text:
    Peet et al. vs. Burr et al.
    Bailment: Rights acquired, by a pledge.

    In a proceeding by attachment, and levy on personal property, an interpiea was filed by parties claiming- that the property had been pledged to them by the defendants, to secure indebtedness due them, etc., held, that the pledge created a special property in the interpleaders, which was good as against the pledger or his creditors, and the interplea should have been sustained.
    APPEAL from Ouachita Circuit Court.
    Hon. James K. Young, Circuit Judge.

      Rose, for appellant.
   Harrison, J.:

Burr, Hill & Co., on the 7th day of October, 1874, commenced suit against Powell & Hamilton by attachment, and the writ was levied upon, besides other personal property, four gin stands.

Peet, Yale & Bowling filed an interplea, claiming the gin •stands as a pledge delivered to them by the defendants, on the 1st day of April, 1874, for the payment of three promissory notes for $318.17 each, payable September 1st, October 1st, and November 1st, 1874, respectively, still unpaid; and which had remained in their possession until attached.

The plaintiff demurred to the interplea, as showing no right of property or of possession in the interpleaders against the plaintiffs:

The court sustained the demurrer; and judgment being rendered in favor of the plaintiffs, and for a sale of the gin stands as well as the other property attached, Peet, Yale & Bowling appealed.

A pledge is a bailment of goods by a debtor to his creditor, to be kept till the debt is discharged; and a .special property in them passes to the creditor, and he may hold them against the pledgor, and, of course, the creditors, who can have no better right until redeemed by the payment of the debt.

The judgment of the court below is reversed, and the cause remanded to it with instructions to overrule the demurrer, and proceed according to law.


source: Caselaw Access Project

author: English, Ch. J.:

license: Public Domain

text:
    The State of Arkansas vs Flynn.
    1. Appeal: From an interlocutory order in a criminal cause.

    Where an interlocutory order is entered under an indictment, for felony, by which the jurisdiction of the court is rendered doubtful, it is proper that an appeal should be taken to the Supreme Court.
    2. Venue, Change op: Beyond Judicial Qircuit.

    Under the provisions of article 2, section 10 ©f the Constitution of 1874, the venue in a criminal cause cannot be changed to a county outside of the Judicial Circuit in which the indictment is found, for any cause.

      APPEAL from Pulaski Circuit Court.
    Hon. T. C. Peek, Special Judge.

      J. W. Martin, for Attorney General.

      Harrell, for appellee.
   English, Ch. J.:

In November, 1875, Frank Flynn was indicted in the Circuit Court of Garland County, for murder.

After an application for bail had been made by the prisoner, and withdrawn, he filed the following affidavit: x

The defendant, Frank Flynn, who is indicted for murder in the first degree, in the above entitled cause, states on oath that he verily believes that His Honor, J. M. Smith, judge of this court, will not give the said defendant a fair and impartial trial.”

The prisoner also filed a similar affidavit, made by Wm. H. Blevins.

Thereupon the court made an order, changing the venue of the cause to the county of Pulaski, it being the most convenient county in an adjoining circuit.”

A transcript of the proceedings in the Garland Circuit Court having been transmitted to the Pulaski Circuit Court, under the order changing the venue, and the cause docketed in the latter court, the prisoner filed a motion, 8th February, 1875, asking the court to set the cause down for trial at the then present term.

The prosecuting attorney filed a motion that the cause be stricken from the docket, for want of jurisdiction, and' remanded to the Garland Circuit Court, which motion the court overruled, and the State appealed.

First — The Constitution provides that:

The Supreme Court, except in cases otherwise provided by the Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the State, under such restrictions as may from time to time be prescribed by law,” etc. Constitution 1874, art. 7, sec. 4.

In felonies, an appeal can only be taken on a final judgment, except on behalf of the State. Gantt’s Digest, sec. 2117.

When the State desires to appeal, the prosecuting attorney must pray the appeal during the term at which the decision is rendered, and the clerk must immediately make a transcript of the record, and transmit the same to the attorney general, etc. Ib., sec. 2127.

If the attorney general, on inspection of the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important .to the correct and uniform administration of the criminal law that the Supreme Court should decide, he may, by lodging the transcript in the office of the Clerk of the Supreme Court, within sixty days after the decisionj take the appeal. Ib., sec. 2128.

The appeal in this case was taken under, and in accordance with the above provisions of the statute.

Whilst we would not encourage, or suppose that the legislature intended to provide for appeals by the State, in felonies, from, every interlocutory decision of the court, yet it was well enough for the attorney general to allow the appeal in this case, before final judgment, for if the court had proceeded to try the prisoner, the verdict and judgment would have been invalid if it turned out on appeal that the court had no jurisdiction of the cause. Osborn v. State, 24 Ark., 629.

Second — By Act of 25th April, 1873, it was provided that:

“Whenever the defendant, under any indictment for a felony, shall file the affidavit of himself, supported by the affidavit of some other credible person, stating that he verily believes that the judge of the court in which the prosecution is pending will not give him a fair and impartial trial, the court shall make an order changing the venue in such cause, to the most convenient county in an adjoining circuit, and shall' make an order directing the clerk to transmit the .papers, as required in other cases of the change-of venue in criminal cases, and shall have the same effect as in other cases hereinbefore provided.” Gantt’s Digest, sec. 1885.

Section 10 of the Declaration of Rights provides:

“ In all criminal prosecutions, the accused shall enjoy the right to a speedy public trial, by an impartial jury of the county in which the crime shall have been committed; provided, that the venue may be changed to any county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be prescribed by law.” Const. 1874, Art. 2, sec. 10.

The words “judicial district” as here used, are manifestly equivalent to the words “judicial circuit” as used in other provisions of the Constitution.

The above section of the statute is clearly inconsistent and in conflict with the clause of the declaration of rights above copied, and is no longer in force, if it had any validity under the Constitution of 1868, which was in force when it was enacted. Schedule, sec. 1, Const. 1874. Coit v. Elliot, 28 Ark., 294.

Under the present Constitution the venue in a criminal case, can for no cause be changed to a county out of the judicial circuit in which the indictment is found.

The Constitution provides that:

“No judge, etc., shall preside in 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 consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel, or presided in any inferior court.” Art 7, sec. 20.

And section 21 of the same article, provides for the election of a special judge, when the circuit judge is disqualified from presiding at the trial of any cause pending in the court, etc.

And section 22 provides that: “The judges of the Circuit Courts may temporarily exchange circuits, or hold courts for each other, under such regulations as may be prescribed by law.”

If a circuit judge makes erroneous decisions, they may be reviewed by the Supreme Court on appeal or writ of error, and if he acts corruptly he may be impeached, or removed from office by address. Art 15.

Where a circuit judge labors under none of the causes of disqualification prescribed by the Constitution, he has the right to preside, and is bound by his official oath, and by honor, to decide impartially regardless of his social relations to parties.

If the legislature may constitutionally provide for his displacement by affidavits that he is prejudiced, which we do not admit, but find it unnecessary to decide in this case, some other remedy must be devised, than that of a change of venue to some other circuit.

The decision of the court must be reversed, and the cause remanded to the Pulaski Circuit Court, with directions to remand the cause, the prisoner and a transcript of the proceedings, including this mandate, to the Circuit Court of Garland County, that the cause may be there proceeded in according to law and not inconsistent with this opinion.


text:
    State of Arkansas vs. Prescott.
    Criminal Law : Presumption of innocence.

    The fact that a county judge erred in granting a liquor license, after a majority of the electors of the township had voted against license at an election held for the purpose of determining whether such license should he granted or not, did- not raise the presumption that he had acted corruptly. It was incumbent on the State to show from other facts and circumstances, in connection with his errors, that t.e acted corruptly.

      APPEAL from Nevada Circuit Court.
    Hon. James K. Young, Circuit Judge.

      Att’y Gen’l Hughes, for State.
   English, Ch. J.:

On the 22d May, 1875, Wm. PI. Prescott was indicted in the Nevada Circuit Court for malfeasance in office as judge of the County Court.

The indictment charged in substance:

That on the 3d day of November, 1874, the same being on Tuesday after the first Monday in November in said year, an election was held in Missouri Township in said County of Nevada, at which election there was submitted to the qualified electors of said township, the question whether license should be granted by the County Court of said county to any person t© keep a drinking-saloon, or dramshop for the sale of ardent, vinous or fermented liquors in quantities less than one quart, in accordance with the provisions of the statute in such case made and provided. That the returns of the election were sealed up, and forwarded to the the county clerk. That afterwards, at the January term, 1875, of the County Court (which term was held more than ten days after said election) said election returns were laid before the court by the clerk, according to the statute, etc. That, by the returns, it appeared that a majority of the votes cast at said election were cast against license. That defendant (Prescott) after-wards, on the 5th of January, 1875, a day of said term, being acting and presiding as judge of said County Court, wholly disregarding his solemn oath of office as such judge, wickedly and unlawfully did grant a license to William B. White and Eugene E. White to keep a drinking saloon or dramshop, by then and there, as such judge, while presiding as such, at said term of said court, having an order entered upon the records of said court, granting to said William B. White and Eugene E. White, under the style of W. B. & E. E. White a license to sell liquors in quantities less than a quart, in said Missouri Township, etc., the said defendant then and there well knowing that a majority of the votes cast as aforesaid, in said township, were cast against license, contrary to the form of the statute, etc.

