text:
    Smith v. Parker.
    Notice op proceedings.- The mere order of a court or judge, directing the issuing of process for the commencement of an action, or the removal of proceedings from an inferior to a superior tribunal, does not come within the provisions of the act of February 17,1859, -entitled “An act to prevent fraud and oppression under color of judicial process.”
    Writ op certiorari. Where a party appears, in response to a writ of certiorari, and defends, he waives the objection of want "of notice of the application for the writ.
    Where a party neglects to appeal from the judgment rendered by a justice, in a garnishment, .proceeding, and shows no excuse for such neglect, a writ of certiorari to bring up the record is improvidently issued.

    Appeal prom justice op the peace. An appeal to the circuit court-lies from the judgment of a justice of the peace in a garnishment proceeding.
    Justice op the peace — power to vacate judgment. A justice has ■ power to set aside 'a judgment by default, in a garnishment proceeding, and grant a new trial.

      Appeal from White Circuit Court.

    Hon. John "Whytock,.Circuit Judge.
    Watkins & Bose, for appellant.
    The court might set aside1 tile-judgment by default, against the garnishee, at any time within fifteen days. Gould’s Dig.? 665, secs. 86 and 90 ; Wilson v. Phillips, 5 Ark., 183,185.
    The court can only quash on certiorari where the record shows that the judgment is wholly void. Hill v. State, 17 Ark., 440; Redmond v. Anderson, 18.id., 449 ; Jefferson county v. Hudson, 22 id., 595; Denton v. Boyd, 21 id'., 264; Miller v. McCullough, id., 426; Dicus v. Bright, 23 id., 107; id., 228; Rightor v. Gray, 24 id., 122.
    The proceedings quashed were entirely regular. Gould’s Dig., 665, secs. 90, 91; Acts 1858,172.

      Turner and Clark & Williams, for appellee.
    The justice of the peace had no authority to' set aside the judgment against the garnishee. The proceeding before him was by judicial garnishment, under chapter 79, Gould’s Digest,, which gives no authority whatever to the jñstice to set aside-the judgment, after the day and term of his court at which it was rendered. Sections 88 to 91, chapter 99, have no application to judicial garnishments, but only to ordinary suits instituted by summons, according to the practice prescribed by that chapter ; in which cases judgment by default or non-suit are, set aside to allow the party & new trial; but, in this case, there was nothing to try anew. No answer had been filed and there was no issue to try. The allegations of the plaintiff:* had been filed; the garnishee had appeared and obtained time to file his answer. This time came and he failed to answer. By this failure he admitted his liability, and judgment went against him as of course, by operation of law, ivithout any trial. Gould’s Dig., 556; sec. 9; Wilson v. Phillips, '5 Ark., 188.
    The errors of the justice could be corrected only by certiorari. An appeal would have been useless. The case, on appeal, could only be tried anexo on its merits, without regard to the errors of the justice. Dig., chap. 99, sec. 185.
    On appeal, the same cause of action, and none other, can be tried, lb., sec. 196 ; Ball v. Kuykendall, 2 Ark., 195.
   Wilshire, C. J.

It appears, from the transcript of the record in this cause, that, on the 16th day of March, 1861, Carter Parker obtained judgment against -one E. G. E. Petty, for $100 debt, and $7-^0 damages and costs of suit, before Milton Saunders, a justice of the peace for Gray township, in White county.

On the 7th day of January, 1868, Parker sued out a writ of garnishment on said judgment against J. P. Smith, returnable on the 8th day of February, 1868. “ On the return day of the writ of garnishment,” says the record, “ the parties, by their respective attorneys, appeared, and the plaintiff filed his allegations and interrogations in writing, whereupon the defendant, asked for three days’ time, allowed by law, to make and file his answer, &c., which time was granted by the justice, and the cause adjourned to the 13th day of the same month ; and on the day to which the cause was adjourned, the garnishee failing to answer the allegations and interrogations of the plaintiff', the justice rendered judgment against him for the amount of the judgment, in favor of the plaintiff, against Petty, and the interest and cost thereon. On the 21st day of the same month, the defendant, Smith, applied to and obtained from the justice of the peace an order setting aside the judgment against him and granting a new trial, to be heard on the 14th day of March, following, and the justice issued notice of that order to the plaintiff, Parker.

At the new trial, the plaintiff appeared, by attorney, and moved the justice to vacate the order setting aside the judgment against the garnishee, and granting a new trial, upon the grounds:

1. That the justice’s court had no jurisdiction.

2. That said order was made without any notice to the plaintiff of the application therefor.

3. That no merits or cause was shown, or offered to be shown, by said garnishee, for setting aside said judgment.

The justice overruled the motion, and allowed the garnishee to answei’, and upon his answer the justice discharged him, and rendered judgment against the plaintiff for costs.

The judgment of the justice, discharging the garnishee and against the plaintiff for costs, was, upon review by the circuit eourt, upon certiorari, quashed, and1'the original judgment against the garnishee affirmed.

The defendant in the circuit court moved the court to set aside the judgment and to grant a new trial. The court overruled thé motion, and the defendant excepted and appealed to this court.

The- appellant, in Ms motion for a new trial, set up as grounds therefor that the writ of certiorari should have been dismissed, and the judgment of the justice in favor of the garnishee affirmed:

1. Because the writ of certiorari was issued without notice to him of the application therefor.

2. Because the statute referred to, as rendering void the said judgment of the said justice, for want of notice, &c., does not apply to proceedings of justices of the peace, in setting aside judgments rendered by default, or on non-suit.

The mere order of a court or judge, having for its object only the issuance of a writ or process, for the institution of a suit, or removal of the proceedings of an inferior tribunal into a superior one, does not come within the operation of the act of the General Assembly, approved February 17,1859. Pamphlet Acts, 1859, p. 172. That act provides “ that all judgments, orders, sentences and decrees made, rendered or pronounced by any of the courts of this State against any one, without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences, or decrees, shall be absolutely null and void.” The office of the writ of certiorari was only to bring the record of the proceedings and judgment of the justice of the peace into the circuit court, and was in the nature of a new proceeding instituted in the circuit court, for the purpose of reviewing the proceedings of the justice of the peace, and was necessary before any judgment, order, sentence, or decree, could be made, rendered, or pronounced upon the review, by the circuit court, of the proceedings of the justice of the peace.

We are of the opinion that the statute was intended to protect persons, parties litigant, against the proceedings therein mentioned in causes pending in courts after their institution by writ of process. This, we think, is clearly inferable from the title .of the act, which is “An act to prevent fraud, and oppression under color of judicial process.”

Suppose that the issuance of the writ of- certiorari, and bringing the proceedings of the justice of the peace into the circuit court, had been all that had been done in this case, would there have been any injury done to, or fraud or oppression practiced upon, the garnishee in the justice’s court? We think it would not be contended that there had.

It is undoubtedly true that, after suit has been instituted by suing out process, or brought from an inferior into a superior tribunal, by any of the modes known to the law, any judgment, order, or sentence, or decree, made, rendered, or pronounced therein, without notice, actual or constructive, to the person against whom the same is- made, would be null and void. But, by the transcript of the record in this case, it appears that the appellant appeared, by his attorney, in the circuit court, and defended the proceeding in that court, by which he ■waived notice.

It is insisted, by counsel for the appellee, that the justice of the peace had no authority to set aside the judgment against the garnishee; that sections 88 to 91, of chapter 99, Gould’s Digest, applies only to ordinary^ suits instituted by summons, as prescribed by that chapter, and that the authority conferred by chapter 99, to set aside judgments by default, or of non-suit, and grant a new trial, by a justice .of the peace, had no application to the garnishment proceedings authorized by chapter 79 of Gould’s Digest.

This, we think, is well settled by this court, in the case of Mitchell use Rogers v. Wood, 11 Ark., 180, which was an action by attachment before a justice of the peace, and appeal taken to the circuit court. There it was insisted that the circuit court had no jurisdiction, as the statute, authorizing proceedings by attachment, before justices of the peace, does not grant an appeal from their judgments in such cases. In that case the learned judge said : “ None of the authorities cited sus-r tain the objection that the appeal was unauthorized, but .they simply go to the extent of supporting a general doctrine of the law, long and well settled, that statutory remedies, out of the course of the common law, aje to be construed strictly,' because such militate against common right, and are supposed, in general, to be harsh, energetic, and effective in their operation, and easily perverted to the purposes of oppression. And, so far from this doctrine being in support of the position assumed in this case, it is, in its legitimate operation, directly to the contrary, because the reason upon which it is based invincibly forbid its application, alike to such statutory means enacted along with the remedy itself, to ameliorate its effective harshness, as to all the' other means for its resistance, that are afforded by the general law.”

In the ease of Patterson v. Hornland, decided by this court, and reported in 12 Ark., 160, it was held that an appeal would lie from the judgment of a justice of the peace on a proceeding by garnishment. Chapter 79, of Gould’s Digest, authorizing such proceedings before justices of the peace, does not provide for an appeal from such judgments.

If the appeals authorized by chapter 99 will apply to judgments rendered by justices of the peace in garnishment proceedings, authorized by chapter 79, of which we have no doubt, the same principle would seem to authorize a justice of the peace to set aside a judgment by default, in garnishment proceedings, and grant a ne\y trial, as in other cases.

The appellee, insists that the proceedings of the justice of the peace, in setting aside the original judgment against the garnishee, was had without notice to him,' ánd therefore void. We think this position is not correct, for, as we have before said, the justice of the peace had the power to set aside the judgment by default against a garnishee, as provided by chapter 99, of the Digest, in other cases; and the garnishee having the right, by statute, to apply to the justice, within fifteen days after the rendition of the judgment against him, to have the judgment, by default, set aside and a new trial granted, and until after the expiration of that time the judgment was in fieri, and i-t was the duty of the appellee to keep himself advised of what was being done in his cause.

