said: “The extent, to which these cases have gone, is this, that after a breach of a sealed contract, the parties to it may discharge any liability upon it by entering into a new agreement in relation to the same subject matter, which new agreement is a valid contract founded upon sufficient consideration. In Fleming v. (Filbert, it is assumed that the plaintiff prevented the defendant from performing his contract; and therefore should not take advantage of his failure. Here it is not pretended that any thing was done or said by the plaintiff to prevent the defendant from a literal compliance with his contract. To bring this case within the principle of Lattimore v. Horsen, there should have been not only an avowed refusal to perform, but a subsequent executed substituted agreement; and so, also, as to the case of Dearborn v. Cross & Trasher. Had the plaintiff, in this case, not only waived the sealed contract by parol, but had accepted and taken possession of the new store in lictk,°f that which he was to have had by his sealed contract, the cases would have been more nearly parallel. It will be seen, then, that there has been no innovation upon established principles, and that the law remains as it has always existed, that a scaled executory contract cannot be released or rescinded by a parol executory contract; but that after breach of a sealed contract, a light of action may be waived or released by a new parol contract in relation to the same subject matter or by any valid parol executed contract.” The same doctrine was recognized by this Court in the case of Miller v. Hemphill, (4 Eng. Rep. 496.) In that case, this Court said: “For the law is understood to be well settled that a covenant under seal, not broken, cannot be discharged by a parol agreement. (1 Taunton, 430. 10 Wend. 184. 11 ib. 30. Delacroi v. Bulky, 13 Wend. 73.) The extent that the authorities seem to go, when clearly examined, is that after breach of a sealed contract, the parties to it may discharge any liability upon it by entering into a new agreement in relation to the same subject matter, which new agreement is a valid contract founded upon sufficient consideration, and “ that the law remains as it always existed, that a sealed executory contract cannot be released or rescinded by a parol executory contract. But after breach of a sealed contract, a right of action may be waived or released by a new parol contract in relation to the same subject matter, or by any valid parol executed contract. These authorities are conclusive upon the question involved in this case, upon the supposition that the new contract set up and relied upon as a bar, is so relied upon simply as a subsequent substituted contract, and not by way of accord and satisfaction. But let us now view it as a plea of accord and satisfaction, and then see whether it can avail the appellant. The Supreme Court of New York, in the case of Booth v. Smith, (3 Wend. p. 68,) by Sutherland Judge, said: “The plea is unquestionably good. It would have been good by way of accord and satisfaction, if no part of the original debt had been paid prior to the acceptance by the plaintiff of the last note. This was expressly decided in Boyd & Suydam v. Hitchcock, 20 John. R. 76.) It was there held that if a debtor gives his note endorsed by a third person as further security for a part of the debt, which is accepted by the creditor in full satisfaction, it is a valid discharge of the whole of the original debt, and it may be pleaded in bar as an accord and satisfaction. (6 Cranch 253.) The additional security required by the creditor for a part of his debt, is a good consideration for the relinquishment of the residue. (Le Page v. McCrea, 1 Wend. 172. Kearslake v. Morgan, 5 T. R. 513.) This doctrine is admitted in Hughes v. Wheeler, (8 Cow. 79,) and the distinction is there adverted to between the note of a third person and that of the debtor himself given for the original debt. The latter, it is there hold, cannot be pleaded in bar of the original cause of action, but the plaintiff will not bo permitted to recover on the original consideration unless he produces the note upon the trial, or satisfactorily accounts for it.” It is obvious, from that case, and the authorities there cited, that the new contract, although pleaded by way of accord and satisfaction, cannot avail the appellant as a defence to this action, since it is nothing more than another undertaking by the debtor himself and given for a part of the original debt. There can be no doubt of the correctness of the doctrine, as laid down in that case, when applied to the facts there disclosed, yet we consider it exceedingly doubtful whether the rule is not laid down too broadly when it is announced as a general rule that the debtor cannot himself extinguish a contract previously made by subsequently entering into another; and that, too, to secure the same debt. The crite-rian by which the power to effect this object is determined, seems to be the consideration which is supposed to influence the creditor in accepting the new contract, and not whether the new contract is made by the debtor himself, or by a stranger. This is the cri-terian as recognized in that case, and if it be the true one, we can see no good reason why there should not be exceptions to the rule there laid down. It is there said that “He (the debtor) has entered into a new contract with his creditor, who, upon an adequate consideration, (the obtaining the note of a third person as an additional security for his debt) has agreed to look to the defendant as endorser only, and to relinquish all claim upon him in any other character. He cannot be charged upon the original consideration.” This Court, in the case of Pope v. Tunstall & Waring, (2 Ark 223)' said, “The defendant in error contends that in debt upon bond, it is no plea that the plaintiff accepted a new bond in satisfaction of the old one, for that is no satisfaction either actual or present, and refers to various authorities in sup port of his position. If he has reference only to cases where there is a simple exchange of bonds or obligations, his argument cannot, in truth, be controverted for the satisfaction, must in. legal contemplation, be advantageous to the party agreeing to accept, for it would be inoperative if it could not possibly afford him some equivalent or consideration. Bacon Abr., Accord A. Com. Dig., Accord B. 1. There must be some change or rather difference between the former and the latter contract to show that the parties intended to alter it by substituting something more advantageous to the creditor than he before possessed, as by shortening the time, giving other security, or the like. (Hobart 68.) We consider it clear, from all the authorities, that the true distinction is between such subsequent contracts as offer no inducement to the creditor to accept them, and those which are based upon some equivalent or consideration. The shortening of the time of payment is one of the examples given by Hobart as constituting such a consideration as to support the latter contract and to supersede the former. If the only question be consideration or no consideration, wo think that this case will fall clearly within the rule of a valid contract and of course a good defence by way of accord and satisfaction, if it be not obnoxious to another rule of law which will operate -to exclude it. The original covenant sued upon was for $4,000, executed on the 3d of March, A. D. 1841, and made payable six years after date. The satisfaction set up and relied upon, consisted of a payment in jewelry of $1,898 25, on the 3d of March, 1843, and a promise in writing, executed on the same day, to pay the entire residue in like property during the year next ensuing. Here was a clear equivalent and a high consideration moving upon the creditor to accept the subsequent arrangement and to release the former. He not only hastened the payment of the residue, but he actually received a large amount of the debt at the date of the latter contract. There can bo no doubt but that the advance in jewelry was good pro tanto, and if the new contract for the residue is admissible, it is equally clear that the satisfaction is full and complete.
But here we are met by another rule of law that is stem and inflexible, which is, that to a bond, accord and satisfaction can be pleaded by deed only, for an obligation under seal cannot be discharged but by an instrument of as high a nature as the obligation itself. (See 2 Wüs. SO, and 2 Ark. 223.) The contract in suit is a bond or writing under seal, and the one attempted to be set up against it lies simply in parol, or at least mast be so considered, since it is not averred to be under seal. For this reason, therefore, it is clear that tire plea cannot prevail. The Circuit Court consequently decided correctly in sustaining the demurrer to the several pleas setting up the defence founded upon the new contract, and, as such, its judgment must, in all things, be affirmed. | [
-80,
120,
-48,
-35,
10,
98,
42,
-104,
116,
-96,
39,
83,
-117,
66,
20,
121,
-9,
125,
96,
106,
87,
-78,
7,
8,
-110,
-14,
-47,
-59,
-71,
109,
-25,
95,
76,
32,
-54,
-43,
102,
-118,
-39,
22,
-114,
25,
88,
108,
-39,
64,
-76,
27,
80,
79,
69,
-106,
-61,
38,
25,
-49,
-19,
44,
91,
61,
-48,
112,
-69,
-115,
127,
20,
-109,
37,
-100,
-57,
-6,
14,
-120,
49,
1,
-24,
115,
-76,
-122,
84,
33,
-69,
9,
98,
98,
0,
65,
-27,
-36,
-44,
47,
-33,
-115,
-89,
-111,
88,
-117,
64,
-66,
-97,
108,
16,
-89,
126,
-10,
-107,
95,
108,
11,
-113,
-42,
-96,
79,
124,
-100,
6,
-18,
-94,
53,
64,
-50,
-72,
92,
99,
26,
-109,
-97,
-37
] |
Mr. Justice Grier
delivered the opinion of the Court.
Roberts, the defendant in error, was plaintiff below, in an action of ejectment for 160 acres of land. Pillow, the defendant below, pleaded the general issue, and two special pleas: The first, setting forth a sale of the land in dispute, for taxes more than five years before suit brought: The second, pleading the statute of limitation of ten years. These pleas were overruled on special demurrer, as informal and insufficient; and the judgment of the court on this subject is here alleged as error. But as the same matters of defence were afterwards offered to be laid before the jury on the trial of the genéral issue and overruled, by the court, it will be unnecessary to further notice the pleas; as the defence set up by them, if valid and legal, should have been received and submitted to the jury on the trial. In the action of ejectment, (with the exception, perhaps, of a plea to the jurisdiction,) any and every defence to the plaintiff’s recovery may be given in evidence under the general issue. And as the decision of the court on the bills of exception will reach every question appertaining to the merits of the case, it will be unnecessary to decide whether those merits were sufficiently set forth in the special pleas, to which the defendant was not bound to resort for the purpose of having the benefit of his defence.
On the trial, the plaintiff below gave in evidence a patent for the land in dispute, from the United States to Zimn V. Henry, dated 7th May, 1835; and then offered a deed from said Henry to himself, dated 10th November, 1849, This deed purported to be acknowledged before the Clerk of the Circuit Court of Wal-worth county, in the State of Wisconsin, and was objected to, 1st. Because there was no proof of the identity of the grantor with the patentee other than the certificate contained in the acknowledgment. 2dly. Because the certificate of acknowledgment was not on the same piece of paper that contained the deed, but on a paper attached to it by wafers. And 3dly. Because the seal of the Circuit Court authenticating the acknow ledgment was an impression stamped on paper, and not “on wax, wafer, or any other adhesive or tenacious substance.”
The first two of these grounds of objection have not been urged in this court, and very properly abandoned as untenable. The third has been insisted on, and deserves some more attention. Formerly, wax was the most convenient, and the only material used to receive and retain the impression of a seal. Hence it was said: “ Sigillum est cera impressa j quia cera, sine impressione, non est sigillum.” But this is not an allegation, that an impression without wax is not a seal. And for this reason, courts have held, that an impression made on wafers or other adhesive substance capable of receiving an impression, will come within the definition of “cera impressa.” If, then, wax be construed to be merely a general term including within it any substance capable of receiving and retaining the impression of a seal, we cannot perceive why paper, if it have that capacity, should not as Well be included in the category. The simple and powerful machine, now .used to impress public seals, does not require any soft or adhesive substance to receive or retain their impression. The impression made by such a power on paper is as well defined, as 'durable, and less likely to be destroyed or defaced by vermin, accident, or intention, than that made on wax. It is the seal, which authenticates, and not the substance on which it is impressed; and where the court can recognize its identity, they should not be called upon to analyze the material which exhibits it. In Arkansas, the presence of wax is not necessary to give validity tó a seal; and the fact that the public officer in Wisconsin had' not thought proper to use it, was sufficient to raise the presumption that such was the law or custom in Wisconsin, till the contrary was proved. It. is time that such objections to the'validity of seals should cease.- The court did not err, therefore, in overruling the objections to the deed' offered •by the plaintiff.
After the plaintiff 'had closed his testimony, the defendant offered in evidence two certain deeds from Miller Irwin, sheriff of Phillips county, and assessor and collector of taxes therein, to Richard Davidson, dated on the 22d of October, 1841; one for the north-half, and the other for the south-half of the quarter section of land now in dispute. On objection, the court refused to permit these deeds to be received, and sealed a bill of exceptions. The defendant then offered the same deeds to Davidson, and in connection therewith, a deed from Davidson to Armstrong, and also a deed from Armstrong to the defendant; and to accompany them with proof of possession by himself and those under whom he claims, for more than ten- years, as to the south-half of said land, and more than five years as to the whole of it. The plaintiff objected to this evidence. “ And it was by the court-ruled, that the possession of such deeds, accompanied by possession of the land, was not sufficient to prove such possession of the land to be adverse to the plaintiff and his grantor without further proof that the defendant or his grantors claimed adversely; so the Court refused to permit any deeds to be read in evidence to the jury.”
These bills of exception may be considered together. They present two questions, 1st. Whether by the law of Arkansas, the deeds offered in evidence (and which were regularly acknowledged and recorded according to law) should have been permitted to go to the jury as evidence of a regular sale of the land mentioned therein for taxes. And 2dly. Whether, without regard to their validity as elements of a good legal title per se, they should not have been received for the purpose of showing-color of title, in connection with possession by the persons claiming under them, for a length of time sufficient by law to bar the entry of plaintiff,
I. In considering these questions, it will not be necessary to set forth at length all the provisions of the revenue laws of Arkansas for compelling the payment of taxes assessed on land. A brief recapitulation of their most prominent provisions will suffice. The laws make it the duty of the collector, on or before the 15th of September of each year, to make a list of lands assessed to persons non-resident, and the tax due thereon, with a penalty or addition of 25 per cent., and to file this list with the .county clerk. He is directed, also, to set up a copy of the same at the court-house, and to publish it in a newspaper at least four weeks before 'the first Monday of November, giving notice that unless the taxes shall be paid on or before that day, the land will be sold. On that day, the collector is authorized to offer for sale, at public auction, such tracts or lots of land or so much of them as will be sufficient to raise the taxes and penalty assessed and unpaid, and to continue the sales from day to day. The purchaser to pay down forthwith the amount of taxes, &c., and receive a certificate describing the land purchased, directing, if necessary, the public surveyor to lay off the part purchased by metes and bounds after one year allowed for redemption. This certificate, which is made assignable, may be presented to the collector, who is authorized to execute and deliver a deed to the holder of it for the land described therein. Then follows the 96th section of the act, which is as follows:
“The deed so made by the collector shall be acknowledged and recorded as other conveyances of lands, and shall vest in the grantee, his heirs, or assigns, a good and valid title both in law and equity, and shell be received in evidence in all courts of this State as a good and valid title in such grantee, his heirs, or assigns, and shall be evidence of the regularity and legality of the sale of such lands.”
