text:
    Mann vs. Scott et al.
    Arg-tjJient: Order of.

    Where, in an action upon an account, the only defense interposed was that of payment, the burden of proof was on the defendant, and he was entitled to the concluding argument before the jury, and it appearing that there was a conflict in the evidence, the denial of the right is ground of reversal.
    APPEAL from Clark Circuit Court.
    Hon. L. J. Joyner, Circuit Judge.

      Coleman, for appellant.

      H. R. Stewart, contra.

   English, Ch. J.:

In November, 1874, C. C. Scott & Co., a mercantile firm of Arkadelphia, sued Phillip Mann before a justice of the peace of Clark County, on an open account for $70.94. The account is made up of a good many items .for merchandise, charged as sold at various dates ranging from the 21st of April to the 11th of December, 1871, and a coffee mill is charged as of the last named date. The only credit upon the account is for one pair of pants returned June 24th.

The plaintiffs filed with the account an affidavit that the account was just and correct; that each article charged therein was purchased by defendant, that he agreed to pay the prices annexed, and that all just credits were entered thereon, and that the sum of $70.94 was justly due plaintiffs, with interest thereon at . 10 per cent, from the 11th December, 1871.

The defendant filed a counter affidavit, stating that the account was not just, that he was entitled to'credit for a bale of cotton, not credited thereon, which he expected to prove at the trial.

There were three mis-trials before the justice of the peace, the juries failing to agree; and on the fourth trial the verdict and judgment were in favor of the defendant, and the plaintiff appealed to the Circuit Court.

The cause was tried in the Circuit Court at the April Term, 1877, and a verdict returned by the jury in favor of the plaintiffs for $70.94 debt and $22.67 damages.

The defendant filed a motion for a new trial on the grounds (with others that need not be noticed):

“First — That when the defendant admitted the account on which plaintiffs sued, and when in consequence of said admission, the plaintiffs introduced no proof to sustain their suit, and when the defendant plead but one plea of payment of said account (there being no other plea in the case), and the burden of proof rested on the defendant, the court erred in refusing to his counsel the opening and concluding of the argument before the jury. „

“Second — That the verdict was contrary to law and the evidence.”

The court overruled the motion, and the defendant took a bill of exceptions, setting out the evidence, etc. Final judgment was rendered upon the verdict, and defendant appealed to this court.

The bill of exceptions shows thht upon the trial, the sole defense of the defendant was the plea of payment which he had relied on before the justice of the peace, and hence the plaintiffs introduced no evidence to prove the account sued on.

The testimony of the defendant, and witnesses introduced by him, conduced to prove that in December, 1871, and after he purchased the coffee mill of plaintiffs, he delivered to one of the plaintiffs in Arkadelphia a bale of cotton in payment of the account sued on.

On the contrary, the evidence introduced by the plaintiffs conduced to prove that defendant owed them an account for the year 1870, and delivered them a bale of cotton, in that year, in Settlement of that account, and had delivered to them no other bale of cotton.

No objection was made to the charge of the court to the jury.

The court instructed the jury: “That the correctness of plaintiffs’ account being admitted, if the jury believe from the evidence, that the bale of cotton received from defendant was in payment of the account of the year 1870, and was not received in satisfaction of the account of 1871, they might find for plaintiffs, etc.”

Also instructed them in regard to the impeachment of witnesses, their credibility as affected by their appearance, manner of testifying, relationship, etc., and as to the weight to be given to the prevailing number of witnesses, etc.

After setting out the instructions given by the court, the bill óf exceptions further states: “ That the defendant moved the court that he having admitted plaintiffs’ account, and having plead payment in satisfaction thereof, and the burden of the proof óf payment being on the defendant, he was entitled to claim the opening and the conclusion of the argument; which motion the court refused to grant, and the defendant at the time excepted; whereupon the court permitted the counsel of the plaintiffs to open and conclude the argument in the cause, to which defendant at the time excepted.”

Before the adoption of the Civil Code, the party on whom was the burden of proof, had the right to open and conclude the argument. Pogue v. Joyner, 7 Ark., 466. It was said in this case, that the question as to which party should open and conclude the argument, was one within the discretion of the court below, and not subject to the control of this court, unless the discretion should be abused to the prejudice of the parties ; but that under the issue made up between the parties, the onus probandi was upon the defendant, and he was entitled to begin, etc.

In Rogers et al. v. Diamond, 13 Ark., 480, the £ourt said the verdict must have been against the petitioner, in case no evidence had been offered, and the burthen of proof being upon him, he had the right to open and conclude.

By the Civil Code ,it was provided that the party having the burden of proof should have the conclusion, and the adverse party the opening, etc. Gantt’s Dig., sec. 4668, sixth clause.

This statute was in force when the case of Tobin et al. v. Jenkins et al., 29 Ark., 153, was before this court; and it was held that it was error in the court below to deny to the party who held the affirmative of the issue, the right to conclude the argument before the jury. That there is a decided advantage before a jury in having the concluding argument. That it was hard to estimate the extent of the wrong, where the light was. denied; but it was sufficient to say that it was a right and a privilege to which the party holding the affirmative was entitled.

By the act of 15th December, 1875 (Acts of 1874-5), the Code rule was amended and the former practice.restored. The act provides that the parties may submit or argue the case to the jury • and in the argument, the party having the burden of proof shall have the opening and conclusion, and if, upon the demand of his adversary he shall refuse to open and fully state the grounds upon which he claims a verdict, he shall be refused the conclusion. By Act of March 6th, 1877 (Acts of 1877, p. 31), the same rule was adopted for criminal cases.

The court must of course determine, if there is any controversy on- the subject, on which party the burden of proof rests, and when that is settled, the statute gives him the right to open and conclude the argument.

In this case the bill of exceptions shows that appellant relied for defense solely upon the plea of payment. This was a plea in confession and avoidance. If no proof payment had been introduced at the trial, appellees (plaintiffs below), would have been entitled to a verdict, and the onus probandi wals, therefore, most clearly, upon the appellant, and he had the right to open and conclude the argument before the jury.

The erroneous denial of this right, might not, in all cases, be ground of reversal. But in this case, the testimony of the witness as to the payment of the account sued on by the delivery of the bale of cotton being in conflict, the argument before the jury may have been prejudicial to him.

The litigation has doubtless been unprofitable to both parties, and we would willingly terminate it, if we could affirm that the judgment of the court below was right upon the whole record. But as appellant may have been prejudiced by the refusal of the court below to permit him to open and conclude the argument, we feel constrained to reverse the judgment and remand the cause for a new trial.


source: Caselaw Access Project

author: English, Cb. J.:

license: Public Domain

text:
    Jarratt et al. vs. McDaniel et al.
    1. Mortgage: Future advances.

    A mortgage to secure indefinite future advances is. valid as against third parties.
    2. ---: Unplanted crop.

    Under the act of February 11th, 1875, a mortgage on an unplanted crop is valid at law, and the mortgagee may maintain replevin for the mortgaged property.
    APPEAL from Lee Circuit Court.
    Hon J. N. Cypert, Circuit Judge.

      Brown, for appellant.

      Howes, contra.

   English, Cb. J.:

This was an action of replevin, by complaint and summons, commenced in the Court of Common Pleas of Lee County, on the 21st of January, 1876, by McDaniel & McCormick against Jarratt & Rogers for possession of three bales of cotton.

The plaintiffs claimed title to the cotton by virtue of a mortgage, with power of sale, executed to them by John W. Ridling on the 20th of March, 1875, acknowledged and registered in the recorder’s office in Lee County 16th of June, 1875, and which had matured before the suit commenced.

The proceedings in the Court of Common Pleas, except the complaint and the mortgage made an exhibit thereto, and the writ, are not copied in the transcript before us. It was tried in the Circuit Court of Lee County, at the October Term, 1876, on appeal, we suppose, from the Court of Common Pleas, no objection appearing to have been made in the Circuit Court, and none made here, as to the manner in which the case got into that court. • ,

The transcript of the proceedings in the Circuit Court shows that the parties appeared, and agreed that the complaint should be considered as traversed, and the cause submitted to the court, sitting as a jury, on an agreed statement of facts, as follows:

“Eor the purposes of this case it is agreed that the cotton in controversy was raised upon the five acres mentioned in the mortgage filed with plaintiff’s complaint as an exhibit. That defendants purchased said "cotton in the town of Marianna, on the 22d day of November, 1875, from one Russell, who was in possession of the cotton, and represented to defendants that he was the owner thereof, and that there was no incumbrance thereon by mortgage or otherwise. That defendants paid Russell for said cotton $141.48, which was its full market price. That suit was brought in the Court of Common Pleas of the County of Lee by the plaintiffs to recover possession of said cotton ; that the cotton was found by an officer in the possession of defendants, and that before suit brought plaintiffs made demand of defendants for return of said cotton. It is further agreed that the mortgage was given before the crop was planted, and that the account filed showing a balance due McDaniel and McCormick from the mortgagor is true.”

On behalf of plaintiffs, the court made the following declarations of law:

“First — A mortgage given for an expressed consideration of five dollars to secure future indefinite advances on open account having been duly executed, acknowledged and delivered, and having been filed for record in the county where the property was at the date thereof, is sufficient notice to a purchaser of said property.

“Second — A mortgage upon a crop not planted, but describing the premises upon which the crop is to be planted in the same place is a good and valid mortgage.”