It is also insisted, by counsel for the appellee, that the errors of the justice of the peace could be corrected only by certiorari, and that an appeal would have been useless. We think, from a careful examination of this case, that the remedy of the appellee was ample and complete, by appeal from the judgment of the justice of the peace, had he availed himself of it. But the record does not show that he applied for an appeal, or made and filed the necessary affidavit and bond to obtain it, nor does his petition for certiorari show any excuse for his not having done so; therefore, upon this appearing to the circuit court, upon an examination of the proceedings of the justice’s court, that court ought to have quashed the writ of certiorari, as having been improvidently issued, and that the circuit court erred in quashing the judgment of the justice of the peace against the appellee. For this error the judgment of the court below is reversed, and the cause remanded, with direction to that court to quash the writ of certiorari.


source: Caselaw Access Project

author: McClure, J.

license: Public Domain

text:
    Bridewell, et al., v. Mooney, admx.

    Amendments. The circuit court has power, by the provisions of section. 116, chapter 133, Gould’s Digest, to direct the clerk to amend an execution by affixing the seal of the court; and to amend the amount recited in'a delivery bond; and to amend an execution on a delivery bond.

      Practice — motion to quash. After the statutory judgment on a delivery bond a motion to quash is not the proper proceeding by which to avoid the original judgment.

      Appeal from Phillips Circuit Court.

    Hon. James M. Hanks, Circuit Judge.
    Garland & Nash, for appellant.
   McClure, J.

Bridewell, one of the defendants in the court below, executed and delivered his promissory note for the sum of $675-/^, payable on the 4th day of January, 1862, to his co-defendant Underwood. At the same time Bridewell executed and delivered to said Underwood his other certain promissory note, for the sum of $229, payable on the 15th of January, 1862. On the 27th of May, 1861, Underwood indorsed and delivered the two promissory notes to Henry F. Mooney.

In April of 1866, Ellen Z. Mooney, as administratrix of the estate of Henry F. Mooney, deceased, brought assumpsit against Bridewell and Underwood for the amount of the writings obligatory. Personal service was had on Underwood on the 25th of April, 1866. On the same day an attachment was sued out against Bridewell, he being a non-resident, and levied upon 320 acres of land, described in the return of the sheriff

At the next term of the court Underwood made default. No service being had upon Bridewell, the court ordered that he be notified by publication, which was accordingly done. At the succeeding term of the court, Bridewell made default, and judgment was rendered against both defendants for $1,347; and it was ordered that “she have satisfaction of the judgment out of the proceeds of the sale of the property herein attached, and that execution issue,” &c.

The administratrix gave the bond, required by section 41, chapter 17, Gould’s Digest, which was approved by the court, and execution issued, as directed, and the lands of Bridewell, attached by the sheriff, were regularly advertised and sold to Underwood, one of the defendants in the court below, for $110.

On the 22d of October, 1867, an alias execution issued against the defendants Bridewell and Underwood, and was levied upon ten mules and twenty head of cattle, as the property of Underwood. The sheriff' took a delivery bond, which was forfeited. The forfeiture of the bond was noted on the execution docket, as prescribed by law. Upon the statutory judgmerit an execution was issued against Underwood and Thompson for the amount of the former judgment, interest and costs..

At the May term, 1868, Underwood filed a motion to quash the original execution, the alias execution, the delivery bond, and the execution on the forfeited delivery bond. 1. Because the(' judgment is erroneous and void, it being a judgment in rem against one defendant and judgment in personam against the other defendant. 2. Because there is no judgment against Underwood. 8. Because the original execution was general against the property of the defendant Bridewell, upon a judgment in rem against the specific property of said defendant. 4. Because the alias execution is general against defendants Bridewell and Underwood, and in personam against Underwood. 5. Because the alias execution is not tested with 'the seal of the circuit court'. 6. Because there is a variance between the amount of the alias execution and the amount recited in the delivery bond, in this, that the alias execution is for the sum of $l,362T8I$r, and the delivery bond recites an execution for the sum of $1,352T87(!0-. 7. Because there is a variance between the date of the bond set out, and recited in the execution on the forfeited delivery bond, in this: The bond recited in the execution being dated November eighth, 1867, when in fact the delivery bond is dated November twenty-first, 1867. 8. Because the original execution and return of the sheriff show that the sum of $110 was made by the sale of the property attached, and the alias execution and execution on the forfeited delivery bond are issued for the full amount of the judgment.

The court overruled the motion t-o quash, and directed the clerk to amend the alias execution by affixing thereto the seal of the circuit court, which was done. The .court further directed the .clerk to amend the amount'recited in the delivery bond to correspond with the amount recited in the alias execution, which was done by changing the amount recited in the delivery bond from $1,3523^- to $1,362T87QD-. The court further directed the clerk to amend the execution on the delivery bond by changing the same from .November eighth, 1867, to November twenty-first, 1867, which was accordingly done.

To the making of these amendments, and overruling the motion to quash, the defendant objected, and appealed to this court.

The amendments made by the court are fully authorized by section 116, chapter 133, Gould’s Digest. Such of the objections of the defendant as related to matters of irregularity or defect, anterior to the statutory judgment, will not be discussed. If the original judgment was voidable, a motion to quash, after the statutory judgment had come into being, ivas not the proper remedy to raise the question.

Judgment affirmed.


author: McClure, J. Harrison, J.

text:
    Price & Barton v. Page, Treasurer.

    Supreme court — has original jurisdiction to issue writs of mandamus, Sfc. This court has power, by the present Constitution, to issue writs of mandamus, quo warranto, habeas corpus and other remedial writs, as an exercise of original jurisdiction.
    The clauses of the Constitutions of 186S and 1886, respectively, defining the jurisdiction of this court, are materially different.
    There is no language in the present Constitution callable of being construed into a restriction of the powers of this court to the exercise of appellate jurisdiction only.
    Treasury certificates. It is the true intent and meaning of the act of July S3, 1808, to prohibit the issuing of interest-bearing treasury certificates after July 1, 1869.
    T. D. W. Yonley, for petitioners.
    Montgomery, Attorney General, for respondent.
   McClure, J.

The first question arising in this ease is: Has this court the power, under fhe Constitution, to grant the writ ?

In order to arrive at a proper understanding of this question, it becomes necessary to examine the present Constitution, and ascertain if any change has been made therein whereby the jurisdiction formerly exercised by this court is affected ; and, if so, in what respect. The clause of the Constitution of 1886, relating to this court, is as follows: “The Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only. It shall have a general superintending control over all inferior and other courts of law and equity. It shall have power to issue writs of error and supersedeas, certiorari and habeas corpus, mandamus and quo warranto, and other remedial writs, and to hear and determine the same.”

From the organization of the State, in 1836, until 1851, a period of fifteen years, this court held that it had original jurisdiction to grant writs of habeas corpus, mandamus and quo warranto, and to hear and determine the same. In 1851 this court changed its opinion, and held as long as the Constitution' of 1836 remained in force, that this court did not have original jurisdiction of any character, and that writs, specifically named in the Constitution, could only be used as a means of “superintending control” and in aid of the appellate jurisdiction of the court. One of the constructions placed upon the Constitution of 1836 must have been erroneous. • Whether the opinion expressed in the infancy of the State Government, and at a time, it may be, when the discussions over this clause were yet fresh in the minds of the bar and court, is entitled to more respect and credence than that delivered fifteen years afterward, is a matter that each member of the legal profession must determine for himself, as that question is not before us.

We shall not enter into any lengthy argument to show that the writs of habeas corpus, quo warranto, (and seldom that of mandamus,) are not the proper writs to be used in exercising a superintending control over'inferior courts, or as adjuncts necessary to give this court appellate jurisdiction of matters originating in the circuit and other inferior courts. The use of these writs, anil their inapplicability to the purpose of exercising the superintending control contemplated by the Constitution, or as aids necessary to the complete exercise of the appellate jurisdiction of this court, is ably discussed in Attorney General v. Blossom, 1 Wis., 317; and to that case we refer those who may desire “more light.”

Tire burden of the argument in Allis, ex parte, is intended to show that, under the Constitution of 1836, the design of the framers of the Constitution was that this court should exercise appellate jurisdiction only. Tt is a general presumption that every word in a Constitution was inserted for some purpose. We are not at liberty to suppose that the authors of the Constitution indulged in the use of idle and meaningless, phrases ; we are not at liberty to say that the men who framed the Constitution of 1836 did not mean any thing by the use of the -words ^ except in cases otherwise directed by this Constitution.” If those Avonls haA’e any meaning, it is the province of the court to show to what “cases” these Avords apply; or, if there are no “cases” to which they apply, then it. is the duty of the court to demonstrate that the Avrits mentioned in the Constitution AA’ere not of the class that, under the English practice, tlie highest court in the realm had jurisdiction of. For, if it appear that the highest court of the country, from Avliick avohave draAvn our system of judiciary, exercised original jurisdiction in mandamus, quo Avarranto, and habeas corpus, the inference Avould he that the Avonls of the Constitution, Avhich limit the jurisdiction of the Supreme Court to an “appellate jurisdiction only,” except “in cases btherwisc directed,” Avero placed there for the purpose of clothing the highest court of tin State Avith a jurisdiction, so far as the writs mentioned are concerned, equal to that from Avhich the general design Avas taken.