The defendant pleaded not guilty, and was tried upon an agreed statement of facts, in substance as follows:

That on the 3d November, 1874, it being Tuesday after the first Monday in November of that year, an election was held in Missouri Township, Nevada County, at which was submitted to the qualified electors of said township the question whether license should be granted by the County Court, etc., to keep drinking saloons, or dramshops, according to the«provisions of the statute, etc., but that no proclamation was made by the sheriff of said county of said election. That the returns of said election were sealed up and forwarded to the county clerk, etc., and after-wards, at the January term of the County Court, etc., said returns were by said clerk laid before said court, from which returns it appeared'that the majority of said votes were cast against license.” That defendant was the presiding judge of said court at said term, and during said term, on the 5th January, 1875, upon the motion of Edward A. Warren, Esq., an attorney of the court, and the testimony of J. V. Hulse, then the sheriff of said county, adjudged said election to be void, upon the grounds, as he declared, that no proclamation of said election had been made by the sheriff as required by law; and that on the same day, upon the application of W. B. & E. E. White, accompanied with a petition of a majority of the electors of said township, and a bond for $2,000, as required by law, presented, filed and insisted on by said Warren, said defendant, as such judge, made an order granting license to keep a dramshop in said township to said Wm. B. White and Eugene E. White, under their style of W. B. & E. E. White; and that said Warren, at the time insisted before said judge, presiding in said court, as a further ground for declaring said election void, that the judges of said election announced upon the opening of the polls, that all votes for license should be blanks, and those against license should have written upon them “ against license.”

The court on the motion of the prosecuting attorney, gave one instruction to the jury, and four at the instance of the defendant, to the third of which the State objected, and which is as follows:

“In arriving at the intention of defendant, the jury will not infer or persume any wrong, illegal or wicked intention from the mere fact that said order was illegal; and unless the jury find from other facts or circumstances in proof that the defendant was, beyond a reasonable doubt, moved and instigated to the rendition of said order by some corrupt, wicked, or unlawful motive or purpose, with a full knowledge and belief that said order was contrary to law, they will acquit.”

The jury rendered a verdict of acquittal, the State moved for a new trial, on the' grounds that the verdict was contrary to law and evidence, and the court erred in giving the third instruction asked for defendant. The motion was overruled, and the State excepted and appealed.

The only point made for the State, is that the court below erred in giving the third instruction moved for appellee.

The attorney general has referred us to see. 1460, Gantt’s Digest, as the law under which the indictment was preferred.

It is section 26 of the Act of April 3d, 1873, establishing Boards of Supervisors, and substituting them for the County Courts, which section provides that:

“Any Board of Supervisors, or any supervisor or clerk of said board, who shall willfully violate any of the provisions of this act, or neglect or refuse to perform any duty herein specified, shall be deemed guilty of a misdemeaner, and upon conviction thereof, in a court of competent jurisdiction, shall be subject to-a fine of not less than ten dollars nor more than one hundred dollars, and shall be removed from office.”

The act, among other things, gave the boards jurisdiction to-grant peddlers, grocery, ferry, and other license provided for by law, and such other powers and jurisdiction as was then vested by law in the County Courts, etc. Sec. 15. See also Gantt’s Digest, chap. 17.

License to keep a grocery or dramshop for the retail or vinous or ardent spirits in quantities less than one quart, was then authorized to be granted on a petition of the applicant,- signed by a majority of the resident voters.of the political township in which the grocery or dramshop was proposed to be established. Gantt’s Digest, chapter 129 and notes.

But by Act of May the 30th, 1874, the law was changed, and the question of granting such licenses was to be annually submitted, to the qualified electors of each township, ward of a city, etc., on Tuesday after the first Monday of November in each year, and it was made unlawful for the Boards of Supervisors to grant such licenses if voted against by a majority of the electors, etc.

By the Constitution of 1874, County Courts were re-established in the place of Boards of Supervisors. Schedule, sec. 23. Art. 7, sec. 28, etc.

Conceding that the appellee erred in declaring the election void because not proclaimed by the sheriff, and in granting a license upon the petition of a majority of the electors of the township, under a law not in force, it does not necessarily follow that he acted corruptly in the matter. The jury were not warranted in inferring corrupt motives from the fact that appellee erred, but it was incumbent on the State to show by other facts and circumstances, ina connection with his errors, that he erred willfully from corrupt motives. And such was the substance of the instruction of the court complained of by the State. 1 Bishop on Criminal Law, sec. 299, and cases cited in note. Welsh v. Loyd, 5 Ark., 370.

Judgment affirmed.


text:
    State of Arkansas vs. Leathers, et al.
    1. Criminal Law: Illegal search. Forcible entry of dwelling, etc.

    There is no statute in force in this State, expressly prohibiting the search of a private dwelling without a warrant, and such search is not indictable under the provisions of sec. 1995 Gantt’s Digest: but one who enters a a dwelling house by force is indictable at common law.
    2. Indictment: For forcible entry of a dwelling house.

    An indictment, at common law, for the forcible entry of a dwelling house, must contain such allegations as will show a forcible entry.
    APPEAL from Hempstead Circuit Court.
    Hon. Jas. K. Young, Circuit Judge.

      Att’y Oen’l Hughes, for State.
   English, Ch. J.:

Indictment in the Hempstead Circuit Court, found at the May term, 1875.

The indictment charged:

“ That James Leathers and John Stroud, late of, etc., on the 20th day of December, A. D. 1874, with force and arms, in the county aforesaid, the dwelling house of one Henry Jefferson, there situate, unlawfully and unreasonably did search, without procuring from any officer authorized to issue process for apprehension of offenders, a warrant to search said dwelling house, against the will of the said Henry Jefferson, to the great perversion and detriment of the constitutional rights of the citizens of the State, to the evil example of all others in like cases offending, and against the peace and dignity of the State,” etc.

The court sustained a demurrer to the indictment, discharged 'the defendants, and the State appealed.

We have no statute making a search without a warrant, an. indictable oifense.

Section 1995, Gantt’s Digest, provides, in general terms, that where a statute prohibits, or requires the performance of an act,, and no section of the statute, or any other statute, imposes a penalty for its violation, the doing of the act prohibited, or the neglect of the required duty, shall be deemed a misdemeanor.

Our Bill of Bights contains the usual American provisions for . securing the persons, houses, etc., of the people against unreasonable search, and prohibits the issuance of a search warrant, except upon probable cause, supported by oath, etc., particularly describing the place to be searched, and the person or thing to-be seized. Art. 2, sec. 15, Const., 1874. No statute has been passed regulating the issuance and execution of search warrants,, except that which formed a part of the Bevised Statutes, and has been brought down through the several Digests into Gantt’s, secs. 1691-4. But this statute contains no express provision, nor does any other statute, prohibiting a search without warrant; and hence such search is not indictable under the general statute.. Gantt’s Digest, sec. 1995, above copied.

But the citizen whose person or dwelling is invaded by an unwarranted search, is not without remedy in a State where the common law has been adopted, as in ours. Gantt’s Digest, secs. 772-3.

Had the appellees laid violent hands upon the person of Jefferson, and searched him, he could have sued them for trespass, or caused them to be indicted for an assault and battery.

9 Bacon Abr. Title Trespass. 2 Arch. Crim. Prac. & Plead. ■ (Wharton’s notes) title Assault and Battery.

So, if they entered his dwelling house (which however humble is his castle, Gantt’s Digest, secs. 1282-3) without permission, they were liable to a civil action for trespass. 9 Bacon Abr. Trespass, F. 2, 15 Ill., 53.

And if they entered his dwelling by force, it was an indictable offense, by the common law. 2 Bishop Or. L., secs. 501-9. 2 Chitty Cr. L., 504 note (L). Rex v. Storr, 3 Burrow, 1698, 1702. Rex v. Bake et al., Ib., 1732. King v. Wilson et al., 8 Durnford & East, 357. 9 Bacon Abr. Trespass.

But the indictment on its face must show an entry by force, to distinguish it from a trespass merely actionable. Same authorities.

The language to be employed in such indictment is well discussed in King v. Wilson et al., cited above, which, as is Rex v. Bathhurst, which was an indictment for forcibly entering a dwelling, is referred to as a leading case.

In this case, the indictment does not allege a forcible entry of the dwelling. It alleges that defendants, with force and arms (the formal words used in civil actions of trespass) entered the dwelling of Jefferson unlawfully and unreasonably did search, etc., but it was not shown, except by implication, that they entered the dwelling, and certainly not alleged that they entered it by force.

Ve have been able to find no common law precedent for an indictment like the one before us, and the attorney general has referred us to none.

Judgment affirmed.


text:
    McKibben vs. The State.
    JFmns, Penalties, etc. : Payable in County Warrants.

    Under the provision of the Act of December 14th, 1875, requiring fines, penalties, etc., to be paid into the County Treasury, such fines, penalties, and forfeitures are to be treated as debts accruing to the county, and are payable in county warrants.

      APPEAL from Crawford Circuit Court,
    Hon. W. W. Mansfield, Circuit Judge.

      Att’y Gen’l Hughes, for State.
   English, Ch. J.:

The judgment in this case was rendered in the Circuit Court of Crawford County, at the March term, 1876.

