author: Mr. Justice Compton

text:
    Vernon vs. Henson.
    The 6th section of the act approved 31st May, 1864, providing that certain classes of persflns therein described, shall be barred from the collection of their debts in this state, - is in violation of that clause of the constitution of the United • States which declares that no state shall pass any law impairing the obligation of contracts.

      Appeal from Washington Ci/reuit Court.

    Hon. E. Harrell, Circuit Judge.
    J. D. WalKee, for the appellant,
    referred to see. 10, Art. 2, Cons. U. Art. 2, see. 18, Cons. Ark.', Blair vs. Williams, 4 Hit., 35; Lapsley vs. Brashears, ib., 4T.
    Gregg, for appellee.
   Mr. Justice Compton

delivered the opinion of the court.

This was an action of debt by Yernon vs. Henson, in the Washington circuit court, on a promissory note. Henson pleaded to the action, and in his second and third pleas alleged facts that brought Yernon within the provisions of the act of. assembly, approved 31st May, 1864. To these pleas Yernon interposed a demurrer, which was overruled; and resting on his demurrer, final judgment was rendered for Henson, to reverse which this appeal is prosecuted.

The act of assembly provides as follows:

“ Seo. 5. Be it further enacted, That any person hereafter aiding or abetting the rebellion, or that has, or shall hereafter violate his oath of allegiance, aid all persons who are now in arms, and all rebels in prison by the federal authorities, and all persons who have abandoned their homes and have fled, and taken protection under the so-called confederacy, shall be forever barred from the collection of their debts in this state, of every description whatsoever, and all courts having jurisdiction in this state are hereby required to dismiss said suits whenever such proof is made, at the plaintiff’s costs.”

The question presented is whether the section of the act above quoted, violates that clause of the constitution of the United States which declares that no state shall pass any law impairing the obligation of contracts; and we are clearly of opinion that it does. There has been some discussion in the cases as to the extent to which the legislative action of the state may alter the remedy without impairing the obligation oí a contract; but certainly never has been contended, anywhere, that a state has the power to entirely take away the remedy, as was done by the enactment in question. The rule is, that whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy, or on the contract; in either case it is prohibited by the constitution. (Smith’s Com. on Const. and Stat. Construction, 388.) In Brown vs. Kenzie, 1 How. U. S. Sup. Ct. Rep., 317, Mr. Chief Justice Taney, alluding to this rule says: “ It is difficult perhaps to draw a line that would be applicable in all cases between legitimate alterations of the remedy and provisions which, in the form of remedy, impair the right. But it is manifest that the obligation of the contract, and the rights of a party under it, may, in effect be destroyed by denying a remedy altogether; or may be seriously impaired by burdening the proceedings with new conditions and restrictions, so as to mate the remedy hardly worth pursuing. And no one, we presume, would say that there is any substantial difference between a retrospective law declaring a particular contract or class of contracts to be abrogated and void, and one which took away all remedy to enforce them, or encumbered it with conditions that rendered it useless or impracticable to pursue it.” See also McCracken vs. Hayman, 2 How., 311; Blair vs. Williams, 4 Littell, 35; Lapsley vs. Brashears, et al. ib., 47; Berry & Johnson vs. Randall, 4 Metcalfe (Ky.) Rep., 292.

It follows that the court erred in overruling the demurrer, and for this error the judgment must be reversed and the cause remanded for further proceedings.

Mr. Chief Justice Walker did not sit in this case.


source: Caselaw Access Project

author: Mr. Justice ComptoN

license: Public Domain

text:
    Miller vs. Physick.
    The act of signing and sealing a deed gives it no effect -without delivery, which is a substantive, specific and independent act: and so where a deed is executed by several, and found among the papers of one of the obligors, after his death, and delivered to the obligee by a stranger, without explanation, or proof of other delivery, there is no such delivery as will bind the obligors.

      Appeal from Hot Spring Cvrouit Cow't.

    Hon. Libeety Bartlett, Circuit Judge.
    Watkins & Bose, and Smith, for the appellant.
    The whole question is as to the sufficiency of the delivery, which is essential to the validity of the instrument, though the manner is not material. It is a question of intention, and,should be left to the jury. 11 Verm. 621. A deed found in the possession of the grantee will be presumed to have been delivered. 1 McLean, 321; 6 Mo. 326.
    A delivery to an agent, or to a stranger for the use of the plaintiff is good. 9 Porter {Ala.) 650; Smith on Gon., 9; and á delivery to the co-obligor for the use of the plaintiff must be equally good. Brown vs. Brown, 1 Wood de M. 325; Mentis Com. vol. 4, p. 454,455, n. 1, n. a. See also, 1 J. O. B., 255; 2 Gilman, 557; 9 Mass., 307: 15 Wend., 545.
    "We think that a careful examination of the cases justify the position that the delivery by Physiek to his co-obligor for the use of Miller, was a sufficient delivery.
    FlaNAgiN, for the appellee,
    referred to the .following authorities to show that the delivery was insufficient: Maynard vs. Maynard, 10 Mass., 465; 20 Pick. Hep., 28; 12 J. B., 418; 12 Wend,, 105; 9 Eng. Law <& Eg. Bep., 507.
   Mr. Justice ComptoN

delivered the opinion of the court.

Miller, the plaintiff below, sued Physiek, in the Hot Spring circuit court, on a writing obligatory for the sum of sixteen hundred dollars. As a defence to the action, the defendant pleaded that the writing sued on was not delivered to the plaintiff. On replication and issue to this plea, a trial was had, which resulted in a verdict for the defendant, and judgment was rendered accordingly, from which the plaintiff has appealed to this court.

The evidence in the record discloses the following facts. The writing obligatory was signed and sealed by J. E. Stribling as principal, and Eobert Stribling and the appellee as his securities, for the purchase money of a negro slave which Miller, the appellant, had sold to J. E. Stribling. Afterward, Eobert Stribling, one of the obligors, died; and after his death, the writing obligatory was found among his papers — at which time, Miller got possession of it, through the mother of the deceased, who gave it to him at his request.

The circuit judge refused to charge the jury, on motion of the counsel for the plaintiff, that if they believed from the evidence, that the writing obligatory was delivered'by the defendant to any of the parties who executed it, or to. any person for them, or either of them, for the benefit of the plaintiff, the same was constructive delivery and binding on the defendant. But instructed them, 1st, that unless they believed, from the evidence, that the instrument sued on was delivered by tiie obligors, or some person authorized to do so, they should find for the defendant; and 2d, that where the obligor dies, leaving a bond among his papers, and the same is delivered, after his death, by an administrator, or custodian, such delivery is not valid: and that if the jury believed that the instrument sued on, was delivered in no other way, the. plaintiff could not recover.

Other instructions were asked, some of which were given, and others refused; but it is not deemed necessary to notice them, in order to determine whether the judgment of the court below, should be affirmed, or reversed.