The Avords, “except in cases otherwise directed by the Constitution” have been studiously ignored by the learned judge, in Allis, ex parte. There is no attempt to show the meaning or intention of these Avords; there is no attempt to point out the “cases” wherein the jurisdiction of the Supreme Court was not appellate; and, for aught ‘that appears in the opinion, one would he led to believe that there were no such words in the Constitution of 1836. The framers of the Constitution of 1836 declared that there -were a class of “cases” in which the jurisdiction of the Supreme Court was not “appellate only.” If this be true, and no man can refute it, we submit that it was the design of the framers of the Constitution that this court should exercise original jurisdiction over that class of “cases otherwise directed.” The words of the Constitution implies an original jurisdiction in one class of cases, and an appellate jurisdiction as to another. Sow, the question to be determined is, what class of “cases” is it in which the Supreme Court was not to have appellate jurisdiction.only? He who looks through the Constitution of 1836, for the “eases otherwise directed,” in which the Supreme Court was to have jurisdiction that was not appellate only, will find no class of “cases” to which the exception points, save those mentioned in section 2, article 6.

One of the clauses of section 2 says: “It (the Supreme Court) shall have power to issue writs of error and supersedeas, certiorari and habeas corpus, mandamus and quo warranto, and other remedial writs, and to hear and determine the same.” It is true that some of the writs herein enumerated may be used as adjuncts necessary to appellate jurisdiction, but it is equally true that some of them never were, and never can be, used for any such purpose. The writ of habeas corpus is used to remove illegal restraint upon personal' liberty; it issues at the Instance and for the benefit of the individual who is held in ■custody; it is the great writ of personal liberty,, and yet we are told that it was the intention of the framers of the Constitution to deny to this court the power to issue this writ. The writ of quo warranto is the writ of the sovereign power. It issues not to determine the rights of litigants in the inferior courts, but to inquire by what authority the person to whom it is addressed is exercising a portion of the sovereignty of the •State. When the writ of mandamus is employed, in cases like that now before the court, it is not used in aid of a superintending control over the courts. ' The functions of the writ are wholly changed, and it is placed side by side with that class of writs which, originally, were used to. protect the State, not •only against usurpation, but to compel the exercise of the power or duty enjoined by the supreme power of the State. In this sense, the writ of mandamus, at common law, was regarded as an original writ. ' Bouvier, in defining the meaning ■of “original writ,” as understood and used in the English practice, says: “It is issued in the King’s name, sealed with his great seal, commanding the wrong-doer, or party accused, •either to do justice to the complainant, or else appear in court and answer the complaint against him.” Such is the object of this proceeding, and we can come to no other conclusion than that the words, “except in cases othenoise directed by this Constitution,” point with unerring certainty to those original common law writs that, from time immemorial, had been used for the protection of the citizen, and to enforce the proper exercise of the functions of the government through that class of officers who were not at all hours within the jurisdiction of the court.

Admitting, however, that the reasoning of the learned judge, in Allis, ex parte, is sound law, and that, under the Constitution of 1886, this court had “appellate jurisdiction only,” and that the words, “except in cases otherwise directed by this Consti.tution,” are meaningless phrases, and ought to be treated as surplusage and entirely ignored, the decision is not applicable to our present Constitution, as the clauses regulating and defining the jurisdiction of the court are materially different. There is no language in the present Constitution saying that, ’except in cases otherwise directed, the Supreme Court shall have appellate jurisdiction only; nor is there any language in the present Constitution which, by any known rule on construction, can be even tortured into saying that this court shall have appellate jurisdiction only. Section 4, article 7, of the present Constitution, says that “final judgments in the inferior courts may be brought, by writ of error, or by appeal, into the Supreme Court, in such manner as may be pi’escribed by law.” The same section further says,, that the Supreme Court “shall have power to issue writs of error, supersedeas, certiorari, habeas corpus, mandamus, quo warranto, and other remedial writs, and to hear and determine the same'.” It may be urged that this court is deprived of all jurisdiction, save that of an appellate character, by the clause declaring that final judgments of inferior courts may be brought into this court by writ of error, or by appeal, as effectually as though the words “appellate jurisdiction only” had been used.' We do not admit this.

There would not be any great degree of violence in presuming that the members of the Constitutional Convention of 1868 were acquainted with the different constructions placed on the judiciary clause of the Constitution of 1836; and, if we proceed with this understanding, the inference would be,, that, if they were satisfied -with the construction last placed upon the jurisdiction of this court, they would have retained that clause verbatim et literatim; but, on the other hand, if -it should appear that the words upon which the court placed its-argument and based its decision, should uot be found, the inference would be that the words were left out by design, to the end that the former holding, as to the jurisdiction of this court, might again be exercised. When wc ask ourselves why the Convention left the words, “the ¡Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the-State, under such restrictions and regulations as may from time to time be prescribed by law,” out .of the present Constitution, and retained the-grant as to the power of the court to grant the writs of mandamus, quo warranto and habeas corpus, we can come to no other conclusion than that there was some object in doing so, and that the intention of that object was, that this court should exercise original jurisdiction as to the writs enumerated in the Constitution.

Under the Constitution of 1836, the circuit court was a creature of the Constitution, whoso jurisdiction extended to all ■civil and criminal cases, not cognizable before justices of the peace. To this extent the Constitution declared that the circuit courts were courts of original jurisdiction. Under the Constitution of 1868, the circuit court is a mere creature of the taw. Its jurisdiction is now regulated by the will of the Legislature. An idea seems to have seized upon the mind of the astute judge, in Allis, ex parte, that the circuit - was the only ■court of original jurisdiction within the State; that it was peculiarly the province of that court to issue all those high prerogative writs which protect the liberty of the citizen, and guard the soverignty of the State. The circuit court is no longer a court of original jurisdiction, by the terms of the Constitution, and whatever there may have been in the position at one time, there is nothing in it now. The statute, in fixing the power of the circuit court to grant'a mandamus, says: “ The several circuit courts of this State shall have the power to issue writs of mandamus (now mark to whom it may issue) to the probate court, county court-justices of the peace, and all other inferior officers, in their respective circuits.” This grant of power does not authorize the circuit court to issue a mandamus to the Treasurer of State. It is true that the Code of Civil Practice says that the “ circuit courts shall have original jurisdiction of all actions and proceedings for the ■enforcement of civil rights, or redress of civil wrongs, except where jurisdiction is given to other courts.” It may be said that this language confers a jurisdiction equal to that conferred by the Constitution of 1836;.that the right sought to be enforced, is a civil right, and therefore within the jurisdiction of the circuit court. We have already intimated that this court, by the Constitution, is clothed with original jurisdiction to grant the writs enumerated therein, and we presume it will not be contended that the Legislature could divest this court of its constitutional jurisdiction.

Judge Scott intimates, in Allis, ex parte, that, if it should be shown “ that the subordinate courts are incompetent to grant the relief, either from accidental causes or inherent defects, and that a failure of justice would be likely to follow the refusal of this court to grant the writ, that, under peculiar pressing circumstances of that description, this court might afiofd the relief.”' It strikes us, that, if the jurisdiction of the court was limited to an appellate jurisdiction, by the terms of the Constitution, no necessity, no matter how urgent, could make this a court of original jurisdiction. The jurisdiction of a court ought not, and never does, depend upon the necessity of the moment.. The admission that a necessity would confer jurisdiction, is a confession that the position assumed was not tenable, or that this court will only regard the provisions of the Constitution at its pleasure.

The attention of the court is called to the case of Jones, et al., v. The Mayor and Aldermen of Little Rock. We direct the attention of the counsel to the fact that, in the case cited, the application was for an injunction, and that the authorities cited and approved, were only approved so far as they referred to- and were applicable to the question then before the court. It will be borne in mind that, in the case of Dudley E. Jones v-The Mayor and Aldermen of the city of Little Rock, -which was an application for a mandamus, and at the same term at which this court refused to grant an injunction, this court assumed jurisdiction, and disposed of the case on its merits. At the June term of this court, in Irwin W. Fuller, ex parte, it will be borne in mind that the mandamus was denied, not upon the ground that this court did not have jurisdiction, but because the complainant was not entitled to it on the facts presented to the court. , .

'An injunction is a prohibitory'and not a remedial -writ, commanding the person to whom it is- addressed to refrain from a particular act. It may be the final judgment in an action, or it may be used as a provisional remedy only. It is a mere auxiliary, used by the inferior courts for the protection of a right, or the prevention of an injury, until the rights of the parties may be determined by a court of competent jurisdiction. Such of the members of the legal profession as are familiar with the history and use of the writs of habeas corpus, quo warranto mandamus, need no argument or essay to convince them that these writs are not of the same lineal descent as that of injunction, and will readily understand the difference between granting a writ that never determines the rights of litigants in the inferior courts and one that does. It may be urged that, in the case of Jones, et al., v. The Mayor and Aldermen of the city of Little Rock, the granting of the injunction in that instance would not have affected the rights of parties litigant in the inferior courts. For the purpose of this argument wre will admit that it would not. The writ of injunction is not enumerated in the Constitution as among the writs in which this court has original jurisdiction; and, if the injunction had been granted, the power to have done so would have been drawn from the grant contained in the words “ oilier remedial writs.” Now we will admit, for the purpose of illustration, that an injunction is a “ remedial ” writ, and then we ask if it is claimed that this court can obtain original jurisdiction by the use of a “ remedial writ?” If it will not, it must be conceded that the silence of the Constitution denies to this court the power to assume ■ original jurisdiction to grant injunctions.

It may be urged that the opinion, in the case of Allis, ex parte, has been the law since 1851; and that a due regard to the public interest forbids that the former decisions of this court should be disturbed. "We are not responsible for the causes that led to the destruction of the Constitution of 1886, and to the establishing of that of 1868. The decision in Allis, ex parte, not only overruled the decision of this court, which had been the law for fifteen years, but is at variance with the decision of the Supreme Court of the State, from which the framers of the Constitution copied the judiciary clause of the Constitution of 1836. Notwithstanding all this, if there had not boon a radical chamre in the judiciary clause of the Cons.titution of 1868, we would have deemed it to have been our duty to have sustained the decision in Allis, ex parte, oven against the judgment of .a portion of the bench; not becausé we believe that case to have been good law, but because of its antiquity, and the confusion that would have followed in the ■wake of its reversal.