The transcript after the usual caption, is as follows:

“The State of Arkansas v. Daniel A. McKibben. Indictment for misdemeanor.
“This day (April 7) the said Daniel A. MeKibben appeared by B. J. Brown, Esq., his attorney, and offered to pay to the sheriff the sum of $200, the fine for which the judgment herein was rendered against him, in Sebastian County warrants, and $49.56 in lawful money of the United States, that being the full amount of costs taxed herein against him, and thereupon moved the court to order the sheriff, who was at the bar of the court, ready to submit to such order as the court might make in the premises, to receive the same in satisfaction of said fine and costs, and to discharge him from custody; but the court being of opinion that county warrants were not receivable in payment of fines assessed in such cases of misdemeanors or convictions on indictments, refused to order the said sheriff to accept said county warrants in payment of the fine and costs, and to discharge the defendant from custody; to which decision the defendant excepted, and prays an appeal to the Supreme Court, which is granted, and by consent of John F. Wingfrey, said sheriff, who voluntarily appeared, and resisted said motion, etc., this entry is ordered to be taken as though the question decided had been made in a regular proceeding,” etc.

By act of 23d March, 1871, fines, penalties and forfeitures imposed by any court, board or officer (except such as were imposed by city courts for violation of ordinances) were made part of the general school fund, and payable into the State-Treasury. Gantt’s Digest, secs. 5289-5303.

But by Act of December 14th, 1875, entitled:

“ An act requiring fines and penalties to be paid into the county treasury for county purposes.” “All fines, penalties, and forfeitures, imposed by any court, board, or officer whatever, shall be paid into the county treasury where imposed, for county purpurposes;’ Provided, that all fines and penalties of city courts- and incorporated towns for violation of city or town ordinances, not defined as offences against the State, may be retained by the city or towns for the maintainance of such city or towns.”

No doubt the purpose of the legislature was to divert from the general school fund, fines, etc., imposed in criminal prosecutions, etc., and give them to the counties, in which they may be imposed, which have to pay- the expenses of such prosecutions, etc.

Such fines, etc., we think are now to be treated as debts accruing to the county, and may be paid in county warrants, or scrip, as commonly called. Gantt’s Digest-, sec. 610.

But the transcript before us shows that the appellant offered to pay to the sheriff Sebastian County Warrants, in satisfaction of a fine imposed upon him, for a misdemeanor, in the Circuit Court of Crawford County, Why, or upon what ground appellant claimed to pay a fine imposed in Crawford, in Sebastian County warrants, is not shown in the transcript before us.

It may be that he was indicted in Sebastian, and tried and fined on a change of venue to Crawford, but this is not made to appear.

Possibly there is a clerical error in the transcript, but it is not the practice of this court to open a submission of its own motion, and award a certiorari to bring up a corrected transcript, or omitted matter, for the purpose of reversing a cause.

The judgment must be affirmed, but without prejudice to appellant should his motion be reversed in the court below, upon a different showing of facts.


author: Harrison, J.:

text:
    Dormar vs. The State.
    ■ Indictment: Against road overseer. What is essential, etc.

    In an indictment against an overseer of a road for failure to keep the same in repair, the description of the road is material, and must be proved as alleged.
    APPEAL from Dorsey Circuit Court.
    Hon. J. R. S. Burbridge, Special Judge.

      Hughes, Att’y Gen’l for State.
   Harrison, J.:

The appellant, John Dormar, was tried upon an indictment For failure of duty as road overseer, and convicted. He moved for a new trial, on the ground that the conviction was not warranted by the evidence; and his motion being overruled, he excepted and appealed.

The indictment charges that being overseer of section (3) three of the Mount Elba and Monticello road, extending from Blakey’s creek to the Lincoln County line,” the same being a public road, he failed to keep said road in good repair, etc.

There was no evidence that such road as that described in the indictment, was in the defendant’s district. All the witnesses testified that section three of Mount Elba and Monticello road, of which the defendant was overseer, extended from Blakey’s creek to the Drew County line, and they knew of no road extending from said creek to the Lincoln County line.

The words of the indictment:

Extending from Blakey’s creek to the Lincoln County line,” ■ were an essential part of the description of the road. Greenleaf says: “Any allegation which narrows and limits that which is essential, is necessai'ily descriptive.” 1 Green Ev., sec. 58, and all the circumstances of the description must be proven. Ib., sec. 65 ; 1 Phil. Ev. 834 ; Whart, Cr. L., sec. 602; 2 Russ, cr., 801.

The defendant should have been acquitted ; and it was error to overrule his motion for a new trial.

The judgment of the court below is reversed, and the cause remanded that the defendant may have a new trial.


text:
    Landrigan vs. The State.
    1. Railroad Company: Power to enforce reasonable regulations, etc.

    A railroad company may make reasonable regulations for the conduct of all persons who come upon its premises, and authorize its agents and servants to remove therefrom any person who violates its regulations, using no greater force than is necessary.
    2. -: Power to eject hotel runners from platforms.

    Where an inn keeper, or his agent, in violation of a regulation of a railroad company, comes upon its platform for the purpose of soliciting patronage for his hotel, he may be ejected by the servants of the company, who may use such force as is necessary for that purpose.
    APPEAL from Miller Circuit Court.
    Hon. James K. Young, Circuit Judge.

      Loughborough & Moore, for appellant.
    Hughes, Att’y Gen’l for State.
   Harrison, J.:

The appellant, Pat. Landrigan, was tried before a justice of the peace, upon a charge of assault and battery, and found guilty. Upon an appeal to the Circuit Court the case was tried upon the following statement of facts :

“On the 14th day of Octoher, 1875, the defendant was the watchman at the depot of the St. Louis, Iron Mountain and Southern Railway Company, in Texarkana, in Miller County, Arkansas. The company had adopted a regulation which forbid the entry of inn keepers or their agents upon the platform of said depot for the purpose of soliciting passengers to patronize their houses. This regulation was for the prevention of annoyance to passengers, and interference with the business of the employees of said company, and it was the business of the defendant to enforce it. On the aforesaid day Charles Price, the party assaulted, knowing of the regulation, entered on the platform of the depot for the purpose of soliciting patronage for a hotel. The defendant warned him that he was violating the aforesaid regulation, and notified him to desist; he refused to do so, and thereupon the defendant laid hands upon and, without unnecessary violence, ejected him from the platform.

He was again convicted and fined.

He moved for a new trial, because the conviction was not warranted by the agreed statement of facts, which was refused.

It is well settled that a railroad company has the power to make reasonable and proper regulations for the conduct of all jmrsons who come upon its premises, and to authorize its agents and servants, to remove therefrom, using no unnecessary force, those who violate them. Pierce on Railroad Law, 248; 1 Red-field L. Railways, 93-97; Commonwealth v. Power, 7 Met., 596; Hall v. Power, 12 Met., 482; Harris v. Stevens, 31 Vt., 79; Whar. Am. Cr. Law., sec. 1255.

And it is directly decided in the above case of Commonwealth v. Power, that it may remove an inn keeper from the station, who, in violation of its rules, persists in entering it to solicit patronage for his house to the annoyance of passengers, and the interruption of its business.

In that case the Supreme Court of Massachusetts says:

“ The court are of the opinion that the railroad corporation, both as the owners and proprietors of the houses and buildings connected with, the railroad and as carriers of passengers, have authority to make reasonable and suitable regulations in regard to passengers intending to pass and repass on the road in the passenger cars, and in regard to all other persons making use of such houses and buildings. This authority is incident to such ownership of the real estate, and to their employment as passenger carriers; and all such regulations will be deemed reasonable, which are suitable to enable them to perform the duties they undertake, and to secure their own just rights in such employment, and also such as are necessary and proper to insure the safety, and promote the comfort of passengers.” And they say further: “The regulations in question are such as an individual who should happen to be the owner of the depots and buildings, and of the railroad cars, would have power to make in virtue of his ownership of the estate, and of his employment as a carrier of passengers.”

And the Supreme Court of Vermont in the case of Harris v. Stevens, 31 Vt., 92, says:

“As has been said, the corporations, by erecting their station houses, and opening them to the public, impliedly license all to enter; still such license is revocable as to all, except those who have legitimate business there growing out of the road, or with the officers, or employees of the company.”

The regulation the defendant was enforcing, was a reasonable and proper one, and such as the company had a very clear right to make, and as he used no greater torce or violence than was necessary, he committed no offense; and was Í7nproperly convicted.

The judgment of the court below is reversed and the cause remanded to it, with instructions to grant the defendant a new trial, -and to proceed according to law.


author: Hardison, J.:

text:
    Blevins et al. vs. The State.
    1. ^hbripj?: Cannot execute process beyond his county.

    Except in cases of escape, or the removal of property after an order of attachment comes to his hands, a sheriff has no authority to execute process beyond his own county.
    2. Bail Bond : Void where the arrest is illegal.

    Where a sheriff executes a warrant of arrest beyond his own county, a bail bond executed by the prisoner is void.
    APPEAL from Pope Circuit Court.
    Hon. W. W. Mansfield, Circuit Judge.

      John Fletcher and A. C. Ooblentz, for appellants.

      Att’y Gen’l for State.
   Hardison, J.:

The appellants, James Blevins and Carroll Armstrong, were summoned to show cause why judgment should not be entered against them for five hundred dollars, on account of the forfeiture of a bail bond executed by them for the appearance of one Samuel Moore, to answer an indictment for larceny.