The deeds offered in evidence were regularly acknowledged and recorded. It is not denied that Irwin, the grantor therein, was sheriff, assessor, and collector, of taxes in the county of Phillips, as he is described in the deed. The deed for the south-half recites an assesment for the same for taxes in 1839, according to law; that the taxes remained unpaid; that the land was regularly advertised and offered for sale on the 5th of November, 1839, by auction; struck down to William Yales, who paid the purchase-money and received a certificate; that the time for redemption having long expired, and Richard Davidson become the assignee or holder of the certificate; therefore the said col lector granted, &c., the said south-half to said Davidson, his heirs, &c.
The deed for the north-half has similar recitals, showing a tax assessed in 1840, a sale in 1841, to John Powell, and a certificate transferred by him to Davidson.
These deeds come within the description of the 96th section! They are made by a collector of the revenue; they are acknowledged and recorded according to law; they purport to be for land assessed for taxes, and regularly sold according to law; and the law enacts that deeds, so made, shall be evidence not only of the grant by the collector, but of the regularity and legality of the sale of the land described therein.
It is easy, by very ingenuous and astute construction, to evade' the force of almost any statute, where a court is so disposed.We might say that the expression, u deeds so made by the collector,” mean deeds made strictly acc ording to the requirements of all the preceding sections of the re renus law, and decide that only deeds first proved to be complet ely regular and legal can be received in evidence; and thus, by qualifying the whole section by such an enlarged construction of these two words, and disregarding all the others, evade the obvious meaning and intention of the law. For if you must first prove the sale to be regular and legal before the deed can be received, what becomes of the provision that the deed itself shall be evidence of these facts ? Such a construction annuls this provision of the law, and renders it superfluous and useless. The evil plainly intended to be remedied by this section of the act, was the extreme difficulty and almost impossibility of proving that all the very numerous directions of the revenue act, were fully complied with, antecedent to the sale and conveyance by the collector. Experience had shown, that where such conditions were enforced, a purchaser at tax-sales, who had paid his money to the government, and expended his labor on the faith of such titles in improving the land, usually became the victim of his own credulity, and was evicted by the recusant owner or some shrewd speculator. The power of the legislature to make a deed of a public officer prima facie evidence of the regularity of the previous proceedings, cannot be doubted. And the owner who neglects or refuses to pay his taxes or redeem his land, has no right to complain of its injustice. If he has paid his taxes, or redeemed his land, he is, no doubt, at liberty to prove it, and thus annul the sale. If he has not, he has no right to complain if he suffers the legal consequences of his own neglect.
The plain and obvious intention of the legislature is clearly expressed in this 96th section, that the deed made by a collector of taxes, as authorized in the preceding section, when acknowledged and recorded, should be received in evidence as a good and valid title, and that the recitals of the deed showing that it was made in pursuance of a sale for taxes, should be evidence of the regularity and legality of the sale under and by virtue of that act. The deed being thus made, per se, prima facie evidence of a legal sale and a good title, the court were bound to receive it as such. There is nothing on’lhe face of these deeds showing them to be irregular or void. They are each for a different portion of the tract or quarter section of land, having known boundaries, according to the plan, of the public surveys; one being for the south-half and the other for the north-half of the quarter section, it required no surveyor to ascertain their respective figure, boundaries, or location.
II. But assuming these deeds to be irregular and worthless, the court erred in refusing to receive them in evidence, in connection with proof of possession in order to establish a defence under the statutes-of limitation.
The first section of the act of limitations of Arkansas bars the entry of the owner after ten years. And the thirty-fifth section enacts that “ all actions against the purchaser, his heirs, or assigns, for the recovery of lands sold by any collector of the judicial sales, shall be brought within five years after the date of such sales, and not after.”
Statutes of limitation are founded on sound policy. They are statutes of repose, and should not -be evaded by a forced construction. The possession which- is protected by them must be adverse and hostile to that of the true owner. It is not necessary that he who claims their protection should have a good title, or any title but possession. A wrongful possession, obtained by a forcible ouster of the lawful owner, will amount to a disseisin, and the statute will protect the disseizo.f. One who enters upon a vacant possession, claiming for himself upon any pretence or color of title, is equally protected with the forcible disseizor. Statutes of limitation would be of little use if they protected those only who could otherwise show an indefeasible title to the land. Hence, color of title, even under a void and worthless deed, has always been received as evidence that the person in possession claims for himself, and of course, adversely to all the world. A person in possession of land, clearing, improving, and building on it, and receiving the profits to his own use, under a claim of title, is not bound to show a forcible ouster of the true owner in order to evade the presumption that his possession is not hostile or adverse to him. Color of title is received in evidence for the purpose of showing the possession to be adverse; and it is difficult to apprehend, why evidence offered and competent to prove that fact, should be rejected till the fact is otherwise proven.
With regard to the five years limitation, we need not inquire whether the legislature intended that the action should be barred, where the purchaser at the tax-sale was not in possession. In this case, possession of more than five years by the purchaser from the collector and those claiming under him, was proved. In order to entitle the defendant to set up the bar of this statute, after five years adverse possession, he had only to show that he and those under whom he claimed, held under a deed from a collector of the revenue, qf lands sold for. the non-payment of taxes. He was not bound to show that all the requisitions of the law had been complied with in order to make the deed a valid and indefeasible conveyance of the title. If the Court should require such proof, before a defendant should have the benefit of this law, it would require him to show that he had no need of the protection of the Statute, before he could be entitled- to it. Such a construction would annul the act altogether, which was evidently intended to save the defendant from the difficulty, after such a length of time, of showing the validity of his tax-title. The case of Moore v. Brown, 11 How. 424, had reference to a deed void on its face, and the consequence of this fact, under the peculiar statutes of Illinois; it furnishes no authority for the decision of the court below in the present case.
The judgment of the Circuit Court is therefore reversed, and a venire de novo ordered. | [
-14,
110,
-68,
-67,
-86,
96,
42,
-86,
82,
-95,
-89,
83,
-19,
-38,
20,
113,
114,
15,
113,
106,
-41,
-94,
55,
99,
-42,
-13,
-45,
-35,
53,
77,
-10,
-42,
76,
32,
-62,
85,
70,
104,
69,
84,
-50,
5,
9,
76,
-8,
8,
52,
57,
80,
11,
117,
-114,
-29,
34,
29,
-49,
41,
44,
-53,
61,
-64,
-72,
-102,
13,
-17,
22,
-80,
39,
-99,
71,
74,
106,
-104,
49,
0,
-24,
123,
-90,
-121,
116,
109,
-71,
40,
-26,
111,
1,
73,
-17,
-72,
-104,
6,
-1,
29,
-90,
86,
64,
-21,
73,
-106,
-99,
61,
16,
-121,
118,
-17,
-100,
25,
108,
7,
-113,
-106,
-77,
-113,
124,
-120,
67,
-29,
35,
48,
81,
-49,
-26,
92,
71,
57,
-101,
-113,
-70
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court.
We entertain no doubt of the correctness of the decree rendered by the Circuit Court in this case. The statute, under which the proceeding complained of was had, makes the judgment against the principal, if not discharged before the expiration of the stay, operate as a joint judgment against the principal and stayer, and, as such, susceptible of being enforced against them both jointly, while living, or either upon the suggestion' of the death of the other. The case of Cabeness v. Garrett, 1 Yerg. 491, 493, is directly in point and entirely conclusive of this question. The statute of Tennessee, upon which that case was decided, provides, that “If the judgment shall not be discharged at the time the stay of execution has expired, then any justice of the peace of the county, having such judgment in his possession, may issue execution against the principal and his securities, without any intermediate process.” The court, in the case already referred to, when passing upon the true construction of the statute, said “ An execution issued against the principal, whose death had been suggested, and the stayer pursues the act of 1801, ch. 7, sec. 1, above cited. For, by it, the judgment against the principal, if not discharged before the expiration of the stay, operates as a joint judgment against the principal and stayer, upon which execution is to issue accordingly, both by this act and the common law.” Under this construction of the act in question, it is perfectly clear that, after the expiration of the stay, ' upon the suggestion of the death of the principal, an execution could legally issue against the bail. But it is contended that the respondent has lost his remedy against the bail by delay. If the stayer, upon the expiration of the stay, became a joint debtor with his principal and liable as such, he is equally subject to an execution within the period prescribed by the law. It is not alleged in the bill, as an objection to the issuance of the execution, that more than a year and a day have elapsed, and that no scire facias has been sued out against the bail to show cause against its issuance; and, in the absence of such allegation, the legal presumption is that no such ground of objection exists in fact. We are satisfied, therefore, from every view of the case, as presented by the record, that the bill contains no equity upon its face, and that, therefore, the Circuit Court decided correctly in sustaining the demurrer to it. The decree of the Circuit Court is therefore in all things .affirmed. | [
-48,
126,
-35,
-68,
58,
96,
42,
-102,
-13,
-30,
38,
-45,
-19,
-98,
0,
105,
-9,
111,
113,
121,
65,
-73,
-73,
101,
-45,
-13,
-47,
-35,
49,
-52,
-12,
95,
12,
112,
-118,
-11,
102,
106,
-63,
82,
-114,
-91,
-71,
-27,
-37,
-112,
52,
123,
88,
14,
5,
-98,
-29,
47,
25,
-57,
105,
40,
-54,
47,
-44,
-80,
-118,
-123,
111,
22,
-109,
7,
-100,
-123,
88,
46,
-120,
53,
9,
-4,
83,
-106,
-62,
-44,
105,
59,
41,
98,
98,
1,
69,
-19,
-72,
-104,
14,
-34,
-115,
-90,
16,
89,
43,
0,
-74,
-99,
124,
36,
-89,
126,
-26,
-108,
-35,
108,
29,
-50,
-106,
-77,
-99,
109,
-102,
13,
-44,
99,
113,
113,
-50,
-86,
92,
71,
27,
-37,
-113,
-36
] |
Mr. Justice Walker
delivered the opinion of the Court.
Whether the court below erred or not in overruling the plaintiff's motion to strike from the files the four rejoinders of the defendant to the plaintiff’s replication, must depend upon the right which the defendant had to>file them under the statute, or in point of order, or time; or because by no form of pleading could the subject matter be made a legal response to the replication.
In regard to the first class of objections, it may be remarked that whilst our statute, like that of Ann, gives to the defendant a right to file as many pleas as he may deem necessary for his de-fence, these statutes have uniformly been held to extend to pleas only, and left the parties to be governed by the common law rule in regard to other pleading, under which but one plea, replication or rejoinder, was allowable to a count, plea or replication. 2 Strange 908. Gray's ad. v. White, 5 Ala. Rep. 492. Our statute has, however, conferred upon the courts, when in their opinion it shall become necessary to attain the ends of justice, upon application for that purpose, to allow more than one replication or rejoinder. Sec. 77, Dig., ch. 126,
If such application was made and leave granted in this case, the record should show it, and as no such application or order appears of record, it is only by inference, from the fact that the court refused to strike them out, that we may infer they were filed with its consent. The state of the pleadings in this, as well as in several other cases before us, induces the belief that the circuit courts overlooked the 77th section of the statute, and, acting under the provisions of the 69th, considered the right to file several replications or rejoinders, as co-extensive with pleas. Such is clearly not the case. The defendant’s right to file several pleas under the 69th section, is unconditional, and, if within the time prescribed by the statute for pleading, may be done without leave of the court; whilst the right to file more than one replication or rejoinder depends upon leave granted for that purpose, upon motion and consideration, as to whether such additional pleading is necessary to the attainment of justice.
In order to enable the court to exercise its discretion, the facts should be presented by motion or petition, and perhaps the more regular practice would be to present with it the pleading intended to be filed, that the court might, upon examination of the issues formed and the nature of the action, as well as the additional pleading presented,' determine whether such leave should or not be granted. And such application and the decision of the court upon it, as in all other matters determined by the court, should appear of record. A glance at the rejoinder on file in the case under consideration, will suffice to show that the circuit court either overlooked or disregarded the 77th sec., or it never would have suffered these rejoinders to have been filed. Taken all together, they do, at most, but amount to nultiel record, and traverse the material facts of the replication.
We are aware that something more than this seems to have been contemplated, by the defendants. He no doubt intended to put in issue the identity of the defendant and of the cause of action in the two suits. This he wholly failed to do. The records (the only competent evidence under the issue), in which like names and causes of action were disclosed, was amply sufficient to sustain the issue on the part of the plaintiff. He who would question these matters, must do so by affirmative pleading; when the existence of the record is denied, or when any material fact therein is denied, the record is the only evidence permissible. May v. Jamison, 6 Eng. Rep. 368. The case of Barkman v. Hopkins & Co., 6 Eng. Rep. 157, may to some extent show the proper mode of interposing a defence of this kind. In that case, the record showed a judgment prima facie valid and binding upon the defendant: nul tiel record would not have availed him as a defence, yet a special plea was allowed, settingup new matter consistent with facts set forth in the record, and yet a valid defence!
There are two other decisions of this court which maybe thought to bear upon this question. The first is the State v. Murphy, indicted for an escape. That was a criminal proceeding where the general issue put the State to strict proof of the material facts in the indictment, and even in that case it is not altogether clear that the rule was not extended too far. The other was the case of White v. Yell, decided at the July Term, 1851. A plea in abatement averring a former action pending between the same parties on the same cause of action, was interposed without affidavit. The question was whether the averments should be vei’-ified by affidavit. It was held that they should, but expressly upon the ground that in abatement greater certainty of pleading was required, and that although the rule might be different in ordinary pleading, yet the facts, although prima facie of record, should be verified by affidavit.