Having disposed of the question of jurisdiction, we will now consider whether the complainant is entitled to the writ.

The prayer of the petition is that “ the said Henry Page, Treasurer of the State of Arkansas, be compelled, by the mandate of this court, to deliver to the petitioners a Treasurer’s certificate for said sum of money, specified in said Auditor’s warrant, dated on the day and date of said Auditor’s warrant,' and drawing interest at the rate of eight per cent, per annum from the date thereof.”

Under the laws previous to the act approved July 23, 1868, there was no provision by which the Treasurer might issue interest-bearing certificates. The act of July 23,1868, is drawn with little skill, and is susceptible of more than one construction. But, taking the act as a whole, we have come to the conclusion that the intention of the Legislature was to prohibit the issuing of interest-bearing certificates after the 1st of July, 1869. The act of March 16,1869, does not change the limitation clause in the act of July 28, 1868, nor does the act of March 24, 1869. There are, as before remarked, many unguarded expressions in the acts referred to, and, under all the circumstances that would attend the issuing of the writ, we are of opinion that the writ ought not to issue.

Judges Harrison and Grsuu, dissenting.

Harrison, J.

We are unable to concur with the majority of the court in the opinion j ust delivered.

The jurisdiction conferred by the Constitution upon this court, is, in every respect, consistent with its title. As the Supreme Court — the highest in dignity and authority — the supervision and control over all inferior courts is given to it. A tribunal with such jurisdiction and authority, by which a uniform interpretation of the laws shall be secured, and their execution by inferior tribunals enforced, is expedient áncl necessary m every judiciary system, and to provide such was the design and purpose in the establishment of .this court.

But no necessity existed for conferring upon it concurrent jurisdiction with the circuit and other inferior courts over which it has control, and whose proceedings and judgments it revises, and we find none given, cither in express terms or by a plain implication.

Section 4, article 7, which declares and defines its jurisdiction, is as follows:

“The Supremo Court shall have general supervision and control over all inferior courts of law and equity. It shall have power to issue writs of error, supersedeas, certiorari, habeas corpus, mandamus, quo warranto, and other remedial writs, and to hear and determine the same. Final judgment in the inferior courts may be brought by writ of error or by appeal into the Supreme Court, in such manner as may be prescribed by law.”

The power to issue the writs named is expressly given, but whether as auxiliary to the jurisdiction already conferred, or concurrently with the circuit courts, must be determined by construction.

Those enumerated are the ordinary and appropriate common law processes for the exercise of the supervision and control over inferior courts, immediately before granted, some of them in their nature revisory Only, and the others requisite to the authority of the court in its control over inferior courts. From this apposition and the context, alone, the inference is natural that such power was designed to bo in aid of that jurisdiction. As concurrent jurisdiction with the circuit courts, it was neither necessary nor expedient, for they, like the King’s Bench in England, are courts of general jurisdiction,- and, as such, have an inherent authority, in cases not within the supervision and control of this court, to issue, hear and determine any of such writs, that may be required for the ends of. justice. The remaining provision, that “final judgment in the inferior courts may be brought by writ of error, or by appeal, into the Supreme Court, in such manner as may be prescribed by law,” manifestly is no grant of jurisdiction. It merely prescribes the way by which final judgments in the inferior courts may bo brought, for review and correction, into this court, and refers to such appellate jurisdiction as already existing. Supervision and control over inferior courts extends to the revision and correction of their proceedings and judgments, as well as compelling them to act and keep within their spheres of duty. Such is not only the natural, plain and obvious signification, but the common law meaning of the terms, and in which sense we must suppose the framers of the Constitution used them. Carnall v. Crawford County, 11 Ark., 604.

If, then, it is clear that this last provision is in aid of the appellate jurisdiction of the court, and the preceding one provides instrumentalities and means appropriate and necessary for the exercise of the remainder of its jurisdiction, the conclusion is strong, and to our minds irresistible, that the object of that provision is not to confer further jurisdiction, which we have seen not to be necessary, but only to provide for the due and efficient exercise of that already granted.

The authority of the court to issue these writs as an exercise of original jurisdiction, except as auxiliary to its revisory power and control over inferior tribunals, has been uniformly denied, whenever the question has been raised, since the decision in Allis, ex parte, 11 Ark. The court, in that case, after e, most thorough and mature examination of the subject and its former decisions, which held that it possessed such power, felt constrained, by the force of its convictions, to ovenmle those decisions, and to declare that it had no such authority.

It is true that the terms employed in declaring the jurisdiction of the court, in the Constitution of 1886, under which that decision was made, are not exactly similar to those employed for the same purpose in the present Constitution. They are, however, in substance and effect the same. The jurisdiction was conferred in that Constitution in these words: “The Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions and regulations as may from time to time be prescribed by law. It shall have a general superintending control over all inferior and other courts of law and equity.” In the present Constitution, in these: “The Supreme Court shall have general supervision and control over all inferior courts of law and equity.” In the former Constitution there were two distinct grants of jurisdiction — one, its appellate, the other, its control over inferior courts. In the present, there is but one grant, but that comprehends and confers the same powers and authority.

But, since the adoption of the present Constitution, the court, in the case of Dudley E. Jones v. The Mayor and Aldermen of the city of Little Rock, decided at the last term, declared its approval of these decisions.

The case referred to, in the opinion just read, as between the same parties, at the same term in which the court assumed jurisdiction, was an application for a mandamus to compel the Chancellor of the Pulaski chancery court to grant an injunction ; and the court, in assuming jurisdiction, acted in the exercise of its piower of control over inferior courts.

The earlier decisions of the court, having been, after mature deliberation, overruled, and the contrary doctrine established and adhered to for nearly twenty years, we can not but feel that the question should be regarded as forever settled and remain at. rest.

The second section of the act of the G-eneral Assembly, entitled “An act to make Treasurer’s certificates bear interest, also, receivable for taxes and debts due the State,” approved July 23,1808, directs the Treasurer, whenever an Auditor’s warrant sl¿nll be presented, and there is no money in the treasury out of which the same can be paid, to issue a Treasurer’s ceifificate for the amount, to bear eight per cent, interest from date, and makes it receivable for all State taxes and debts due the State, except taxes for school purposes, and debts due the school fund. The concluding sentence of the section contains a proviso, and is as follows: “Said certificates shall be issued on bank note paper; Provided, 'however, that no Treasurer’s certificate shall be issued on bank note paper, except it is for one, two, five and ten dollars, respectively.” Section 4 says: “No certificate shall be issued, by virtue of this act, on bank note paper, after the first day of July, 1869;” and section 6, that “all Treasurer’s certificates, issued by virtue of this act, shall be paid, if presented for payment, out of the first funds paid into the treasury, from the revenue derived from the assessment and collection of 1868.”

By a subsequent act, approved March 24, 1869, the certificates were made receivable for all debts due the State, and for all State, county and municipal taxes. It is contended by the Treasurer that the issuing of such certificates after the 1st day of July, 1869, is prohibited by section 4. This can not be the case, unless all certificates, issued by virtue of the act, were to be printed on bank note paper; but such is clearly not the intention. The act provides for the issuance of certificates on all Auditor’s warrants, irrespective of amount.. If all certificates were to be issued on bank note paper, the proviso is repugnant to the subject and purview of the act, and can not stand. But we think the intent and meaning of the proviso is, that those for one, two, five and ten dollars, should be on that kind of paper, but none other: That section, then, only prohibits the issuing after the first day of July, 1869, of certificates on bank note paper.

The 6th section, which directs that such cei’tificates as might be presented for payment, be paid out of the first funds paid into the treasury from the revenue of 1868, under the mistaken presumption, perhaps, that there would be sufficient to pay all that it should be necessary to issue, only attempts to provide a fund for their redemption, and does not direct that no more .shall he issued, if that should prove insufficient. ~We, therefore, think it is the duty of the Treasurer, whenever Auditor’s warrants are presented to him, and there is no money in the treasury out of which to pay them, to issue certificates upon them.


author: Gregg, .1.

text:
    Haynes, admr., v. Harper, admr.

    Vendor’s likn — defeated by misrepresentations. Where the vendee of land had no means of knowing the boundaries of the section conveyed, but relied upon the vendor, who did know thereof, but misrepresented as to the same, there is fraud.

    In a suit to enforce a vendor’s lien, the defendant is entitled to avail himself of a recoupment for fraudulent misreiiresentations made by the vendor, as to the land, at the time of the sale.
    Irregularity. There is irregularity where the record shows no proof of publication of notice to non-resident defendants.

      Appeal from Drew Circuit (hurt.

    Hon. IL H. Morse, Circuit .Judge.
    Garland & Nash, for appellant.
    Gallagher & Newton, for appellee.
   Gregg, .1.

On the 13th February, 1867, the complainant filed, in the clerk’s office of Drew county, his hill of complaint against Nelson and others, and an affidavit of the non-residence of some of the defendants. An order of publication was made, and process of subpoena issued.

The object of the bill was to enforce a vendor’s lien upon a ■certain tract of thirteen hundred and sixty acres of land, for an alleged balance of $8,833Ty¥ of the purchase money, and was brought'against the legal representatives and heirs of John M. Hart, deceased, to whom, it was alleged, said lands had been sold by Hemingway, and that said sum, and interest, was due .and unpaid.

At the April term, 1867, the cause was continued, with leave to amend the bill, and to answer at the next term. At the next term, some orders were made suggesting a change in Hart’s administrator, and the cause continued. At the March term, 1868, Harper, the administrator, de bonis non, and the minors, through a guardian, filed answers.