A deed to be operative must be delivered. The act of signing and sealing gives it no effect without delivery. The delivery is a substantive, specific, and independent act, which may be inferred from words alone, or from acts alone, or from both together, and though there is no particular form in which to make it, still enough must be done to show that the instrument was thereby considered to have passed beyond the legal control of the maker, or his power to revoke it. Hughes vs. Easten, 4 J. J. Mar. Rep., 573; Dayton vs. Newman, 19 Penn., 194; Fris vs. McCarty, 1 Stewart and Porter Rep. 61. It is insisted, however, that delivery may be made to a third person in behalf and for the use of the grantee or obligee, without authority, and if unconditional, the deed will take effect, instanter, and be binding if the grantee or obligee can, at any time, and in any way, get possession of it; and that this principle is applicable to the case before us. The principle contended for — which seems to be supported by adjudications, both English and American — may be conceded, but we cannot admit its application. The fact that the appellee signedrthe writing obligatory, was established by proving his hand-writing. There was no evidence as to what was said, or done, at the time of signing ; nor as to how, or for what purpose, the writing obligatory got to the possession of Robert Stibling. As to these particulars the record furnishes us no information whatever. We only know, from the evidence, that the appellee signed the instrument; that it was in the • possession of Robert Stribling at the time of his death, and that, afterward, the mother of the deceased delivered it to the appellant. But suppose it had been shown that, at the time of signing the instrument, it was left in the possession of Robert Stribling, a co-obligor, would such a state of facts have been evidence of delivery, on the part of the appellees? We think not. It frequently happens, in business transactions, that the principal in an obligation procures the signatures of others as his securities; and, ordinarily, the securities, after signing the obligation, pass it back to the principal obligor. Can it be said that the mere act of passing it to the principal obligor, is constructive delivery to the obligee? Nothing more, we apprehend, is meant or intended, by such an act, than that the principal obligor shall hold, or be the custodian of the obligation, until delivery is made. It is, no doubt, the intention of the parties, under such circumstances, that the obligation shall be delivered; but until the act of delivery is performed, that intention may be changed. An intention to deliver is one thing, and delivery is another. In such case, the act of signing and sealing would, necessarily, of itself, bind all the obligors, except him who kept the writing, since more than one could not have the actual custody oí it, and the others must, necessarily, pass it to that one — thus making a case, where, in the nature of things, there could not be a delivery, distinguishable from the act of signing and sealing; and yet it is said that delivery is a “ substantive, specific, and independent act.” (Hughes vs. Eastern, supra.) In Fay vs. Richardson, 7 Pickering 91, a guardian bond to the judge of probate was executed by the principal and securities, in the presence of witnesses, and taken away by the principal, who retained it until his death, when his administrator finding it among his papers, took it and filed it in the register of probate. In an action on the bond against the securities it appeared, in addition to the tacts above stated, that the estate of the ward had passed into the hands of the principal in the bond, who had assumed to act as guardian for a period of more than three years; and it was held that no action could be maintained on the bond, for the reason that it never had been delivered. In that case it was argued, as it has been in this, that there was a constructive delivery. But Parser, C. J., said: “We have not been able to find any principle or authority to justify us in giving validity to the bond on which this suit is brought. A bond is a deed, and delivery is essential to a deed. There are cases of a constructive delivery, but there is no evidence here to bring this case to a resemblance of them. All that appears is, that the paper was signed and sealed by the principal and sureties and was left in the hands of the principal until his death.” And in another part of the opinion, speaking of the sureties, he says: “ The instrument never became their bond by their definitive act of delivery, and it cannot be made so by any power of this court.”

According to the view we have taken, the ruling of the court upon the instructions was correct, and the judgment must be affirmed.


author: Mr Justice ClendeNIN

text:
    Brown vs. Cribbs.
    Under sec. 113, ch. 133, Gould’s Dig., the court has a discretion in permitting amendments, before final judgment, and without costs; and'that discretion was properly exercised where the damages laid in, the declaration, from long delay, were not enough.

      Error to Bulashi Circuit Cowrt.

    Hon. Libeety Bartlett, Circuit Judge.
    Stillwell & Wassell, for plaintiff in error.
    The amendment should have been allowed only on payment of costs, and a continuance of the case, that the defendant might have opportunity to plead to the amended' declaration. 2 Hay. N. C. E, 282; 3 Wendell, 361; CiVp. B., 139.
    Gallagher & NewtoN, for defendant.
    It was clearly within the discretion of the court to allow the amendment, uiider seo. 113, oh. 133, p. 862, of the Digest,. as construed in Stillwell, Ex. vs. Badgett, 22 Arh., 166.
    It was purely within the discretion of the court to permit the amendment without costs; and that discretion will not be controlled by this court unless clearly abused. Burr vs. Daugherty, 21 Arh., 561.
   Mr Justice ClendeNIN

delivered the opinion of the court.

On the 18th of March, 1861, Cullen G. Cribbs commenced his action of debt in the Pulaski circuit court, against John T. Trigg, John G. Fletcher and William Brown, jr., returnable to the May term of that court. The defendants were all served with process. No orders or proceedings appear to have been taken in the case until the March term, 1866, at which term the plaintiff suggested and proved the death of defendant Trigg, and the suit abated as to him; the defendant Fletcher made default, and Brown filed his prayer of oyer, which was granted, and Brown made no further defence. The record then shows that “ the plaintiff asked leave to amend his declaration herein, so as to lay his damages at four hundred dollars, instead of two hundred dollars,” to which defendant Brown objected, but the court permitted the amendment to be made, to which Brown excepted, and saying nothing further, judgment was rendered against Fletcher and Brown, and Brown brings the case by writ of error to this court.

The first point raised by the assignment of errors is, that the circuit court erred in permitting the plaintiff to amend his declaration without terms; and second, that the court erred in not taxing the plaintiff with the costs prior to the amendment.

Both of these points assigned for error come within the provisions of section 113, chap. 133, of the Digest oí laws of this state. That section says: “ The court in which any action may be pending shall have power to amend any process, pleading or proceeding in such action either in form or substance, for the furtherance of justice, on ;such terms as may be just, at any time before final judgment rendered therein.”

The circuit court then had the power, under this section of our statute, to exercise a discretion in permitting this amendment to be made, and also in rendering the judgment for costs : and we. think the circuit court exercised a sound legal discretion in permitting the amendment. We can hardly imagine a stronger case that could be presented to the court for the exercise of its power in permitting amendments, than the one we gather from the record in this case. The plaintiff had properly brought his suit five years before the judgment was rendered, had laid his damages at such sum as he might reasonably expect would be sufficient when the case was tried, yet from delays and the natural efflux of time, they^were found not to be enough, and therefore, his proposition to amend, before the final judgment, was just and proper; and we think that the circuit court did not err in permitting the amendment to be made and rendering the judgment for the costs.

The judgment of the circuit court is affirmed.


author: Mr. Justice "WalKEr

text:
    Dickerson vs. Johnson.
    IS here there is no total lack of evidence, the verdict, though apparently against the weight of evidence, will not for that reason be set aside.
    The vendor of personal property, though incompetent as a witness for the vendee, where the title is involved, as held in Lindsay us. Lamb, is a competent witness for a party contesting the title of his vendee.
    Witnesses are not, as a general rule, to draw conclusions from a given state of facts, and to give such conclusions in evidence — they must state only facts.
    Where a sale of the plaintiffs property has been made by another, without his consent and against his remonstrance, his silence during a subsequent conversation in his presence, in relation to such sale, raised no presumption of an affirmance of the sale by the plaintiff.
    Instructions should never be given unless there is evidence to support them — nor upon trifling and indefinite statements irrelevant to the question at issue.