The defendants in their answer denied the validity of the bail bond. The arrest of the said Samuel Moore, they averred,was made in Conway Comity, where be at the time resided, by the sheriff of Pope County, under no other or better authority than a warrant issued upon the indictment to him as such sheriff; and that the said Moore being so unlawfully arrested and restrained of bis liberty in Conway County by the said sheriff of Pope County, they, in order to procure his release executed the bond, and that the same was delivered, and by the sheriff accepted and taken, in Conway County.

The State demurred to the answer as showing no defense. The demurrer was sustained, and final judgment rendered against the defendants.

A sheriff may pursue and capture one who, after an arrest, has escaped or been rescued from bis custody, in any part of the State; but with the exception, that he may, if after an order of attachment has been placed in his hands the property pf the defend.ant has been removed from the county, pursue and attach the same in another county within twenty-four hours after the removal, as provided by sec. 405, Gantt’s Digest, he has no' authority to execute any writ or process, but in his own county.. Lawson, v. Burziness, 1 Harrington, 416 ; The King v. Weir, 1 Barn. & Cress., 288; Rex v. Chandler, 1; 1 Ld. Raym, 546 ; Blatcher v. Kemp, 1 H. Black, 15; Chase v. Joyce, 4 Maul. & Selw., 412; Hammond v. Taylor, 3 Barn. & Ald., 408.

The act of the sheriff of Pope County therefore, in arresting said Moore in Conway County, was of no more force or validity,, than if it had been that of a private citizen, and the bond taken by him upon the arrest was a nullity. Thompson v. Lockwood, 15 John, 256; The State v. Brantley, 27 Ala., 44; Blackman v. The State, 12 Ind., 556 ; Commonwealth v. Robert, 1 Dur., 199 ;, Commonwealth v. Fisher, 2 Dur., 376.

■ The demurrer by the State should not, therefore, have been sustained.

The judgment of the court below is reversed, and the cause remanded to it, with instructions to overrule the demurrer, and proceed according to law.


text:
    Fagan & Trezevant vs. N. Missouri Ins. Co.
    Bailment: Stranger receiving premiums on policies of insurance.

    Where premiums on policies of insurance are collected, and held by a third person, and the amount placed to the credit of the agent of the insurance company, the holder becomes the bailee of the company, and must account to it, or its agent, for the money so held; he cannot apply the same to a discharge of debts due him by the agent, or deliver it to the agent after his authority has ceased.

      APPEAL from Pulaski Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Dodge & Johnson, for appellant.

      Benjamin & Barnes, for appellee.
   Harrison, J.:

Appellee sued appellants before a justice of the peace, on an account for money had and received to its use. From a judgment for the plaintiff the defendants appealed to the Circuit Court, where the plaintiff again obtained á verdict for the amount sued for $173.80. The defendants moved for a new trial, on the grounds of misdirection of the jury at the instance of the plaintiff; and the refusal to give proper' instructions asked by the defendants, and that the verdict was not sustained by the evidence. Their motion was overruled, and they excepted and appealed to this court.

Thomas H. Jones, a witness for the plaintiff, testified:

That he was, in 1872, the plaintiff’s agent in Little Rock; and having to leave the city for a time, in the summer or fall, he placed some of the plaintiff’s blank policies, signed by himself as agent, in the hands of Steelman, to write up if occasion offered. He was absent about two months, and in the time of his absence Steelman wrote up the several policies mentioned in the account sued on, the premiums upon which amounted to $300 or $400. The policies were written up for the defendants, and they themselves collected most of the premiums. Steelman was absent when he returned, and _ the premiums having been deposited with the defendants, and placed to the plaintiff’s credit on their books, he demanded them from them. They claimed that Steelman had deposited the money to his own credit, and he had drawn a considerable amount against it, and they denied any liability to the plaintiff. They finally offered to pay $100, as the amount which they supposed Steelman still bad in'their hands; but he declined to receive that unless they paid the whole. The defendants put him off from day to day, until about the time Steelman returned, when they said they did not owe Steelman anything, having overpaid him, after crediting him with the premiums, and refused to pay the plaintiff anything.

J. T. Trezevant, Jr., one of the defendants, testified for defendants:

That in the fall of 1872, Steelman, an insurance broker, had a desk in the defendant’s office. He informed defendants in September, that Mr. Jones, the plaintiff’s agent, had left the city for a time, and had left several of the blank policies with him as a sub-agent to write up, if the opportunity presented. The defendants gave him several risks, amounting in premiums to $300 or $400. The premiums were mostly collected by the witness. Steelman having the premiums in defendants’ possession was allowed to draw money as he wanted. The defendants had no connection with the plaintiff, but the account was kept in its name simply to keep it separate from Steelman’s account proper, and so that his commissions might be easily and correctly kept.

The witness employed Steelman to take charge of a work on the Arkansas River, and he was absent two months. Before his return, Mr. Jones, plaintiff’s agent, was anxious to get the money, and called on the witness to know when Steelman would return. The witness declined to turn over the premiums to him. A month afterwards, the witness, thinking it would be satisfactory to Steelman, told him he would turn over the money to him. The defendants’ book-keeper did not get his books made up until after Christmas. In the meantime the witness offered Jones $100, which he declined to take unless he could get all.. When the books were made up, Steelman had drawn more than the defendants had collected for him, and the witness then declined to pay anything. Steelman paid part of the premiums to Jones, and reduced the amount due the plaintiff to $173.80, the sum sued for.

The first instruction given for the plaintiff, of which the appellants complain, was as follows:

If the jury believe from the evidence, that the defendants collected the premiums mentioned in the account sued on, they must find for the plaintiff such sum, after allowing the credits, as had not been paid over.”

We can perceive no objection to this instruction. The premiums belonged to the plaintiff, and when the defendants collected them, they became their bailees as to the amounts they received, and are bound to account to them for the same.

And the other instruction for the- plaintiff, was as follows :

“ If the defendants collected premiums, it was their duty to pay over the same to the plaintiff) or its agent (Jones), and they had no right to apply them to the payment of debts due by Steelman to them, unless directed by the plaintiff) or its agent— Jones.

It is too clear that the appellants could not appropriate the plaintiff's moneys in their hands, to the payment or discharge of Steelman's debts, but this instruction is susceptible of the construction that the defendants could not have paid them over to Steelman before they were demanded by Jones, and was calculated, if it stood alone to mislead the jury. An instruction given for the defendant as appears by the bill of exceptions, however, explains it) and the jury were informed that if Steel-man, as the agent of the plaintiff, authorized the defendants to take out the risks charged in the account, and empowered them to collect the premiums; and he afterwards drew the same out of their hands, the defendants were discharged from their liability.

The instruction refused to be given for the defendants, was as follows:

“If Steelman was acting as agent of the plaintiff, by an appointment of Jones, plaintiff’s -agent in Little Rock, and he deposited the premiums with the defendants as bailees subject to his order, and the deposit' was returned to him on his demand, the jury will find for the defendants.

This instruction was properly refused. The defendants knew that the premiums belonged to the plaintiff, and they could discharge themselves from liability, but by paying them over to plaintiff, and if they paid them to Steelman after his agency -ceased, which the instruction assumes might have been done, they did so in their own wrong.

There was no want of evidence.

It is the province of the jury to weigh the evidence and 'ascertain the facts, and this court will never disturb their verdict on the mere weight of evidence.

Finding no error, the judgment of the court below is affirmed :


author: S. W. Williams, Sp. J.:

text:
    Hodges et al. vs. Frazier.
    1. Practice: Qtiardiau ad litem, appointment of, etc.

    It is not proper to appoint an attorney ad lilem for minor defendants, the court should in such cases, after service, appoint a guardian ad litem.

    2. Presumption: Misprision, etc.

    Where the record shows an order of the court below appointing an attorney ad litem for non-resident minor defendants, the court will not, therefore, presume that there were minors in the case, in the absence of allegations in the pleadings to that effect, but will treat it as a misprision.
    3. Jurisdiction: Acquired by appeal.

    ■When a party appeals to this court, he thereby enters his appearanc-e, and the court, as to subsequent proceedings, acquires jurisdiction of his person.
    APPEAL from Crittenden Circuit Court in Chancery.
    Hon. M. L. Stephenson, Circuit Judge.

      Mice, Mice & Winfield, for appellants.

      Rose, for appellee.
   S. W. Williams, Sp. J.:

On the 12th dajT of October, 1871, B. H. Frazier filed his complaint in equity, in the Crittenden Circuit Court, against Reuben S. Chick and B. M. Hodges as administrator of the estate of Daniel Hughes deceased. In the complaint Frazier states that in 1858, the plaintiff agreed by paról to convey to-Daniel Hughes, since deceased, being unmarried and without issue, certain lands described in the complaint, for the sum of nine hundred dollars, for which Hughes gave his note. That on the death of Hughes, Hodges was appointed his administrator in Arkansas; before he died Hughes sold the land to Chick, who was in possession under his purchase at the time this suit was brought. That plaintiff had tendered a deed for the land, both to Hughes, and to his administrator, and prayed that his vendor’s lien on the land might be foreclosed. On the 11th day of April 1872, a decree was rendered in favor of the appellee, Frazier, in accordance with the prayer of his complaint. Which decree recites that the deed from Frazier for the land was brought into court. From this decree Chick appealed to this court on the 7th day of May, 1872.