The administrator admits the purchase of the lands, at the price of $10,000; avers the payment of $7,000, and that the remainder was not paid. He denies that any lien exists on the land; charges fraud on the vendor in deceiving Hart as to boundaries, &c.; alleges Hart had no knowledge of the location •or boundaries of this land, or of land surveys, as they are made in Arkansas; that such facts were known to Hemingway; that he pretended to point out the boundary lines of section four, in township twelve, south of range eight west, which was part of the lands sold, and he represented that the same was on good land; that no considerable part of a body of poor, wet land was in said section, and that the boundary line of said section only run to the border of such wet lands, when, in ■fact, four hundred and fifty acres of said lands were in that section; that Hart was deceived thereby, and, upon such fraudulent representations, he made the purchase; that Hart immediately went to his home, in Tennessee, and did not return’ here but once, and then but for a short time; and that he knew nothing of the true location of said section and its boundaries up to his death, which occurred in Tennessee, in 186-2.

■ The complainant entered his general replication to the answers, and the cause -was set for hearing at the next term, and leave granted to take depositions. ■

At the October term, 1868, depositions were published, and no further orders made. At the April term, 1869, the cause ■came on for final hearing, upon the pleadings and proofs then before the court, from which the court found the material allegations in the answer of the administrator true, and, thereupon, decreed that the complainant’s bill be dismissed, that the defendant go hence, and that the complainant pay all costs, &g. The complainant excepted to the finding and decree, and appealed to this court.

But two depositions appear in the record. Those were of Nathaniel and William A. Nelson. The former swears that he was present at the trade between Hemingway and Hart; went with them to look over the land; heard what passed between them; heard Hemingway describe the land;' saw him point out the lines; states Hemingway’s means of knowledge, Hart’s want of information, etc., etc., fully corroborating and ■sustaining the answer of Harper.

William A. Nelson testified to about the same amount of worthless lands in section four, and that the boundary line was marked, so it could have been easily scon, if Hemingway had gone to it, etc.

The record shows no proof of the publication of the notice to the non-resident defendants. Such proof is attempted to be ■supplied by an affidavit presented to this court, instead of applying for a nunc pro tunc entry, etc., in the court below.

Some adult resident and non-resident defendants filed no ■answers, and no decree, pro confesso, was ever taken against them.

The record recites a replication to Nathaniel Nelson’s answer, but it nowhere appears that he ever filed any answer, nor is there any response of his in the record. He was made a defendant. There is no showing that he was ever dismissed, yet his deposition was taken and read upon the hearing without complainant’s objection. The complainant introduced no proof (beyond exhibits) to defeat the answer of the minors, which answer is always an unqualified denial of the allegations in the bill.

In this condition the cause was submitted to the court for final determination, showing a want of labor, if not of skill, on the part of those conducting the cause in the court below, not to be expected or commended in matters, prima facie, of this importance, or in any matter likely to demand the attention of a superior court.

But as inartificial and doubtful as the pleadings, proof and entries are, they tend to show that, upon the sale of the thirteen hundred and sixty acres of land, Hemingway fraudulently misrepresented the fact that four hundred and fifty acres of worthless land were embraced in section four; that Hart had no means of knowing the contents or boundary of said section; that he confided to Hemingway, and would not have made the purchase but for such misrepresentations; that the amount unpaid -was not more than the damage done Hart by the misrepresentations. And further, that there was no sufficient proof to defeat the claim of the minors.

In view of the whole case, we do not see how the circuit court could have rendered any different decree. See Hh edition Broom’s Legal Maxims, 499; Hill v. Bush, 19 Ark., 522; Harrell v. Hill, ib., 102, and cases cited.

The decree is, in all things, affirmed.

Judge Harrison, being disqualified, did not sit in this case.

Hon. John 'Wiiytook, Special Supreme Judge.


author: Harrison, J.

text:
    Jones, et al., v. Pearce.
    Contract ok saws. Where a contract is entered into to discharge a written obligation by the payment of cotton, the circumstance, that long-. after the time of the alleged constructive delivery of the cotton,'the obligation was allowed by the pretended vendor to remain in the hands of the pretended vendee, is a. very pregnant fact.

    What is necessary to pass tithe. No sale is complete, so as to vest in the vendee an immediate right of property, so long as any thing remains to lie done between the buyer and seller in relation to the goods.
    When the goods must be weighed. A contract to sell and deliver cotton is not performed where the weight and value have not been ascertained. •
    In such a case the cotton must be weighed with the concurrence or acquiescence of the vendee.

      Appeal from, Phillips Circuit Court.

    Hon. -Johm -K. Bkxnett, Circuit .’Judge.

      Garland & Nash, for appellants.
    If Pearce had taken the cotton in hand and moved it, the delivery would not have been more complete. Story’s Sales, 811; 12 Mass., 800; 2 Kent, 501; 1 East, 192; 7 ¿¿.,558; 2 Eng., (7 Ark.,) 197; 14 Ark., 351; Better v. Block, 19 Ark:, 566; Pratt v. Parhnan, 24 Pick., 42.
    If the appellants did not perform the contract at exactly the time agreed upon, Pearce waived this by accepting the cotton, and by his other acts done after that time, looking to the accepting of it; as, for example, in August, 1863, Pearce was engaged in getting permits to sell this cotton. All this, on his part, was a clear waiver of any question as to time. 1 Parsons’ Con., 475; 2 ib., 147,187; 3 Parsons’ Con., 382, 386 ; 2 'Story’s Eq. Jur., 776, 780.
    W. G. 'Whipple, for appellee.
    The proof shows that there never was any legal selecting and separating of the cotton covered by the pretended sale ; that the cotton was never weighed in the proper manner, in the presence or with the consent of Pearce.
    No-principle of the law is better established than that a sale of goods is not complete, and no title to the property passes to the vendee, so long as any thing remains to be done by the vendor; such as weighing, measuring, or counting.
    It has been held that an attempted sale of-“25,000 bricks from the west end of a kiln,” was not completed, because the bricks were not actually counted. Gilman v. Hill, 36 N. H, 311; Better v. Block, 19 Ark., 573; Story on Sales, sec. 296; Courtrightv. Leonard, 11 Iowa, 32; Nicholson v. Taylor, 31 Penn. State P., 128; Sens v. Bellocy,Vl La. An., 146; Ockingtonv. Richey, AY N. H, 275; Chopin v. Potter, 1 Hilton, (N. Y. C. P.,) 366; .Cook v. Logan, 7 Clarke, (la.,) 142.
   Harrison, J.

Philip R. Jones and the heirs and administrators of Thomas Lockart, deceased, filed their bill, in the Phillips circuit court, against Thomas Pearce, for a specific performance of an agreement to convey a tract of land; to which the defendant filed •an answer, which he made a cross-bill, and in it prayed a foreclosure of the complainants’ equity of redemption in the land, and a sale of the same for the payment of purchase money.

The complainants answei-ed the cross-bill, and replications were filed to the ánswers to the bill and cross-bill.

Upon the hearing, the complainants’ bill was dismissed and a decree rendered upon the cross-bill in favor of the defendant, in accordance with its prayer. The complainants appealed.

The material allegations of the bill were: That the said Philip R. Jones and Thomas Lockart, on the 11th day of- December, 1861, purchased of the defendant a tract of land in Phillips county, on which was a steam saw and grist mill, for eight thousand dollars, for which they executed two writings obligatory, for four thousand dollars each, one payable twelve months after date, the other payable in cotton, at ten cents per pound, to be ready for delivery by the 20th day of January, following ; and the defendant gave them a bond to make them, upon the payment of the writings obligatory, a deed of conveyance for the land; that afterwards, on the same day, he gave them an obligation, under seal, to take cotton from them, .also, in payment of the writing obligatory falling due twelve months after date, at ten cents per pound, to be of the class middling, and ready for delivery on the first day of February, 1862, if they should, by the first day of January, agree so to pay it, which proposition they accepted and agreed to by the day named; that, before the day stipulated, they had the cotton ready and delivered it to the defendant,’ to pay both obligations, and that he accepted and received it, at the places where it lay, as a full payment and satisfaction of the same, promising at the time to take it away and give them up their obligations. He neglected, however, to do either, and, several months after, the cotton was burned by the military authorities, of the Confederate States; that Thomas Lockart died, in November, 1868, intestate, leaving as his heirs at law the parties suing as such, and that Addis E. Lockart had been appointed his administrator ; that the defendant never had made a deed of conveyance for the land, as required by his bond, and then absolutely refused to convey the same.

The answer admitted the allegations of the hill, except .as to the first mentioned, obligation, which it averred bore ten per cent, interest after matuidty, and the quality of the cotton; the other was to he paid in cotton, which was to he, as he averred, of the average of the crop raised by Jones and Lockart, in 1861 and the acceptance by them of the proposition to pay the first obligation in cotton, the delivery of the cotton, and the payment and satisfaction of the obligation, were positively denied. And it set forth as cross-matter the sale of the land,, the execution of tlio obligations for the purchase money, and of the bond for title, the death of Lockart, &e., as above stated in the pleadings, and that the obligations given for the purchase money ‘ were wholly unpaid. The complainants’ answer was consistent with the allegations in their hill.

There is in this case hut a single question: Were the obligations given for the purchase money paid in cotton ? And for its decision we must ascertain the facts and the. rules of law applicable to them.