The defendants moved the following declarations of law, which the court refused:

“First — A mortgage in consideration of the sum of five dollars in hand paid, but for no specified amounts for which it is a security, although duly recorded, is not sufficient notice to a party purchasing property embraced in said mortgage from a third person who has said property in his possession, and the purchaser, without other notice than that of such mortgage, acquires a good title to said property free from any lien of the mortgage.

“Second — A mortgage upon five acres of cotton, executed before the cotton is planted, is void.”

The court found for plaintiffs, and it being admitted that the cotton sued for had been disposed of by defendants, rendered judgment in favor of plaintiffs for $141.48, the value of the property, with interest from the 23d of November, 1875.

Defendants moved for a new trial, which the court refused,- and they took a bill of exceptions, setting out the facts, and appealed to this court.

I. The first declaration of law made by the court below at the instance of appellees, and the first declaration of law moved for appellants, and refused by the court, present the question whether the mortgage relied on by appellees for title to the cotton in controversy was invalid as against appellants, because it was indefinite as to the amount of advance to bo made by appellees, the mortgagees, to Ridling, the mortgagor.

By the mortgage Ridling conveyed tó McDaniel & McCormick, for and in consideration of the sum of $5, the receipt of which was duly acknowledged, one sorrel horse, one black cow, one red cow, and two yearling calve,“and five acres more or less of cotton, and ten acres more or less of corn to be planted and produced during the year 1875, on Maj. John D. Thomas’ farm in Lee County, State of Arkansas, to have and to hold the same, etc., etc., conditioned, however, as follows: Whereas, the said party of the first part, is indebted to the parties of the second part in the sum of- dollars on account; and, whereas, said first party will become further indebted to the said second parties during the year 1875, on a continuing account for goods, wares and merchandize and supplies and moneys to be furnished and advanced to him by said second parties, and for all indebtedness that may accrue and remain unsettled and not paid after the year 1875, until settlement of said account, now if the party of the first part shall well and truly pay to the parties of the second part the sum hereinbefore mentioned and all their indebt- ’ edness which may then be due the parties of the second part by the party of the first part, together with the costs of this trust, on or before the 15th day of November, 1875, then this conveyance shall be void, otherwise to remain in full force and effect. And in case any default shall be made in the payment of said indebtedness as herein set forth, or should the party of the first part, prior to said 15th day of November, 1875, sell or attempt . to sell, ship, remove or otherwise dispose of the property herein conveyed, or any part thereof, without the consent of the parties of the second part, then in either event the'parties of the second part, their agent or attorney, is hereby authorized and empowered to take charge of said property, on demand without process of law, and sell and dispose of the' same or so-much as will be ' necessary, at public sale, at Eorrest City, for cash in hand, upon two weeks’ notice in some newspaper published in the county, etc., etc., and out of the proceeds of sale said parties of the second part are to retain the sum due them as herein set forth, and the costs of this trust and of sale, rendering the surplus, if any, to the said party of the first part,” etc.

What advances appellees made to Ridling after the execution of the mortgage, or at what time such advances were made, does not appear in the transcript before us. It appears from the agreed statement of facts that there was an account on file in the court below, showing a balance due appellees, from the mortgagor, but appellants did not think proper to incorporate the account in their bill of exceptions, or otherwise make it part of the record. They purchased the cotton of Russell after the maturity of the mortgage, and it must be presumed in favor of the judgment of the court below, in the absence of any showing to the contrary, that the advances were made before the maturity of the mortgage, and amounted to as much, or more, than the amount for which the court rendered judgment in favor of appellees against appellants. Nor did appellants think proper to prove how, or where Russell, of whom they purchased the cotton, obtained possession of it. They seem to have relied solely upon the propositions, first, that the mortgage was invalid as to them because it was indefinite as to the amount of advances to be made by appellees to Ridling, and, second, that it was void as to the cotton for the reason that the crop was not planted at the time the mortgage was executed.

We have no statute (as in some of the States) requiring the definite amount to be advanced by a mortgagee to be stated or fixed in the mortgage.

By our statute all mortgages, in order to be good against subsequent ^purchasers or incumbrancers, must be acknowledged and recorded, and are a lien upon the mortgaged property from the' time they are filed in the recorder’s office for record. Gantt’s Digest, secs. 4287-8, etc.; Main v. Alexander, 9 Ark., 112; Jacoway v. Gualt, 20 Ark., 190; Hannah v. Carrington, 18 Ib., 105.

Mortgages to secure futuré advances have always been favored by the common law. A statute requiring the amount to'be stated, is a modification of the common law, under which the mortgage would be equally valid without such limitation. 1 Jones on Mortgages, secs. 365, 366-7, etc.; Witczinski v. Eveman, 51 Miss., 841, 845; Allen v. Lathrop, 46 Geo., 133.

In Allen v. Lathrop, supra, the mortgage was made in consideration of advances in money and plantation supplies to be furnished for the purpose of carrying on a farm for the year 1870, no sum being named, and the court held the mortgage valid, notwithstanding a statute of Georgia requiring a mortgage to specify the debt which it is given to secure.

A mortgage to secure future advances, which on its face gives information enough as to the extent and purpose of the contract, so that any one interested may, by ordinary diligence, ascertain the extent of the incumbrance; whether tKe extent of the contemplated advances be limited or not, is valid. 1 Jones on Mortgages, sec. 373.

In this case it was optional, perhaps, with the mortgagees, whether they would make future advances to the mortgagor upon the faith of the mortgage or not, and if appellants had purchased the cotton, and given appellees notice of their purchase before they made any advances, it may be that they could not have defeated the purchase of appellants by making advances after such notice, but the adjudications on this subject are not in harmony j and the record before us makes no such case. See 1 Jones on Mortgages, secs. 371, 373; LaDue v. Detroit & Milwaukee R. R. Co., 13 Mich., 380; Witczinski v. Everman, 51 Miss., 841; Birnie et al. v. Main, 29 Ark., 594.

II. The mortgage before us was not void as. to the cotton because executed before the crop was planted.

This court held in Apperson & Co. v. W. E. & C. L. More, 30 Ark., 56, that where a mortgage is executed on an unplanted crop a lien attaches, in equity, as soon as the subject of the mortgage comes into existence, and, in a proceeding to foreclose, will be enforced against the mortgagor and those holding under him with record notice; but that the mortgagee could not maintain an action at law, by virtue of the mortgage, for the •crop when produced; that he had an equitable lien.upon, but-not a legal title to the crop.

Such was held to be the law before the passage of the Act of February 11th, 1875 (Acts of 1874-5, p. 149), which was passed before the decision in the above case, but the mortgage involved in that case was executed, and the suit brought prior to the passage of the act.

The act provides: “That all mortgages executed on crops already planted, or to be planted, shall have the same force and effect to bind such crops and their products, as other mortgages now have to bind property already in being.”

The mortgage now before us was executed after the passage of this act, and had the same force and effect to bind the cotton as it did the cattle embraced in it,-or as it would if the cotton had been in being when the mortgage Avas executed.

Appellees could not have brought replevin for the cotton before it was planted, or while it was groAving, but if they could not bring an action at laAV for it, after it Avas gathered and baled, and after the maturity of their mortgage against appellants, who had possession of it, and claimed it adversely, but were obliged to resort to equity to enforce their lien, then the above act amounted to nothing, and it wks useless to pass it.

The counsel for appellants submit that the other property embraced in the mortgage might have been sufficient to satisfy the debt of appellees Avithout their resorting to the cotton.

No such defense was interposed in the court below if it might have been.

Appellants might, perhaps, have protected themselves by resorting to the equity. side of the court to compel appellees (To foreclose, and to have the property embraced in the mortgage marshalled. Moss v. Adams et al., ante; Terry v. Rosell, ante.

But they set up no valid defense to this action, and the judgr ment must be affirmed.


author: English, Ch. J.:

text:
    Akin vs. Newell.
    False Imprisonment: Malice, want of probable cause, etc.

    In an action of trespass for false imprisonment it is unnecessary to allege or prove malice; and an allegation that the plaintiff was forcibly, unlawfully and falsely imprisoned, is a sufficient averment of want of probable-cause.
    APPEAL from Pulaski Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Duffie & Hill, for appellant.

      Kimball, contra.

   English, Ch. J.:

On the 11th of May, 1876, the following complaint was filed in the Pulaski Circuit Court.

The plaintiff N. M. Newell complains of James H. Akin and says that heretofore, on the 8th day of May, 1876, the said defendant unlawfully and forcibly restrained the plaintiff of his-liberty, and did unlawfully and falsely imprison him for a long space of time to-wit : for the space of twelve hours, whereby the ' plaintiff was greatly injured against his will. Wherefore he demands damages against the defendant in the sum of five thousand dollars and for his costs.”.

A writ was issued and served on the defendant on the 11th of May, 1876, returnable on the first day of the following October Term.

On the 1st of December, 1876, the cause was called, and defendant failing to appear, a default was entered against him; and on the next day a writ of inquiry was executed, and the jury assessed the plaintiff’s damages at $200, for which judgment was-rendered.

On the 5th of December the defendant filed a motion to set aside the judgment, which was heard on the 3d of January, 1877, and overruled by the court.

On the 8th of January an amended motion to set aside the judgment was filed, heard and overruled.

The defendant, without taking any bill of exceptions to bring upon the record such facts as were before the court when the motions to set aside the judgment were heard, appealed to this court.