We are not however called upon to decide, nor do we intend to be understood as deciding, what the practice in such cases should be. The question is not before us upon demurrer.
Turning to the more immediate subject before us, there can be no doubt of the right of the defendant to file one rejoinder. This he could have done without leave of the court; and if the plain-tifi’s motion had been to strike out all but one of them, it should have been sustained. His motion was, however, general and embraced all of the rejoinders, and as the motion came as an entire proposition to strike them all out, unless no one of them presented matter which, if well pleaded, would have been a legal response to the replication, it was correctly overruled. The court was not bound to separate an entire proposition, and sustain the motion as to part and overrule it as to the balance. State v. Jennings, use, &c., 5 Eng. Rep. 428.
The judgment of the circuit court must be affirmed. | [
112,
-8,
-36,
62,
11,
35,
50,
-66,
-39,
3,
-26,
51,
-83,
-117,
84,
121,
-5,
43,
87,
107,
71,
-77,
6,
65,
-78,
-13,
-15,
21,
-75,
-50,
-26,
124,
76,
112,
-54,
-43,
103,
-56,
-59,
-42,
-58,
-97,
-103,
109,
-32,
74,
48,
35,
116,
15,
113,
-50,
-93,
42,
24,
-61,
104,
44,
-53,
61,
-16,
-72,
-102,
-113,
93,
36,
-79,
-73,
-98,
-123,
-40,
46,
0,
57,
1,
-24,
50,
-90,
-122,
116,
107,
-69,
8,
102,
98,
3,
-35,
-17,
-104,
-104,
46,
122,
61,
-90,
-111,
9,
105,
76,
-73,
-99,
116,
16,
7,
126,
-20,
85,
89,
124,
9,
-113,
-106,
-89,
-81,
124,
24,
-50,
-29,
3,
16,
49,
-57,
-29,
92,
87,
17,
-101,
-98,
-97
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court.
The question to be decided here is, whether the evidence is of such a character as to charge the appellants with the debt for which the suit was instituted. It appears, from the testimony, that a certain John M. Young had previously applied to the ap-pellees to purchase goods upon a credit, which they refused to do, and that, upon their refusal, the appellants said to the witness, Broadway, who was acting as the clerk of the appellees, that if he would let Young have goods, and he did not pay for them, they would do so. It is also in proof that the goods taken up by Young were charged in the books of the appellees to Young by Kurtz, and that credit was given to Young upon the faith of the solvency of appellants. In order to fix a legal liability upon the appellants for the debt of Young, a distinction is attempted to be taken between a debt pre-existing and one contracted subsequent to the date of the promise or guaranty. This supposed distinction is not believed to be known to the statute of Frauds. The statute declares that “No action shall be brought to charge any person upon any special promise to answer for the debt, default, or miscarriage of another, unless the agreement, promise or contract upon which such action shall be brought, or some memorandum, or note thereof, shall be made in writing and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.” The point now to be determined is, whether the court below erred or not in permitting the evidence to go the jury. The case of Elder vs. Warfield. (7 Har. & John. 394,) is directly in point. At the trial in that case, the plaintiff (the appellee) offered in evidence, by Alfred Warfield, his brother and clerk, that, in the year 1817, the plaintiff was applied to by Joseph Berritt, to furnish him with necessaries for his family on credit; that the plaintiff, having doubts of Berritt’s solvency, declined to do so, and refused to let him have the goods he applied for. That at the time defendant lived on part of farm belonging to Berritt’s wife, in what character, whether as manager, overseer, or trustee, he knew not. That subsequently the defendant called and requested the plaintiff, through the witness, to let Berritt have goods, &c., which he wanted, and told the plaintiff that Berritt was perfectly solvent, and did not owe more than $500, and was willing and able to pay his debts: that Berritt had recently sold property in Baltimore for a considerable sum of money, and the plaintiff should be paid out of it. The plaintiff still doubted, when the defendant told him to let Berritt have goods, and he would be responsible for the amount, and pay it out of the proceeds of the sale of Berritt*s property, which he (the defendant) expected to receive. This agreement was not reduced to writing, or any memorandum made of if. The plaintiff, in the years 1817, 1818 and 1819, let Ber-ritt have various goods, wares, and merchandize. The plaintiff further gave evidence, by tbe same witness, that, after conversation aforesaid between the plaintiff and defendant, Berritt, upon his orders, obtained, at different times, goods aud merchandize, to the amount of $523, being tbe same goods and merchandize for the recovery of whose value the action was brought. He also offered other evidence, but wholly failed to show that tbe defendant’s promise was reduced to writing. The statute of Maryland is substantially the same with our own, and, as such, the same must necessarily be tbe construction of both. The court of appeals of that Slate, when speaking in reference to their statute of Frauds, said that “A strict adherence to the letter would, it is believed, have prevented much litigation, of which the introduction of exceptions has proved a fruitful source; it may now, however, be assumed as the settled construction of that branch of the 4th section on which this caso depends, that every collateral undertaking or promise to answer for the debt, default, or miscarriage of another, is within the statute and void if not in writing, but that original undertakings are not within the statute, and need not be in writing. Collateral and original-have become the technical terms whereby to distinguish promises that are within and such as are not within the statute. And as they are terms not used or defined in the statute itself, it may here be proper to notice the general distinguishing characteristics of collateral and original promises, as understood in relation to the statute of Frauds. Where there is a pre-existing debt or other liability, a promise by a third person having immediate respect to and founded upon the original liability, without any new consideration moving to him to pay or answer for such debt or liability, is a collateral undertaking, as in the case of Fish vs. Hutchinson, (3 Wils. 94,) which was an action founded on a promise of the defendant to pay a debt due from one Nickers to Fish, (for which Fish had brought suit) in consideration that Fish would stay his action against Nickers, which being a promise to pay the still subsisting debt of another was held to be clearly within the statute. And so in Kirtham v. Martin, (2 Barn. & Ald. 613,) where A. having wrongfully killed the horse of B., a promise by C. to pay B. the damages he had sustained in consideration that he would not sue A. was adjudged to be within the statute. But where distinct from the original liability, there is a new and su-peradded consideration for the promise moving between the party promising and him to whom the promise is made, in such case it is an original undertaking, as in Williamsvs. Leper,(3 Burr. 1836,) where the defendant having got possession of goods, which were subject to distress for rent in arrear, promised the Landlord (the plaintifl') to pay the rent if he would desist from distraining. There are many cases proceeding upon this distinction between a promise founded upon the liability alone of a third person and one which is induced by a distinct and superadded consideration moving between the immediately contracting parties, as Austey vs. Marden, (4 Bos. & Pull. 130,) Castling vs. Auhert, (2 East 325,) and Read vs. Nash, (1 Weds. 305.) Again, where there is no previously existing debt or other liability, but the promise of one is the inducement to and ground of the credit given to another, by which a debt or liability is executed, such a promise is a collateral undertaking. The general rule being that wherever the party undertaken for is originally liable upon the same contract, the promise to answer for that liability is a collateral promise, and must be in writing. As if B. gives credit to C. for goods sold and delivered to him on the promise of A. to see him paid or to pay him if C. should not, in that case it is the immediate debt of C. for which an action will lie against him, and the promise of A. is a collateral undertaking to pay that debt, he being only as security. But where the party undertaken for is under no original liability the promise is an original undertaking, and binding upon the party promising without being in writing. Thus, if B. furnishes goods to C. on the express promise of A. to pay for them, as if A. says to him let C. have goods to such an amount, and I will pay you, and the credit is given to A., in that case C. being under no liability, there is nothing to which the promise of A. can be collateral, bul A. being the immediate debtor it is bis original undertaking and not a promise to answer for the debt of another.” That case, and the others cited by the court, are perfectly conclusive of the question involved in the case at bar. Here, it is true, there was no pre-existing debt, but, on the contrary, it was subsequently contracted, and that, too, upon 'the promise of the appellants, operating as the inducement to and ground of the credit given to Young.
We are satisfied, therefore, that the promise or guaranty made by the appellants to pay for the goods, in case Young should fail to do so, was a mere collateral undertaking, and not being reduced to writing, is clearly within the statute of frauds. Under this doctrine, it is obvious that the Circuit Court erred in refusing to exclude the testimony offered by the appellees, and also in giving the instructions which it did give to the jury. The judgment is therefore reversed, annulled, and set aside, with costs, and the cause remanded, to be proceeded in according to law, and not inconsistent with this opinion. | [
-16,
106,
-24,
-97,
10,
96,
40,
-102,
-43,
-96,
-89,
83,
-23,
-62,
16,
103,
-12,
45,
81,
122,
71,
-77,
7,
-31,
-14,
-13,
-39,
-35,
48,
89,
-92,
93,
77,
48,
72,
-99,
102,
-54,
-63,
22,
-114,
-116,
57,
-20,
-40,
96,
48,
49,
86,
74,
85,
14,
-13,
46,
61,
95,
105,
44,
75,
57,
-48,
-16,
-114,
-121,
111,
22,
-77,
38,
-104,
69,
-54,
46,
-112,
49,
1,
-8,
122,
-90,
6,
84,
73,
-101,
9,
102,
102,
1,
49,
-23,
-104,
-120,
47,
-33,
-99,
-89,
-112,
88,
-125,
9,
-66,
-97,
117,
16,
-90,
-10,
-10,
-99,
28,
108,
3,
-113,
-106,
-95,
-113,
126,
-102,
11,
-25,
-93,
21,
113,
-49,
-94,
93,
71,
58,
19,
-114,
-78
] |
Mr. Justice Scott
delivered the opinion of the Court.
The appeal in this case was taken in pursuance of the statute. No bond for costs was necessary, (Dig. 142, sec. 176, and p. 143, sec. 183.) The 3d section of the act approved the 4th January, 1849, (Pamphalet Acts,p. 59,) applies to appeals from the county courts authorized by the second section of that act, and in no respect applies to appeals frtím the Probate court, the case of Morrow v. Walker and wife, (5 Eng. 569,) to the contrary notwithstanding, which case is hereby overruled.
Judgment reversed, and cause remanded to be proceeded with. | [
-12,
104,
-36,
-66,
90,
98,
2,
-102,
-38,
-15,
-79,
-37,
-87,
-61,
16,
99,
55,
127,
113,
104,
95,
-9,
55,
99,
-13,
-37,
-61,
-33,
53,
-32,
-26,
119,
76,
48,
10,
-43,
102,
-51,
-59,
80,
-50,
-121,
-87,
-51,
-39,
98,
52,
61,
118,
9,
-43,
-98,
-93,
46,
28,
-29,
-87,
45,
-55,
49,
80,
-72,
-120,
-97,
95,
5,
-111,
69,
-120,
-123,
24,
38,
-112,
49,
0,
-24,
115,
-124,
-122,
84,
79,
-71,
9,
66,
98,
1,
-11,
-1,
-104,
-102,
14,
92,
-115,
-89,
-112,
24,
75,
73,
-105,
-35,
101,
36,
-89,
126,
-30,
-36,
31,
108,
1,
-49,
-108,
-79,
-19,
124,
-108,
16,
-57,
-96,
48,
113,
-59,
106,
92,
-58,
51,
-101,
-114,
-44
] |
Mr. Justice McLean
delivered the opinion of the Court.
This case is before us on a writ of error to the Supreme Court of Arkansas.
An action was brought by the State of Arkansas in the Pulaski Circuit Court, against the plaintiff in error, and his sureties, Chester Ashley and others, upon his official bond as late Treasurer of State, for the recovery of a certain sum of money alleged to have been received by him, as treasurer, between the 27th day of October, 1836, and the 26th day of December, 1838. And a judgment was recovered against him and his securities, on the 13th of June, 1845, for $3,359 22 and costs. An execution having been issued on the judgment, on the 24th of February, 1847, the plaintiff tendered to the defendant in error, who prosecuted the suit as Attorney General, the full amount of the judgment, interest, and costs, in the notes of the Bank of the State of Arkansas, which were refused.
The above facts being stated in a petition to the Supreme Court of Arkansas on the 25th of February, 1847, an alternative mandamus was issued to Trapnall, the defendant in error, to receive the bank notes in satisfaction of the judgment, or show cause why he shall refuse to do so.
On the return of the mandamus, the defendant admitted the judgment and tender of the notes; but alleged that he was not authorized to receive them in satisfaction of the judgment, because the twenty-eighth section of the bank charter, under which alone the plaintiff could claim aright so to satisfy the judgment, was repealed by an act of the Legislature, approved January 10th, 1845.
It was agreed by the parties, that the record of the judgment should be made a part of the proceeding ; that the defendant was the proper officer by law to receive satisfaction of the judgment; that the notes tendered wei’e issued by the bank prior to the year 1840, and that down to the year 1845 the notes of the bank were received and paid out by the State, in discharge of all public dues; that the bank continues to exist with all its corporate functions.
The court were of opinion, that the return of the defendant showed a sufficient cause for a refusal to obey the mandate of the writ, and gave judgment accordingly.
The twenty-eighth section of the bank charter, which was repealed by the act-of 1845, provided “that the bills and notes of said institution shall be received in all payments of debts due to the State of Arkansas.” And the question raised for consideration and decision is, whether the repeal of this section brings the case within the Constitution of the United States, which prohibits a State from impairing the obligations of a contract.