Wo will state the-substance of the evidence :

Hamilton -Jones deposed that he was, in the latter part, of 1861, indebted to Phillip R. Jones, and offered to pay him in cotton. Ho consented to take twenty thousand pounds, to be delivered by the end of the year. A few days after, he agreed 'to take twenty thousand more. The cotton was ready by the first of December, and deponent requested Jones to come and get it. . Jones said it was for the defendant, and he would get him to copie with him for it. Deponent had the cotton — eighty-one bales, averaging 497 pounds — rolled out and marked with ■defendant’s name, and he afterwards saw defendant and told him the cotton ivas ready. lie replied that it was all right, .and requested deponent to take charge of it, and keep it for him, promising to pay him for his trouble. Deponent told him that he was to haul it to the river, and if it was not hauled then, he would not consider himself bound to haul it; and the defendant, replied that he did not want it at the river, nor exposed, and requested him to put it up, and said he would bo ■out in a few days and attend to it himself. The cotton was burned by the Confederates, he thought, in-May, 1862. Defendant, in a conversation with deponent, after the commencement of the suit, said he thought he was liable for forty or fifty bales of the cotton.

Josephs. Thompson deposed that, in June, 1862, he went over to Thomas Lockart’s, where he Was shown seventy-one bales of cotton, which, Lockart told him, belonged to the defendant, and had been turned over to him towards the payment of two notes, that he and Philip P. Jones had given him for a tract of land, the weights of which cotton he took, .and were contained on a paper he produced as a part of his deposition, and amounted to thirty-six thousand five hundred and forty-seven pounds. He produced, also, another paper, containing the weights of fourteen bales that were on the place on which ho resided, that Lockart bought, about the last of December, 1861, of P. S. Boyd, for the defendant, amounting to six thousand eight hundred and forty-two pounds. Both lots were burned in June, 1862.

Lycurgus Cage deposed that, in the fall of 1864, he made .an assignment of some notes to ~W. D. Pice, to secure a debt, .among which was one on Philip P. Jones'and Thomas Lock-Art for ¡£4,000. Defendant wished deponent, who had it in possession, to attach some cotton that Jones had in Memphis.. He called on Jones, and Jones said he had paid it in cotton, and produced a statement from Hamilton Jones of the -weights. He then informed the defendant what Jones had said. He «aid that Jones had paid one of the notes , for the land, and possibly something on that one, but not more than six or seven hundred dollars.

Henry Lackey deposed that he heard a conversation, in the spring of 1862, he thought, between Philip R. Jones and defendant, in which Jones requested defendant to go and get the cotton at Hamilton Jones’, and told him it had been ready for him for some time. Defendant told him not to trouble himself. It was his cotton, and, if lost, it was his loss.

William. B. Worsham deposed that he had heard all the parties speak of their trade; and, in a conversation he had with the defendant, he said he had agreed to receive payment for the land in cotton, and that Jones and Lockart had collected sufficient ■ for the purpose, and had notified him of the fact,, and that it was his, and held at his risk; and it was his recollection that it was stored at Hamilton Jones’, Thompson’s and Lockart’s. • It was burned about the last of May or first of June, 1862, and, after it was burned, he sjooke to defendant about it, and he admitted that he had received it, and that it was his.

On the part of the defendant, Hamilton Jones, who also deposed for complainants, deposed that he proposed to Phillip R. Jones to pay a debt he owed him in cotton. He agreed to take twenty thousand pounds. About two weeks after, he agreed to take twenty thousand pounds more, and it was to be delivered by Christmas. In December he informedhim it was ready. He procrastinated the delivery until some time in January, when deponent told him the cotton must • be delivered. He then informed the deponent that the cotton was for the defendant, and that had caused the delay, and told him if he could get some men to prove the delivery, he would receive it; The deponent accordingly got W. D. Freeman and II. F. Jones, and Philip R. Jones came, and they weighed the cotton. Deponent had 130 bales, and he had agreed to let Jones have an average of his crop, and he and Jones alternately selected a bale until each had selected forty — Jones selecting the best and the deponent the most inferior cotton. Thirty of those selected by Jones were marked P. R. J.; the otlier fifty, including all the inferior cotton, were marked P. The eighty bales selected did ¡sot quite make the forty thousand pounds, and an additional bale was selected, by one or the other of them, which was also marked P.

Lycurgus Cage, who also deposed for the complainants, deposed that he had for collection a note on Philip R. Jones, for four thousand dollars, that the defendant had let Rice have. He applied to Jones, in Memphis, for payment. lie denied owing it, and said he had paid it in cotton. 'Deponent then went to see the defendant and told him what Jones had said. He said Jones had not paid it, and wanted the deponent to attach some cotton he had in Memphis. He had several interviews with both parties. Jones always insisted that he had paid a previous note, and all of that, except six or seven hundred dollars, in cotton; and he showed a statement of cotton that Hamilton Jones had weighed and had held for defendant by defendant’s order. The defendant denied that he had received the cotton, or was liablé for it; and said that j if he was compelled to take it, it would only pay the cotton note, and a very small part, if any of that, while Jones insisted that it was sufficient to discharge both notes, except six or seven hundred dollars, which he offered to pay, if the defendant would give him up both notes.

II. F. Jones deposed that, about the first of the year 1862, he was called upon to weigh the cotton, at his father’s gin-house. His understanding at the time -was, that it -was weighed for the defendant; but the defendant was not present, nor had any agent present. That which was weighed for the defendant was marked with the letter P. The deponent marked all that was marked to him, but did not remember the number of bales.

Joseph S. Thompson, who also deposed for the complainants, deposed that, in May or J une, 1862, he was sent for by Lock-art to go to his gin. He went, and when he got there ho was told they were about to weigh some cotton for the defendant and which they proceeded -to do. Fourteen bales, at R. S B’oyd’s, which. Lockart bought of him to turn over, as he said, to the defendant, were also weighed out to Lockart. One-half of this cotton formerly belonged to the deponent, and he had transferred ■ his interest to Boyd, but it had been under his care until it was burned, and was never, to his knowledge, received by the defendant. The defendant was not present when the cotton was weighed, nor had any agent present to receive it. The cotton in that section of the country was all burned about the same time, and within the space of two or three days. lie heard they were going to burn the cotton two or three days before they commenced.

The depositions of Philip R. Jones and Ezekiel Jones, two of the complainants, were also read, on their part, and that of the defendant .on his. Depositions of other persons were also read, on the part of the defendant, for the purpose of impeaching the credibility of William B. Worsham; but, inasmuch as they do not affect the conclusion we have arrived at, it is not necessary to state the substance of them.

The complainants claim that Jones and Lockart each furnished a part of the cotton to pay the obligation. -

We will first inquire as to the payment by Jones. The cotton, which it is insisted he paid, he obtained from Hamilton Jones, and when it was weighed out to him, ho only marked fifty-one bales, of the eighty-one he received, in the defendant’s name; forty of these were the most inferior of the lot, and the others he marked in his own name. Thiá' conduct clearly evinced his intention, at that time, which' was after the first day of January, to apply only the fifty-one bales towards the payment of the debt; and it was to these, we presume, Jones referred when he. told the defendant that the cotton was at Hamilton Jones’, ready for him, and requested him to get it, and was the same cotton which was spoken of in the conversation between the defendant and Hamilton Jones. But, unless we shall find that every thing had been done in respect to the Cotton which was requisite to transfer the right of property in it to the defendant, it will be unnecessary to determine whether the conversations had reference to all the cotton that he got from Hamilton Jones, or only to the fifty-one bales which he marked in the defendant’s name.

“No sale is complete, so as to vest in the vendee an immediate right of property, so long as any thing remains to be done between the buyer and seller in relation to the goods.” Story on Sales, sec. 296; Benjamin on Sales, 221.

Thus, in Hanson v. Meyer, 6 East, 614, the vendee agreed to purchase all the starch of the vendor, then lying at the warehouse of a third person, at £6 per cwt., by bill, at two months, which was in papers, but the exact -weight was not then ascertained, but was to be ascertained afterwards, and fourteen days were to be allowed for the delivery, and the vendor gave a note to the vendee, addressed to the warehouse keeper, directing him to -weigh and deliver to the vendee all his starch; and part was weighed and dplivercc^, and then the purchaser became bankrupt. It was held that the right of property in the part umveighed had not passed to the vendee. And Lord Ellenborougli said, the act of weighing -was in the nature of a condition precedent- -to the passing of the property, by the terms of the contract, because “the price is made to depend upon the. weight.”

In Simmons v. Swift, 5 B. & C., 857, the following agreement was signed by the plaintiff and defendant: “I have this day sold the bark at Kodbrook, at £9 5s. per ton, of twenty-one hundred weight, to Hezekiah Swift, which he agrees to take and pay for it on the 30th of November. Eight tons and fourteen hundred weight of the bark was weighed to the defendant, and -was taken away by him and his servants. Eight or nine days after part of the bark had been so removed, the person upon -whose premises at Nedbrook the bark was stacked, met the defendant^ and asked him when ho intended to take the remainder away, as it was stacked over a part of a saw-pit he wanted to use. The defendant answered that he should take it away in a few days. The defendant did not take away the remainder of the bark, nor was it weighed; and, towards the latter end of November, it was considerably injured by the overflowing of the river "Wye. There was sufficient time for the defendant to have removed the whole of the bai’k before the flood happened. The court held that the property had not vested in the defendant; and Bayley, J., said:- “Generally speaking, where a bargain is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods, although he can not take them away without paying the price. If any thing remains to be done on the part of the seller, until that is done the property is not changed.” And, in the case of Williams v. Allen, et al., 10 Humph., 337, the plaintiff bargained with the defendants for the purchase of a quantity of corn, put up in pens. The bargain Avas for all the corn in the pens, at the price of one dollar per barrel, and the quantity Avas to be ascertained by actual-measurement. Before the corn Avas measured, it Avas SAvept off by a flood and wholly lost. After the purchase, the plaintiff' assumed to be the owner of the corn, and forbade an officer to leA^y on it as the defendants7 pi-operty, stating that it belonged to him; that he had bought it and paid part of the price, and he had, between the time of the contract and the loss, let the defendants have a horse, some pork, and some money toAvards the payment of the price; to recover the value of which the suit was brought. The court held that the right of property in the corn Avas in the seller, at the time of its destruction. Busk v. Davis, 2 M. & S., 397; Ward v. Shaw, 7 Wend., 404; Downer v. Thompson, 2 Hill, 137; Andrew v. Deitrich, 14 Wend., 31; Kaufman & Co. v. Stone, ante.