Counsel for appellant'urge, in strong language, that the complaint is a very poor specimen of pleading; that it shows no cause of action : that it does not state facts which will support a judgment by default. The particular objection taken to it is, that it alleges neither malice nor. want of probable cause, both of which, the counsel say, are absolutely essential to sustain the action.

In an action for malicious prosecution, both at common law nnd under the Code pleading, it is necessary for the plaintiff to allege and prove malice and want of probable cause. Purcel, Spinster, v. McNamara, Esq., 1 Campbell Nisi Prius Rep., 199; 1 Chitty Plead., 389-90; 2 Ib., 600 form ; Newman Plead. & Prac., 417; 2 Greenleaf Ev., sec. 449.

In the common law forms, the plaintiff alleges the proceeding, criminal or civil, in which he has been prosecuted by the defendant, that the prosecution is at an end, that it was instituted maliciously and without probable cause, and that he thereby sustained damage. See the precedents.

But from the language employed in the complaint in this case we do not think it was intended to be an action for malicious prosecution, but an action in the nature of the common law action of trespass for false imprisonment.

In the head note to Bebee v. DeBaun, 8 Ark., 510; it is said; Malice and-want of probable cause are both essential requisites to the maintenance of an action for false imprisonmentand the court did say, in that case, that it was conceded that malice and want of probable cause were both essential requisites to the maintenance of that suit. But it will be seen by examining the declaration in the case, the facts reported and the opinion of the court, that the action was strictly for malicious prosecution and and not for false imprisonment. DeBaun sued Bebee, for prosecuting a civil suit against him, with malice and without probable cause, and causing him to be arrested, etc.

It is not true that it is necessary to allege and prove malice in trespass for false imprisonment, and malice is not alleged in the common law precedents, though want of probable cause is.

Mr. Chitty’s common count for false imprisonment generally, after the usual commencement, is as follows : “ For that the said defendant on, etc., with force and arms, etc., assaulted the said plaintiff, to-wit: at etc., and then and there beat, bruised and ill-treated him, and then and there imprisoned him and kept and detained him in prison there, without any reasonable or probable cause whatever, for a long term, to-wit: for the space of — hours then next following, contrary to the laws and customs of this realm, and against the will of the said plaintiff.” (Conclude as in precedents before given) 2 Chitty Plead., 857-8.

An assault and battery is usually alleged in the precedents, but this is not necessary, the imprisonment being sufficient.

See also form for false imprisonment in Peterbaugh’s Plead, and Prac., p. 462.

An officer, without a particle of malice or ill-will, may arrest, by mistake, an innocent man and imprison him as a supposed felon, for which he may be sued for false imprisonment. So an officer may in good faith, and without malice, arrest and imprison a man upon a void writ, and yet he may be liable to an action for false imprisonment for making the assault.

In an action for false imprisonment, under thp Code pleading, it is not necessary to state at length all the circumstances and the particular instrumentality by which the plaintiff was restrained of his liberty. Newman on Plead, and. Prac., 260. A statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what js intended, is sufficient. Shaw v. Jayne, 4 Howard Prac. Rep., 121.

In the case last cited, the learned Judge, who delivered the opinion of the court, and who seems to have had a borrow of long and minute forms, said: “I suppose it would be sufficient in this case for the complaint to state, That the defendant, on etc., at etc., unlawfully seized and took the plaintiff by his body, and compelled him to go from a certain dwelling-house in the town of Urbana, in the County of Stueben, through divers roads and highways, to the common jail in the County of Stueben, and then imprisoned him against his will for the space of ten days, to the great damage of the plaintiff, and demanding judgment for $1,000.”

It is not alleged in the complaint in this case that plaintiff was imprisoned without reasonable or probable cause, but it is alleged that he was forcibly, unlawfully and falsely imprisoned, which we take to be substantially sufficient.

Appellant in his motion to set aside the judgment by default, stated as a reason for not defending the action, that he was sick at the time the judgment was entered, and for some time before; that on the 15th day of the previous November, he had spoken to counsel to look into the case, meaning thereby to retain him, but the counsel did not so understand it, and failed to represent him. That his defense was that he arrested appellee under valid process, etc.

As appellee failed to bring upon the record, by bill of exceptions, the facts which were -made to appear to the court on the hearing of this motion, there is nothing before us, as Ave have repeatedly held, upon which Ave can properly review the decision of the court overruling the motion.

Affirmed.


author: Harrison, J.:

text:
    McClellan vs. The State.
    1. Indictment: For forgery, variance.

    A variance in an indictment for forging, and uttering a forged instrument, between the instrument set out and the averment as to its purport, is such a repugnancy as will be fatal to the indictment.
    2. --: Same.

    In an indictment for uttering a forged instrument, the name of the person to whom it was passed must be set out if known, if not known the fact should be stated as an excuse for the omission, otherwise it will be fatal to the indictment.
    3. ---: Trial upon two indictments.

    It is irregular to try a defendant upon two indictments at once, even with - his consent.
    APPEAL from Pulashi Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Cochrill, for appellant.

      Henderson, Attorney. 'General, contra.

   Harrison, J.:

The. appellant Avas indicted in two eases for forgery, and also for uttering the forged instrument.

The indictment in the first case, after the caption, was as follows:

The Grand Jury of Pulaski County, in the name and by the authority of the State of Arkansas, accuse Carter McClellan of the crime of forgery, committed as follows, viz: The said Carter McClellan, on the 20th of July, 1876, in the county and State aforesaid, unlawfully contriving to defraud L. Valmer & Co., then and there did felonously forge a writing purporting to be an order of one Richard Hudgins, which forged writing is in these words, to-wit:

“Reed’s Landing, July 20th, 1876.

“ L. Valmer & Co.: — Please let the bearer have $5.00 worth of goods, and charge to me. Richard Hudgson.” With the intent fraudulently to obtain possession of the property of L. Valmer & Co., against the peace and dignity of the State of Arkansas.

The grand jury aforesaid, in the name and by the authority of the State of Arkansas, accuse said Carter McClellan of the further crime of uttering a forged writing committed as follows, viz: The said Carter McClellan, on the 20th day of July, 1876, at the county and State aforesaid, felonously did utter and publish as true, a certain forged and counterfeited writing, purporting to be an order of one Richard Hudgins, in language and figures as follows, to-wit:

“Reed’s Landing, July 20th, 1876.

“L. Valmer & Co.: — Please let the bearer have $5.00 worth of goods, and charge to me. Richard Hudgsire.” With the intent to defraud said L. Valmer & Co., he, the said Carter McClellan, at the said time he so uttered and published said forged and counterfeited writing as aforesaid, then and there, to-wit: “On, etc., at, etc., well knowing the samé to be forged and counterfeited, against the peace and dignity of the State of Arkansas.”

The indictment in the second case, was exactly similar to the above, except the averment as to time, and as to the instrument-charged to have been forged and uttered ; the indictment being as follows:

“Reed’s Landing, Arkansas, July 26th, 1876.

“ Messrs. L. Valmer & Co.: — Please let the bearer, Carter McClellan have $7.00, seven dollars, worth of goods, and charge to me. Richard Hudgson.”

He was tried upon both indictments at the same time, by his consent, and was found guilty on the second count in the first indictment, and on the first count in the second; and his term of imprisonment in the penitentiary in each case was fixed by the jury at two years.

He moved in arrest of judgment on the ground, that the first count, upon which he was convicted, did not state facts sufficient to constitute a public offense. His motion was overruled, and he was sentenced to imprisonment in the penitentiary for a term of two years.

The motion in arrest of judgment is so vague and indefinite, we are unable clearly to determine to which indictment it refers; but it is not important that that should be ascertained, for if valid to either of the counts upon which he was convicted, the objection is as good upon error or appeal as in arrest of judgment.

Each count, in both indictments, charged that the instrument forged, or uttered, purported to be an order of Richard Hudgins, but neither of the orders set out does so purport, that in the indictment, in the first case, purporting to be an order of Richard Hudgson, and that in the indictment in the second case of Richard Hudgsire.

The word “ purport,” imports what appears on the face of the instrument. 2 Russ., in Crims, 378-382.

There is, therefore, a repugnancy between the instruments set out and the averments as to their purport, and such a repugnancy has always been regarded as fatal to the indictment. “ Bish. C. Law, sec. 370.

Our attention has been called to another objection to the counts for uttering, that the name of the person to whom the order was passed, is not stated. For this reason, also, we think these counts insufficient. The name of the person to whom the forged instrument was passed, is a material part of the description of the offense.

Where the indictment is for uttering, it should mention the name of the person, if known, to whom the forged instrument was passed; or, if not known, this fact should be stated as an excuse for the omission.” 2 Bish. Cr. Law., sec. 379; Buckley v. The State, 2 Greene, Iowa, 162.

The court rendered judgment, upon conviction, on one indictment only, but which indictment does not appear.

It was an irregularity, to say the least, to try the two indictments together; such a practice would certainly produce great confusion and uncertainty, and should be condemned.

The judgment must be reversed, and the cause remanded, with instructions to the court below to arrest the judgment, and to hold the defendant in custody until the charges may be again inquired into and passed upon by the grand jury.


text:
    Woodruff vs. Webb.
    1. Failure op Consideration: Assignment, etc.