The bank charter was passed on the 2d of November, 1836, “with a capital of one million of dollars, to be raised .by a sale of the bonds of the State, loans, or negotiations, together with such other funds as may now or hereafter belong to, or be placed under the control and direction of, thé State;” the principal bank to be located at the city of Little Rock, and its concerns to be conducted by a president and twelve directors, to be appointed by a joint' vote of the General Assembly. Branches were required to be established, the presidents and directors whereof were to' be elected in the same manner.
The president and directors were to have a common seal, were authorized to deal in bullion, gold, silver, &e., purchase real property, erect buildings, &c., issue notes, make loans at eight per' cent, on endorsed paper, or on mortgages, within the State; a general board was constituted, who were to make report' of the condition of the bank annually, to tide legislature, and perform other duties; and any debtor to the bank, “as maker or indorser of any note, bill or bond, expressly made negotiable and payable at the bank, who delays payment,” should have a judgment entered against him on a notice of thirty days.
Some doubt has been suggested, whether the notes of this bank were not bills of credit within the prohibition of the Constitution.
We think they cannot be so held, consistently with the view taken by this court in the case of Biscoe v. The Bank of the Commonwealth of Kentucky, 11 Peters 311. It was there said, that,“to constitute a bill of credit within the Constitution, it must be issued by a State, on the faith of the State, and be designed to circulate as money. It must be a paper which circulates on the credit of the State, and is so received and used in the ordinary business of life.
The bills of this bank are not made payable by the State. A capital is providedfor their redemption, and the general management of the bank, under the charter is committed to the president and directors, as in ordinary banking associations. They may in a summary manner obtain judgments 'against their debtors. And although the directors are not expressly made liable to be sued, yet it is not doubted they may be held legally responsible for an abuse of the trust confided to them.
The entire stock of the bank is owned by the State. It furnished the capital and receives the profits. And in addition to the credit given to the notes of the bank by the capital provided, the State declares in the charter, they shall be received in all payments of debts due to it. Is this a contract? A contract is defined to be an agreement between competent persons, to do or not to do a certain thing. The undertaking on the part of the State is, to receive the notes of the bank in payment from its debtors. This comes within the definition of a contract. It is a contract founded upon a good and valuable consideration; a consideration beneficial to the State, as its profits are increased by sustaining the credit, and consequently extending the circulation, of the paper of the bank.
With whom was this- contract made? We answer, with the holders of the paper of the bank. The notes are made payable to beaver; consequently every bona-fide holder has aright, under the twenty-eighth section, to pay to the State any debt he may owe it, in the paper of the bank. It is a continuing guaranty by the State, that the notes shall be so received. Such a contract would be binding on an individual, and it is-not less so on a State.
That the State had the right io repeal the above section, may be admitted. And the emissions of the bank subsequently are without the guaranty. But the notes in circulation at the time of the repeal are not affected by it. The holder may still claim the right, by the force of the contract, to discharge any debt he may owe to the State in the notes thus issued.
It is argued that there could have been violated or impaired no contract with the plaintiff in error, as it does not appear he had the notes tendered by him in his possession at the time the twenty-eighth section was repealed.
It is admitted that he had the notes in his possession at the time he made the tender, and that they were issued by the bank before the repeal of the section; and nothing more than this could be required.
The guaranty of the State, that the notes of the bank should be received in discharge of public dues, embraced all the bills issued by it; the repeal of the guaranty was intended, no doubt, to' exclude all the notes of the bank then in circulation. Until the repeal of the twenty-eighth section, the State continued to receive and pay out these notes. Up to that time, no one doubted the .obligation of the State to receive them. The law was absolute and imperative on the officers of the State. The holder of the paper claimed the benefit of this obligation, and it is supposed his right could never have been questioned. The notes were payable to bearer, and the bearer was the only person who h.ad a right to demand payment of the bank, or to pay them into the State treasury in discharge of a debt. The guaranty included all the notes of the bank in circulation as clearly as if on the face of every note the words had been engraved, “This note shall be received by the State in paymeny of debts.” And that the legis lature could not withdraw this obligation from the notes in circulation at the time the guaranty was repealed, is a position which can require no argument. Any one'had a right to receive them, and to test the constitutionality of the repeal.
Suppose a State legislature should pass a law authorizing the drawers of promisory notes, payable to bearer, to discharge the same by the payment of produce. Would such a law affect the rights of the bearer? The contract would stand, and the law would be declared void. A standing guaranty by a mercantile house, to receive in payment of its debts all notes drawn by a certain, other house, is valid, on the ground that the notes were taken on the credit of such guaranty. It may be terminated by a notice; but when so terminated, are not all the notes good against the guarantors, which were executed and circulated prior to the notice? Who could commend the justice of guarantors, who should endeavor to avoid responsibility, on so clear a principle? Louisville Man. Co. v. Welch, post, 461.
A State can no more impair, by legislation, the obligation of its own contracts, than it can impair the obligation of the contracts of individuals. We naturally look to the action of a sovereign State, to be characterized by a more scrupulous regard to justice, and a higher morality, than belong to the ordinary transactions of individuals. The obligation of the State of Arkansas to réceive the notes of the bank, in payment of its debts, is much stronger than in the above case of individual guaranty.
The bank belonged to the State, and it realized the profits of its operations. It was conducted by the agents of the State, under the supervision of the legislature. By the guaranty, the notes of the bank, for the payment of debts to the State, were equal to gold and silver. This, to some extent, sustained their credit, and gave them currency. Loans were made by the Bank on satisfactory security. The debts of the bank, or a large proportion of them, may fairly be presumed to have been collected. But the means of the bank, thus under the control of the State, became exhausted. Whether this was the result of withdrawing the capital from the bank, by the State, does not appear upon the record. We only know the fact, that its funds have disappeared, leaving, it is said, a large amount of its paper, issued before the repeal of the guaranty, worthless, in the hands of the citizens of the State.
■ The obligation of the State to receive these notes is denied, on the ground that the twenty-eighth section was a general provision, liable to be repealed, at any time, by the legislature. And it is compared to a general provision to receive, for public dues, the paper of banks generally, unconnected with the State. There is no analogy in the two cases. One is a question of public policy, influenced by considerations of general convenience, which every one knows may be changed at the discretion of the legis-ture. But the other arises out of a contract incorporated into the charter, imposing an obligation on the State to-receive, in payment of all debts due to it, the paper of a bank owned by the State, and whose notes are circulated for its benefit. The power of the legislature to repeal- the section, the stock of the panic being owned by the State, is not controverted; but that act cannot affect the notes in circulation at the time of the repeal.
It is objected, that this view trenches upon the sovereignty of the State, in the exercise of its taxing power and in the regula^ tion of its currency. We are not aware that a State has power over the currency further than the right to establish banks, to reg-r ulate or prohibit the circulation, within the State, of foreign notes, and to determine in what the public dues shall be paid.
It is a principle controverted by no one, that, on general questions of policy, one legislature cannot bind those which shall sum seed it; but it is equally true and undoubted, that a legislature may make a contract which shall bind those that shall come after it.
The notes of the bank in circulation at the repeal of the twenty-eighth section, if made receivable by the Sate-in discharge of public dues, may so far resuscitate them, as that,, in the course of time, they will find their way into the treasury of the State, where in justice and by contract they belong. It is presumed there will be no complaint, as there will be no.ground for any, by the citizens of the State, if these notes, now dead and worthless, should be so far revived as to r.each their appropriate destination. And if, as a consequence, some increase of taxation should be required by the State, it will be nothing more than is common to all other States that perform their contracts. It would be a most unwise policy for a State to improve its currency through a violation of its contracts. In such a course, the loss of the State would be incomparably greater than its gain. Any argument in commendatinn of such an action by a State cannot be otherwise considered than as exceedingly infelicitous and unjust.
If these notes be receivable in payment of public dues by the State, having been in circulation at the time of the repeal of the above section, as we think they clearly are, no doubt can-exist as to the sufficiency of the tender. The law of tender which avoids future interests and costs, has no application in this case. The right to make payment to the State in this paper arises out of a continuing contract, which is limited in time by circulation of the notes to be received. They may be offered in payment of debts due to the State, in its own right, before or after judgment, and without regard to the cause of indebtedness. •
Whatever may be the demerits of the plaintiff in error, they do not affect the nature and extent of the obligation of the State. And that obligation cannot be withdrawn from this paper. Into whosoever hands it shall come, it carries with it the pledge of the State to receive it in payment of its debts. In this case the payment is made by the securities of Woodruff, and exacted by the State, to whose organization and management of the bank may be attributed its insolvency. In procuring the notes of the bank, these securities had a right to rely, and no doubt did rely, upon the guaranty of the State to receive them in payment of debts.
In sustaining the application for a mandamus, the Supreme Court of the State exercised jurisdiction in the case. To that court exclusively belongs the question of its own jurisdiction. For the reasons stated, the judgment of the Supreme Court is reversed, and the cause is remanded for further proceedings to that court, as it may have jurisdiction, in conformity to the opinion of this court.
Mr. Justice Catron, Mr. Justice Daniel, Mr. Justice Nelson, and Mr. Justice Grier, dissented.
Taken from 10 Howard’s U. S. Sup. C. R. 190. | [
116,
108,
-80,
124,
122,
-64,
42,
-102,
3,
25,
-91,
-13,
-95,
11,
20,
97,
70,
-69,
112,
105,
-49,
-73,
23,
105,
-46,
-14,
-51,
-59,
53,
124,
-20,
-33,
77,
32,
-54,
-35,
-26,
76,
-61,
-36,
-50,
11,
9,
100,
-39,
8,
52,
61,
80,
9,
49,
12,
-13,
46,
30,
74,
105,
44,
-55,
-71,
80,
-79,
-114,
-115,
127,
20,
-95,
70,
-101,
7,
90,
46,
-112,
49,
1,
-4,
122,
-90,
-122,
84,
109,
57,
12,
96,
98,
0,
105,
-49,
-104,
-84,
38,
-2,
-115,
-122,
-110,
72,
107,
73,
-74,
-99,
-2,
20,
6,
-2,
-66,
-115,
16,
44,
7,
-49,
-106,
-79,
-115,
44,
-108,
59,
-13,
35,
48,
116,
-52,
-30,
93,
7,
91,
27,
-114,
-11
] |
Mr. Justice Walicer
delivered the opinion of the Court.
The replications in this case were clearly defective. The plea set forth a subsisting, undisposed-of levy on lands. A replication that the land levied upon is not the property of the defendant, is not of sufficient value to satisfy the debt, or has been discharged by a sale of the property since the commencement of the action, is not good. The replication should traverse the fact as to whether there was or was not a subsisting levy at the time of the commencement of the action. The principles upon which this case turns, will be found fully settled in the case of Anderson vs. Fowler, 3 Eng. Anthony vs. Humphries, use, &c., 4 Eng. 176. Whiting & Slark vs. Beebe et al., at the present term.
Let the judgment of the Circuit Court be, in all things, affirmed, with costs. | [
113,
-20,
88,
-2,
26,
96,
56,
-102,
88,
-95,
-74,
83,
45,
-61,
20,
97,
-25,
57,
112,
106,
87,
-77,
7,
-29,
-46,
-13,
-13,
-35,
-79,
109,
-26,
-43,
76,
48,
-62,
-11,
102,
-24,
-59,
-44,
-50,
-65,
9,
77,
-40,
0,
52,
11,
84,
79,
85,
-113,
-13,
46,
25,
67,
104,
44,
-55,
-75,
0,
-72,
-102,
-115,
79,
7,
-112,
53,
-116,
67,
-38,
46,
-128,
49,
1,
-24,
127,
38,
-122,
116,
13,
-69,
12,
98,
98,
1,
109,
111,
-4,
-104,
42,
-2,
29,
-89,
-112,
88,
-85,
104,
-97,
-97,
124,
16,
15,
118,
-50,
-107,
93,
108,
7,
-122,
-106,
-89,
-113,
120,
-112,
-120,
-1,
35,
16,
112,
-49,
-86,
76,
39,
18,
27,
-98,
-98
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court.
This was a petition filed by Wood, to set aside and quash an execution issued by Bracken against him. The petitioner set out that Bracken, as the assignee of Seany and Langwell, recovered a judgment against him in the Phillips Circuit Court, on the 28th December, 1841, for the sum of two hundred and fifty dollars for his debt, and interest thereon at the rate of six per cent, per annum from the 12th July, 1839, for his damages, together with the costs of suit, &c. He then charged that four separate executions had been sued out upon said judgment, the first of which was issued on the 18th February, 1843; the second on the 10th of August, 1843; the third on the 23d of August, 1844, and the fourth on the 17th of May, A. D. 1850; that the first three were returned by the sheriff wholly unsatisfied, and that the fourth was levied by the sheriff upon his interest in the tavern house situated on lot No. 90, in the town of Helena; and further, that said judgment had not been revived by scire facias or otherwise since its rendition, and that no steps or proceeding had been taken to enforce the collection of the same since the 23d day of August, 1844, until the issuance of the execution dated the 17th May, 1850, and then argues that in consequence thereof, no execution could legally and properly issue on said judgment on the said 17th of May, 1850, and then concludes with a prayer that the last execution which was issued on the 17th May, 1850, may be stayed, set aside and quashed. To this petition, the defendant, Bracken, demurred specially, and the court, upon due consideration had overruled the demurrer, and the defendant having refused to answer over, final judgment was rendered against him, quashing the execution, and also for the costs of the suit.