      Appeal from Washington Circuit Court.

    'Hon. Elias Harrell, Circuit Judge.
    Walker, for the appellant.
    A witness, whether interested or not, testifying against his interest is competent. Brown vs. Burlce, 22 Georgia, 574; Lof-lin vs. Wally, 24 Texas, 565 ; McCanon vs. Cassidy 18 Ark., 48. When the witness is equally liable, he is competent, Caldwell vs. Meek, 17 111., 220; 6 McLean, 463; 1 Greenleaf, p. 536, sec. 391.
    The testimony as to the conversation occurring after the sale was clearly incompetent. There was nothing tending to show a ratification of the sale by the plaintiff. Her silence cannot operate as an estoppel; nor was there any thing to base the instruction upon as to the ratification of the sale.
    Gregg- for the appellee.
    We submit that the witness was liable on her implied warranty ; and if the property belonged to the plaintiff the witness was directly liable to her, and hence directly interested in the result of the suit. Lindsey vs. Lamb, decided at the present term of this court.
    The subsequent conversation in respect to the sale, in the presence of the plaintiff, and the fact that she seemed satisfied with the sale, were circumstances proper to go to the jury, from which they might infer her ratification and assent to the sale.
   Mr. Justice "WalKEr

delivered the opinion of the court.

The appellant, Annette Dickerson, brought her action of re-plevin against Benjamin F. Johnson for a horse. The general issue was pleaded, upon which a trial was had, and a verdict and judgment rendered for the defendant; from which the appellant has appealed to this court.

During the progress of the trial, several exceptions were taken to the decision of the court by the appellant, which were set forth in her motion as grounds for a new trial, and upon exception to the decision of the court, in refusing to grant a new trial, were,' with all of the evidence, made part of the records in the case.

The grounds set forth in the motion for a new trial were:

1st. Because the jury found contrary to evidence.

2d. Because the jury found contrary to the instructions of the court.

3d. Because the court erred in refusing to permit Bachel Dickerson, the vendor of the defendant, to testify in the cause in behalf of the plaintiff.

4th. Because the court erred in permitting witness Hulbert to testify before the jury as to what Bachel Dickerson said respecting the sale of the horse to defendant.

5th. Because the court erred in instructing the jury that if they believed from the proof that after the purchase of the horse from Bachel Dickerson, the plaintiff ratified the sale, they should find for the defendant.

After a careful examination of the evidence we do not think that the first ground for a new trial was well taken. There was much conflicting evidence given to the jury, whose province it was to weigh it, and. to determine what verdict should be rendered. Both the court and the jury who heard the evidence, and who had an opportunity to test the credit to be given to the witnesses who deposed before them, from the manner when deposing, as well as what they said, are more competent to decide correctly than we would likely be. There was no total lack of evidence: and- the verdict, though apparently against the weight of evidence, will not for that cause, be set aside. It is not necessary that we should notice the second ground for a new trial, because it will be, in effect, decided in' the decision of the third, fourth and fifth grounds for a new trial. The third and fourth relate to the decision of the court below, in excluding certain evidence, and admitting other evidence, over the objections of the plaintiff, the most important of which is, the refusal of the court to permit the witness Rachel Dickerson to testify.

The counsel for the plaintiff in the court below have made an unusually long statement of the facts, which they offer to prove by the witness. Bor all legal purposes, it may suffice to say, that they offered to prove by this witness that the horse in litigation was, at the time of the alleged taking and conversion, the property of the plaintiff; that the horse was taken and converted by the defendant against the will of the plaintiff; that she, the witness, sold the horse to the defendant against the will or consent of the plaintiff, and also against her own free will, under the influence of the threats of the defendant, who was a federal soldier stationed at Fayetteville, some eight or nine miles from her residence, believing, as she did, that if she did not sell him, he would be taken from her daughter by force. This evidence was of itself, in the absence of all other evidence, sufficient to entitle the plaintiff to recover. But whether so or not, it was material and competent evidence.

It is insisted by the counsel for the appellee, that this witness was incompetent on account of her interest as the vendor of the horse to the defendant: and the case of Lindsey vs. Lamb, decided at the present term, is cited in support of tbis position. In this, counsel are mistaken in the relative position of the parties. In that case, the vendor was called as a witness to sustain the title of his vendee; his sale carried with it an implied warranty of title, which the witness was interested in sustaining, because he would have been responsible over to his vendee for the consideration received by him for the property, in case a recovery of it should be had against his vendee. But in the case before us, it is just the reverse. Rachel Dickerson was not called to testify in favor of Johnson, her vendee, whose title she was interested in sustaining, but by the plaintiff, whom witness was interested in preventing from recovering the property ; because, if Johnson should lose the property (unless under the circumstances of the case and the facts communicated to Johnson at the time of the sale, she should relieve herself from the implied warranty of title) she would be responsible to him for the money paid for the horse. Her interest, therefore, was adverse to that. of the plaintiff, who called her to testify, and when such is- the case the witness is competent to testify.

In the case of Buck vs. Brown, 22 Geo. Rep., 574, Francis D. Kea, who had sold the land to Brown, the title to which was in controversy, was called by Buck as a witness, and gave evidence on his behalf. The defendant moved for a new trial, because the court erred in admitting the testimony of Kea, a witness interested in the suit. Under this state of case the court said : “ The first ground is, that the court erred in admitting the testimony of Francis Kea as a witness interested in the event of the suit. ' He gave evidence against his interest and was therefore competent. ”

The supreme court of Texas, in the case of Loflin vs. Nally, 24 Texas Rep. 565, said: “The objection to the witness Bailey was properly overruled. If interested, his interest was adverse to the party calling him, and therefore not a disqualifying interest. ” And such too has been the decision of our own court, in the case of McCarron vs. Cassidy 18 Ark. Rep. 48.

Rachel Dickerson was, therefore, a competent witness, and the court erred in excluding her evidence from the jury.

The fourth objection is, that the court permitted the witness Helbert to depose and give evidence of what Rachel Dickerson said after the sale of the horse by her respecting the sale.

The counsel for appellee assume that the statement made by Rachel Dickerson to Helbert is evidence, not of what the sale was, but as conducing to prove a subsequent affirmance of the sale by the plaintiff, who, it appears, was present when the conversation between Rachel Dickerson and Helbert took place. We will not say that if the statements made by Rachel Dickerson had been, in terms, affirmed and adopted by the plfllnti-ff as her own, that such statements might not have been repeated by the witness, not as the declarations of a third person, but as, in effect, the language of the plaintiff. There was no evidence whatever that the plaintiff either assented to, or approved what Rachel Dickerson said. There was but a single sentence of the evidence of Helbert, that made any reference to such assent, and that was: That “they (meaning Rachel and the plaintiff) seemed to be very well satisfied with the trade.” This was not evidence, but a mere opinion of the witness. Witnesses are not, as a general rule, to draw conclusions from a given state of facts, and to give such conclusions in evidence. In this, they would usurp the province of the jury. He must state facts, and leave the jury to determine upon the facts, not upon his opinion of them. That the plaintiff remained silent during the conversation raised no presumption of an affirmance of the previous contract made by Rachel Dickerson. The sale had then been made, and as appears from the evidence, without her consent, - and by more than one witness, against her earnest remonstrance. Under such circumstances she compromised no right whatever, by remaining silent. It was, therefore, error to have received Helbert’s evidence. But, then, if Helbert was permitted to give evidence as to what Rachel Dickerson said to him after the sale, most clearly it was competent to call Rachel Dickerson for the purpose of contradicting bis evidence, even though she might have been incompetent as a witness upon examination in chief.