The AAreighing of the cotton;' Avlicn it Avas turned over to Jones, was to ascertain the quantity and value, to complete the sale and transfer the property in it to him, and there is no evidence that it Avas weighed with defendant’s concurrence, or that he ever acquiesced in it.

Although the defendant spoke of the cotton as his OAvn;and gave directions for its safe-keeping and preservation, it had no such, effect as to transfer the right of property from Jones to himself; and if it affords any presumption that the quantity and value had been ascertained, and the delivery thereby completed, it is repelled by the circumstances under which such assumption of ownership was made, and other facts in the case, which satisfactorily show that the cotton was not weighed after Jones became the owner of it.

The weight and value not having been ascertained, the property in the cotton remained in Jones, and the loss occasioned by its destruction must therefore be borne by him.

There is even less proof of a delivery of the cotton which is claimed to have been paid by Loekart. The weighing of that did not take place until some .time in May or 'June, and within a few days of the burning of the cotton in the country, and was, so far as is shown by the evidence, without the defendant’s concurrence or knowledge, and the object of weighing it then very, clearly appears to have been to shift the loss by its destruction, which was then imminent, from himself to the defendant. This is evident, also, from the fact that the eighty-five bales weighed by him, together with the eighty-one claimed to have been furnished by Jones, amounted to eighty-three thousand six hundred and forty-six pounds, and was three thousand six hundred and forty-six pounds more than the quantity required for the payment of the obligations.

If the defendant was bound by his contract to accept the cotton, and they wished to transfer it to him in order to extinguish their obligations, and relievo themselves from responsibility on account of it, they might easily have done so by giving him notice that they should at a certain time weigh and set it apart to him, and if lie did not attend they, could have proceeded so to-weigh and set it apart, and the property would have vested in him and been at his risk.

Besides these considerations, which go to disprove the payment, there is the pregnant fact, that they suffered the obligations to remain in the defendant’s hands long after the alleged delivery of the cotton, and until the time of its destruction.

The question, -whether the measure of damages on the obligation payable in cotton was the - sum of money specified in it, or the value of the cotton on the day appointed for its delivery, was not presented directly in the pleadings, nor raised by counsel here. The court below, in its decree, treated it as a contract for the payment of money, and though we do not tindertake to say what the rule in that class of cases is or should be, a matter left in doubt by the authorities, we think the res gesta and circumstances of the present case indicate that the intention of the parties was to contract for the payment of the sum of money specified in the obligation,' or a delivery of the cotton by the day appointed, at the option of the obligors, in lieu of it. 3 Parsons’ Con., 215.

The decree of the court below is affirmed.


author: Bowen, • J.

text:
    McWillie, et al., v. Martin, admr., et al.

    What constitutes equity in a rill — There is equity in a bill‘brought by the heirs of McW., to vacate a judgment obtained against R., administrator of McW., by M., administrator of L. M., where the bill sets up that a good defense exists to a whole or a part of the claim for which the judgment was rendered, and that R., administrator, was so negligent in the management of the defense as to warrant the inference of collusion.

      Appeal from Jefferson Circuit Court.

    Hon. H. B. Morse, Circuit Judge.
    Watkins & Rose, for appellants.
    Reed Fletcher, for appellee,
   Bowen, • J.

This is a hill in equity, by the widow and heirs of Aaron McWillie, deceased, to vacate a judgment, on the law side of the Jefferson circuit court, on the ground of its having been fraudulently obtained by Mahala Ann Martin, as administratrix of Lawrence Martin, deceased, against Seaborn J. Robinson, as administrator of the estate of said Adam McWillie, deceased.

At the November term, 1868, of the Jefferson circuit court, the defendants filed their general demurrer, which the court sustained, and dismissed the bill for want of equity.

The cause comes here on appeal.

The bill herein sets out that Adam McWillie, in his lifetime, resided in the State of Mississippi,but owned and operated a plantation in Jefferson county, Arkansas; that, for several years prior to the year 1861, Lawrence Martin was his overseer and agent upon such plantation; that McWillie, becoming dissatisfied with his management, sent, in January, 1861, said Seaborn J. Robinson from Mississippi to settle with Martin, and take charge of said plantation, &c., sending with him a statement of his business with Martin, showing a balance in Martin’s favor of $2,010T%; that, some time after this, Martin took a negro woman at $1,300, which the bill avers should have been deducted from the said balance of $2,010T%. Other averments are made, with a view of showing that nothing was due from McWillie to Martin, and from a letter’ exhibited with the bill, from Martin to McWillie, subsequently written, the former acknowledges that himself and McWillie are, as he expresses it, about oven.”

Kubsequentlj”, both Martin and McWillie died. Mahala Ann Martin was appointed administratrix of Lawrence Martin, deceased, and Seaborn J. Robinson was appointed administrator of McWillie, deceased.

The said Mahala Ann, as administratrix, brought suit, in the Jefferson circuit court,against Robinson, as such administrator, for the $2,010 aforesaid, and recovered judgment therefor, with interest, the whole amounting to $2,727y%.

The bill also shows that the only evidence used in the trial •of said-cause was the statement of McWillie, aforesaid, and that said Robinson attempted to make no defense, further than to file certain pleas, notwithstanding he was the person who brought McWillie’s statement to this State, and who, as the agent of McWillie, settled with Martin, who was his brother-in-law; that Robinson took no bill of exceptions, or other steps towards making the evidence a matter of record, and that in consequence of his not so doing, and not making defense, complainants had no remedy by a resort to this court, and that complainants abandoned an attempt to do so, for the reasons just given.

The bill makes other averments and charges, with full details, &c., unnecessary here to recite, since it so fully appears that there is equity in the bill, which, it will be remembered, is filed by the beneficiaries of the estate of McWillie, who were not parties to the action at law, wherein the parties plaintiff' and defendant are charged with fraud and collusion, and are both made defendants in the court of equity.

The circuit court erred in sustaining the demurrer to complainants’ bill.. Its decree is reversed, and the cause remanded for further proceedings, not inconsistent herewith.


author: Gregg, J.

text:
    Thomas v. Hutchinson.
    Motion eor new trial — waiver of objections. Under tlie practice existing in November, 1867, tlie party moving for a new trial in the court below waived all exceptions taken in the progress of the cause, which were not incorporated in the motion.
    Substituted record — When it appears to the court that a supplied record upon which the judgment was rendered is not a true copy, hut varies in material matters, and that the original papers have been found and reinstated, the cor\rt should award a new trial.

      Error to Desha Circuit Court.

    Hon. William M. Harrison, Circuit Judge.
    English, Gantt & English, and 'Pinball & Randolph, for plaintiff.
    Garland & Nash, for defendant.
   Gregg, J.

The appellee and James Yell, since deceased, on the 28d of March, 1867, filed their declaration, in debt, in the Desha ■county circuit court, against the appellant and Bryan W. Thomas, averring in their declaration that the said defendants, .and one Abel Knowlton, not sued, on the 8th of December, 1860, executed to plaintiffs an agreement in writing, not under •seal, by which they promised to pay $250 for professional •services in the circuit court of said county; and, if an appeal ■should be taken from that court, a like sum for similar services in the Supreme Court.

The declaration avers the services were rendered in both courts, and that said sums of money were due and wholly unpaid, and alleges their damages at one thousand dollars, and made profert of the instrument sued upon.

At the fall term, 1867, the deaths of Yell and Bryan W. Thomas were suggested and proved, and an order made that the suit progress in the name of the survivors.

The defendant, thereupon, craved oyer of the writing sued upon, and the court ordered that it be granted. The plaintiff was then allowed to file his affidavit of the loss of the instrument sued upon, to which the defendant excepted.

At the same term of the court, the plaintiff alleged the loss of the papers in the case, without negligence or fault of his, and made oath to the facts; and also, .that a copy of a declaration and writ, by him then presented, so far as he could then remember, were substantial copies of the originals, though he could not say “they were exact or verbal copies; that, as to dates and other material averments in the same, they compared with the originals, and were true, to the best of his knowledge and belief.”

The'copy of the declaration Was in assumpsit, and the filing and issuing of the writ bore date March 12, 1867.

Upon hearing the application and proof, the court allowed the copies presented to be filed, as substitutes for the originals, to which the defendant excepted.

The defendant then filed her pleas of non-assumpsit and the statute of five years’ limitation. The plaintiff* took issue to the first plea, and filed two replications to the second plea; the first that the statute'of limitations was by law suspended from the first day of December, 1862, until the 16th day of March, 1864, without which he was not barred from bringing and maintaining his action.

Secondly. That, at the time of bringing his said action, he Avas not barred by such, statute of limitations, as Avas attempted to be set up by said defendant; upon which issues were formed. The cause Avas then submitted to the court, sitting as a jury; the court found for the plaintiff*, and rendered judgment against the defendant for six hundred dollars and costs. The defendant tiled her motion for a nerv trial, “because the judgment ren derod Avas upon a supplied record, Avhich Avas shown to be incorrect by the original papers found; because the declaration upon, which judgment Avas rendered Avas in assumpsit, and filed, and the Avrit issued, as of the 12th of March, 1867, when, in fact, the declaration Avas in debt, and Avas filed the 23d of* March, 1867; that the judgment Avas rendered Avithout sufficient evidence and against law.”