The question then to be decided is whether the Circuit Court ruled correctly or not in overruling the demurrer to the petition and quashing the execution. It appears from the petition, which stands admitted by the demurrer, that the first writ of fi. fa. which issued upon the judgment did not so issue within a year and a day, but that although the judgment was rendered on the 28th December, 1841, the execution did not issue until the 18th of February, 1843. There is no pretence, therefore, that the first fi. fa. issued within a year and a day, and that othei’s had been regularly issued within the same space of each other down to the one now before the court, or that the judgment had been otherwise kept alive. In the case of Aires v. Hardress, 1 Strange Rep. 99, the course proper to be pursued to avoid the necessity of a sci. fa. is pointed out. In that case, a fieri facias was taken out within the year and a nulla bona returned, this was continued down for several years, and then a capias ad satisfaciendum issued. And whether that was regular or not, was the question. The court took time to inquire, and the last day of the term the Chief Justice said, “ If this were a new case, they should think it hard to take away all scire facias’s. But the practice had gone so far that there is no overturning it now.” Wherefore the execution was held regular. “ But it is otherwise if no execution be returned by the sheriff to warrant the entry of continuances on the roll. (See Blayer v. Baldwin C. B., 2 Wilf. 82. Barnes, 213 S. C.) At common law, in real actions where land was recovered, the demandant, after the year, might take out a scire facias to revive his judgment, because being particular in the real action quod the lands with a certain description, the law required that the execution of that judgment should be entered upon the roll, that it might be seen whether execution was delivered of the same thing of which judgment was given; and therefore, if there was no execution appearing on the roll, a scire facias issued to show cause why execution should not be. But if the plaintifF, after he had obtained judgment in any personal action, had lain quiet and had taken no process of execution within the year, he was put to a new original upon his judgment, and no scire facias was issuable by law on the judgment, because there was not a judgment for any particular thing in the personal action with which the execution could be compared: therefore, after a reasonable time, which was a year and a day, it was presumed to be executed and therefore the law allowed him no sci. fa. to show cause why there should not be execution; but if the party had slipped his lime, he was put to his action on the judgment, and the defendant was obliged to show how that debt, of which the judgment was an evidence, was discharged. To remedy this, and make the forms of proceedings more uniform in both actions, the statute of Westm. 2, 13 E. 1, St. 1, Ch. 45, gave the sci. fa. to the plaintifF to revive the judgment where he had omitted to sue execution within the year after the judgment was obtained. (See 2 B. A. Letter H.p. 362, and the authorities there cited.) The reason why the plaintiff is put to his sci. fa. after the year, is because where he lies quiet so long after his judgment, it shall be presumed he hath released the execution, and therefore, the defendant shall not be disturbed without being called upon and having an opportunity in court of pleading the release, or showing cause, if he can, why the execution should not go. (See same authority, at page 363.) It is clear, under the authorities, that the first Ji. fa. that issued upon the judgment referred to, was irregular, and consequently would have been holden voidable and quashed upon a direct proceeding instituted for that purpose. This being the case, there was necessarily no basis laid upon which to build up and support those that were subsequently taken out. It is only in the event that one shall be taken out within the year and a day, that the judgment can be kept up, so as to authorize the issuance of others without the necessity of a scire facias. This was not done in this case, and consequently, nothing has yet taken place to remove the presumption of payment which the law raises after the lapse of the year and a day, and consequently, the execution last issued, and which is now sought to be quashed, was irregularly issued and voidable in law, and therelore correctly quashed by the Circuit Court.
The judgment of the Phillips Circuit Court herein rendered, is therefore in all things affirmed. | [
16,
106,
-39,
-66,
26,
-32,
2,
-72,
83,
-13,
-27,
115,
-19,
-125,
1,
97,
51,
109,
84,
123,
105,
-77,
51,
-23,
-109,
-5,
-57,
-43,
49,
108,
-12,
95,
72,
96,
10,
85,
-58,
106,
-55,
80,
-114,
33,
9,
-27,
-45,
-112,
48,
-71,
94,
11,
21,
62,
-13,
42,
20,
-61,
105,
44,
91,
45,
80,
49,
-100,
-105,
93,
20,
-111,
38,
-100,
-125,
72,
102,
-112,
53,
0,
-8,
-5,
-124,
6,
84,
1,
-103,
44,
102,
34,
33,
117,
111,
-80,
-24,
61,
30,
-115,
-89,
-112,
73,
99,
73,
-74,
-103,
127,
16,
7,
126,
-18,
-123,
-36,
44,
5,
-98,
-92,
-73,
-33,
60,
-110,
118,
-21,
37,
48,
101,
-49,
-118,
92,
-57,
51,
27,
-122,
-8
] |
Mr. Justice Scott
delivered the opinion of the Court.
This record presents no ground upon which the question discussed as to the necessity of an affidavit can be raised. And the second objection is not well taken, because the party had a right to a separate revival against the representative of the deceased — the death having severed the defendants.
The remaining objection, however, is fatal to the judgment of revivor, as we have repeatedly held — the two remaining pleas being undisposed of.
Let the judgment be reversed and the cause be remanded. | [
-80,
108,
-28,
-66,
58,
96,
-94,
-38,
-47,
-96,
38,
-13,
-19,
91,
-108,
99,
-14,
127,
117,
106,
95,
-73,
118,
73,
-14,
-13,
-15,
-60,
-75,
110,
-26,
125,
76,
48,
10,
-43,
102,
11,
-61,
82,
-58,
6,
-119,
-28,
-38,
84,
52,
29,
82,
31,
-11,
-98,
-93,
42,
28,
-61,
-55,
40,
-53,
61,
-16,
24,
-116,
-123,
93,
6,
-77,
38,
-98,
-54,
-40,
38,
24,
-79,
0,
-4,
51,
46,
-122,
116,
107,
-71,
8,
106,
98,
1,
17,
-21,
-72,
-104,
11,
110,
29,
-122,
18,
88,
-21,
109,
-106,
-35,
109,
116,
-90,
126,
-32,
-99,
29,
44,
3,
-113,
-106,
-79,
-119,
108,
-104,
72,
-13,
-125,
16,
113,
-55,
-16,
68,
71,
83,
-111,
-98,
-74
] |
Mr. Justice Walker
delivered the opinion of the Court.
This is an action of debt, to which the defendant plead the statute of limitations. The plaintiff replied a former action commenced within the statute bar, a non-suit, and' a second action within twelve months thereafter. To this replication, the defendant interposed five rejoinders, which, although defective, as issue was taken upon them, will be considered as a rejoinder of nul tiel record; for, although they were intended to put in issue distinct facts, which could alone be evidenced by the record, the whole of them present no other question than must arise under nul ticl record.
To sustain the issue on her part, the plaintiff offered in evidence a note, a writ, a petition in debt, and a record entry of judgment of non suit in vacation: which evidence was objected to by the defendant, and on his motion excluded by the court. The note, writ and petition literally correspond with and sustain the pleading, with the single exception that the first suit which was discontinued, was commenced against all of the makers of the note, whilst the present suit was commenced against one of them alone. This can make no possible difference. The question was whether a former suit had been commenced against the same party defendant in the first and second suit. . The record proved this. It was not ihe foundation of a suit where other parties in interest were disclosed, but a link in the chain of evidence to defeat the statute bar. The rule with regard to variance in cases where the record is the foundation of the action, is very different from that where it comes in collaterally as evidence. State Bank v. Magness et al., 6 Eng. Rep. 344.
The variance between the petition and the writ in the description of the cause of action, amounted to nothing. Even admit the variance to have been ground for quashing the writ, still it was sufficient evidence in connexion with the petition to estab lish the commencement of the first suit. State Bank v. Sherrill, 6 Eng. Rep. 336.
The statute authorized the clerk to enter judgment of non-suit upon payment of cost. The record was competent evidence, and should have been admitted in evidence. The judgment of the circuit court must be reversed, and the cause remanded, to be proceeded in according to law, and not inconsistent with the ppinion herein delivered. | [
112,
-8,
84,
94,
-118,
-96,
42,
-86,
73,
-128,
55,
83,
-23,
-61,
20,
97,
-9,
105,
113,
106,
79,
55,
39,
65,
-14,
-14,
-16,
85,
-80,
-1,
-26,
95,
76,
48,
-118,
-43,
102,
74,
-57,
-42,
74,
-116,
-103,
77,
-23,
-56,
48,
121,
84,
79,
117,
71,
-29,
46,
-104,
75,
105,
41,
-54,
57,
112,
-80,
-104,
13,
125,
21,
-79,
55,
-98,
71,
-8,
46,
-124,
49,
-128,
-24,
114,
-74,
6,
52,
107,
-71,
8,
102,
98,
35,
113,
-17,
-100,
-120,
39,
-6,
15,
-90,
-112,
8,
11,
69,
-66,
-99,
124,
0,
39,
126,
-2,
-108,
31,
108,
15,
-114,
-42,
-93,
-81,
108,
30,
111,
-26,
-77,
16,
112,
-51,
-32,
92,
-57,
51,
-101,
-98,
-100
] |
Mr. Justice Scott
delivered the opinion of the Court.
The writ of Mandamus, in this cane, having been improvidcntly issued, must be dismissed for that cause. | [
-76,
104,
-100,
-100,
42,
-32,
96,
-66,
73,
81,
-73,
-13,
-27,
3,
4,
99,
-10,
111,
81,
106,
-34,
-10,
55,
-29,
114,
-45,
-39,
-35,
53,
124,
-25,
93,
76,
112,
-93,
-44,
102,
-115,
-63,
-44,
-58,
39,
9,
-27,
-15,
-56,
52,
43,
16,
79,
21,
30,
-29,
46,
24,
-61,
-24,
40,
-23,
61,
-32,
-72,
-114,
-107,
93,
16,
-77,
35,
-100,
-57,
88,
46,
-103,
49,
1,
-2,
115,
-74,
-124,
84,
47,
-7,
8,
-12,
106,
3,
-35,
-17,
-104,
-56,
43,
111,
13,
-30,
19,
25,
107,
73,
-106,
-103,
117,
20,
-121,
118,
-29,
-115,
21,
44,
11,
-117,
-106,
-93,
-113,
124,
-98,
120,
-48,
-93,
16,
48,
-115,
-16,
92,
115,
31,
-71,
-98,
-73
] |
Mr. Justice Scott
delivered the opinion of the Court.
The first question presented was settled in the case of Clarke V. The Bank of Mississippi, where it was held that the printed statute books of the other States of the Union, purporting to have been published by authority, may be read in evidence in our .courts, and the burthen of discrediting such books is upon the party against whom they are offered, (5 Eng, 516, Dig.,p. 490, sec. 2;) and this case was afterwards approved in the case of May v. Jamison, (6 Eng. 377.) We have, however, again looked to the statute in connexion with the argument on this point now urged, and feel clear that the law, as to the point in question» was in these cases correctly ruled.
It is next objected that the two depositions ought to have been excluded because they were not supported by any other evidence of the appointment and authority of the commissioner before whom they purported to have been taken than his own certificate and seal. We do not think this objection tenable, because the-statute authorizing the appointment and commission of these functionaries, (Dig. ch. 32, p. 253,) and prescribing their duties and powers, provides, among other things, (in section 2,) that all depositions taken and certified by them “shall be as effectual in law to all intents and purposes as if done and certified by any justice of the peace, or other authorized officer within this State.” And it is expressly provided by the statute of depositions, (Dig., ch. 55, p. 434, sec. 16,) that no authentication of the official character of any judge, justice of the peace, or other judicial officer, shall be necessary when a deposition shall be taken before any such within the State.
As this is a case of a foreign bill of exchange, the notarial protest was evidence of itself in chief of the fact of demand, and the notary’s acts touching the same, were legitimately official acts. The protest therefore purporting to have been made by a notary and authenticated by his seal of office was competent evidence; and as such should have been allowed to be read although it differed in some respects from the bill offered in evidence, in order to permit the plaintiff below to connect the bill sued on with the protest by other evidence, and thus identify it it as the same that was protested. (Br. Bk. at Decatur v. Rhodes, 11 Ala. R. 283. Leigh v. Lightfoot, 11 Ala. R. 935. 3 Porter R. 355.) And for this purpose, the testimony of Clements as to the presentation and protest of the bill was competent, accompanied as it was, by proof of the statute of the State of Louisiana, No. 49, authorizing notaries to appoint deputies to assist them in making protest, and the further proof that the witness acted, at the time when the protest was made and touching the same, as the deputy for the notary who made the protest.
And for the same purpose an authenticated copy of the notarial register, in reference to the protest, was competent testimony, because, besides the known general usage of notaries to keep a register of their official acts, the inference from the testimony is almost irresistible that in this case one was kept, and it was not legally possible for the plaintiff below to produce the original in the courts of this State. It is objected, however, that the copy produced ought not to have been read, although authenticated by the certificate and official seal of another notary purporting to act in the stead of Mr. Ricardo during his absence, and accompanied by proof of his actual absence, and of a law of Louisiana authorizing the absence of notaries with the consent of the Governor, and in such case authorizing another notary to be designated to act in his place; because it was not also shown in proof, otherwise than by the official certificate and seal of Mr. Beard, (who officiated for Mr. Ricardo in his absence,) and the testimony of the two witnesses that he (Mr. Beard) was a notary public, and as such was in fact named and designated by Mr. Ricardo to represent him during his absence, under the provisions of the statute of Louisiana, No. 91, proven in evidence.
Although it might have been incompetent thus to show Mr. Beard’s actual designation and procurement to act in Mr. Ricardo’s stead, yet we are inclined to think the objection not well taken under the circumstances, because under the existing state of the proofs — the law allowing substitution having been proven —so much of this testimony as showed that he in fact officially acted in the stead of Mr. Ricardo, was competent as far as it went, and perhaps the ordinary presumptions of law as to persons who act in official stations, would apply here and fill up the hiatus. But it is unnecessary for us to decide this point, because the paper marked B. is well enough supported by the testimony of the two witnesses without any aid from Mr. Beard’s certificate. Clements swears that it is “a copy of the original record as it stands in the register of Mr. Ricardo.” And Rareshide swears that it “is a correct transcript from Mr. Ricardo’s original records.”