To the first instruction given there can be no well founded objection. The second instruction was predicated upon Helbert’s evidence, which we have seen was inadmissible. But even if held otherwise, it was a circumstance too trifling in itself and too indefinite, upon which to base such an instruction. Instructions should never be given, unless there is evidence to support them.

For these errors the judgment of the circuit court must be reversed and the cause remanded that a new trial may be had..


author: IVIr. Chief Justice WalKee

text:
    Hardage vs. Coffman.
    It is not necessary for a soldier, justifying, in an action of tresspass, under the commands of his superior officer, to produce the commission of the officer, or account for its absence; it is sufficient to prove that the officer was in command, assumed to act, and was recognized as such.
    Where testimony is offered, apparently irrelevant to the issue, it may be excluded, unless some proper explanation, oran offer to accompany it with other evidence which would make it applicable to the issue, be made; but no explanation of testimony is required, where its object is apparent from the pleadings.

      Appeal from Hot Spring Circuit Court.

    Hon. LibeRty Bartlett, Circuit Judge.
    Flanagin, for the appellant.
    It is hardly necessary to cite authorities to show that the parol testimony offered to show that Logan was colonel, was improperly excluded. 1 Qreenleaf’s Evidence, 83; and authorities there cited are full and conclusive. See, also, 1 Green. Ev., 518.

      GrARLAND, White & Nash, for tlie appellee.
    To establish the fact that Col. Logan was a legally constituted officer, his commission was the best evidence and ought to have been produced. 1 Oreen, on P/o., 82. If that could not be produced, after due diligence, then secondary evidence was admissible. 1 Watts., 853 ; 9 Wheat., 558; 5 Wheat. Gon. Rep., 260, note. No effort was made to produce the officer or his commission, and therefore there was no foundation for secondary evidence. 18 Arle., 469; 7 Peters, 99.
   IVIr. Chief Justice WalKee

delivered the opinion of the court.

This is an action of trover, brought by Coffman against Hardage. The defendant plead the general issue, and also filed two special pleas. The first of which was, in substance, that he was a soldier in the service of the Confederate States army, in the late war between the United States and the Confederate States, and that, whilst in such service, he took the mare by the direction and command of the officers of said army, under whom he was serving. The second special plea set up the same facts with the additional averment that he took the property under duress and compulsion., of his officers. Issues were taken upon these pleas, and the case submitted to a jury, who found a verdict for the plaintiff. The defendant moved for a new trial for several causes, none of which, however, it will become necessary to notice, except that which relates to the exclusion of the defendant’s evidence. The motion for a new trial was overruled, exceptions taken, and the case brought before us by appeal.

In order to sustain his defence under the special pleas, it became necessary for the defendant to prove that he was a soldier acting under the orders of his superior officer. This, he proposed to do, and called a witness by whom he offered to prove that Col. Logan was a cavalry officer in the Confederate States army in the year 1863, and so continued from that time until the surrender.” To the introduction of which evidence the plaintiff objected, and the court sustained the objection upon the ground, “ that the officer’s position could only be proven by the commission.” The defendant then offered to prove by said witnesses, that, just previous to the alleged taking, Col. Logan, whilst in command, gave orders that defendant and others should seize a sufficient number of horses on which to mount themselves in the Confederate States service. To the introduction of which evidence the plaintiff objected as incompetent, and the court sustained the objection.

The correctness of the decision of the court in excluding this evidence is the only material question to be considered.

The appellant’s counsel admits that, as a general rule, the best evidence of which the case, in its nature, is susceptible, should be produced, but contends that there are exceptions to the rule, under which it was not necessary for the defendant to produce the commission of Col. Logan, under whose command he acted ; nor to account for its absence, to entitle him to introduce secondary evidence. On the other hand, the counsel for the appellee contends that some explanation showing the applicability of this evidence should have accompanied the offer to introduce it, or that some foundation should have been laid for its introduction by other evidence to which the answer to the question asked would relate. In the absence of which, as a distinct proposition unexplained, the court might reject it, even if, in other respects, unexceptionable. It is true that some explanation of the purpose for which the evidence was intended might have been given. And if such object was not, at that stage of the investigation, apparent, the court should have placed its objection to the admissibility of the evidence upon that ground, unless proper explanation had been made, or an offer to accompany it with other evidence, which, when taken together would have been applicable to the issue. But instead of this, the distinct ground upon which the court excluded the evidence was, that the commission of Col. Logan was the only competent evidence that he was a cavalry officer in the Confederate States army. But in the absence of all this, the necessity and applicability of the evidence was quite apparent from the state of the pleading. The defendant bad justified the taking of the property as a soldier in the Confederate States service under the order and direction of his officer; indeed, in one of .the pleas, under duress and compulsion of his commanding officer. With this issue before the court, it could not have mistaken the object of the defendant’s counsel in putting the question to the witness, and as we have seen, the evidence was excluded upon other distinct grounds, which evidently were that the commission of the officer was the best and the only competent evidence to prove him such.

We have examined the authorities cited by the appellee’s counsel, and find that, whilst they sustain the general rule, which requires the best evidence to be introduced, they do not question the correctness oí the exception to the rule, under which, in our opinion, it was not necessary for the-defendant either to produce the commission of Col. Logan, or to excuse himself for not having done so.

The exception to the rule, stated by Me. GeeeNlbaf is, that proof that an individual has acted notoriously as a public officer, is prima facie evidence of his official character, without producing his commission or appointment. Vol. 1,p.153. And at page 168, the same writer says, “ It is not, in general, necessary to prove the written appointment of public officers. All who are proven to have acted as such, are presumed to have been duly appointed. to the office until the contrary appears, and it is not material how the question arises, whether in a civil or a criminal case, nor whether the officer is or is not a party to the suit.”

In Phillips on Evidence, it is’said: “It is not necessary, in general, to prove the written appointment of public officers. * * * A strong presumption arises from the exercise of a public office, that the appointment to it is valid. Vol. 1, p. 592. So, it has been held that proof that a revenue officer claimed to be such, and exercised and performed the duties of such office, is good evidence of the fact in any legal proceeding.” Id. 592.

This exception to the general .rule is founded in necessity and convenience, and applies as well to military as to civil officers. Indeed it would, in the nature of things, appear to apply with more force to military than to civil officers. Soldiers, in many cases, are placed under the command of officers of whom they know nothing; they are continually being changed from one command to another, and should they be required to produce the commission of their commanding officers, or even to prove that they had.ever been commissioned, they could rarely indeed sustain a plea of justification for any act done in obedience to orders. The defendant most clearly had a right to prove that Col. Logan was in command of a military force, that he assumed to command as colonel and was recognized as such. And because the court refused to permit him to do so, only by the production of the commission, the judgment must be reversed and the cause remanded.


text:
    Jones vs. Johnson.
    An informal and defective declaration combining several forms, of action, should be met by demurrer, .not by plea to the writ

      Error to Carroll Circmt Court.