On the 3d day of. December, 1872, error was confessed by Frazier in this court, and the decree was reversed, and the cause remanded, with leave for appellee to amend his complaint.

On the return of the case, the appellee amended his complaint and made the heirs of Hughes parties defendant. They being non-residents, and all (as far as the record before us shows) adults; a warning order was made and published, in due form. An order was entered appointing R. F. Crittenden attorney for the non-resident and, the record states, “minor,” defendants, which latter statement is clearly a clerical misprision, for no minor defendants appear in the case, and the argument of appellant in reference to this point must fail. If it were true that there were minor defendants, then it would not have been proper to have appointed an attorney for them at all. But instead, a guardian ad litem, who, it is true, should be some one skilled in the law, and capable of defending, and this appointment should not have been made until after service on the minor.

We cannot presume, on this record, in the face of what was done, merely from the words minor defendants appearing alone in the order appointing Crittenden attorney for the non-resident “minor” defendants, that therefore there were minors, in the absence of any allegation or statement to that effect in the pleadings.

The record before us shows that Asa Hodges, the agent of B. M. Hodges, had gotten hold of the orignal papers and had taken them from the clerk’s office, and by some means they had become lost. And the complaint was supplied by copies from the transcripts in this court, and a final decree was rendered in favor of appellee.

The defendants appealed to this court and here argue, that Chick being a non-resident no affidavit of the fact appears to authorize a warning order against him.

Whether such affidavit was lost with the original papers does not appear. It is not material, Chick having appealed to this court from the original decree which was reversed, he thereby became a party to the proceedings and must follow the cause to its conclusion, or take the consequences.

The only remaining objection urged by appellants, which it is deemed necessary to notice, is that the deed which Frazier tendered and filed originally in the court below, is not incorporated in the transcript.

As no motion was made in court below as to this deed, which was presented for the inspection and order of that court, and for its satisfaction, and formed no necessary part of the record as an •exhibit, or in any other mode known to the law, it was no part of the record.

And as the defendants made no question as to its sufficiency, in the court below, it would be too late certainly to make it here.

On a sale, the title of all parties to the suit will pass under the commissioner’s deed. But if further assurances are necessary, the cause will be returned for the purpose of executing the decree, when the court below can take all steps — if any should bo deemed necessary to assure the title to the purchaser by deed from Frazier or otherwise, before paying over to him the purchase-money, and if defendants redeem, can direct a deed to be made-before the money is paid out of court.

Tt is urged here that the complaint was not sworn to.

Whether this objection is not too late, being raised here for the first time, is a question which it is not necessary to decide-For it appears that Frazier swore to his original complaint on the 12th day of December, 1871, and before the first decree was rendered.

The amended complaint, which brought in Hughes’ heirs, has no affidavit to it, except that of the non-residence of Hughes’' heirs, and that they were such heirs.

This defect should have been pointed out in the court below, if indeed it be one in substance, and could have been there corrected by amendment.

When the original complaint, containing all the substantial facts necessary to support the, decree was duly sworn to, we cannot reverse the case for this, when we find an affidavit attached to the amended complaint, which states that the new parties were heirs of Hughes and non-residents of the State, and their allegations are all of the amended complaint, which are new or1 materially different from the sworn statements of the original bill.

The decree of the Circuit Court of Crittenden County is-affirmed.


text:
    Rogers vs. Vaughan, adm’r.
    1. Mortgage: Bill of Sale construed to be.

    An absolute bill of sale, 'executed to secure a debt, operates as a mortgage, and will be postponed to a subsequent, and recorded, mortgage.
    2. Trust: When advances by cestui que trust repodd out of trust fund.

    When one of several beneficiaries of a trust fund at the request of the trustee, advances means necessary to preserve the trust fund, he is entitled to re-imbursement out of the fund for such advances.
    3. -:
    A land owner who had let his land to laborers for one-half the crop, mortgaged his share to secure debts due various parties, and among others to secure future advances and a debt due to A. The laborers afterward gave to the land owner a lien on their shares to secure future supplies and other debts due him, he transferred this lien to A, who at the time took a mortgage from the laborers to secure the supplies; held, that A did not take the lien, and latter mortgage, as collateral to the original security, but as independent security for the supplies to be furnished the laborers, and the other creditors were not entitled to have it brought into the trust fund.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. Read Fletcher, Circuit Judge.

      Met. L. Jones, for appellant.
   S. W. Williams, Sp. J.:

On the 5th day of April, 1871, one F. A. Turner, who was engaged in planting in Jefferson County, Arkansas, desiring to get supplies to enable him to make his crop, and being also indebted to appellee Fitzpatrick, and appellant Rogers, and one Murphy, at the time, to secure the appellant in supplies as well as to secure the debts then due from him, executed a deed of .trust, whereby he conveyed to William F. Owen as trustee of the second part, and describes appellant as of the third part, all the crop of cotton and com “grown or raised” for the year 1871, on his own place, in Jefferson County, and about one hundred acres of the Withers place which he had rented, being about 215 acres in all, also certain mules, wagons, oxen, and a Pratt gin. stand, which were conveyed in trust to secure advances to be made by the party of the third part, not to exceed twelve hundred dollars, to enable him to cultivate and raise the crop, and secure Rogers, Fitzpatrick and Murphy in certain debts they then held. On default in payment, the trustee was to take possession of the property, gather the crop, ship the cotton, and sell it in New Orleans, and if necessary, to sell the property on notice, at public sale, first exhausting the crop, and out of the proceeds to pay Rogers for his advances and then the other debts named; but if there should not be enough to pay' all, after the advances were paid, then the trustee was to pay the other debts pro rata according to amount.

This deed of trust was signed by Turner, and acknowledged on oth of April, 1871, and filed for record on the 14th day of April, 1871.

Turner rented his land, in part at one-fourth of the cotton to be delivered to him, and in part for a specific number of pounds (90) of ginned cotton per acre. But by far the greater portion of his land was worked on the share crop plan. Turner receiving one-half for his land, use of stock and implements and feed for jdow animals, and the laborer to receive the other half for his labor.

The crop was planted and cultivated, and matured; Turner drawing his supplies from Rogers, and furnishing it to the hands until he had exceeded the limits of $1,200, provided for in the deed of trust. On the 19th of August, very near or quite the beginning of cotton harvest, Turner being in very bad health desired to leave the State, and go to Tennessee, and it being necessary that further supplies should be advanced to the laborers, an arrangement was effected whereby Turner had all his laborers, except Jesse Nicholson, to execute to him a contract in this form:

“This agreement made and entered into this 19th day of Aixgust, 1871, by and between F. A. Turner party of the first part, and Rufus Davis, George Washington, Henry McFarland, and William Murphy, parties of the second part, witnesseth that whereas the.said parties of the second part have contracted with the said party of the first part, to cultivate forty-five acres of land, more or less, in cotton, on the place known as the Dr. Sam. Withers place and the Turner place, in Jefferson County, Arkansas, in the year 1871.

And whereas, the said parties of the second part, are to receive for their services in cultivating and gathering said crop, one-half pf the same, to be apportioned among the said second parties as follows, to-wit: The said Rufus Davis to receive one and onc-half shares (l£), said Washington one (1) share, and Murphy one (1) share.

And whereas, the said second parties are at this time indebted to the said first party in the following sums respectively, to-wit: Rufus Davis in the sum of $80.72, George Washington in the-sum of $94.04, Henry McFarland in the sum of $219.67, William Murphy in the sum of $73.72. Nowit is agreed and understood between the parties hereto, that the said first party shall have, a special lien upon all the interest of each of the said parties severally of the second part in the said crop raised on said land during the said year, 1871, to secure the payment of the indebtedness to the said first party as aforesaid, and also a special lien on the same for any indebtedness contracted by the said second parties hereafter for supplies,’etc., for the said year 1871, to be-used or consumed in gathering said crop. And it is further understood and agreed that said second parties shall in no event employ laborers to work in said crop without the full knowledge and consent of the said first party.”

On the same day, and as a part of the same transaction, Turne r executed the following transfer

For value received, I transfer all of my right, title and interest in the within, to A. A. C. Rogers & Co., and guarantee the payment thereto. (Signed) F.' A. Turner.

This was acknowledged, but not recorded. The laborers executed on the contract the following agreement:

We agree to and are firmly bound by the above transfex*, to A. A. C. Rogers & Co. by F. A. Turner. All the laborex’S, except Nicholson, executed similar contracts as to their interests, which were in like manxxer transferred,'acknowledged, qnd agreemexxt exxdox’sed as this was. On the same day, and as the proof tends to show, as a part of the saxne transaction, these laborers mortgaged their share of the crops to Rogers, to secure fox-future supplies to be advanced, which mortgages were acknowledged and filed for record August 22d, 1871.

Jesse Nicholson near the beginxxing of the season, oh 23d May, 1871, mortgaged his share of the crop, being thx-ee-fourths of the portion cultivated by hinx, to Rogers, and drew his supplies direct from hixxx all the season.

The proof tends to show that on the 19th clay of August, 1871, when Turner and Rogers and the laborers made the contract above referred to, that it would have been impossible to have gathered the crops and saved the trust funds, unless Rogers, or some one else, advanced supplies and funds to meet expenses. It is also in proof that Rogers did furnish the laborers supplies, an accouxxt of which is set out, and exhibited with his answer; it is also proved that most of the debts due Turner on 19th August, 1871, were for supplies furnished in 1870, and prior to April 5th, 1871.