It is true that neither of these witnesses swear in express terms that they have examined the original entries, and compared this carefully with it, or to other matter of like particularity in support of what they do swear, and to this extent there is consequently some ambiguity in their testimony, but all such could have been readily cleared up by cross-examination. If the opposite party had desired to know the source of the knowledge of the witnesses, he should have brought it out on cross-examination; and having failed to do so, he cannot now have their depositions rejected for uncertainty, which it was his duty to have prevented if in any way likely to operate to his prejudice. (Old v. Powell, 10 Ala. R. 393.)
And there being ample testimony in the record to sustain the verdict and judgment of the court below, we are of the opinion that the motion for a new trial was properly overruled.
Judgment affirmed with costs. | [
-76,
-4,
-12,
-67,
106,
96,
50,
-102,
-39,
-96,
-90,
115,
105,
83,
-124,
113,
-25,
123,
81,
74,
-50,
-74,
54,
75,
-14,
-13,
-37,
-35,
-79,
126,
-18,
95,
76,
56,
-54,
-43,
102,
-54,
-57,
-42,
-50,
43,
-87,
-55,
-7,
-16,
48,
43,
114,
79,
85,
-97,
-29,
62,
24,
-61,
-23,
44,
-53,
-71,
-48,
-80,
-114,
-99,
93,
4,
-109,
103,
-104,
5,
-38,
46,
-120,
49,
1,
-8,
115,
-90,
-122,
-44,
109,
-71,
8,
106,
98,
1,
-11,
-49,
-120,
-104,
39,
94,
-115,
-90,
-110,
9,
10,
73,
-106,
-99,
-3,
16,
-89,
118,
-14,
-43,
31,
44,
13,
-113,
-106,
-93,
45,
124,
-102,
66,
-29,
-29,
16,
80,
-58,
-14,
92,
71,
59,
-103,
-98,
-43
] |
Mr. Justice Walker
delivered the opinion of the Court.
The same state of case is presented in this case as that in the .case of the Bank v. William Davis, decided at the present term.
Let the judgment be reversed, and the cause be remanded. | [
-16,
-8,
-43,
94,
10,
-32,
34,
-102,
8,
48,
-89,
-5,
43,
-117,
20,
101,
-73,
93,
-43,
107,
-34,
-77,
55,
-31,
-46,
-45,
-45,
-35,
-75,
-8,
-26,
87,
12,
48,
10,
-75,
102,
-56,
-57,
86,
-50,
-123,
40,
-51,
-47,
75,
52,
-86,
52,
75,
113,
14,
-29,
42,
29,
67,
105,
40,
-39,
53,
112,
-71,
-118,
-115,
125,
20,
-111,
38,
-98,
-121,
-40,
44,
-112,
49,
1,
-24,
122,
-90,
6,
-108,
105,
-103,
12,
114,
98,
3,
-27,
-17,
24,
-104,
39,
-34,
-83,
-122,
-108,
56,
73,
97,
-98,
-99,
126,
4,
-122,
124,
-18,
-99,
17,
108,
3,
-50,
-74,
-79,
-17,
60,
-102,
107,
-13,
-125,
48,
117,
-51,
-24,
93,
70,
19,
-71,
-98,
-36
] |
Mr. Justice Walker
delivered the opinion of the Court.
It becomes unnecessary for us to examine into the merits of the several causes of error alleged to have been committed prior to the motion for a new trial; because the appellant, by his motion for a new trial, waived his right to insist upon them, and failed to preserve them in his bill of exceptions to the opinion of the court in overruling such motion.
Under this state of case, as heretofore repeatedly decided, our investigation is limited to the inquiry as to whether the evidence sustains the verdict of the jury. Of this, there can be no doubt. The note sued on, and the answer to the petition for discovery, are fully sufficient for that purpose.
Let the judgment of Phillips Circuit Court be, in all things, affirmed. | [
-15,
104,
-28,
31,
10,
96,
34,
58,
-63,
-127,
54,
115,
37,
-45,
-100,
117,
-30,
63,
85,
107,
-49,
51,
38,
-63,
-14,
-13,
-14,
85,
-79,
-40,
-28,
127,
76,
48,
-118,
-11,
102,
72,
-59,
-48,
-114,
55,
-104,
-59,
-45,
-6,
36,
32,
116,
11,
117,
-114,
-29,
42,
30,
-61,
-83,
44,
-55,
53,
80,
-80,
-104,
15,
93,
4,
-79,
38,
-97,
-122,
-40,
46,
-128,
48,
1,
-8,
114,
-74,
70,
84,
105,
57,
8,
98,
106,
1,
29,
111,
24,
-104,
39,
62,
29,
-90,
24,
8,
-23,
37,
-97,
-3,
119,
16,
38,
126,
-9,
20,
25,
108,
11,
-114,
-74,
-77,
-65,
108,
-106,
104,
-29,
-125,
16,
112,
-52,
-32,
92,
70,
27,
-101,
-50,
-106
] |
Mr. Justice W alker
delivered the opinion of the Court.
Alston hired to Balls a negro boy for twelve months, and Balls with Adams as his security, entered into a written agreement with Alston to pay for the services of the boy and return him to Alston at the end of the year. Upon this contract, Alston sued Balls and Adams, and alleged, as a breach thereof, the non-payment of the hire and the failure to return the slave. The defence interposed (and out of which the only question of importance arises) was, that the slave, without the fault of the hirer, had absconded to parts unknown, so that he could not deliver him to the owner.
In the absence of a special contract to return the slave, the defence might have prevailed, but where the parties contract to do an act which it is lawful and possible for them to perform at the time the contract is made, nothing but the act of God or the public enemy of the country will excuse its performance. Thus, it has been held, that if a party covenant to do an act, nothing short of showing that it cannot, by any means be done, will relieve him from his obligation. Beebe v. Johnson, 19 Wend. 500. Where one incurs an obligation by his own act, he will be bound to the extent of his engagement, and will not be excused for its non-performance by accident from inevitable necessity. Clancy v. Overman, 1 Dev. & Bat. 402. A party who covenants to perform acts not on their face impossible, illegal or immoral, and not shown to have become so, will be held to performance, notwithstanding the difficulty attending those acts, or the hardships of the particular ease. Stone v. Dennis, 3 Porter 231. And Chief Justice Maesiiall, in the case of Pollard v. Shaaffer, 1 Dallas 210, where the British army, a public enemy, had destroyed a tenement which the lessee covenanted to keep in repair, held the tenant to be excused from keeping his covenant, saying^ “That a covenant to do this against an act of God, or an enemy, ought to be so specific and express, and so clear, that no other meaning could be put upon it.”
There can be no doubt of the correctness of the principle settled in these cases. Indeed, their correctness, even by the decisions that have, by construction extended the defence, so as to embrace the case under consideration, seems to be conceded. In the case of Singleton v. Carroll et al., 6 J. J. Mar. 529, which is mainly relied upon as a case in every respect in point, after substantially recognizing the rule as we have stated it above, the Court said, “The true ground however, generally, upon which, in snch cases, to rest the defence of the covenanter, is that the loss is not to be considered as provided against by a general covenant:” and the case of Pollard v. Shaaffer, decided by Chief Justich Maeshall, is cited; and 2 Selwin Nisi Prius 412, is also cited; in each of which, it was the act of an alien enemy that excused the covenanter from the performance of his covenant, and not the mere absconding of a slave, or the casual loss of property.
In the case of Keas v. Yewell, 2 Dana 249, the other Kentucky case cited by the counsel, and relied upon as in point, the Court say, “ Tested by the literal import of the covenant, there could be but little dispute that this plea furnishes no sufficient excuse for not having the slave to surrender in obedience to the decree. Her running away was not guarded against by any stipulation in the covenant, nor is improperly speaking, that description of casualty which would be termed inevitable, so as to relieve the parties from the effect of their covenant by the principles of the common law. But still, in our estimation, it constitutes a valid defence to the action: ” and the reason assigned by the Court for so holding it a valid defence is, in their own language, “That the casualty by which the slave was lost, is a peril incident to the nature of such property, and therefore, in contracts or covenants concerning such property, that peril should ever be presumed to have been intended to be guarded against, unless so expressly stipulated,” To sustain this course of reasoning, the Kentucky courts cite no authority whatever, where a similar question has occurred. The case in 5 Littell was a case in which the hirer was excused from paying the hire of a slave that died during the time for which he was hired, without the fault of the hirer: and the case in 5 Littell was decided on the authority of the case of Harris v. Nicholas, 5 Wunf. 487, which was also a case where the excuse for not keeping the covenant was the death of the slave. The covenanters were excused from performing their covenants, in each of these cases, upon the ground that they were prevented by the act of God, against which, no man is presumed to covenant, because no human agency can arrest it. Not so in the case before us. It is true that there was a risk to run. The slave might abscond. And so, upon a covenant to deliver stock, or to pasture a horse and return him, the cattle or the horse might escape and never be reclaimed. All these casualties are incident to such undertakings; and if the party contracting was unwilling to run the risk or hazard attending them, he should have excepted them in his contract. This covenant is a security to the owner of the slave for his property, and may have materially influenced him in making the hire upon the terms agreed upon. We cannot say how this was, but find an unqualified covenant to return the slave. If the terms are responsible, they are such as the party voluntarily assumed, or if it be doubtful whether he intended to assume this much, the well established rule of construction is, that it shall be construed most strongly against the party making it.
Another rule, equally clear is, that the contract should be so construed, if possible, as to give force and effect to all of its parts, so that no part of it shall be rejected as useless or unmeaning, if they can be reconciled so as to give each effect and force. It will at once be seen, that under the construction given to this clause in the covenant, it is rendered wholly unmeaning and nugatory, for the obligation of the law, in the absence of any contract to return the slave, impose obligations upon the hirer precisely similar, and to the same extent that the Kentucky and Tennessee courts construe this contract as imposing. So far from this, the parties are presumed to know the law; and unless they intended to bind the hirer beyond his mere legal liability, it is to be presumed they would have made no covenant on the subject. The Kentucky court, and also the Tennnssee court, have cited 5 Munf., as a leading authority for the decisions they have made, and have fallen into the same train of reasoning, and have wholly overlooked, and, in effect, discarded the several familiar and well established rules for construing contracts to which we have referred.
The question is one of interest in a State like ours, where slaves are held as property, and contracts of hire are of common occurrence. The covenant to return the slave to the owner when his term of service has expired, is an important feature in the contract: and when it is considered that he at once parts with the possession and control of his slave, and confides him to the care of one who, for the time being, absolutely commands his time and directs his movements, it is but reasonable to suppose that he intended to impose an obligation upon the hirer to return him at the expiration of the time, whilst, on the other hand, the hirer, aware of the risk he might run by thus covenanting, if he had doubts upon the subject, could either except this contingency out of his covenant, or modify the contract in other respects to suit himself before entering into it.
In the case before us, we find an unqualified undertaking on the part of the hirer to return the slave to the owner at the end of the year. These terms, onerous or not, were voluntarily assumed by the hirer. It was a subject matter which the party is presumed to have been capable of performing, and which, at law, he is bound to perform unless excused from so doing by the apt of God or the public enemy of the country.
The Circuit Court erred, therefore, in overruling the demurrer of the plaintiff to the third and fourth pleas of the defendant. And for this error, the judgment must be reversed, and the cause remanded, to be proceeded in according to law. | [
80,
120,
-36,
127,
26,
64,
58,
-102,
21,
34,
39,
83,
-55,
71,
28,
96,
-31,
111,
80,
107,
92,
-45,
7,
97,
-14,
-45,
-47,
-39,
-79,
109,
-46,
93,
76,
49,
-54,
-47,
-26,
73,
-55,
-36,
-114,
37,
-118,
76,
-7,
1,
52,
56,
16,
78,
1,
-98,
-93,
38,
21,
-45,
-21,
58,
123,
53,
-16,
113,
-98,
-81,
125,
29,
-78,
38,
-66,
39,
-8,
60,
0,
17,
1,
-24,
115,
-76,
-128,
92,
9,
59,
41,
98,
98,
0,
105,
107,
-40,
-112,
62,
-2,
-115,
-90,
17,
88,
11,
77,
-65,
-99,
126,
84,
55,
122,
-14,
-99,
-39,
36,
43,
-117,
-44,
-93,
77,
50,
-110,
4,
-61,
13,
19,
113,
-60,
-78,
76,
3,
115,
-109,
-98,
-38
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court.
The only question presented by the record in this case, is whether the court below decided correctly or not, upon the issue of nul ticl record. The defendants’ counsel has not specified or pointed out any variance between the record described in the plaintiff’s replication and the one brought in support of it; but he has rested his objection alone upon a supposed omission in the bill of exceptions to negative the idea that oilier evidence was before the court. He contends that the correctness of the judgment is not enquirable into, and that whether right or wrong it must stand upon the legal presumption which attaches in its favor. He insists that the bill of exceptions does not affirm either in direct words or by implication that it sets forth all the testimony upon, which the court found the issue for the defendant, or that upon the evidence 1 herein set forth, the issue was; sub mitted to the court, or that no further testimony was offered, or that the bill of exceptions contained all the facts in the case. — > He contends that in this state of the record the defendants may have proved that the record introduced was against different and other persons of the same name, or that the cause of action disclosed in the record was a different and other cause of action than the one sued upon, or that the defendants may have proved other facts which authorized the finding of the court. We will now proceed to test the grounds of these assumptions.