    Garland, White & Nash, for plaintiff in error.
   Mr. Justice Compton

delivered the opinion of the court.

The plaintiff below filed his declaration against Johnson, and a writ of replevin was issued thereon, and served upon the defendant. At the return term, the defendant appeared and pleaded in abatement, that the writ was issued without any declaration in replevin having been filed. On issue joined, the finding was for the defendant, and the writ quashed. This was error. There was a declaration, and the finding on the issue should, therefore, have been for the plaintiff. If the declaration was defective, it should have been met by demurrer, and not by plea to the writ, as for want of a declaration. Sillivant & Thorn vs. Reardon, 5 Ark., 140; State vs. Mississippi, Ouachita & Red River R. R. Co., 20 Ark., 495. The form of action is misstated in the commencement of the declaration, but we think it sufficiently appears, from the body of the declaration, that replevin in the detinet was the form of action intended, notwithstanding the declaration alleges a finding of the property, as in trover, instead of a bailment as in replevin. The declaration is certainly informal, and is perhaps, defective in substance : but its legal sufficiency is not a question now before us.

Let the judgment be reversed and the cause remanded, with leave to the plaintiff to amend his declaration should he choose to do so.


text:
    Thompson et al. vs. Shreve et al.
    The remedy by petition in debt will not lie against the maker and indorser of a note — the contract of the indorser,not being for the direct and absolute payment of money but a conditional one, his liability must be shown by averment, and the statute admits of no averments other than those, in substance, which it prescribes.

      Appeal from Arkansas Circuit Court.

    Hon. W. M. Harrison, Circuit Judge.
    ClarK, Williams & Martin, for appellants.
   Mr. Justice ComptoN

delivered the opinion of tbe court.

This was a proceeding by petition in debt. The petition alleges as follows:

“Your petitioners, William T. Shreve, James A. Anderson, and Charles Thomas, merchants and partners in trade, doiDg business under the firm name and style of Shreve, Anderson & Thomas, the plaintiffs in this cause, state that by assignment, they are the legal owners of a note against the defendants, Henry J. Thompson and Thomas J. Thompson, to the following effect:

‘ SwAN Lakhs, Nov. 1st, 1859.

‘$377 57.

‘On or before the 1st day of February, 18.61, I promise to pay to T. J. Thompson or order three hundred and seventy-seven 57-100 dollars, for value received, bearing interest at the rate of ten per cent, per annum from date until paid.

HENRY J. THOMPSON.’

“ On which is the following assignment:

‘ Pay to Shreve, Anderson & Thomas for value recieved.

T. J. THOMPSON.’

by virtue of which the plaintiffs have become the owners thereof; yet tlie debt remains unpaid; therefore, they demand judgment for their debt, and damages for the detention thereof, together with their costs.”

A demurrer to the petition was overruled, and the defendants declining to make further defence final judgment was rendered against them and they appealed.

The suit is brought against the indorser or assignor, as well as against the maker of the note, and the question raised by the demurrer is whether this can be legally done. It was held by this court in Blevins vs. Blevins, 4 Ark., 441, that the remedy by petition in debt will only lie on instruments for the direct payment of money — or, in other words, where the payment is direct and absolute, and not dependent upon a contingency. To the same effect was the principle decided in the previous case of Mitchell vs. Walker, 4 Ark., 145. The indorsement of a note, in contemplation of law, amounts to a contract, by which the indorser binds himself, that if, when the note is duly presented, it is not paid by the maker, he, the indorser, will upon due and reasonable notice given him of the dishonor, pay the same to the indorsee, or other holder. (Story on Prom. Notes, sec. 135.) This then is not a [contract for the direct and absolute payment of money, but is a conditional one. If the conditions are performed the indorser is liable, and if they are not, he is discharged. It does not, therefore, belong to that class of contracts upon which petition in debt will lie.

There was no averment of demand and notice, but if there had been, it could have made no difference. The statute admits of no material averments other than those, in substance, which it prescribes. The remedy is adapted to a particular class of cases, where the writing on its face is evidence, so directly and unequivocally, of a debt due in money, as that no averment is necessary to show that the plaintiff is entitled to recover. In other words, wherever it becomes necessary in order to disclose the action, to make an averment other than such as are prescribed by the statute, petition in debt does not lie; and the party must resort to his appropriate remedy, according to the forms of the common law. And we are supported in this view by repeated decisions of the court of appeals of Kentucky, upon a statute substantially similar to our own. (Morehead & Brown's Stat. Laws, Ky. p. 1319.) Thus in Pool et al. vs. McCaughan, 6 Monroe, 335, the suit was on a bond for money, with a collateral condition; and the court held that a petition in debt could not be maintained, and referring to the previous decision in Kincaid vs. Higgins, 1 Bibb, 352, said : “ In that case the doctrine is laid down that where the obligation to pay the debt demanded by the petition, is' to accrue upon the happening of a contingency, or depends upon the performance or non-periormance of a condition, the plaintiff cannot sue in this form prescribed by statute; because the statute admits of no averment. The statute, and the form of the petition prescribed, is adapted to plain and direct evidences of debt, where no averment is necessary to show the' breach except the mere allegation that the said debt so directly and absolutely imported by the face of the writing, remains unpaid. If to support the action of debt, the plaintiif would be bound, over and above the mere exhibition of the note or writing to aver something else, which is traversable by the defendant, then the petition and summons will not do; because the statute admits of no averment.”

The provision, in the third section of our statute, to the effect that, if the plaintiif is the owner of the instrument sued on, as assignee, the fact of the assignment must be stated in the petition does!not authorize a suit against the assignor, in the form prescribed by the statute, but is merely for the purpose of showing that the plaintiff is the legal owner of the instrument. This is manifest, not only from the context of the statute, but from the language employed in the particular section.

We are clearly of opinion that the court erred in overruling the demurrer, for which error the judgment must be reversed, and the cause remanded for further proceedings.


author: Mr. Justice CleNDENIN

text:
    Dunnahoe vs. Williams.
    The vendor is not a competent witness for his vendee. (Lindsey vs. Lamb, ante.)

    Though one ot several instructions be too limited, yet if taken in connection with the others they express the law, the party is not injured.
    If the use of the plaintiff’s property, while in possession of the defendant, is worth any thing, the jury may estimate its value by way. of damages to the plaintiff in replevin.
    The wife has no legel authority to dispose of the husband’s property by sale or otherwise, and to bind him by a contract without a power from him, or his subsequent approval or ratification.

      No demand is necessary before suit, where the defendant has converted the plaintiff ’s property to his own use. (3 Eng., 610; 6 Eng., 249; IV Ark,, 166.)
    A new trial will not be granted on the ground of surprise, unless the party bring» himself within the rule established for granting a new trial in such case, and unless the evidence to be produced will avail him on a new trial.

      Appeal from Hot Sprmg Oirouit Court.