The court overruled the motion, and the defendant excepted and appealed. Defendant’s bill of exceptions contains her objections to the decisions and rulings of the court, in allowing plaintiff’s affidavit to be filed in answer to her prayer of oyer; to alloAving the papers, purporting to be substantial copies filed as substitutes for the originals; to the admissions of evidence ; to the finding and judgment of the court; and to the overruling her motion for a now trial; which exceptions were signed and made part of the record.

It may be considered as settled, under the practice then existing, that a party who moved for a new trial, in the court below, waived exceptions taken in the progress of the cause, unless the objections taken were incorporated in such motion. Waller v. State, 4 Ark., 87; Sawyers v. Lathrop, 9 Ark., 67; Berry v. Singer, 10 Ark., 483; Ford v. Clark, 12 Ark., 99; Nevill v. Hancock, 15 Ark., 511; Collier v. State, 20 Ark., 36.

Counsel have seen fit to argue some of those exceptions here, but they will not be considered.

The only grounds for a new trial were, that the trial was had upon a false supplied record, and the finding contrary to the evidence. We think those objections well taken.

The defendant had a right to a trial upon the original causes of action declared against her, and when it appeared to the court that the supplied record was not a copy, that it varied in matters material and prejudicial to the defendant, and f his record shows that the original papers were found, and by an order of the court “reinstated on the record in their full force,” before the motion for a new trial was made; upon that ground we hold the court ought to have granted a new trial.

In reference to the sufficiency of the evidence to sustain the plea of the statute of limitations, under the issues as formed between the parties, upon the original record,'the statute bar had attached; not so under the supplied record; and whether the act of the so-called Confederate Arkansas State Legislature of December 1, 1862, is valid or not, the result is the same; and we do not now assume to settle that difficult question, not raised upon the record before us.

Let the judgment be reversed, and the cause remanded, with instructions to allow the defendant to plead to the original declaration, and to proceed to judgment thereon according to law.-

Judge Harrison, being disqualified, did not sit in this case.

Hon. John Whytock, Special Supreme Judge.


text:
    Obermier, Freidlander & Co. v. Core, Thompson & Co.
    Special verdict. Where the issue arising on an interplea is submitted to the court, the finding of facts by the court is in the nature of a special’ verdict, and conclusive as to the facts.
    Motion for a new trial. In such a case the court will not review the evidence unless a motion for a new trial was made in the court below.
    Vendor’s lien. A vendor of personal property, relinquishing possession, reserves no lien for purchase money.
    A written instrument (which is not a mortgage) is inadmissible as evidence of such lien.
    Evidence. In a suit by attachment, where the claimant of the personal property attached interpleads, claiming under a sale to him by the defendant, before the suit was brought, a written instrument, evidencing a prior sale of the same property by him to the defendant, is admissible, as tending to show the subsequent sale to him.
    Unofficial certificate. A certificate by a sheriff, setting forth the performance of acts not in the line of his official duty, is not admissible as evidence.

      Instructions to the jury, founded upon hypothetical facts differing from the case at bar, are rightfully refused.

      Appeal from Pulaski Circuit Court.

    Hon. John Whytock, Circuit Judge.
    Yonley and Gallagher & Newton, for appellants.
    Garland & Nash, for appellees.
   Harrison, J.

Obermier, Freidlander & Co. brought suit by attachment against William Wurtzburger, and the writ was levied on a stock of goods. Core, Thompson & Co. claimed the goods, and filed an interplea, setting up their title; to which issue was taken. The plaintiffs recovered judgment against the defendant, and the issue upon the interplea being submitted to the court, sitting as a jury, it found, as the facts proved, that the defendant, on the day preceding the levy of the attachment, transferred and delivered the goods in controversy to the plaintiffs, in part payment of a debt which he owed them, and rendered judgment in favor of the claimants.

From this judgment, upon the interplea, the plaintiffs, without moving for a new trial, appealed.

The declaration of facts found by the court, is in the nature ■of a special verdict, and conclusive as to the facts of the case. The Real Estate Bank v. Rawdon, et al., 5 Ark., 588; Hyde & Gleises v. Booramem & Co., 16 Pet., 169; Sawlet v. Shepherd, 4 Wallace, 502; Craig, et al., v. The State of Missouri, 4 Pet., 426. But, if there had been no such declaration of facts, this court would not, as there was no motion for a new trial, review the evidence, and pass upon its sufficiency to sustain the finding of the court, as it has repeatedly held.

The facts thus established prove beyond question the claimants5 title to the goods in controversy. But it is urged that incompetent evidence was admitted. The plaintiffs objected to the admission of the following instrument of writing, offered, by' the claimants:

“Little Rock, December 2, 1864.

“By virtue of agreement and sale, made this day by Core, Thompson & Co., of Little Rock, to Wm. Wurtzburger, of the same city, and State of Arkansas, the value of stock and merchandize is fixed and agreed upon $8,022T3^, and for which the said Wm. Wurtzburger has executed his promissory'- note to Core, Thompson & Co., at two months, from December 2, 1864, for $4,011^-, and at three months, from December 2, 1864, for $4,011^-, making, as above, the whole value, $8,022^-. It is definitely understood and agreed upon, between the contracting parties hereto, that, if the said William Wurtzburger fail to pay either of said described notes at the maturity thereof, the whole debt shall become due and payable, and the stock of merchandize in store, and the property of William Wurtzburger, shall be sold for cash, until the full and complete satisfaction of above described notes be had. It is further agreed that all expenses arising from the execution of this lien, in case the notes are not paid at maturity, shall be charged to and borne by William Wurtzburger.

“Witness our hands and seals, this 2d day of December, 1864.

“CODE, THOMPSON & CO.

“WILLIAM WUETZBUBGEB.

“Witnesses:

“E. S. Williams.

“Wm. B. Morris.”

As evidence of a lien, or charge upon the goods, the instrument of writing was clearly inadmissible. When a veudor relinquishes his possession of goods. sold, he loses his lien for the price, and no lien can be created upon personal property in favor of a person not in possession, actual or constructive, except by a mortgage, which this instrument has none of the characteristics of. But, taken in connection with other proof in the case, it tended to prove that, at the time the goods were attached, they had been assigned to the claimants, and the defendant was not the owner of them, and its admission therefore proper.

They also objected to the admission of the following indorsement upon the instrument:

“This is to certify that on the 80th day of March, 1866, I did take possession of the store-house situated on Main street, known as the store of William Wurtzburger, and all the goods therein, and placed Bingham in charge of the same, to account to me for the same when called for. This is done in pursuance of the within agreement.

“ J. R. R. ADAMS, Sheriff. ”

As the proceeding of Adams, in taking possession of the goods, does not appear to have been in the execution of any-writ or process, and in the discharge of his official duty, his certificate or statement concerning it, though made as in his official capacity, had no more validity as evidence than if made by any other person, and was nothing better than hearsay, and should have been excluded. Yet, inasmuch as the bill of exceptions shows that Adams himself was produced as a witness, and testified to the same facts, its admission could have had no influence upon the finding of the court, and is not, therefore, such error as would reverse its judgment. Clinton v. Estes, 20 Ark., 216.

The plaintiffs also excepted to the refusal of the court to declare certain conclusions of law asked by them.

As each of such proposed conclusions was founded upon a, hypothesis of facts altogether different from those found by the court, they were irrelevant, and for that cause rightfully-refused.

Judgment affirmed.


author: Gregg, «J.

text:
    Hodges v. Crawford and wife.
    Assessment of damages. Where an interlocutory judgment by default is rendered, in an action upon an open account, the damages must be assessed by the jury.

      Error to Independence Circuit Court.

    Hon. Richard H. Rowell, Circuit Judge.

      Byers & Cox and 'Wassell & Moore, for plaintiff.
   Gregg, «J.

Hodges complains that the circuit court of Independence county, at the May term, 1868, erroneously rendered judgment in favor of the Crawfords, and against him, for $2521¡5Tro-0-,

The action was in assumpsit, founded upon an open account. The record states that, at the return term, “the plaintiffs appeared, and the defendant, being .duly served with process and three times called, came not.” It was ordered that a judgment by default be entered against him, and upon an account of $250 against him, sworn to and - filed by one of the plaintiffs in their behalf, the court assessed their damages at $250^^, and rendered judgment accordingly.

The only question here presented is, whether or not the circuit court could legally assess the plaintiffs’ damages, upon the defendant making default.

This question has long since been settled by direct legislative enactment.

On page 858, Gould’s Digest, (sec. 81,) declares “that whenever an interlocutory judgment shall be rendered for the plaintiff by default, or upon demurrer, in any suit founded on any instrument in writing, and the demand is ascertained by such instrument, the court shall assess the damages, and final judgment shall be given thereon.”

The next section declares that “in all other eases of sueli interlocutory judgments, the damages shall be assessed by a jury, impaneled in the court for that purpose, and every such inquiry of damages shall be made at the term next after the term at which such interloeutoi’y judgment shall be rendered, unless the court direct it to be made at the same term.” Evans v. Parks, 10 Ark., 306; Johnson v. Pearce, 12 Ark., 599; Johnson v. Frank, 16 Ark., 199.

The above statute -was not changed by the act of 1866-7, p. 210, so as to authorize the court to hear proof and assess damages in eases not founded upon an instrument of writing, and on which the demand could be ascertained upon its face. This last statute only provided that a party, upon his own oath, can make a prima facie case, upon trial, -when 'the opposing party does not dispute such evidence. That act made statements, on oath, competent evidence for certain purposes, that were not so before that time; and, by still.later ordinance, or acts of legislation, all litigants are competent witnesses. But this does not change the time or mode of trial, nor do those acts extend the powers of the court, or in any manner restrict a defendant’s right to a trial by jury, wherein he does not waive that well established and important right.

The judgment is reversed,the cause remanded, with directions to allow the defendant to plead to the declaration, if he asks so to do, and to proceed to final judgment according to law.