    A being indebted to B, as a surety, in order to enable B’s agent to raise, money, and to obtain further time on the debt to B, made his note to the agent upon an agreement that if he should have to pay the note the amount paid should be entered as a credit on the debt to B. The agent assigned the note to the plaintiff for value; after the assignment his agency ceased, and the debt to B was paid by the principal debtor. Held, that at the time of the assignment there was a subsisting consideration, and the subsequent failure of consideration could not affect the right of the plaintiff (the assignee of the note).

      2. Xntei'est.

    A note -which stipulates for interest from date till maturity at the rate of 10 per cent, per annum, bears the statutory rate (6 per cent.) after maturity,
    3. Verdict: Amendment of.

    Where the intention of the jury to return a verdict responsive to the issue is manifest, but under a mistake of law, and not of any fact in the case, their intention is incorrectly expressed, it is the duty of the court below to have the verdict reduced to, and entered in proper form. And if it is not done this court will order the judgment to be modified to conform to the finding.
    APPEAL from Pulashi Circuit Court.
    Hon. J. J. Clendenin, Circuit Judge.

      Rose, for appellant.

      Farr, Yonley & Whipple, contra.

   Harrison, J.:

This was a suit by James P. Webb against William E. Wood-ruff, on a promissory note made by the latter to Liberty Bartlett for $1000, dated May 18th, 1871, payable four months after date, with 10 per cent, interest from date, and assigned to the plaintiff for value before maturity.

In his answer, the defendant averred, that he, in 1859, became the security of George A. Worthen, who had since died, in a note, to Thomas Fraser, on which note Fraser, after the death of Worthen, brought suit and recovered judgment against the defendant, and that in settlement of the judgment he gave Fraser a note for $1517. That when the note sued on was made, Bartlett, ■the payee, was the agent of Fraser, who was a non-resident of the State, and he had in his hands as such, the note for $1517, and the note sued on was executed, upon his promise and agreement, if the same was paid by the defendant to credit the amount thereof, on the defendant’s note to Fraser in his hands; and upon no other consideration, but that after the execution of the note Bartlett ceased to be such agent, and the defendant’s note to Fraser was taken out of his hands; and the same was after-wards paid and taken up, by the administratrix of Worthen ;■ and that if 'there ever was any consideration for the note sued on, it had failed.

He further averred, that the note was executed for the use of Fraser, and was in fact the property of Fraser, and that it was satisfied and discharged in the payment of the note for $1517 by Wor then’s administratrix; and also that Bartlett, by taking the note payable to himself and transferring it to the plaintiff, perpetrated a fraud upon him.

The jury returned a verdict for the plaintiff for the sum of $1000, with interest thereon at the rate of 10 per cent, from the date of the note ; and the judgment as entered, is for the sum of $1000, with interest thereon at the rate of 10 per cent, from the 18th day of May, 1871, until paid.

The evidence was, that the note was given to enable Bartlett to raise money, and that the defendant might obtain further time on the debt to Fraser, and upon Bartlett’s promise to give him, should he have it to pay, a credit for the amount on his note to Fraser, and that it was assigned to the plaintiff, who knew nothing of the consideration or circumstances under which Bartlett obtained it, for value, before maturity and before Bartlett ceased to be Fraser’s agent, and the note to Fraser was paid by Worthen’s administratrix as stated in the answer; and it also tended to prove that Woodruff knew when he executed it, that it was Bartlett’s intention to assign it to the plaintiff, and it was testified by Bartlett, that he had full authority from Fraser to act-for him in all matters relating to his interest in Arkansas, which extended to the power to receive and negotiate the note, and that the transaction was for the benefit of Fraser, and the money received from the plaintiff for the note was his; but which he-had never páid over to him.

At the instance of the plaintiff, but against the objection of the defendant, the court instructed the jury that - the only defense pleaded was a want or failure of consideration of the note, and no question of fraud was before them, and that if the note was given to Bartlett as the agent of Fraser in consideration of Wood-ruff’s indebtedness to Fraser, and for his benefit, there was a sufficient consideration, and the plaintiff was entitled to recover.

There was no averment in the answer, that the defendant was induced by any misrepresentations or fraudulent pretense of Bartlett to execute the note, and the mere fact, that it was given for the benefit of Fraser, and belonged to him, did not make his taking it payable to himself, and his assignment thereof to the plaintiff, a fraud upon the defendant; and the failure of consideration resulting from Bartlett’s inability to perform his agreement was the only defense, in reality set up.

The note, it was proven, was given with a view to its negotiation, and whether for the use of Bartlett or of Fraser, it was when paid to be in discharge of so much of the defendant’s indebtedness to the latter, and there was, therefore, no want of consideration.

The removal of Bartlett from his agency, was a contingency both must have foreseen, and the defendant must be presumed to have relied, in case of such event, on Bartlett’s personal liability.

According to the statute, ch. 15, see. 3, Gould’s Dig., in force when the assignment was made, and until the act of April 24th, 1873, the assignee of a note, unless it was expressed therein to be payable “without defalcation” (and the note sued on was not such), took it at his peril, and at the risk of any defense that the maker could set up against the payee. Smith v. Capers, 13 Ark., 9; Walker v. Johnson, Ib., 522; Worthington v. Curd, 22 Ark., 278; Nisbett v. Brown & Norton, 30 Ark., 585.

But in this case, the note wras assigned before it became impossible for Bartlett to perform his agreement, and whilst there was a subsisting consideration, and the defendant had no defense to it. The subsequent failure of consideration, could not, therefore, affect the plaintiff's right. Sayer v. Thompson et. al., 28 Ark., 336.

The verdict was defective; the interest should have been computed at 10 per cent., only from the date to the maturity of the note, and after maturity at six, as held in Newton v. Kenerly, 31 Ark., 626 ; Ragan v. Bell et. al., ante; Pettigrew v. Summers, ante.

No exeception was, however, taken to it in the court below.

The obvious intention of the jury was to find for the plaintiff, the amount of the principal and interest of the note; but under a misapprehension as to the rate of interest it bore after maturity, and which was a mistake as to the law, and not as to the facts of the case, their intention was incorrectly expressed.

“ Strict form in a verdict is not required,” said Chief Justice Justice McKean Thompson v. Musser, 1 Dallas, Pa., 458. “It needs only to be understood what the intent of the jury was, agreeably to which, the verdict may afterwards be moulded into form.”

In Foster v. Jackson, Hol., 54, it was said: “Howsoever the verdict seem to stray, and conclude not formally or punctually unto the issue, so as you cannot find the words of the issue in the verdict. Yet, if a verdict may be concluded out of it to the point in issue, the court shall work it into form.”

And in Porter v. Rummery, 10 Mass., 64. The court said: “The court are competent to collect the meaning of the jury from the terms of their verdict,” and that “ the general rule is that, although the verdict may not conclude formally or punctually in the words of the issue, yet, if the point in issue can be concluded out of the finding, the court shall work the verdict into form, and make it serve according to the justice of the'case.”

The verdict, though incorrect as to the rate of interest, was yet responsive to and a finding upon the issue, 'and the court should have directed it to be reduced to and entered in proper form. Hanks v. Crofton, 2 Burr., 698 ; Thompson v. Button, 14 John., 84; Hodges v. Raymond, 9 Mass., 316; Foster v. Estate of Caldwell, 18 Verm., 176.

The judgment should have been entered for the sum of the principal of the note, and the intérest from the date to the maturity of the note at the rate of 10 per cent, per annum; and after the maturity to the time of trial at six, and for interest thereon from the judgment until paid at 6 per cent.; and we direct that it be so modified and corrected.


text:
    Lindsey vs. Rottaken.
    1. Statute Construed: Municipal paver.

    The Act of December 14th, 1875, providing that city warrants, scrip, etc., should he receivable for municipal taxes, was not intended as a curing act. The courts will not, without express language to that effect, infer an intention to cure paper illegally issued.
    2. .Municipal power: To issue circulating medium.

    There was never any statute authorizing the City of Tittle Rock to issue paper to circulate as money; on the contrary the settled legislative policy has forbidden it. (For a review of the various acts authorizing the issuing of city bonds, see the opinion.)
    3. Contracts prohibited by law.
    An act which is forbidden by a statute, or the common law, whether it be malum in se or merely malum prohibitum, indictable, or only subject to a penalty or forfeiture, cannot be the foundation of a valid contract.
    4. Bona pide holder op municipal paper.
    There can be no innocent holder of paper issued by a municipal corporation without power.
    5. Statutes construed: jlcis to prevent circulation of private notes and prescribing liability thereon.

    Neither the Act of November 25tb, 1837, to prevent the circulation of private notes in this State, or the Act of February 14th, 1S38, prescribing the liability of the parties drawing, issuing or indorsing such change tickets, etc., embraced municipal corporations.

      d.--: Same, municipal paper.

    Under the provisions of the Act of December 17th, 1838, prohibiting the issuing of small bills, notes, etc., the officers of any municipal corporation issuing such paper, whose names should he affixed thereto, were rendered individually liable thereon, but no liability was imposed upon the corporation.
    . 7. Bonds and certificates of indebtedness issued by the Oity of Little Bode as a circulating medium, in denominations of one, two, five, ten, twenty, fifty and one hundred dollars between the 1st of January, 1868, and the 30th of October, 1874, commonly called “city money,” were issued in violation of law and the city is not liable on them, or hound to receive them in payment of taxes.
    APPEAL from Pulashi Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Collins, for appellant.

      Pose and B. 8. Johnson, contra.