    Hon. LibeRtt Bartlett, Circuit Judge.
    GarlaND, White & Nash, for tbe appellant.
    Request and demand of tbe property before suit is necessary. Storm vs. Livingston, 6 John., 44; Barrett vs. Warren, 3 Hill, 348. When tbe possession was rightful at its inception, tbe plaintiff in replevin must make a demand before bringing his suit. Gilchrist vs. More, 7 Clark, 9; Newman vs. Jonne, 47 Maine, 520. See also, Pirani vs. Barden, 5 Ark., 81; Beebe vs. JDeBa/wn, 3 Fngr, Hill vs. Robinson, 16 Ark., 90. We submit that the opinion in McWeillvs. Arnold, 17 Ark., 154, is not law. Dunnahoe, so far as appears in tbe record, was an innocent purchaser, and if demand is ever necessary it must be in a case like this.
    ENGlish and Stewart for tbe appellee.
    Holloway was liable to Dunnahoe, bis vendee, upon an implied warranty of title (2 KemCs Com., ma/rg., p. 478;) and hence an incompetent witness. Arnold et al. vs. McNeill, 17 Ark., 185; Meek vs. Walthall, 20 .Ark., 648; Leach vs. Fowler’s Dev., 22 Ark., 147.
    It is too familiar an elementary rule of law to require a citation from tbe boobs that tbe wife has no legal authority to dispose of tbe husband’s property by sale or pledge, and bind him by the contract without a power from him or his subsequent approval or acquiescence. ,
    There is no pretence that the defendant was a bailee, but he claimed the property in his own right as purchaser, and hence no demand upon Mm was necessary before suit. 3 Eng. JR., 610; 6 Eng., 219; 17 Ark., 155.
   Mr. Justice CleNDENIN

delivered the opinion of the court.

The appellee, Nicholas T. "Williams, brought his action of replevin in the Hot Spring circuit court, the issue was made and the cause tried by a jury, and verdict and judgment rendered for the plaintiff, and the case is brought to this court by appeal.

On the trial of the cause, after the plaintiff had introduced and closed his testimony, the defendant offered James Holloway as a witness, to whom the plaintiff objected upon the ground that said Holloway was an interested witness, which objection was overruled by the court, who stated (as recited by the bill of, exceptions) that if the witness was incompetent, his testimony could be excluded afterwards. The witness Holloway then stated, in substance, that he got the colt, the property in controversy, from the wife of the plaintiff, (who was in Texas,) in exchange for a yoke of oxen, and that he afterwards traded the colt to Dunna-hoe, the defendant; on cross-examination he stated, that the plaintiff, after his return from Texas, offered to pay him twenty dollars, the amount at which the colt was valued at the time of the trade with Mrs. Williams, and demanded the colt which he refused to give up. The plaintiff then introduced further testimony contradicting, in some respects, the testimony of Holloway, and explaining the character of the trade between Holloway and the wife of the plaintiff, which closed the testimony. The plaintiff then moved the court to exclude the testimony of Holloway on the ground that he was an incompetent witness, which motion was sustained and the testimony of Holloway excluded.

We have thus briefly stated as much of the testimony in the case, as is necessary to enable us to review and decide upon the first point made in the assignment of errors.

It appears clear to us from the testimony of Hollway, that he sold the property in controversy to the defendant, and under the law as decided by this court at the present term in the case of Lindsey vs. Lamb, Holloway, the vendor, was not a competent witness for his vendee, the defendant in this canse, and therefore the circuit court did not err in excluding his testimony from the jury.

"We are now to consider the instructions in the case, to the giving and refusing of which the defendant excepted.

The instructions asked by the plaintiff are as follows:

1st. If the jury believe from the testimony that the horse in question is the property of the plaintiff, they will find for the plaintiff.

2d. If the jury believe from the evidence the use of the horse worth any thing, they will estimate its value in the way of damages for the plaintiff.

3d. If the jury believe from-the testimony that the trade for the horse was made by the witness Holloway, with the plaintiff’s wife, without the knowledge and consent of the plaintiff, her husband, such sale, unless subsequently approved and ratified by her husband, could not confer any title, and the jury must find for the plaintiff.

The instruction asked by the defendant was: “That if the jury find from the evidence that the plaintiff has failed to prove a demand from defendant Dunnahoe, previous to the suit they must find for defendant.”

The court gave the instructions asked by the plaintiff, and refused to give that asked • by defendant, but gave it with the addition that if “the jury believe from the evidence that the property had been converted by the defendant, a demand was not necessary.”

We can see no serious objections to the instructions given at the instance of the plaintiff. The first instruction standing by itself is too limited, but taken in connection with the other instructions given, and the evidence, we cannot see that the defendant was prejudiced by it.

The second instruction was properly given.

The third instruction was also properly given. There was evidence before the jury (independent of that Holloway excluded) going to prove that Holloway came into possession of the property in controversy, by purchase, barter or pledge from plaintiff’s wife, and that plaintiff did not ratify the transaction. It is a principle of law well established that the wife may act as the agent or attorney of her husband: and it is also well settled, that the wife has no legal authority to dispose of the husband’s property by sale or exchange, and to bind him by the contract without a power from him, or his subsequent approval or ratification. Reeve's Dom. Relations, 79; Chitty on Contracts, pages 165, 6 & 7, and authorities eited. Such being our view of the law, there was no error in giving the third instruction of the plaintiff.

The refusal of the court to give the instruction asked by defendant, but giving it as modified by the court, was correct. The evidence in the case proved that Dunnahoe was in possession of the property, that he converted it to his own use, and used it as his own property. Hence no demand was necessary. See Beebe vs. DeBaun, 3 English, 510; Prater ad. vs. Frazier & wife, 6 English, 249; McNeil vs. Arnold, 17th Ark., 155.

One of the grounds of the defendant’s motion for a new trial in the court below, based on his affidavit, was “ that he was taken by surprise, on account of the exclusion by the court of the testimony of Holloway, and permitting that of Mrs. Fountain to go to the jury, and that he believes he can procure other witnesses to prove the trade between the wife of plaintiff and Holloway.” The defendant does not bring himself in his motion for a new trial within the established legal rules for granting new trials on the ground of surprise, or of newly discovered testimony, and under the ruling we have made in regard to the sale or transfer of the property by the wife of plaintiff to Holloway, such testimony could not avail him any thing on another trial.

¥e are therefore of the opinion that there was no error in the rulings and judgment of the circuit court, and the judgment of that court must be affirmed.


author: Mr. Chief Justice Walhee

text:
    Hastings vs. White et al.
    A plea settingnp a parol contract different, in terms and legal effect, from the written contract declared upon., is no defence to the suit. (Roane vs, Green & Wilson;) and though issue be taken to such plea; there is no issue in fact to try, and the declaration stands confessed.

      Appeal from Randolph Oirouit Cowrt.

    lion. L. L. MacK, Circuit Judge.
    Ratcliefe and ENGLISH, for the appellant.
    The special plea was no defence to the action. It was bad in substance. The decision of this court, at the present term, in Roane vs. Green & Wilson, settles the point that the plea is bad.
    The plea being bad in • substance, though the defendant took issue to it after his demurrer was overruled, he was entitled to judgment, Dickerson vs. Morrison, 1 JEhg. Rep., 264, and cases cited. Hughes vs. Sloan, 3 Eng. Rep., 146.
   Mr. Chief Justice Walhee

delivered the opinion of the court.