Rogers states in his answer and deposition, that the contracts made with Turner by his laborers, which was assigned to him before, or at the time the mortgages were executed by the laborers to Rogers, was designed and intended to get Turner’s debt and liens out. of the way, so that his advances might have priority, and all the circumstances of the case, and the conduct of parties strongly corroborate this version of the matter.

The trustee, after harvesting had progressed to some extent under the direction of Rogers, on complaint of Fitzpatrick, took charge of the crops, and employed one Watkins to attend to gathering them, and Rogers furnished him funds from time to time for the purpose, and the trustee, after much difficulty, made what he was led to suppose to be a compromise distribution of the funds, in which he took the amount of Turner’s share of the crop, added to it $607, the proceeds of the sale of the stock, and added to that one-half of the laborers’ shares, making this the trust fund, and divided it after deducting rent and taxes paid by him, and other expenses necessarily incident to the execution of the trust; he divided the trust fund, so formed, as the deed of trust directs substantially.

Murphy received his part without complaint. Rogers claimed that he was entitled to all the laborers’ shares, instead of only half which the trustees allowed him, but accepted his part under protest. Fitzpatrick accepted his, claiming at the time that all the laborers’ shares, instead of half, should have been carried into the trust fund, but declined at the suggestion of the trustee to file a bill in chancery, and, by his conduct, led the trustee to believe that while he protested, he acquiesced and was satisfied, and promised to give an absolute receipt. But afterwards refused to give anything but a receipt for so much received on account.

The testimony shows that all the way through, the trustee acted with the utmost good faith, and the funds being insufficient to pay all, and the parties being unfriendly with each other, made his duties delicate, and difficult, although facilitated by the friendship to himself of all parties, which enabled him to effect what he supposed was a final compromise.

After receiving the portion of the funds thus awarded him, Fitzpatrick filed his bill against Rogers, who was the sole owner of the assets of A. A. C. Rogers & Co., Murphy, and Owen, the trustee, and Turner, for an account of the trust funds, in which he sets out substantially the whole matter as above detailed; and exhibits the deed of trust, the contract between the laborers and Turner, the transfer of the same to Rogers, the mortgages to Rogers, and claims that this transfer to Rogers of Turner’s contracts was as collateral security to the deed of trust, and therefore that the shares of the laborers in the crops should have all been taken and distributed as a part of the trust fund. That their shares amounted to $1,844.11, and the interest of Turner in these shares, by reason of the contract with him, was $1,562.61 (Owens’ answer, and the proof shows that it was $1,434.81) and claimed that the expense of executing the trust was too great. That the proper expenses, taxes, etc., made $900 to be deducted from the trust fund. That Rogers had received the aggregate amount of Ihe several debts of the laborers with Turner under the transferred contracts which amount, by agreement between Turner and Rogers, was to go into the trust fund.

Rogers answered, denying that the transfer of Turner’s contracts to him, was intended as collateral security to the deed of trust, and claiming as above stated, that it was done to enable him to supply hands, and that nothing was said about what disposition Was to be made of the surplus of the hands’ shares after paying for their supplies, except that it was to stand to Turner’s credit, and on the faith of it, Turner got some further advances.

Turner answers also, and denies that the transfers were designed as collateral security to the deed of trust, and notwithstanding there is some apparent formal conflict between Turner’s answer and his deposition, yet he states distinctly that the amount due him from the laborers, which he transferred to Rogers, was to stand to his general credit, and he expected until late in the fall, that he would realize enough from that source -to start him another year, and then he feared that other creditors might attach it, and he directed the trustee to appropriate this, and use it as a part of the trust fund.

This was long after the date of Eoger’s mortgages, and after most of his advances were made, on the faith of the transfers and mortgages, to the laborers to enable them to gather the crops.

Eogers, also, claimed an allowance out of the trust fund for $150, paid to one Eeeder, who held an unrecorded bill of sale, as security for money, on two of the mules conveyed by the deed of trust.

Eeeder testified, that he never had possession of the mules, but they remained with Turner and his bill of sale was to secure a debt due him.

The case was brought regularly to issue, and by consent of parties, and at theii request, P. J. Cameron was appointed to take the accounts, etc.

The master filed his report with all the depositions taken by him.'

First — He disallowed to Eogers the amount paid to Eeeder.

Second — Pie allowed Eogers three-fourths of Nicholson cotton under Nicholson’s mortgage.

Third — He decided that the shares of the laborer’s crops were transferred to Turner, and by Turner assigned to Eogers, as collateral security to the deed of trust, and to the extent of the indebtedness of the laborers to Turner, up to August 19th $1,434.81, the proceeds should go to the trust funds, in postponement of Eoger’s mortgage from the laborers for supplies advanced to them. *

Eogers excepted to this report.

First — Because it disallowed the amount paid by him to Eeeder on his mortgage on the mules.

Second — Because the shares of the laborers were put into the trust fund, whereas it ought to have been given to him under the transfer of Turner and the mortgages.

Owen excepted also; but as the court discharged him, we will not notice the exception.

The court overruled the exceptions, and confirmed the report, and rendered a decree “barring and foreclosing” Murphy’s interest in the fund to the benefit of Rogers and Fitzpatrick, on the ground that Murphy had not demurred — a novel disposition of the interest of a party litigant, who, upon the basis upon which the court decreed, had an undisputed interest.

The court decreed that the sum of $1,080.43, instead of $663.11, distributed by the master, was the proper amount of the trust funds, and Murphy was decreed to be “ barred and foreclosed ” of his undisputed interest, and decreed that Fitzpatrick recover of Rogers $303.70, balance due at his pro rata share of trust funds, which had been received by Rogers out of the laborers’ share. Rogers appealed to this court.

The questions here are raised on Rogers’ exception to the Master’s report.

First — Was Rogers entitled to credit and payment out of the funds for the amount of $150, paid Reeder on account of his mortgage, on the two mules ?

We think not, the bill of sale to Reeder not being accompanied with possession, and being extended by the parties as a" mere security for a debt, was a mortgage. It is the fact that there is a defeasance, and not the evidence of the fact, which makes. an instrument a mortgage." Therefore, whether the evidence of the defeasance is in parol or in writing it is a mortgage, if the fact of a defeasance exists. It is too well settled under our laws, that an unrecorded mortgage must be postponed to one upon record, to now need authority or comment. It follows that this mortgage not being a charge upon the trust property, Eogers had no right to charge the trust fund with its payment.

Second — Was Eogers entitled to the proceeds of the laborers’ share ?

It is pretty clearly established that Turner left for Tennessee, after making the transfer of his laborers’ contract to Eogers, which gave him the absolute control of his liens, and was gone there some weeks, and that Eogers, or some one, had to supply the laborers, or they could not have gathered their crop without sustenance, and that Eogers did advance them supplies, including bagging and ties, and expenses'of ginning and marketing their crop; all of these expenses the court below postponed in favor of the debts of Turner, previous to August 19th, 1871, and held the amount as part of the trust fund, limiting Eogers by a very doubtful construction of the trust deed to $1,200, the amount limited thus, as between himself and Turner, Murphy and Fitzpatrick being no parties, but mere beneficiaries in the deed, and that, although Eogers had advanced, as Fall, his book keeper, testifies nearly $1,400 to Turner on his crop.

It is evident that, but for this furnishing of supplies to laborers, the whole trust fund would have been lost.

If Owen, the trustee, had found it necessary to advance it, and in good faith had done so, he would have been entitled to charge it to the trust fund, as expenses.

Owen swears he called on Eogers for some advances; surely the beneficiary in a deed of trust has a right to make advances to save a trust fund; it is his right, if not his duty, to do so, and on this principle alone, Eogers was entitle to his advances made to the laborers for supplies after the 19th of August, which were necessary to save and gather the crop, and as between himself and his co-beneficiaries, he had an equitable right to be re-imbursed out of the fund for all needful outlays expended to save the trust fund.

The deed of trust of April 5th, applied to and covered only the crop which Turner might raise or grow on the places named, or which might be raised or grown for him, in shape of rents in kind, or shares. It did not apply to any crop which he might thereafter purchase, nor did that deed prevent Turner from purchasing cotton, corn, or growing crops, or taking mortgages on them, and transferring the same free from any claim under the deed of trust.

The contrary of this is not pretended or claimed ; all that is claimed is in general terms, that the transfer of Turner’s lien, if his loan contract gave him any, was as collateral security to the deed of trust. As a proposition of law, it is untenable, for Rogers by the transfer had the absolute right to postpone it to his mortgages, or cancel the Turner claim absolutely.

He did postpone it to his supply mortgages by haying them recorded, and acting under them in making advances.

Besides, if the Turner contracts were transferred to Rogers as collateral, 'he at least would stand in Turner’s shoes as to future supplies which were secured to Turner, and as no priority ■was given to these liens, they at least stood equal, and even upon plaintiff’s grounds the laborers’ crops should be divided between future supplies, and debts existing at the 19th of August 1871, equally, which is about the basis upon which the trustee settled, which was eminently fair to Fitzpatrick.