   English, Ch. J.:

On the 28th of January, 1878, Daniel Lindsey, the owner of lots in the city of Little Rock, presented a petition to the Circuit Court of Pulaski County, praying for a mandamus against Herman H. Rottaken, sheriff and collector of said county, to compel him to accept what is commonly known as city money in payment of the taxes assessed upon the lots of the petitioner in the year 1877, for city general purposes.

The petitioner, after describing his lots, and stating the various taxes charged against them for state, county, city and school purposes for the year 1877, and that a warrant was in the hands of Rottaken for their collection, further alleges:

“That between the 1st day of January, 1868, and the 30th day of October, 1874, the City Council of the City of Little Rock, for the purpose of enabling it to execute its municipal powers, and for the purpose of taking up warrants drawn on the treasurer, which had been given to persons to whom said city was indebted, issued bonds and certificates of indebtedness of the denominations of one, two, five, ten, twenty, fifty and one hundred dollars; payable to bearer, bearing interest at the rate of eight per cent, per annum, from one to ten years after date, and payable at maturity. That by ordinance or resolution of said City Council, adopted prior to the issue or delivery of said bonds, etc., it was provided that the same should be receivable for all city dues. That for a time said bonds so issued were used in the ordinary business transactions of said city as currency, and to distinguish them from the legal tender notes of the United States they were commonly called ‘city money.’ That for some time after the said issue of said bonds, the said city continued to receive them in payment of the taxes and dues of said corporation, but after the year 1873, refused so to do.”

The petitioner further alleges that the General Assembly, on the 14th day of December, 1875, enacted, among other things, that: “All city warrants, scrip, acceptances, or money, shall be receivable for taxes for city purposes, except for interest tax, and for all debts due the municipal corporation by whom the same were issued, without regard to the time or date of issuance of such warrant, scrip, acceptance, or money, or the purpose for which they were issued.” (See Acts of 1875, p. 151.)

Thaton the 19th of January, 1878, petitioner paid to Rottaken, collector, all the taxes charged upon his lots, except the tax for city general purposes, amounting to $13.50, which he tendered and offered to pay in past due city bonds and certificates of indebtedness commonly .known as city money above described, which Rottaken refused to receive, and was threatening to return petitioner’s lots delinquent, and cause them to be sold, unless he would pay the tax in other funds.

Petitioner brings said city money into court, and prays that Rottaken be compelled to accept the same, and execute a receipt, etc.

Rottakén filed the following answer:

“For answer to said petition, said defendant says, that the bonds and certificates of indebtedness purporting to be the obligations of the City of Little Rock in the said petition mentioned, •were issued as a circulating medium, to be used as a currency or medium of trade in lieu of money, and that they were thus commonly used for a long period of time, the same being engraved •on bank note paper, in the form of bank notes, purporting that money would be paid to the bearer thereof, according to the •amounts and denominations of the same, contrary to the statute in such case made and provided : wherefore this defendant says that the said supposed evidences of debt are void, and are not receivable for said tax,” etc.

The answer further alleges that the supposed Act of 14th December, 1875, was not passed in the manner required by the «Constitution; that the bill for the act was so altered on its passage through the two houses of the General Assembly as to change its original purpose, in violation of a prohibition^contained in •sec. 21, art. v, of the Constitution; and a transcript of the original bill, and the legislative proceedings thereon, as shown by the journals of the two houses, is made an exhibit to the answer.

The petitioner demurred to the answer, the court overruled the demurrer, refused the mandamus, aud petitioner appealed to this court:

First — In the supplemental opinion in Loftin v. Watson, ante, we held that the Act of 14th December, 1875, was constitutionally passed; that the bill for the act was not so altered on its passage through the two houses as to change its original purpose, within the meaning of sec. 21, art. v, of the Constitution.

Second — How far the legislature may, by curing acts, confirm and make valid contracts made by municipal corporations without authority of law, or against legislative prohibition, we do not find it necessary to decide in this case (see Cooley Con. Lim., p. 379; Thompson v. Lee County, 3 Wallace U. S., 331; McMillen v. County Judge, etc., 6 Iowa, 393; Hasbrouck v. Milwaukee, 13 Wis., 37). The Act of 14th December, 1875, does not purport, in its title, or in its body, to be a curing act. The object of the act was to require county warrants, etc., to be received in payment of county taxes, etc., and city warrants, acceptances, or money to be received in payment of city taxes, etc., without discrimination as to the date or purpose for which they were issued.

Why the word money was used in the act, we do not know, but if the effect of the act is to legalize all paper issued by cities in the form of, and for the purpose of circulating as money, it would also have the effect to legalize and make valid all of the spurious county scrip that was spawned upon the. counties by corrupt or reckless officials before the passage of the act, which was certainly not the purpose of the legislature.

In the absence of express words in the statute, we are not at liberty to infer that the legislature intended to cure any paper illegally issued by counties or cities.

But if the paper in question was legally issued by the City of Little Rock, or if. the city is legally obliged to redeem it, the appellee would be bound to receive it in payment of the city tax for which it was tendered, regardless of the Act of 14th December, 1875, because the ordinance under which it was issued made it receivable in payment of city taxes. Woodruff v. Trapnall, 10 How. U. S., 209; English v. Oliver, 28 Ark., 317; Wallis et al. v. Smith, 29 Ark., 354; Loftin v. Watson, ante.

Third — Under what particular statute, or charter provision, the city council claimed power to issue the paper in question, is not stated in the petition, nor has it been indicated in the brief oral argument-of the counsel for appellant.

It is stated in the petition that the paper, in the form of bonds and certificates of indebtedness, was issued between the 1st of January, 1868, and the 30th of October, 1874.

On the 12th of December, 1866, the legislature passed “An Act to reduce the law incorporating the City of Little Rock, and the several Acts amendatory thereof, into one Act, and to amend the same.” This act was the charter of the city from the time of its passage until it was organized under the general law for the incorporation of cities and towns, approved 9th of April, 1869.

By the second clause of sec. 16 of the Act of 12th December, 1866 (Acts of 1866-7, p. 25), power was granted to the city council “ To borrow money on the credit of the city, and to issue bonds for the payment of the same.”

There is no allegation in the petition that the bonds in question were issued for borrowed money, but it is alleged that the city council for the purpose of enabling it to execute its municipal powers, and for the purpose of taking up warrants drawn on the treasurer, which had been given to persons to whom the city was indebted, issued bonds and certificates of indebtedness, etc.

By sec. 70 of the general incorporation act (Gantt’s Digest, sec. 3296), it was provided that, “ No council of any municipal corporation shall authorize any loan or appropriation, not predicated on the revenues of the corporation for the current fiscal year, nor shall it authorize any order or appropriation of money when there is not in the city treasury money unappropriated sufficient to pay such appropriation, and any appropriation otherwise made or authorized, shall be held and deemed utterly void and of no effect against said corporation; Provided, that the city council of a city of the first class (to which Little Rock belongs), shall have power to borrow money, not exceeding in amount $500,000, at a rate of interest not exceeding ten per cent, per annum, at such dates and upon such length of time, not less than fifteen years, as the city may deem proper, for the purchasing of lands or other property within the corporate limits of said, city; said lands or other property to be converted to the use of said-city for public wharves, levees, squares, parks or market places, or the establishment and maintenance of ferries ; and said city council, so borrowing any money for such purpose or purposes, shall be authorized to issue the bonds of said city payable at such time (not earlier than fifteen years), and at such place as the council may deem proper, for the money so borrowed. Before the city-council are authorized to borrow money,'as herein provided, they shall submit the question to the qualified voters of the city, etc. at an election, etc. And if a majority of the persons voting at such election shall be in favor of making said loan, then said city council may proceed so to do in accordance with the provisions of this act, and not otherwise.”

Under this section of the act bonds could not be issued at all unless voted by the electors of the city, and then to run not less than fifteen years.

The bonds described in the petition were made payable from one to ten years after date, and it is not pretended that they were-, voted by the electors of the city.

Sec. 72 of the act (Gantt’s Dig., sec. 3298), provides that “The-city or town council of any city or town, for the purpose of extending the time of payment of any indebtedness heretofore incurred, and which, from the limit of taxation, such city or town is unable to pay at its maturity, shall. have the power to issue bonds of such city or town, or borrow money so as to change, but not increase the indebtedness, in such amounts, not less than fifty dollars, and for such length of time and at such rate of interest, not more than ten per cent, per annum, as such city or town council may deem proper; and when such bonds shall have been issued, a tax shall be assessed, etc., to provide a sinking fund for their final redemption, etc.”

Under this section bonds could be issued only for the purpose of extending the time of payment of indebtedness incurred before the passage of the act (9th of April, 1869), and in sums not less than fifty dollars.

The bonds, etc., in question were issued in denominations of one, two, five, ten, twenty, fifty and one hundred dollars, and it is not alleged that they were issued for the purpose indicated in the section of the act quoted.

There are no other provisions of the Acts of 12th December, 1866, and 9th of April, 1869, authorizing the issuance of bonds; and certainly none that authorized the' council of the City of Little Rock to issue bonds, or certificates of indebtedness, for the purpose of circulation as currency.

The answer alleges, 'and the demurrer admits, that the bonds and certificates of indebtedness, purporting to be the obligations of the City of Little Rock, mentioned in the petition, were engraved on bank note paper, in the form of bank notes, and were issued as a circulating medium, to be used as a currency or medium of trade in lieu of money, and that they were thus commonly used for a long space of time, etc.