The appellant brought his action of debt against the appellees in the Randolph circuit court, upon a promissory note for the sum of one hundred and fifty dollars, to which the defendant plead specially that the note was given upon a contract which was to have been paid in Confederate States paper money, worth at the time the note was executed, twelve cents, in legal tender United States notes, on the dollar. To this plea, the plaintiff demurred: the demurrer was overruled and withdrawn by the plaintiff, who, thereupon, took issue on the plea; which issue was submitted to the court sitting as a jury. The note sued upon was given in evidence by the plaintiff, and the defendant offered proof in support of his plea, which, for all legal purposes in the investigation of the case here, may be considered sufficient to sustain the plea. The court found for the plaintiff the sum of eighteen dollars and seventy-five cents debt, and two dollars and forty cents damages with costs.

The plaintiff moved for a new trial: 1st. Because the court found contrary to law and evidence. 2d. Because the court erred in declaring the law. The motion for a new trial was overruled, the plaintiff excepted, and by a bill of exceptions brought the evidence before us.

That the plea was fatally defective, there can be no doubt. It presents the same grounds for 'defence as that set up in the case of Roane vs. Green & Wilson, decided at the present term of this court: in which it was held, that no matter how formally plead, the matter pleaded could present no valid defence to the action. It merely set up a parol contract different, in terms and legal effect, from that declared upon, which, if proven to be true would be no. defence against that in suit.

Such being the case there was in fact no issue formed, denying or putting in issue the plaintiff’s action, and no evidence properly before the court, but the note sued upou. Indeed, there was strictly no issue, nothing to try, and no evidence required to sustain the action. The plaintiff’s declaration being unanswered by the plea, and this being the only plea interposed, the plaintiff’s declaration stood confessed. The plea interposed was not merely defective in form. If such had been the case, under our statute of amendments, such defects might be considered as cured, and the finding and judgment upheld; but the grounds of defence being unavailable, even when formally plead, it was not subject to amendment; and under our repeated decisions it was error to have rendered judgment upon it. See Dickinson vs. Morrison, 1 Eng., 264; Hughes vs. Sloane, 3 Eng., 147.

Let the judgment be reversed and the cause remanded.


author: Mr. Justice CoMpton

text:
    Allen and Neely vs. Grider.
    On appeal from the judgment of a justice, the surety is not responsible beyond the penalty of the recognizance, If the finding in the circuit court exceed the penalty, the appellee may elect to release the excess and take judgment against both principal and surety, or take judgment against the principal alone for the amount found, and pursue his remedy on the recognizance against the surety.

      Appeal from Gross Circuit Gourt.

    lion. James M. Hanks, Circuit Judge.
    Watkins & Bose, for the appellants.
   Mr. Justice CoMpton

delivered the opinion of the court.

Mrs. Grider, the plaintiff below, sued the defendant before a justice of the peace, and recovered judgment for seventy-five dollars besides costs. On entering into recognizance in the sum of one hundred and fifty dollars conditioned according to .law, with William A. Neely as his security, the defendant appealed to the circuit court, where, on a trial de novo, the cause was submitted, by consent, to the court sitting without a jury, who found for Mrs. Grider, the sum of two hundred dollars. A motion for a new trial was overruled, and judgment rendered for the amount of the finding, together with costs, against the defendant and his security in the recognizance, to reverse which they have appealed to this court.

The several grounds assigned for a new trial may be considered together, as they are based upon the assumption that the evidence is not sufficient to support the finding. We have carefully considered the testimony, as set out in the bill of exceptions, and have not been able to reach the conclusion that there is such a lack of evidence as would warrant us in disturbing the finding of the court below. There was, therefore, no error in overruling the motion for a new trial.

The court erred, however, in rendering judgment against the security for a sum exceeding the penalty of the recognizance. (Ives vs. The Merchants Bank of Boston, 12 How. U. S. Rep., 159; Hendrick vs. Cannon, 5 Texas, 248; Unterrein adm. vs. McLane, 10 Missouri, 343;) and the judgment being erroneous as to one, is bad as to both. Murphree vs. The Bank of the State, 4 Ark., 448; Cole vs. Wagner, 2 Ark., 155.

The judgment must be reversed and the cause remanded with instructions to the court below, to enter judgment for the amount of the finding against the appellant, alone, leaving the appellee to pursue her cumulative remedy against the security, by appropriate action on the recognizance, or enter judgment against the appellant and the security, jointly, for a sum not exceeding the penalty of the recognizance, as the appellee may elect.


text:
    Beers & Co. vs. Wuerpul & Co.

    A second suit in replevin, brought by tbe defendant in the first jointly with his partner, against the bailees of the plaintiff in the first, held to be cross-replevin.
    The defendant in a cross-replevin may plead in abatement or in bar, the pendency of the first suit; and on determination of the plea in his favor, is entitled to judgment awarding a return of the property.

      Appeal from PulasM Circuit Cowt.

    ITon. LibeRty Bartlett, Circuit Judge.
    Nice for the appellants.
    After the property taken in replevin has been turned over to plaintiff, a party other than the defendant may replevy the same from him, or any one holding under him. 7 Monroe, 427; 3 J. J. Marsh. 124; 4 B. Mon., 93. In this case Morris was not a party to the original suit; and the rule is stringent that a plea in abatement must' show that the other suit pending is between the same parties for the same cause of action. Bao. Abr., vol. 1, p. 28 ; 1 Saund. PI. <& Ev. 20; 2 Summer, 589.
    When in replevin a defendant pleads in abatement oí the writ, and the plea is sustained and the writ quashed, he is not entitled to a judgment de retorno hdbendo. 6 Arh., 506 ; 7 Arle., 25.
    Whytoce for appellees.
    The plea set up that the parties were identical either in person or interest, which is sufficient in pleading pendency of another action. Bennett vs. Olíase. 1 Foster, (W. II.) 570; Aikvnson vs. State Bank, 5 Blade., 84. The statute prohibits cross-replevin. Gould’s Big., oh. 145, sec. 2; and a plain provision- of the statute cannot be evaded by substituting a partner as co-plaintiff, and the bailees of the plaintiff in the original action.
    The plea in this case goes to the right of the plaintiffs to maintain their action, not for informality or variance as in the cases in 1 Eng., 506 and 2 Eng., 23; and the judgment on the writ was properly for a return of the property. Wille. Bep., 46 ; Gilb. Bep., 162; 17 Oonn., 233.
   Mr. Justice ComptoN

delivered the opinion of the court.

This was an action of replevin brought by Charles H. Beers and Lucein T. Morris, partners, under the style of C. H. Beers & Co., against Morris Wuerpul and Thomas M. Laws, partners in the livery stable business, under the style of M. Wrierpul & Co., for the recovery of two horses, a buggy and set of double harness.

At the return term the defendants appeared and pleaded in abatement, that before the commencement of the suit, one Frank J. Webb brought his action of replevin against the said Charles H. Beers, one of the plaintiffs, whereby the property mentioned in the declaration' was replevied — which action was then still pending and undetermined — and that they, the said defendants, had possession of said property, for and on account of the said Frank J. Webb, at the time the same was seized and taken from them, at the suit of the plaintiffs as aforesaid — all which the plaintiffs well knew.

Two questions are presented: first, whether this is cross-reple-vin ; and second, whether, on the abatement of the suit, the defendants were entitled to a return of the property.