The claim of Fitzpatrick, that the transfer of the Turner contract was a collateral security, etc., as a proposition of fact, is not sustained by the weight of the evidence or by circumstances of the case, or conduct of parties, at the time of the transaction and subsequently, all, in the main, contradict it.

Turner’s directions to the trustee, several months after Rogers had taken his mortgages and had them recorded, having ownership of and right to control Turner’s debt and cancel the lien, if he chose, and having advanced supplies to the laborers, could not affect Roger’s right, if he had any before.

The proof satisfactorily establishes that if there was any secret trusts existing at the time of the transfer, or any understanding, except that Rogers was to be secured in advances to the laborers, beyond the legal conveyances attaching to the transaction on its face, it was undeclared.

The legal conveyance, in the absence of any special declared trusts, aside from its surroundings, would have given Rogers the right to have appropriated what might be coming to him on the Turner transfers, to any debt Turner might owe him. But as he owed none but the debt secured by the deed of trust on that day, good faith required of Rogers to appropriate it there, which would have lessened his debt, and pro rata distribution under the deed of trust, and correspondingly increased the pro rata portion of his co-beneficiaries.

We are satisfied from Rogers’ statement in his testimony, and other evidence and circumstances corroborating and sustaining his answer, that the allegations of the complaint are not sustained as to this, and that the whole object was to clear the way for the laborers’ supply mortgages, while nothing was said, or perhaps thought, of the ultimate disposition of what might be coming on the Turner transferred contracts.

But for the fact, that Turner directed that it should be placed to the trust fund, and Rogers acquiesced in this direction, tacitly, if not expressly, we would leave him to appropriate it on his own debt existing April 5th, 1871; as it is, we shall direct, after-Rogers’ supplies and advances to the laborers are paid, that the-balance, if any, be placed with the trust fund, as Turner directed. But as Rogers was the owner of this claim on the 19th of August, and had then a right of appropriation, and as there is an excess of near $200 of supplies advanced on the crop to Turner, over the limits preferred in the deed of trust of April 5th, we hold that no principle of good faith or equity required Rogers to lose this, and as it stands unsecured, and must be lost, and was used in making the crop, we will direct that this sum be allowed Rogers out of the laborers’ fund.

This contest has grown out of the misfortunes of a short crop and low prices, so frequent and disastrous to cotton interest in this country.

The court erred in overruling Rogers’ second exception to the Master’s report on this point; and in confirming the same, and decreeing accordingly.

Murphy has not appealed, but if this court should find on a re-statement of accounts here, that anything was due him, it could not be decreed to another, so the court below erred when it decreed to Fitzpatrick funds, for -which, if liable at all, Rogers was liable to Murphy.

For these errors, the judgment of the court below is reversed, except so far as it discharges Owen, the trustee, from liability as to which it is affirmed, and it is referred to the Clerk and Master of this court to reform and restate the accounts from the proofs on file and statements in the transcript.

He will find the amoiint of the proceeds of the crops, ascertain the interest of the laborers therein, which is admitted in all the pleadings and statements to be $1,844.11. From this deduct the proceeds of Jesse Nicholson’s crop, if it be included in the ■gross estimate, which crop of Nicholson the Master will divide as the Master below did.

He will then ascertain Turners portion of the crops, and add to it $610, the proceeds of the sale of the stock; out of the first, or laborers’ fund, he will deduct all sums due Rogers from the laborers for supplies furnished after 19th of August, 1871, including their share of advances of expenses for gathering crop, if :any. To which he will add amount of supplies advanced to Turner, prior to August 19th, 1871, which is in excess of the ■$1,200, preferred debt, secured by deed of trust of April 5th.

If anything is left on this laborers’ fund after allowing Rogers’ expenses, the Master must add it to the trust fund, which he will divide in accordance with the provisions of the deed of April 5th, giving Regers $1,200, preferred debt for supplies to Turner, and the balance pro rata, after deducting expenses of the ■trust, taxes and rents paid, etc., and ascertain and report how much, if anything, has been received by either of the beneficiaries in the deed of trust, in excess of the amount due him, and equalize their interests by finding how much, if anything, ■the one may owe the other, on account of such excess received.


text:
    Montgomery and Wife vs. Johnson, et al.
    1. Certainty in the Description of Lands.

    Where an order of the Probate Court, directing the sale of the land of a decedent’s estate, omits to describe the land, but refers to the petition, in which the quantity, interest and title of the decedent, and the former ownership of the land, with the fact that it was the only land owned by the him, were set oat; held, that the order identified the land with sufficient certainty.
    2. Same : When error will not vitiate.

    In the report of an administrator’s sale one parcel of the land was described as the “ N. irl. % of the N. W. etc., held that it was a clerical error, the N. frl, 34 was intended. An erroneous description of land, by numbers,will not control other descriptive particulars which indicate the land with certainty. (For further application of the rule see the opinion.)
    8. Probate Court: Proceedings in for sale of real estate, etc.

    The proceedings prescribed in sec. 168 Gantt’s Digest, for the sale of real estate of deceased persons, applies to sales for the payment of purchase money, as well as for the payment of debts generally.

      4. -; Proceedings in, how far conclusive.

    The proceedings of the Probate Court, when acting within its jurisdiction, are conclusive on all persons, until reversed or set aside by a direct proceeding for that purpose, however erroneous they may be.. The sale ■of real estate, under an order of the court without notice, and otherwise irregular and grossly defective, is not a nullity,and will, upon its confirmation, divest the title of the heirs.
    APPEAL from Monroe Circuit Court in Chancery.
    Hon. W. H. H. Crayton, Ch’cuit Judge.

      B. D. Turner, for appellants,

      8. P. Hughes, for appellee.
   Harrison, J.:

This was a suit in equity in the Monroe Circuit Court, by the appellants, James W. Montgomery and Ophelia, his wife, against the appellees, John W. Johnson in his own right, and as admistrator with the will annexed of John Johnson deceased, Elijah C. Adams, Elisha P. Adams and Fanny Adams.

The complainants state that Joseph West, the father of the said Ophelia, and John T. West, his brother, purchased on the 20th day of November, 1849, from Robert Smalley, certain tracts or parcels of land in Monroe County, described therein as follows: Part of the original claim of Moses Price, beginning at a post corner, from which a white oak, twenty inches in diameter, bears South, 63 degrees East, 28 links distant; and an oak, thirty-six inches in diameter, bears 62 degrees West, 32 links distant; thence North, 40 degrees West, 20 chains; thence South, 50 degrees West, 40 chains; thence South, 40 degrees East, 20 chains, to a post corner of the old survey; thence 50 degrees East, 40 chains to the beginning; containing 80 acres; and the N. W. J of the N. E. and the N. frl. §• of the N. W. i of Section 23, in Township 3, South of Range 1 West, 102,62 acres, altogether 182.62 acres; for which they agreed to pay $800, in three equal installments, and gave him their three promissory notes for $266.66, payable respectively on tbe 1st of January, 1851, 1852 and 1853; and he executed to them a bond to make them a deed, upon the payment of the notes.

That they entered into possession, and made valuable improvements upon the land, and paid the first note when it fell due.

That Joseph West died intestate on the 1st day of February, 1851, leaving the said Ophelia his heir at law, and John A. Harvick was appointed adminstrator of his estate.

That in a short time after the death of Joseph West, and about said month of February, 1851, John T. West sold the land, as well as the undivided half of Joseph West, to which he obligated himself to secure him a title as his own, to John Johnson, and gave him possession, and that after he sold to Johnson, he and Harvick paid Smalley the other two notes, and Smalley, at their instance, on the 7th day of September, 1852, conveyed the land to Johnson.

That Johnson remained in the exclusive possession of the land, and the sole enjoyment of the rents and profits thereof until his death, in the year 1857; and by his will devised the same to his widow, Nancy North Johnson, during her life, and after her death, to his son, the said John W. Johnson, and his daughter Ann Maria Johnson. That his will was duly probated, and administration, with the will annexed, upon his estate, granted to his widow and said John W. Johnson, and that Nancy North Johnson and Ann Maria Johnson both died soon thereafter, and John W. Johnson was the sole heir at law, of said Ann Maria Johnson.

That the plaintiffs inter-married on the 28th day of February, 1857, and on the 20th day of February, 1861, they filed their bill- in equity in that court, against the said John W. Johnson, to recover the said Ophelia’s undivided half of the land, and the rents and profits thereof, in which suit the defendant was served with process, and the same was continued from term to term until the--clay of May, 1871, within .one- year before the commencement of this suit, when it was dismissed by the court, but without prejudice, for want of prosecution.

That John W. Johnson, on the 10th of January, 1867, sold and conveyed the land to his co-defendants, who had ever since been in possession; that he had, by the will of his father, an estate equal in value to the rents and profits of the plaintiff’s half of the land, which accrued during his father’s possession.

And that the time of her father’s death, the said Ophelia was an infant, and continued to be such until after the commencement of the former suit.

The prayer of the complaint was for a decree for one-half of the land, and for the rents and profits.

John W. Johnson, only, answered the complaint, or made defense. He admitted al-1 the allegations of it, except that when John T. West sold Johnson his own, he also sold him Joseph West’s half of the land, and obligated himself to secure him the title that he desired.