' The petition alleges that they were used in the ordinary business transactions of the city as currency, and to distinguish them from the legal tender notes of the United States, they were commonly called “ city money.”

The petition falls short - of averring that they were issued for the purpose of circulation as currency, but the answer supplies the omission, the demurrer admits it, and so the pleaders are in agreement upon the facts.

There never was any statute authorizing the City of Little Rock to issue paper to circulate” as money; on the contrary the public policy as indicated by the legislation, etc., has been against it. ‘

¡By the Constitution of 1836, the legislature was authorized to incorporate one State Bank, with branches, and one other banking institution. Title Establishment of Banks-.

Banks followed and failed, leaving the State a legacy in the form of outstanding bonds, sold and hypothecated to procure banking capital.

The failure, and the evil entailed, taught the people of the State a lesson, and on the 17th of November, 1846, an amendment to the Constitution was ratified, declaring that: “ No bank or banking institution shall be hereafter incorporated or established in this'State.” English’s Dig., p. 71.

In the meantime, J>efore the amendment, the legislature passed the Act of 17th December, 1838, entitled, “An Act to prohibit the issuing of small bills, notes, or change tickets;” the first section of which provided that from and after the passage of the act, it should not be lawful for any city, town or corporation, whatever, within the State, to issue small bills or notes, commonly denominated change tickets, or shin-plasters, unless specially authorized by law. Acts of 1838, p. 13.

On the 15th of December, 1852, the legislature incorporated the “Cincinnati and Little Bock Slate Company,” for the purpose of developing the resources of the State, as recited in the preamble to the act; and by sec. 8, it was enacted “That for the purpose of facilitating the operations of the said company, they shall have power to draw and sell drafts or bills of exchange in such sums, or amounts, as they might think proper, on the different cities to which they may ship their merchandize.” Acts of 1852, p. 25-6.

This enterprising company attempted to develope the resources of the State, not by getting out slate, but by'issuing small drafts and bills of exchange, and attempting to convert them into a. circulating medium.

On quo warranto, this court held that it was not the intention of the legislature, by the 8th section of the charter, to confer any banking privileges upon the company, or to authorize them to issue bills to be used as a circulating medium, and that if such had been the intention of the legislature, the grant would have been void under the amendment to the Constitution, ratified 17th November, 1846. Smith v. The State, 21 Ark., 294. Of course this State money, issued in violation of law, and based on nothing, shared the fate of all such paper.

Before the issuance of the paper in question, a number of acts were passed, some of which will be particularly noticed hereafter, showing it to have been the settled policy of the State to prohibit corporations and individuals from issuing small notes to circulate as currency. See Rev. Stat., ch. 24, Change Tickets; lb., ch. 119, Private Notes; English’s Dig., ch. 29, Change Ticket; Acts of 1854-5, p. 107; Acts of 1858-9, p. 138; Gould’s Dig., ch. 20, Change Tickets and Bank Notes; Gantt’s Dig., ch. 19, Change Tickets and Bank Notes; Acts of 1846, p. 111.

The legislature intended, as remarked by Justice Lacy, Yeates et al. v. Williams, 5 Ark., 686, to prevent by every possible means the utterance and circulation of such currency, and its policy was just and wise.

The Constitution of 1868, provided for the incorporation of banks, to issue bills as currency, based on State bonds deposited with the Auditor. Sec. 50, art. v. But no banks were chartered. Congress had monopolized the business of manufacturing paper money. Treasury notes were issued and change supplied in the form of fractional currency ; and more than a thousand national banks were chartered (whether under the commerce or war power it is xxot- our province to decide) j to issue bills secured by government bonds. There was no necessity for the State, or its corporations, to engage in banking. .

The paper in question was issued by the city .council between the 1st of January, 1868, it seems, and the 30th of October, 1874, when the Constitution of 1868 was abrogated. As a matter'of public history that may be called the paper period. There was a prevalent mania for manufacturing bonds and scrip by millions, State bonds and scrip, county bonds and scrip, city bonds and scrip; and petty school corporations, following evil examples, issued scrip so excessively in some instances, that a hundred dollars of the paper would not purchase a school master a pair of breeches, and the issues of some of the larger corporations proved to be as worthless.

The council of Little Rock was infected with the general mania, and flooded the community with the issues in question, which the petition informs us were commonly called “city money,” to distinguish them from the legal tender notes of the United States.

It is also a matter of public history, that the issuance of this so-called money, commenced under the administration of an honorable mayor, who derived his appointment from a military com- ' mander, and he no doubt honestly concluded, that if the . power to issue the paper, was not to be found in the charter of the city, it might be done under the war power.

It appears from the first case of Jones v. City of Little Rock, 25 Ark., 284, that Jones, a tax payer of the city, filed an original bill in this court, praying a,n injunction to restrain the mayor and aldermen from issuing notes or bonds of the city to circulate as money, and the injunction was refused for want of jurisdiction.

It appears from the second case of Jones v. City of Little Rock, 25 Ark., 301, that Jones, a large property owner, in behalf of . himself and all other tax payers of the city, filed a bill in the Pulaski Chancery Court, alleging that the mayor and aldermen had procured plates, engraved for notes or bonds, which they were about to issue upon the credit of the city, and which were designed to circulate as currency or money; that for more than a year past, such bonds or notes, had been issued by the city, under the authority of the council, and had circulated as money, being a common medium of exchange within the city; that the council had a large amount of such notes or bonds, of denominations under thirty dollars, which they would put in circulation, if not restrained, and that no vote of the people had been taken authorizing the issuing of such bonds; and that the council were about to issue and circulate the same on their own motion; and praying that they might be enjoined.

That the chancellor granted a temporary restraining order, until the application for injunction could be heard in court, and on such hearing the court dissolved the restraining order, and refused to grant an injunction until the cause was finally heard.

Jones then made an application to this court (December Term, 1868) for mandamus to compel the chancellor to reinstate and continue the restraining order until the final hearing of the cause.

We understand from the opinion of Justice Gregg, that the court refused the mandamus on” two grounds: First, that Jones showed no such personal interest in the matter as to entitle him to an injunction-; and second, that it was not only illegal, but criminal in the officers of the corporation to issue the paper, and that a Court of Chancery could not enjoin the commission of anací not- only void, but criminal.

The city council, disregarding the decision of the Supreme Court, that it was illegal and criminal to issue the paper, persisted in its issuance, and received it for taxes, etc., it is alleged, until after the year 1873, when it was refused.

In. the year 1875, the city attempted to fund, by bonding, outstanding bonds and certificate of indebtedness issued upon banknote paper, for the purpose of circulating as money, and at the suit of¥m, and James Vance, citizens of Texas, but who owned and paid taxes on real estate in the city, the funding was restrained by injunction from the Circuit Court of the United States for the Eastern District of Arkansas, on the ground, as we understand, that the paper which the city was proceeding so to fund, was illegally issued.

And in the case of Merchants’ National Bank v. The City of Little Rock, recently decided in the same court, Justice Dillon charged the jury (the District Judge concurring): That the form and appearance of the city bonds on bank-note paper, engraved with vignettes, in the similitude of greenbacks or bank bills, and of the denomination of one dollar, two dollars, five dollars, ten dollars, twenty dollars, fifty dollars and one hundred dollars, in connection with the undisputed fact that they did form for a considerable period a local circulating medium, and were used by the city and community in lieu of currency, establishes that the said bonds were issued for the purpose of circulating as money, and in violation of the statutes of the State in that regard.”

We conclude this feature of the case by affirming that the paper in question was not only issued without authority of law, but in violation of the statutes and policy of the State.

Fourth — Any act which is forbidden, either by the common or the statutory law — whether it is malum in se, or merely malum prohibitum', indictable, or only subject to a penalty or forfeiture ; or however otherwise pi’ohibited by a statute or the common law, cannot be the foundation of a valid contract; nor can anything auxiliary to, or promotive of such act.- Bishop on Contracts, sec. 458.

So a contract invading any one of the other interests which the law cherishes, though the thing to be done or promoted is not indictable, and not prohibited by any statute, termed a contract against public policy (or sound policy) is likewise void. Ib., sec. 460.

A note made on Sunday in violation of a statute is void. Tucker v. West et al., 29 Ark., 386.

In Craig et al. v. Missouri, 4 Peters, 436, Chief Justice Marshall said, it has been long settled that a promise made in consideration of an act which is forbidden by law is void.