The bill of exceptions filed in the cause after detailing the re* cord set forth and described in the replication, concludes as follows: “Whereupon all and singular the records and note above mentioned, being inspected bjr the court as the evidence introduced by the plaintiff under the issue of nul tiel record, and the same being examined by the court on the trial of said issue of nul tiel record, and after duly considering the same, the court found said issue in favor of the defendants, to which judgment, finding and opinion of the court upon said issue of nul tiel record in favor of the defendants, the plaintiff by attorney at the time excepted,” &c. This entry shows very clearly that the record referred to in the replication was the only evidence introduced by the plaintiff; and whether it is silent in respect to that introduced by the defendant or not, is wholly immaterial, as under the issue he could have introduced none to authorize the finding of the court in opposition to that brought forward by the plaintiff. The identity of the parties, or of the cause of action, was not put in issue by the plea of nul tiel record, and consequently no presumption can arise in favor of such proof having been ma.de. The only question presented by the issue of nul tiel record was, whether there was such a record as that described in the replication, and not whether the parties or the cause of action were one and the same. If the defendants had been disposed to contest either of these facts, they could have done so only after first admitting the existence of the record and then by setting up such matter by way of avoidance. It is clear, therefore, that under the issue which was before the court, they could not have introduced any matter to entitle them to a judgment. We are satisfied from Ibis view of the case, that the court below erred in finding for the defendants upon the issue oí nul tiel record, and that the judgment ought to be, and is hereby reversed, and the cause is remanded to the said court to be proceeded in according to law, and not inconsistent with this opinion. | [
-16,
-4,
-52,
-114,
26,
96,
42,
-102,
73,
-127,
-25,
83,
-27,
74,
-124,
117,
-9,
107,
113,
74,
-49,
55,
22,
-63,
-74,
-6,
-38,
-43,
49,
108,
-26,
124,
76,
32,
-118,
-59,
102,
74,
-43,
22,
-50,
-108,
-103,
77,
-39,
96,
52,
59,
84,
79,
85,
-57,
-29,
44,
28,
-61,
-23,
44,
75,
59,
112,
-112,
-116,
-115,
93,
20,
-77,
38,
-98,
-123,
-40,
46,
-100,
49,
1,
-8,
115,
-90,
6,
52,
41,
-71,
8,
102,
98,
33,
121,
-18,
-72,
-120,
39,
61,
13,
39,
-110,
72,
-23,
-27,
-74,
-67,
61,
16,
47,
126,
-26,
-43,
30,
44,
29,
-113,
-110,
-95,
-97,
108,
30,
74,
-21,
-93,
-112,
112,
-57,
-22,
92,
69,
51,
-111,
-98,
-106
] |
Mr. Justice Walker
delivered the opinion of the Court.
The Circuit Court correctly sustained the demurer to the plaintiff’s replication. The legal effect of payment is not to take the case out of the limitation act of 1839, and place it within the act of 1844. Biscoe and others v. Stone et al., 6 Eng. 39. Durritt v. Trammell, id. 183.
Let the judgment of the Circuit Court be, in all things, affirmed. | [
-12,
122,
84,
-66,
74,
-30,
32,
-102,
10,
113,
-89,
83,
43,
-62,
16,
33,
-82,
-7,
117,
106,
86,
-13,
39,
73,
-14,
-13,
-37,
-41,
-75,
-8,
-26,
93,
76,
48,
-94,
-43,
103,
-53,
-43,
80,
-50,
-113,
9,
-51,
-47,
96,
52,
33,
0,
11,
113,
-113,
-13,
46,
24,
-61,
105,
44,
-39,
-79,
80,
-79,
-98,
-115,
124,
20,
-111,
37,
-104,
2,
-22,
38,
-128,
49,
0,
-40,
114,
-74,
-122,
85,
69,
-101,
8,
98,
98,
37,
97,
111,
-72,
-104,
46,
-2,
-113,
-89,
20,
88,
43,
77,
-66,
31,
126,
16,
7,
126,
-10,
-44,
92,
108,
5,
-113,
-106,
-90,
-81,
120,
-108,
-54,
-61,
-125,
-111,
116,
-49,
106,
85,
-58,
19,
-101,
-98,
-66
] |
Mr. Chief Justice Johnson
delivered the opinion of the Court. .
There can be no pretence, under the circumstances of this case, as developed by the testimony, that the law raised a promise on the part of the appellant to pay for the improvements which had been made upon the land in question. The appellee had absolutely purchased the land, gone into possession and made the improvements upon it as his own property, and his having abandoned his property could not in any way affect the contract of purchase and consequently he could not exact the price of his labor bestowed upon it without first showing that such contract of purchase, had been cancelled, that he had been relieved from its obligations, and that in consideration of such improvements, the appellant had undertaken to pay. The declaration contains no count, which purports to be based upon the special promise that the evidence tended to establish. The only proof going to show a legal liability, and which was admissible under the form of the counts, was that detailed by the witness Davis. This was wholly incompetent, and would doubtless have been excluded by the court below had a motion for that purpose been made in proper time; yet as it was permitted to go to the jury, and that too without objection, it is not for this Court now to say how far it may have gone to convince the jury of the existence of the fact attempted to be established by it. We do not design to intimate that all the testimony of Davis was inadmissible, but confine the remark to the understanding or hearsay of the witness and the declarations of the plaintiff below as stated by the witness. It is contended, by the appellant, that the Circuit Court erred in refusing him permission to interrogate the witness in relation to the value of the wood and timber which the appellee had sold upon the land. The counsel for the appellee controverts this position upon two distinct grounds. First, that no set-off or bill of particulars was filed as a basis for the introduction of such evidence, nor notice in any manner whatever that the defendant below intended to rely npon the value of the wood and timber which had been taken from the land. And secondly, that the defendant, having accepted a higher security for any loss that he n^ght sustain from that source, was bound to resort to such security, and could not availhimself of the same matter of defence in this action.
The court below correctly refused to permit the witness to testify as to to the value of the wood and timber, which had been sold by the appellee, at the time it was called for by the appellant, as no foundation had been previously laid for the introduction of testimony to establish that fact. The action is assumpsit based on contract, and it is clear that any damages, which might have accrued to the appellant, resulting from the sale of wood and timber by the appellee, could not have been set up by way of set-off or in mitigation of the amount claimed in this action, unless it had been made to appear that such was a part and-parcel of the contract entered into by the parties. No such showing had been made at the time the court ruled out the testimony, and consequently there was no error in that respect. True it is that, at a subsequent period in the progress of the trial there was some evidence adduced which tended to show that, so far as the appellant’s admissions were concerned, if taken against him to establish a promise to pay for the improvements, were also admissible for him to explain the character and extent of such promise, and if after the basis thus laid by the appellee by the introduction of the appellant’s own admissions, the court had been called upon to receive other evidence corroborative of such admission in relation to the value of the wood and timber disposed of by the appellee, there can be no question but that it would have been error. We have not been able therefore to discover any error in the rulings of the court during the progress of the trial.
The question now to be determined is, whether any error intervened in overruling the motion for a new trial for any of the causes therein specified.
The first cause assigned is, that the finding of the jury was contrary to the evidence: second, that the court excluded from the jury evidence offered by the defendant which ought to have been admitted, and thirdly, that the court permitted illegal evidence to go to the jury. In respect to the first, we cannot say that the jury fout^L contrary to the evidence. It is conceded that the testimony going to show a promise by the appellant to pay for the improvements, was rather slight and doubtless would have been rejected altogether as illegal, if an objection bad been interposed in proper time, yet it was silently permitted to go to the jury, and, for aught that we can know, was fully sufficient to convince their minds of the existence of the facts for which it was introduced. Neither can we say that the court excluded from the jury evidence offered by the defendant, which ought to have been admitted. The evidence sought by the appellant in relation to the value of the wood and timber sold by the appellee, was clearly incompetent at the time it was called for, and consequently the court cannot properly be charged with error in not receiving it. If the appellant desired the evidence of other witnesses to corroborate and sustain his own statement, which had been introduced by his adversary, and thereby made evidence in his own favor, he should have renewed his application after he had been thus permitted to lay a foundation for it, and if the court had then refused, it would have been most clearly error. The third is that the court permitted illegal evidence to go to the jury! That this is true in point of fact, will not be denied, but although strictly true, it is not a matter which can avail the party upon a motion for a new trial, as he has stood by in silence and made no objection during the whole trial. If he considered any part of the evidence offered against him, inadmissible for any reason whatever, it was his duty to lay his finger upon it and to make his objection at the time, and having failed to do so whilst the matter was passing before the lower court, it is now too late to avail himself of such objection!
We are therefore of opinion, from a full and careful view of the whole record, that there is no error for which the judgment ought to be reversed. The judgment of the Crawford Circuit Court herein rendered, is, therefore, in all things affirmed. | [
-47,
122,
-36,
-99,
26,
32,
42,
-102,
89,
-95,
-90,
83,
-17,
66,
20,
99,
-90,
125,
112,
106,
71,
-93,
39,
-29,
-10,
-13,
-45,
-35,
-79,
76,
-12,
93,
76,
48,
-54,
-43,
102,
-56,
-59,
16,
-50,
-123,
9,
-52,
-39,
98,
52,
27,
116,
75,
117,
-98,
-13,
44,
29,
-61,
109,
44,
107,
33,
112,
-8,
-66,
-99,
93,
21,
-79,
38,
-100,
5,
-24,
106,
-112,
49,
0,
-40,
123,
-74,
-122,
116,
13,
-85,
8,
102,
98,
0,
125,
-17,
-40,
-40,
46,
-34,
-115,
-90,
-108,
24,
99,
105,
-74,
-97,
124,
16,
-90,
126,
-25,
29,
29,
108,
3,
-113,
-106,
-93,
-113,
60,
-102,
3,
-49,
-125,
-110,
97,
-49,
-22,
92,
71,
58,
27,
-114,
-33
] |
Mr. Justice 'Walker,
delivered the opinion of the Court.
This suit was instituted by the administrator of Miller Irwin, on the following instrument: “Sept. 6, 1845. Due Miller Irwin one hundred and seventy-one dollars and three cents, for value rec’d. (Signed) H.«L. Biscoe.”
In defence, Biscoe filed several pleas, in which the same ground of defence was set up under different circumstances! To each of which, demurers were sustained.
A consideration of the legal right of the defendant under the contract, set up in his pleas, will, we apprehend, dispose of them all. Each of the pleas discloses a written contract of even date with the due bill in suit, which is set forth at length together with a recital that the defendant had filed the transcript of a judgment in favor of the State Bank v. Nicholas Righter’s estate for $800 debt and $107 damages, in the Probate Court of Phillips county, which had been allowed and classed in the 3d class, and after these recitals, concludes as follows: “Now, I bind myself that the proceeds of the note above described shall be applied to the payment of the allowance above referred to, either by the purchase of Arkansas money with the amount of this note $171 03 par funds, or the said Biscoe shall have the right to liquidate said note in Arkansas money, at the rate of discount on the said Arkansas funds, so as to make the amount in Arkansas equal his note as above stated: (signed) Miller Irwin.”
This agreement will be found to contain but two important stipulations: first, that Miller Irwin will, with the proceeds of the note, so executed, purchase Arkansas money and apply it to the payment of the claim so allowed in favor of the Bank; or, secondly, that Biscoe shall have the privilege of paying it in Arkansas money at its value!
With regard to the first, it is evident that the payment of the note by Biscoe, was a condition precedent to the act to be done by Irwin, because the purchase of the Arkansas funds was to be made with the proceeds of the note; or, in other words, the money paid upon the note. It is evident, then, that this breach of the agreement can furnish no defence against the collection of the note. To test the rights of the parties and their liabilities under this agreement, suppose that Biscoe had sued Irwin. In order to maintain his action for a breach of the first stipulated duty on the part of Irwin, he would necessarily have had to aver that Irwin had received the money upon the note, before he could fix upon him a liability for failing to buy Arkansas money with it. How, then, can he set this agreement up as a defence in bar to the right of recovery upon the note? The mere statement of the facts show that no such defence could be interposed.
As regards the second stipulation, it amounted to nothing more than a condition annexed to his note, by which he might discharge his debt in Arkansas Bank paper at its value. In order to have availed himself of this defence, he should have averred a tender of Arkansas Bank paper, equal in value, to $171 03 cash, made in apt time. Nothing of the kind is averred in either of the pleas.
There is an attempt made, in the three last pleas, to connect with this written agreement, by averments, matters touching the consideration upon which the note was executed, to the following effect: that Biscoe was indebted to Righter in his life-time, and that Irwin, his administrator, took the note in suit upon settlement of that indebtedness, and that although the note was executed to Irwin in his individual right, it was, in truth, a debt due the estate of Righter. Concede all this to be true, and still the legal rights of the parties are not thereby changed., Irwin had a right to take the note either in his individual or his representative right. In the first instance, he would be liable over to the estate as for a devastavit, but the contract would not be the less valid as between the parties. (Hemphill v Hamilton's adm., 6 Eng. 425.) Nor does the averment that defendant had subsequently bought the claim so allowed of the Bank, add anything to the validity of his defence at law. We deem it wholly unnecessary to comment upon the several averments in these pleas, as under no state of case under which the facts could be presented, would they furnish a defence to the action.
The judgment of the Phillips circuit must, in all things, be affirmed. | [
114,
108,
-112,
108,
24,
-16,
58,
-102,
83,
35,
-91,
115,
-7,
71,
17,
113,
98,
45,
116,
104,
-25,
-77,
1,
64,
-62,
-14,
-7,
-121,
-71,
-51,
-92,
-105,
76,
36,
-56,
-43,
-26,
-62,
-59,
-108,
78,
0,
-119,
-27,
-39,
96,
48,
41,
80,
11,
117,
-113,
-13,
47,
29,
75,
45,
44,
-23,
37,
80,
-79,
-118,
-113,
125,
21,
33,
100,
-104,
115,
90,
46,
-112,
49,
1,
-88,
122,
-74,
-122,
84,
105,
-71,
8,
-30,
98,
3,
32,
-49,
-104,
-128,
38,
-2,
15,
-90,
-74,
88,
11,
77,
-73,
-111,
126,
24,
-58,
-12,
-13,
-99,
24,
44,
7,
-97,
-42,
-77,
-81,
60,
-98,
75,
-13,
3,
52,
101,
-49,
-16,
77,
71,
62,
-109,
-98,
-43
] |
Mr. Justice Walker,
delivered the opinion of the Court.