The Court of Probate, he averred, at the April term, 1851, upon the petition of Joseph West’s administrator, verified by his affidavit, showing the debts of the estate that had come to his knowledge; the amount of the assets in his hands; and that after paying the other debts, there would not be sufficient to pay for the land, made an order for the sale of his intestate’s interest therein to pay the remaining two notes given in the purchase thereof, and that in pursuance of the order, having given the notice required by law, he, on the 15th day of July, 1851, sold the same at the court house door, at public auction, on a credit until the 1st day of January, 1852, and it was purchased by John T. West for $550; and at the next term he made a report of the sale to the court, which was in all things approved and confirmed; and that John T. West, afterwards, sold that half also to his father, and instead of taking the administrator’s deed to himself,, had it made directly to his father; and, upon the payment of the-notes given in the original purchase, he and the administrator had Smalley to convey to him the legal title to the whole.

A copy of the proceedings in the Court of Probate, was made- and exhibited with the answer. The petition for the sale referred to, after stating that the estate had “ an incomplete title to a certain body of land,” describes it as “ a tract containing 182.62' acres, in three parts, described more fully in Exhibit A, situate and lying in Montgomery Township, in said County of Monroe,, in which said incomplete title said decedent owned and possessed at the time of his death, one undivided half, John West being tenant in' common with him therein, and owning the other undivided half,” and after showing the other debts that had come to his knowledge, proceeds thus: “Besides the indebtedness already specified, there is a fifth item going to complete the sunt first above mentioned, consisting of a liability for the half in each of two notes executed to Robert Smalley, Esq., for the purchase money to be paid for said tract of land, each note being for $266.66, one due the 1st of January, 1852, and the other January, 1853; that it was in this way that incomplete title to-said land was obtained, together with a bond for title executed to the said decedent and the said John West by the said Robert Smalley, a copy of which recorded in Record Book D, is herewith exhibited and made a part of this petition, marked Exhibit A, p. 125,” and it further states that the estate owned no other lands.

If such an exhibit as that referred to accompanied the petition, it does appear in the record, and it seems likely that the recorded copy only was intended to be referred to. A copy of' the bond was, however, filed as an exhibit with the complaint,, and contains the same description of the land as is contained in the complaint.

The order of the sale is as follows:

“Be it remembered that on this day comes John A. Harvick,. administrator of the estate of Joseph West deceased, by attorney, and presents his petition to the court accompanied by his own affidavit, and that of John T. West, shewing that'there is belonging to said estate an incomplete title to the undivided half of a certain tract or parcel of land described in said petition, praying that the same may be sold for the benefit of creditors, and the-court having considered of the matter, orders the same to be sold at public auction, giving notice according to law, and taking bonds for the purchase money with approved security, payable-not more than twelve months after date.”

In the report of the sale, which refers to the order aS authority therefor, the land is described as “ the undivided half of the N. E. ¿ of the N. E. J of Section 23. Half the grant of M. Price; and the N. frl. i- of the N. W. i of Section 23; all in Township. No. 3, S. of Range No. 1, West of the fifth principal meridian, line, containing in all 182.62 acres.”

And the following is the order confirming the sale:

“On this day the report of John A. Harvick, administrator of the estate of Joseph West, was presented to the court, of his proceedings of the sale of lands mentioned and set forth in said report, which was carefully examined and approved by the court.”

Upon the hearing, the complaint was dismissed for the want of equity, and the plaintiffs appealed.

The appellants contend that as there is in the order for the sale no description of the land, it does not appear that it related’ to or directed the sale of that in controversy. This objection might prevail if there was nothing in the record or proceedings of the Court of Probate to designate the land, but it is a maxim --of law, that that is sufficiently certain which can be made certain. and we find evidence of the most conclusive character in. the proceedings of the court, that it was the land which is the subject of this suit, that it directed and ordered to be sold.

The order directs the sale of the land described in the petition therefor, and the description there given is the same as that given in the complaint," and in the bond for title, as to quantity, interest, title, co-tenancy, and former owixership, and in respect to its purchase and the notes given for it, and which the petition also states was the only land belonging to the estate.

But, though the order was sufficiently certain, and did dii’ect the sale of the land, it is still contended, that there was no sale; the report of the adxninistrator, it is claimed, showing the sale of a different tract.

There is no such designation in the public surveys as the North quarter of any part of a section, and this particular in the description of the first mentioned 'parcel of the tract, is evidently a clerical error; and as the other part of the description agrees fully with that directed to be sold, it is manifest that the N. fid. of the N. W. jp of Section 23, was intended. As to the second parcel, there is no description. The estate owned a part of the gx-ant of Moses Price, and the same formed a part of the tract of 182.62 acres, which the court oi’dered the adxninistrator to sell; and it cannot be supposed he sold another part of the grant not a part of the tract, or in which the estate had no interest.

The misdescription of the remaining part of the tract is, probably, also a clerical-error, by the mistake, of inadvertent change, of a single letter, but whether so or not, it cannot control the other descriptive particulars and circumstances which indicate, and show with certainty, the land sold.

It is a well established rule in the construction of grants, which has an appropriate application in this case, that if there are certain particulars, once sufficiently ascertained, which designate the corpus or thing intended to be granted, the addition of a circumstance, false or mistaken, will not defeat the description and frustrate the grant: Prassentia corporis tollit errorem nominis; et veritas nominis tollit errorem demonstrations. Jackson v. Clark, 9 John, 218; Glenn v. Maloney, 4 Iowa, 314; Worthington v, Hyler, 4 Mass., 205; Connolly v. Vernon, 5 East., 51; Mayo v. Blount, 1 Fred., 283; Beek v. Love, 65, 3 Wash., Real Prop., 344.

We are therefore of the opinion that the sale of the land is shown by the administrator’s report.

That the court committed gross errors, and the sale was attended with much irregularity, is'manifest.

It is provided by section 186, Gantt’s Digest, that if any testator be the owner of lands and tenements at the time of his death, of which no provision is made by will, or if any person being the owner of lands and tenements, die intestate, and such testator or intestate shall not have sufficient personal estate to pay his debts, it shall be the duty of the executor, or administrator to apply to the court by petition, describing said ■ land, and containing a true and just account of all the debts of' the testator or intestate which shall have come to his knowledge, and the amount of the assets in his hands to pay such claims, for an order to sell the same, or so much thereof as shall be sufficient to pay them.

Section 170, requires the petition to be accompanied by the appraisement, and list of sales of the personal property, and the court is required in ordering the sale, to fix the time and place; to direct the executor, or administrator, to give the notice prescribed by the statute; and to specify in the order the length of credit to be given, and the kind of security to be taken; sections 171-172. But such order is not to be made unless notice of the intended application for the sale has been given, at least four weeks before, in some newspaper printed in the County where the lands lie, if there be any, and if none, by advertisements set up iii at least six of tlie most public places in the County. Section 176.

Section 182, provides for the sale of lands that the testator or intestate had purchased, but had not completely paid for; for the payment of the purchase money, in the case of an insufficiency of assets for that purpose, after the payment of the other debts.

None, or but few of these requirements, appear to have been complied with. Notice of the intended application, it is evident could not have been given, nor could a list of sales of the personal property have accompanied the petition, for the record shows that the application was made the next day after the grant of administration.

The Court of Probate seems to have conceived, that as the object of the sale was the payment specially of the purchase money of the land, it was not within, or to be governed by the provisions relating to sales authorized by section 168. The statute most clearly admits of no such construction. Both sections relate to the same subject; have the same object in view, and' are part of the same system, which is intended to be consistent and harmonious, and must be construed together. 1 Kents Com., 513; Rex v. Loxdale, 1 Burr., 445.

The same necessity for such regulations exist in the one case as in the other, and if the provisions relate alone to sales under section 168, there are no regulations whatever, prescribed for those provided for by section 182, though a subject of the same nature and of like importance, either as to the manner of obtaining the order or of making the sale. Such a conclusion would be absurd. But although the Court of Probate committed many gross errors, and the proceedings throughout were very irregular, it does not follow, that the sale was a nullity.

The administration of the deceased persons, is committed to the jurisdiction of the Courts of Probate, and upon the grant of letters testamentary, or of administration, the court acquires jurisdiction of the estate and proceeds in rem.

As a Superior Court, with general jurisdiction and plenary power over the matters committed to its peculiar cognizance, its judgment of order, when acting within the sphere of its jurisdiction, however erroneous it may be, is conclusive as to all persons, until reversed upon review by a higher tribunal, or set aside in a direct proceeding for that purpose; for it is well settled that the judicial sentence of a Superior Court of competent jurisdiction over the subject matter to which it relates, cannot be attacked or impeached in a collateral proceeding, upon the ground that the court erroneously exercised its powers. Sturdy and Wife v. Jacoway, 19 Ark., 499; Borden v. State, 6 Eng., 519; Marr. ex parte, 12 Ark., 84; Rogers v. Wilson, 13 Ark., 507; Thorn and Wife v. Ingram, 25 Ark., 52.

In the above case of Rogers v. Wilson, the sale was ordered, as in this, without notice of the intended application, having been given, and the court say: “Although it is clearly erroneous for the Court of Probate to grant an order for the sale of real estate without the notice of the intended application therefor required by the statute, having been given, the order is not void.”

The sale upon its confirmation by the court became complete and absolute, and divested the heir of all right in the land, and the plaintiffs set up and show no equity against the legal title of the defendants in possession; the court below therefor did not err in dismissing their complaint.

The decree is affirmed.