In Thomas v. City of Richmond, 12 Wallace, 349, assumpsit was brought against the City of Richmond, upon notes issued by the city to circulate as currency. Mr. Justice Bradley, delivering the opinion of the Supreme Court of the United States (on error to the Circuit Court of the District of Virginia) said: “The court finds as a fact that the notes upon which the present action is brought were issued to circulate as currency; and, as matter of law, that this was in violation of the law and policy of Virginia. * * *

“The issue of notes as a common-currency, or circulating medium, is guarded with much jealousy' by all governments as touching one of its most valuable prerogatives, and as deeply affecting the common good of the people. Almost every state has stringent laws on the subject, and it may be said to be against the public policy of the country to allow individuals or corporations to exercise this prerogative without express legislative sanction. The State of Virginia, like all the other States, had a law of this kind in operation at the time the notes in question were issued. The issue of the notes in question was clearly in violation of this law. * * *

“But the charter of the City of Richmond has been referred to for the purpose of showing that the common council had power to issue such notes. One of the grants of power relied on is, that the city is made a corporation with power to contract and be contracted with, and generally with ‘all the rights, franchises, capacities, and powers appertaining to municipal corporations.’ In a community in which it is against public policy, as well as express law, for any person or body corporate to issue small bills to circulate as currency, it is certainly not one of the implied powers of a municipal corporation to issue such bills. Such a corporation ‘can exercise no power which is not, in express terms, or by fair implication, conferred upon it.’ Another clause of the charter to which reference has been made authorizes the council to borrow money and to issue the bonds or certificates of the city therefor. But this cannot be seriously urged as conferring the right to issue such bills as those now in suit. Such city securities as those authorized by the charter are totally different from bills issued and used as a currency or circulating medium. The distinction is understood and recognized by the whole community. A power to execute and issue the one class cannot, without doing violence to language, be deemed to include power to issue the other. We do not hesitate to say, therefore, that the common council of Richmond had no power or authority to issue such paper, and that they could not bind the city thereby.” See also Davidson v. Lanier, 4 Wallace, 447; Brown v. Tarkington, 3 Ib., 377; Root v. Godard, 3 McLean, 102; Weed et al. v. Snow, Ib., 265.

In Dively v. City of Cedar Falls, 21 Iowa, 569, held that notes issued by the city for the purpose of being used and circulated as money in violation of the statute, were void and could not be the basis of recovery. See also Attorney General v. Life and Fire Insurance Co., 9 Paige, 476; Smith v. Strong, 2 Hill, 241; McCullough v. Moss, 5 Denio, 567.

In Wheeler v. Russell, 17 Mass., 281, Parker, Ch. J., said: “No principle of law is better settled than that no action will lie upon a contract made in violation of a statute, or of a principle of the common law. See also Williams v. Yeates et al., 5 Ark., 684.

Fifth — It was insisted in the argument by counsel for appellant that he had nothing to do with the issuance of the paper in question by the city council, and was therefore an innocent holder.

It is sufficient to say of this, that there can be no innocent holder of paper issued by a municipal corporation without power or in violation of law. Township of East Oakland v. Skinner, 94 U. S. Rep. (4 Otto), 255; Town of South Ottawa v. Perkins, Ib., 261; Marsh v. Fulton County, 10 Wallace, 683; The Floyd Acceptances, 7 Wallace, 676; Dively v. City of Cedar Falls, 21 Iowa, 569; Dillon on Municipal Bonds, sec. 7; Root v. Godard, 3 McLean, 102.

The reason of the rule is that such corporations are enacted by and derive all their powers from public law, and persons dealing with them, or taking their paper, are obliged, at their peril, to ascertain the extent of their contracting powers, and limitations upon them.

Sixth — We come now to the final, and really the only perplexing question in the cause, and that is, has the legislature provided that the city shall be liable upon, and shall redeem the paper in question, notwithstanding it was issued in violation of law, and public policy, and under a general principle, is void ?

As a matter of public history, it may be stated that the paper continued to circulate as currency in the ordinary transactions of the community until the fall of 1873, when the banks refused to receive it, and it was thereby discredited among the mercantile classes and fell below par. Finally after the city refused to receive it for taxes, and after the Circuit Court of the United States enjoined the city from funding it, it sunk down to a nominal value, and perished in the hands of its unfortunate holders, many of whom were doubtless illy able to bear the loss.

How much of it is still outstanding, and whether it remains in the hands of the many who sustained the loss of its depreciation, or has' been accumulated in the hands of a few, we do not know, nor is it material to the settlement of the legal question before us. As a currency, it has but repeated the history of all paper illegally issued to circulate as money.

If the city is legally obliged to redeem the paper, the means of its redemption must be drawn from the tax-payers, and they must be punished for the illegal conduct of the officers of the city in issuing it.

In Pennsylvania the very act that prohibited corporations from .issuing small bills and notes to circulate as currency, declared that they should not be void by reason of the statute, but that the corporation should be liable upon them. The Supreme Court of that State, in Allegheny City v. McClurkan & Co., 14 Penn. State, 84, said: “The provisions of the statute are very plain and intelligible. They announce two propositions: First —You violate the law and incur the penalty if you issue small notes under five dollars, and put them in circulation currently; but if you will violate the law, and issue them and incur the penalty, you shall pay the holder the uttermost cent you engage to pay on their face, and in addition, if he is compelled to bring suit, you shall pay interest at the rate of 20 per cent, per amnum.”

Our legislature has in substance and effect said about the same to persons who may issue paper to circulate as currency, but it has in no statute expressly relating to municipal corporati.ons employed such language.

The first statute passed on the subject was entitled “An Act to prevent the circulation of private notes in this State,” approved November 25th, 1837, and was made to take effect from and after the 1st of March, 1838 (Rev. Stat., sec. 5, chap. 24), and is contained in ch. 119, title “Private Notes,” Revised Statutes.

The act is as follows:

■ Section 1. No person or persons unauthorized by law shall intentionally create or put in circulation, as a circulating medium, any note, bill, bond; check or ticket, purporting that any money or bank notes will be paid to the receiver, holder or bearer, or that it will be received in payment of debts or to be used as a currency or medium of trade in lieu of money.

Sec. 2. If any person shall issue, put into circulation, sign, countei’sign or indorse any such note, bill, bond, check or ticket, he, she or they so offending, shall be indicted,- and being thereof convicted shall be fined not less than fifty, nor more than three hundred dollars, and be imprisoned not exceeding three months.

Sec. 3. If any person or company vend, pass, receive or offer in payment any such note, bill, bond, check or ticket, he, she or they, so offending, shall forfeit the sum of fifty dollars, to be rercovered by action of debt with cost to the use of any person who will sue for the same before any justice of the peace of the county in which the party offending be found.

Sec. 4. The preceding section shall not affect any note issued by any bank authorized by law in the United States, except notes for a less sum than five dollars.

If the scope of this act be limited to the purpose expressed in its title “ to prevent the circulation of private notes,” it might well be held to embrace paper issued or put into circulation by individuals, firms, companies, and even private corporations, but paper issued by a public municipal corporation could not, witjh any regard to the meaning of language, be held to be included in the words “ private notes.”

But if it be said that the word person,” as used in the act, embraces municipal corporations, the punishment prescribed by the second section for creating or putting into circulation such paper, must necessarily fall on the officers of the corporation, because a corporation is an ideal being, and cannot be indicted, fined and imprisoned.

Sec. 21, ch. 129, Revised Statutes, provides that the word “ person,” in any statute, shall be deemed to include females as well as males, and bodies corporate as well as individuals, but it is by no means a rule without exceptions that the word embraces municipal corporations. Boone County v. Keck, 31 Ark., 387.

The second act on the subject was approved and in force February 14th, 1838, and forms ch. 24 of the Revised Statutes, title Change Tickets, and is as follows:

Section 1. The holder or owner of any change ticket, bill or small note, issued for the purpose of change or otherwise, shall have the right to sue the drawer, issuer, or endorser, of such change ticket or tickets, bill or bills, or small note or notes, before any justice of the peace in this State.

Sec. 2. The justice of the peace before whom any suit may be brought, under the provisions of this'act, shall, in all cases, when he is satisfied that the defendant in such suit did draw, issue, sign, or endorse the change ticket, bill or small note sued on, and that the same is not paid, forthwith give judgment for the plaintiff for the amount of such' change ticket, bill or note sued on, and shall forthwith grant the plaintiff an execution on the judgment, if the plaintiff require the execution.

Sec. 3. It shall not be any bar to any plaintiff obtaining a judgment on any change ticket, bill or small note, on account of any conditions specified or set forth in any change ticket bill or note, sued on, that payment will be made when the sum of five dollars is presented, but the justice shall give judgment for the-amount of the change ticket, bill or small note, sued on.

Sec. 4. The justice before whom any judgment may be obtained, by the provisions of this act, shall not grant or allow any appeal or stay of execution, nor shall the defendant be permitted ■or allowed to have any stay of execution, appeal, certiorari, writ of error, or injunction, but shall abide the judgment of the justice.

Sec. 5. The act passed at this session of the General Assembly, entitled, “An Act to prevent the circulation of private notes in this State,-” approved November twenty-fifth, eighteen hundred and thirty-seven, shall take effect and be in force, from and after the first day of March next. (Approved and in force, February 14th, 1838.)

If the City of Little Rock is liable upon the paper in question, it must be liable under the provisions of this act, for jt is not pretended that there is any other act upon which the liability of the corporation can be predicated.

Municipal corporations are certainly not expressly included in ■any of the provisions of the act.

It is equally as clear that they are not impliedly included in the use of the term “ person,” for it is a remarkable fact that the word person is nowhere used in the act;

Moreover, the second section of the act provides, without any ■exception, that the justice of the peace shall forthwith grant the plaintiff an execution on the judgment recovered upon the ticket, bill, or note; yet sec. 15, ch. 33, of the Revised Statutes, title “Corporations, provides that no execution shall issue against a municipal corporation. (Approved, March 3d, 1838.)

Ve are satisfied that in the enactment of 14th of February, 1838, copied above, municipal corporations were not in the minds ■of the law-makers; and that they are not included in the provisions of the act.