This bill was filed to enjoin a judgment at law upon the ground that it had been paid, and the fact as to whether it was or not paid is the only matter at issue.
It appears that Thorn & Lemon were, as partners, engaged in transporting the United States Mail from Little Rock to Rock Roe, and that the defendants were blacksmiths on the route engaged to do work for them: that, after the defendants’ account against them amounted to $108 78, Thorn sold out his interest, and the contract was continued in the name of Lemon, Pitcher & Walters, at which time, from the directions of Pike, their trustee, the statement of Lemon, the evidence of Graham, the agent, and the answer of the defendant, we are of opinion that the successors of the firm of Thorn & Lemon assumed to pay the debts then outstanding against them. Defendants were continued by the successors until after the death of Pitcher, and up to the 29th September, 1844. On the 13th of October, 1845, defendants filed their account of $100, for balance due on work done from 26th September, 1843, to 29th September, 1844, against Lemon & Walters, as the surviving partners of Lemon,Pitcher & Walters, upon which judgment for that amount was rendered in their favor, which judgment remained unsatisfied on the 24th of February, 1846, at which time Shouse applied to Walters for a settlement, in which reference was made to the judgment, but so indefinite as only to show that it was the subject of conversation, and also to the account against Thorn & Lemon, which Walters refused to pay. A payment was then made and receipt taken for $62 50, which purported upon its face to be for the last quarter’s pay for work done between the 27th June, and 27th September, 1844, a period embraced by the account on which the judgment was rendered, and purported also to be in full of all demands against Lemon, Pitcher & Walters, and also of Lemon & Walters, signed by Shouse, in his individual name. There is no doubt from the evidence of Graham, the agent, but that of this sum $39 were taken from credits entered on account of Thom & Lemon by them; so that only $23 50 were actually paid. From all the circumstances, it is* most probable that this payment was intended to liquidate and settle that much of the judgment, although it purports to be on the account for 'part of the time, for then there was no account, except the Thorn & Lemon account which Walters had refused to pay. Walters was bound for that account, and the withdrawal of the credit from it was in fact no payment, for in the proportion as he took from the one he increased the other. Shouse received the $23 50. There was no other demand to which it could apply, and it is but just that he should give credit by that amount.
The Circuit Court therefore erred in decreeing a perpetual injunction of the judgment at law. Let, the decree be set aside with costs, and the cause remanded to the court from whence it came, with instructions to credit the complainants by the sum of $23 50, as of the date of the receipt, and either render a decree in that court for the residue of said judgment with interest and costs of suit and damages upon the debt injoined less $23 50, or dissolve the injunction as to the residue thereof as may best comport with the equitable rights of the parties, as now presented upon the record by death or otherwise. | [
112,
110,
-12,
-68,
74,
96,
34,
-102,
85,
8,
-89,
83,
-23,
71,
28,
97,
98,
45,
80,
107,
110,
-93,
3,
96,
2,
-45,
-21,
-123,
49,
105,
-28,
93,
76,
48,
-54,
-99,
-26,
72,
-55,
22,
-50,
37,
40,
-19,
-7,
-64,
52,
57,
50,
65,
85,
-82,
-5,
46,
24,
83,
109,
60,
-23,
41,
-47,
-71,
-102,
-115,
-1,
22,
19,
103,
-100,
7,
-54,
62,
-128,
53,
1,
-24,
122,
-74,
6,
-44,
39,
-119,
8,
102,
103,
48,
-11,
111,
-34,
-88,
38,
-2,
-115,
-90,
-108,
104,
11,
73,
-66,
-99,
63,
80,
-121,
126,
-5,
93,
-103,
44,
11,
-117,
-106,
-126,
-65,
50,
-100,
19,
-21,
36,
54,
100,
-60,
-30,
93,
68,
21,
-109,
-113,
-39
] |
Mr. Chief Justice Johnson
delivered the opinion of the court.
The judgment sued upon in this case was rendered in the State of Tennessee, in May, 1840, and this suit was not commenced until the 4th March, A. D. 1847. Prior to the passage of the act of the 20th of March, 1839, there was no statute in. force in this State as to limitations upon foreign judgments. The provision which embraces them, is the 16th Sec. of Chap. 99 of the Digest, which is, that “ All actions not included in the foregoing provisions, shall be commenced within five years after the cause of action shall have accrued.” (See 5 Ark. Rep. 512, Baldwin v. Cross; and Digest p. 698.) Corporations are not within the saving clause of the statute of limitations put into operation on the 20th March, 1839, and as a necessary consequence, that statute commenced running against the judgment in suit from the time of its rendition in May, 1840, (5 Eng. Rep. p. 525, Clarke v. Bank of Mississippi.) But foreign corporations were embraced in the act of 14th December, 1844, by which the previous limitation was extended for two years in favor of persons residing beyond the limits of this State at the passage of that act. The enactment in favor of persons residing beyond the limits of this State at the passage of the act of December 14th, 1844, was not intended to revive causes of action that were at that time barred by any statute of limitations, the words “ notwithstanding, such suit or suits may be barred,” having reference not to the time of the passage of the act, 1 within the period of the two years allowed whenw be commenced. Thereby in legal effect prolong limitation in any cause of action belonging to aij not barred at the passage of the act, (but which j wise barred in the regular running of the statuffi at any time between the passage of the act and of the period of two years) to the end of that period. (See the case last cited at page 526.) The cause of action, therefore, having accrued in May, A. D. 1840, and the statute having commenced running' against it from the da}^ of its rendition, it necessarily follows that it would have been barred in May, 1845, had not the act of 1844 extended it for two years from its date, which, of course, prolonged the time and postponed the bar until the 14th of December, 1846. The cause of action having arisen in May, 1840, and the statute of limitations of 20th March, 1839, having immediately attached to it, it is clear that a plea setting up a lapse of five years since the accrual of such cause of action, would be a complete bar, unless the plaintiff should admit the fact of such lapse of five years, and by way of avoiding its effect, set up by way of replication that it was still not barred, since it was not barred at the passage of the act of 14th December, 1844, and that she had commenced her action within two years from that time. This she has not chosen to do, and, consequently, the plea being a complete bar, and in no way avoidable, must be permitted to prevail.
The first replication to the plea of five years, is, that the plaintiff existed, resided and obtained judgment in the state,.of Tennessee, and the defendants removed and resided in the State of Arkansas, and beyond the jurisdiction of the said State of Tennessee, and that the said plaintiff has not been within the jurisdiction of the Circuit Court of Jefferson county within five years next before commencement of this suit, and that the said disability had not been remoyed five years next before the commencement of this suit. To put this replication upon the strongest ground for the plaintiff, it c.annot possibly amount to an answer to the plea. To admit that the plaintiff resided in the State of Tennessee at the time of the accrual of the cause of action, and that she so continued to reside there up to the institution of this •suit, and also that the defendants had been residents of this State during the same time, could not give the least aid to the replication. The construction already given to the several statutes bearing upon the subject, is predicated upon precisely such ¡a state of facts.
The second replication to this plea is, that the statute of five years, by the defendants pleaded, is no bar to the plaintiff’s right of action. This tenders no issue of fact, but one purely of law, and consequently, is not admissible by way of repli¡cation.
We are fully satisfied that neither of the replications was responsive to the plea, and, that consequently, the Circuit Court decided correctly in sustaining the demurrer to both, and also in giving final judgment against the plaintiff upon her refusal to plead further.
The judgment of the Circuit Court herein rendered, is therefore, in all things affirmed. | [
-12,
122,
-36,
-68,
26,
-30,
34,
-102,
73,
104,
-89,
-45,
-23,
-62,
20,
125,
-29,
107,
113,
91,
-11,
-93,
23,
105,
-46,
-13,
-55,
-35,
49,
78,
-10,
95,
76,
48,
-54,
-11,
103,
106,
65,
30,
-54,
13,
58,
-52,
-16,
96,
48,
123,
80,
78,
5,
-116,
-93,
42,
29,
-49,
105,
41,
-53,
60,
80,
112,
-102,
-123,
127,
21,
17,
103,
-100,
7,
-24,
62,
-120,
49,
-111,
-24,
82,
-74,
-58,
-36,
111,
25,
8,
98,
98,
-128,
-31,
-25,
-40,
-104,
14,
-42,
-99,
-90,
4,
80,
11,
73,
-65,
-99,
60,
20,
-91,
126,
-18,
-36,
17,
108,
5,
-97,
-76,
-93,
-49,
102,
-102,
7,
-26,
-125,
-80,
97,
-50,
-85,
93,
71,
59,
27,
-113,
-40
] |
Mr. Justice Scott
delivered the opinion of the Court.
The statute in question does not make every possible, malicious or contemptuous disturbance or disquietude of a congregation or private family assembled for religious worship a misdemeanor, although its provisions are very general, and embrace almost every such case that may occur. It is, therefore, necessary that the disturbance proceeded for, which we have said is the gist of the offence, (State vs. Ratliff, 5 Eng. 530,) should be described as well in order that it may be determined whether or not the statutory offence has been charged, as that the accused may know the “nature and cause of the accusation against him.” It is not necessary, however, to describe it in language any more explicit than that used in the statute, (Digest, page 370, sec. 1,) as “by profanely swearing,” or “by using indecent gestures,” or “by threatening language” to some person so assembled, or “by committing violence” upon some said person. All greater particularity of description beyond the general description in the words of the statute, or by words of fully equal import, are properly matters of evidence to establish the distinction charged, and are not necessary matters of averment. (See, as to this principle, Moffatt vs. The State, 6 Eng. 178-9.) The indictment before us falls short of this reasonable and convenient certainty, and is therefore fatally defective in matter of substance. The Circuit Court ruled properly in granting the motion to quash, and its judgment must be affirmed. | [
-80,
-24,
-40,
-68,
43,
-32,
34,
-66,
-45,
-125,
-89,
-77,
-19,
-45,
0,
35,
-13,
127,
113,
104,
-43,
-73,
55,
65,
-12,
-45,
-33,
69,
-79,
78,
-26,
125,
72,
-80,
-62,
-11,
102,
-118,
-59,
-44,
-58,
47,
8,
-63,
-45,
78,
36,
59,
86,
79,
85,
-97,
-13,
42,
28,
-61,
41,
40,
75,
124,
96,
56,
-98,
29,
108,
6,
-77,
38,
-116,
-121,
-24,
56,
24,
17,
1,
-2,
115,
-90,
2,
85,
13,
-71,
-120,
98,
98,
1,
41,
-18,
-120,
-103,
15,
126,
61,
-90,
-110,
73,
41,
12,
-65,
-67,
116,
48,
14,
124,
-61,
-36,
17,
108,
1,
-49,
-92,
-93,
-115,
112,
-34,
100,
-61,
-89,
16,
48,
-51,
-74,
84,
67,
18,
91,
6,
-99
] |
Mr: Chief Justice Johnson
delivered the opinion of the Court.
This is an application for a supersedeas to the Lafayette Circuit Court. From the facts as presented by^tlie record, we think it clear that the Court had the power to do the act complained of, and whether the power has been rightfully exercised or not, is not inquirable into in this form of proceeding. It was said by the Supreme Court of Ohio, in the case of Dorsey v. Goodenow, (Wrights Rep. 120,) that “Power is possessed by the Court to make an allowance to the wife, ■pendente lite. In a proper case made, the Court will make an allowance large enough to enable her to carry on her suit, and to subsist upon while it is pending.” That case is in harmony with all the authorities which we have been able to consult upon the subject. If the Court had the power in this case to make an allowance out of the husband’s estate to enable the wife to pay the fees of her attorney, and thereby to carry on her suit, we think it clearly follows that the attorney was equally entitled to protection when an attempt was made to dismiss the suit, and that, too, under circumstances strongly indicating collusion between his client and defendant to cheat and defraud him out of his fees and disbursements. The power of the Court over the subject being conceded, there is an end of this application, as we are not at liberty to enquire into any errors or irregularities which may have intervened in the exercise of such powers. The order complained of is merely interlocutory, and its merits can only be investigated when the whole case upon a final decree shall be presented. This Court in the case of Carnall v. Crawford county, (6 Eng. 618) held that before final judgment nothing short of a clear defect of power in the subordinate court, or clear breach of duty, and irreparable mischief by delay, should make a case for interposition; otherwise, the extraordinary powers of superintending control would conflict with, and in effect, supersede the ordinary appellate jurisdiction as regulated by law. The application is therefore refused. | [
-79,
-8,
-3,
-20,
10,
34,
55,
-116,
113,
-127,
39,
83,
-81,
-5,
0,
113,
-74,
107,
81,
123,
85,
-93,
55,
104,
-10,
-13,
-7,
-35,
-79,
-52,
-25,
-1,
76,
32,
10,
-43,
70,
67,
-59,
84,
-114,
13,
-103,
-51,
-15,
68,
52,
57,
84,
15,
53,
-97,
-29,
46,
29,
71,
-84,
40,
-39,
37,
80,
112,
-98,
-123,
95,
20,
-80,
36,
-100,
-89,
-40,
42,
8,
57,
0,
-23,
115,
-74,
-106,
116,
79,
59,
8,
98,
98,
0,
-32,
-17,
-68,
-103,
14,
-39,
-99,
-90,
-112,
25,
-22,
8,
-74,
-97,
109,
16,
-89,
126,
-21,
85,
31,
108,
15,
-50,
-108,
-73,
-49,
124,
-100,
2,
-21,
-125,
48,
113,
-53,
-128,
93,
71,
59,
-101,
-114,
-126
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.