Hence it was found necessary to pass the Act of 17th Decern1 ber, 1838, entitled “An Act to prohibit the issuing of small bills, notes, or change tickets;” (Acts of 1838, p.' 13,) which is as follows:

Be it enacted, etc., That, from and after the passage of this act, it shall not be lawful for any city, town, or corporation, whatever, within the State of Arkansas, to issue small bills or notes, commonly denominated change tickets or shin-plasters, unless specially authorized by law.

Sec. 2. That all persons, officers of such city, town, or corporation, or others whose names shall be affixed to any such bills, notes, change tickets, or shin-plasters, issued in violation of this act, shall be individually responsible for the same.

Sec. 3. That the holders of any such bill, note, change ticket or shin-plaster, issued in violation of this act, may sue for, and recover in gold or silver, the amount for which they purport to be payable, from the individuals whose names shall be affixed thereto, before any justice of the peace residing in the city, town, or county, in which the same may have been issued; and the decision of the justice,’ in all such cases, shall be final.

Sec. 4. That the provisions of this act shall be construed to extend to all small bills, notes, change tickets, or shin-plasters, heretofore issued by any city, town, or corporation, unless-the same be redeemed by the first day of May, eighteen hundred and thirty-nine.

Persons whose memories g& back so far, may remember that the word shin-plaster was a vulgar term applied at the time and before the passage of this act, to paper issued by individuals, firms, companies and corporations, without the privilege of banking, to circulate as currency, and especially for making •change, which was a prevailing, and proved to be a pernicious evil.

i, To sum up the legislation on the subject, the legislature said to all private persons, whether acting individually, or in firms, or companies, you must not issue notes, bills, etc., to circulates as currency, but if you will issue them, you shall be subject not only to indictment, fine and imprisonment, but shall be liable on the paper. ■ t

The legislature also said to corporations, in language equally as emphatic, you shall not issue such paper, but if you will, all officers of such corporation, and others whose names shall be affixed to such paper, shall be individually responsible for the same; and possibly (under the act of November 25th, 1837), subject to indictment, fine and imprisonment.

This legislation was eminently ju'st, for the officers of a corporation who issue forbidden paper in violation of law, should be liable upon it, and not the stockholders or tax-payers, who may be blameless in the matter.

Dudley E. Jones, in behalf of himself and all other tax-payers made ineffectual appeals to the courts to stop the officers of the City of Little Rock from issuing the paper in question, ano yet if the city is liable upon the paper, he and the other taxpayers of the city must suffer the consequence of their illegal acts.

Mr. Justice Gregg, in the second case of Jones v. City of Little Rock, 25 Ark., 306, said: “ If such (meaning the bonds, etc., in question), are issued without authority of law, then the city is not bound to redeem them. If issued in violation of a positive statute, they are void, and the taxable property of the citizens cannot be held liable for their redemption.”

It is insisted that this part of the opinion is obiter dietum, and that may be true, but we hold that it correctly announced the law of this case ; and it is unfortunate for the community that the opinion was disregarded by the officers of the city; for any temporary good that may have come of the issuance of such paper (if indeed there was any), has been largely overbalanced by the evils and losses flowing from it,| as has invariably happened with all such “ shin-plaster ” enterprises.

We have not overlooked the expressions of Judge Lacy in Van Horne v. The State, 5 Ark., 349.

Trowbridge, (who had been Mayor of Little Eock), Whit-more and Van Horne, were indicted for forgery in the Circuit Court of Pulaski County, the indictment charging that they “feloniously did forge and counterfeit the false resemblance, and imitation of certain notes and instruments which circulated, by usage as currency, etc., purporting to bo of the corporation of the City of Little Eock,”. etc., etc.,

Van Horne, was convicted upon the indictment and sentenced to the Penitentiary, and brought error.

It ivas argued for the prisoner, that the city had no power under its charter to omit a paper currency; that the issuance of change- tickets and small notes was expressly forbidden by statute, that such emissons ivere void, and hence it was no offense to counterfeit then.

The Act of December, 17th 1838, modifying the penal code to correspond with the establishment of a Penitentiary, (Acts of 1838 p. 121), which was in force when this case was tried, provided that; “whoever shall be guilty of forgery, counterfeiting, etc., etc., the counterfeit resemblance or imitation of any bank bill, or any note, check, or draft, or bill of exchange, or instrument, which circulate as currency of any corporation, company, or person, or purporting to be of any corporation, company or person, that really exists or may exist, or that does not exist, etc., with intent to deceive, and defraud, shall be imprisoned,” etc.

Judge Lacy, who delivered the opinion of the Court, held that the prisoner was properly convicted for counterfeiting which puportod to be issued by the corporation of Little Rock, whether the city was liable upon the paper or not, or indeed whether the corporation in fact existed.

But he went further, and undertook to show that the corporation was liable upon such paper, though issued by it contrary to law.

It will be observed, on a careful reading of the opinion', that the learned Judge did not notice the provisions of the Act of December 17th, 1838, which expressly forbids corporation from issuing such paper, and makes -their officers, or others whose names arc affixed to the paper liable upon it.

He makes the word “person” and “company,” as used in the Act of November 25th, 1837, include corporation, but that act, as we have above shown, makes neither person nor corporation liable upon the paper, but makes it criminal to issue it, and penal to vend, pass, receive, or offer it in payment, etc.

He also seems to have overlooked the fact that the word “person” was not at all used in the Act of February 14th, 1838.

That the judgement of the court was -right in Van Horne’s case that he was guilty of forgery, we do not question, but with all due respect for the learning and memory of Judge Lacy, we think he was in error in saying that the City of Little Rock, would be liable upon paper issued by its officers in violation of law for the purpose of circulating as money, though the officers whose names may be affixed to such paper are liable.

The same learned judge delivered the opinion of the court in Yeates et al v. Williams, 5 Ark., 684.

Williams, assignee of Williams & Co., sued Yeates & Butts, on a writing obligatory, executed by Anderson J. Greer as principal, and defendants as sureties. The defendants pleaded in bar, that they executed the bond as securities of Greer, to the plaintiff’s assignee, and that the consideration therefor “ was certain ■tickets, notes or cjhecks, purporting that Arkansas bank notes •would be paid to the receiver, holder or bearer, which said tickets, notes or checks being intended to be used as a currency or medium of trade in lieu of money, the said checks, tickets or notes being not authorized so to be put in circulation, contrary to the statute in such case made and provided,” etc.

The court below sustained a demurrer to the plea, and defendants appealed.

Whether the notes or tickets for which the bond was given were issued by an individual or corporation does not appear. If issued by the former, he was liable upon them, if by the latter, the officers, or others, whose names were affixed, were liable upon them. Yet this court held that the bond sued on was void, because executed for paper issued and passed in violation of law.

Many years ago, Phillip L. Anthony, proprietor of the Anthony House, embarked in the change ticket business, and issued paper redeemable in hotel fare, or Arkansas money. Judgment was recovered against him before a justice, of the peace on one •of his tickets. Passing over the Circuit Court, he procured the proceedings of the justice to be brought before this court, and reviewed on certiorari; Anthony ex parte, 5 Ark., 358.

Chief Justice Ringo, who delivered the opinion of the court, after making a brief summary of the three acts relating to the ■ subject, which we have copied above, said: “According to our'' understanding of these statutory provisions, they embrace only . ■such instruments as purport to be for five dollars, or a sum under five dollars, and were, by the maker, drawer, issuer, indorser, or other person affixing his name thereto, designed to circulate from hand to hand as currency or change,” etc.

No doubt the issuance of small bills to circulate as currency was the prevailing evil at the time the acts were passed, and the mischief which the legislature designed to suppress. But it is not to be inferred from expressions contained in any of the acts, tbat the legislature meant to tolerate the issuance of large bills to circulate as currency, by unauthorized persons or corporations. This might enhance the evil, if they could be imposed upon communities.

Section 3 of the Act of 25th of November, 1837, makes it penal to vend, pass, receive or offer, etc., any note, bill, bond, check, or ticket issued for circulation, etc., but sec. 4 exempts from this prohibition any note issued by any bank in the United States, authorized by law to issue bills, except notes for a less sum than five dollars.

The object of making this exception was to prevent the circulation in the state of bank bills of a less denomination than $5, because the use of such paper tended to displace coin. Such was also the purpose of the Act of January 8th, 1855, and of the Act of February 8th, 1859, which latter act extended the prohibition to bills of a denomination less than $20 after the 4th of July, 1860.

The officers of the City of Little Rock issued the bonds, etc., in question in denominations of one, two, five, ten, twenty, fifty and one hundred dollars, all of which were designed to circulate as currency.

If the larger bills were not within the letter, they were within the spirit of the forbidding acts, and Judges Dillon and Oald.well correctly charged the jury in the case of The Merchants’ National Bank v. The City of Little Rock, that it was illegal to issue them.

Moreover, it was well said by Justice Bradley, in Thomas v. City of Richmond, supra, that: “The issue of notes as a common currency, or circulating medium, is guarded with much jealousy by all governments as touching one of its most valuable prerogatives, and as deeply affecting the common good of the people * * * * and it may be said to be against the public policy to allow individuals or corporations to exercise this prerogative without express legislative sanction.”

We said above that contracts invading public.policy, as. well as such as are forbidden by common or statute law, were void.

After a careful consideration of the whole subject, our conclusion is that the city is not liable upon the so-called City Money ” in question, and that the appellee was not legally obliged to accept it in payment of the city tax for which it was tendered by appellant; and therefore the judgment of the court below must be affirmed.