As a general principle, the owner of a chattel may take it by replevin from any person whose possession is unlawful, unless it is in the custody of the law, or unless it has been taken by reple-vin from him by the party in possession; and our statute, which provides that cross-replevin or replevin for property in possession of an officer, under legal authority, shall not be brought, is but declaratory of this general principle,' which existed prior to the enactment. All must admit that if this action had been brought by Beers alone, against Webb — they being the only parties to the first action — it would have been cross-replevin. Is it any the less so, because Morris is joined as co-plaintiff with Beers, and the suit, instead of being instituted against Webb, is brought against M. Wuerpul & Co., his bailees, who happened to have the actual possession of the property. We think not. So far as Morris is concerned, this suit was not necessary for the protection of his rights. If the title to the property was in Beers and Morris, as partners, as is alleged, that fact could have been successfully pleaded by Beers as a defence to the first action, the property would have been returned to him, and he would have held it, as the property of himself and Morris, subject to their respective rights as partners. And as to the defendants, they were, as has' been seen, the bailees of Webb, their possession was his possession, and the action may be regarded as, in effect, against him, notwithstanding the plaintiffs chose to bring it against the bailees. In short,- the whole transaction indicates an attempt to evade the principle, which forbids cross-replevin.

It is insisted, however, that the court erred in awarding a return of the property. “We do not think so. The matters set up in the plea of the defendants, may be pleaded, either in abatement or in bar, (Deshler vs. Dodge, 16 How. U. S., 622,) and thoynot only show that the plaintiffs cannot maintain the action, in any form, but also show that the defendants are entitled to the possession of the property as against the plaintiffs. This case is clearly distinguishable from that of Hartgroves vs. Duval, 1 Eng., 506.

Let the judgment be affirmed with costs.


author: Mr. Justice CleNdeNhst

text:
    Bird and Bailey, ex parte.
    On an application for bail in a criminal case, the court will give the prisoner the benefit of any reasonable doubts that may arise in considering the testimony.

      Application for Bail.

    B. S. Gahtt and GablaNd & Nash, for petitioner.
    Clark, Williams & MartiN, contra.
   Mr. Justice CleNdeNhst

delivered the opinion of the court.

The petitioners in this ease allege by their petition, that they were indicted at the August term, 1866, of the Prairie circuit court for the crime of murder. That after their arraignment on said indictment at said August term, they applied to the Hon. Liberty Bartlett, the judge of said circuit court, to be admitted to bail, and in support of their application presented certain testimony contained in a written transcript, which transcript contained all the testimony presented and considered by the court. That on the hearing of said application, their application to be admitted to bail was refused, and they were ordered into the custody of the sheriff. The petitioners deny that they are guilty of the crime of murder, and pray this court to review the decision of the circuit court in refusing them bail and to grant them a habeas corpus, to be brought before this court and admitted to bail, or that a mandamus may be issued to the circuit judge commanding, him to admit said petitioners to bail, and in support of their application again submit a certified transcript of the testimony received and acted upon by the circuit court.

We have given full and mature consideration to the arguments for and against the application and have diligently examined and reflected on the testimony submitted by the transcript, and while it is our desire to refrain from giving an opinion that would be, in any wise, calculated to prejudice the rights of the state or of the prisoners, on the final trial of the cause, and adopting the language of this court in the case of Good et. al., ex parte, 19 Ark., 410, “ that this court has the power of revision, but that it should be cautiously exercised, we cannot lose sight of the humane principle of the law that requires every reasonable doubt to goto the benefit of the prisoner.” And, therefore, giving to these petitioners the benefit of such reasonable doubts as arise in our minds when considering the testimony in this case, we think it right to admit them to bail.

It having been suggested by the counsel that the petitioners are now imprisoned in the jail of Pulaski county, we think it would be more convenient to bring them before this court, by habeas corpus, to be admitted to bail, than to issue a mandamus to the circuit judge of Prairie county.

The writ of habeas corpus will therefore be awarded.


text:
    Rozelle vs. Pennington & Jay.
    In a Buit against the assignor of a writing obligatory, although the plaintiff must prove that demand was made of the obligor within a reasonable time, and notice of non-payment given, he is not confined to the precise dates alleged in the declaration; and so, the court erred in sustaining a demurrer to the declaration because, the allegations of demand and notice did not show due diligence.

      Error to Pulaski Girouit Gov/rt.

    Hon. LibeRTY Bartlett, Circuit Judge.
    GarlaNd & Nash, Parr & Yaughan, for plaintiff.
    The main point is, whether, under the general averment of demand and notice of non-payment, evidence of circumstances dispensing with such demand and notice is admissible. Admitting that, to charge the indorser, demand must be made of the principal and notice of non-payment given to the indorser, or a legal excuse proven, we contend that no averment of the excuse need be made — such excuse may be proved at the trial, though demand and notice be alleged in the declaration. 1 Parsons on Bills and Notes* 465 ; Puddell da McGuire vs. Walker, 2 Eng., 457 ;" Edwards on Bills cmd Pro. Notes, 633-4,676; Nine vs. Allely, 4 Barn, da Ad., 624; 2 Green. Ev., see. 197; 5 Pick., 435, 444. There is no difference between a general allegation as to the time of demand and notice, and a special, one. Jones vs. Robinson, 3 Eng., 484. The real time may be proved as well as facts and circumstances which would excuse or would be equivalent to a demand.
    Gallagher & Newton, and Bice, for the defendant.
    The demand and notice alleged in the declaration is not sufficient to fix the liability of the indorsers. Ellis vs. Dunham, 14 Ark., 127; Levy vs. Drew, 14 Ark., 334. An averment of notice is indispensable to entitle the plaintiff to recover, and its omission in the declaration is a fatal defect. Anderson vs. Yell, 15 Ark., 13.
    Where the necessary notice has not been given and there is á sufficient legal excuse for such omission, the excuse must be averred. 1 Saund. PI. and Ev., 476. And so where the averment is that the demand was made at a time that, upon the face of the declaration, is clearly unreasonable, there an averment of the reason of the delay must be stated.
   Mr. Justice ComptoN

delivered the opinion of the court.

This was an action of debt, brought by Kozelle against 'Pennington & Jay, as indorsers of a writing obligatory.

The declaration alleges that on the 1st day of January, 1861, the writing obligatory was executed by James B. Johnson to Pennington & Jay, payable on demand, and that on, to wit, the day aforesaid,” Pennington & Jay indorsed it to William B. Yaughan, who, “ on, to wit, the 10th day of October, 1865,” indorsed it to the plaintiff. The declaration then avers presentment for payment and refusal to pay, on, to wit, the 11th day of October, 1865, of which the defendants then and there had notice.”

The court below sustained a demurrer to the declaration and the plaintiff declining to plead further, final judgment was rendered, discharging the defendants.

The ground of the demurrer is, that the declaration shows on its face, that the writing obligatory was not presented for payment) and notice of non-payment given within a reasonable time — or in other words, that the declaration shows such want of diligence, in respect to demand and notice, as discharges the defendants from liability as indorsers; and this would be so, if the plaintiff, upon the introduction of evidence, could be confined to the precise dates alleged in the declaration, but the law has been settled otherwise. In Holleville vs. Patrick, 14 Ark., 208, it was held' to be unnecessary to aver in the declaration the precise time when the assignments were made, or when payment was required, or notice of non-payment given — such being matters of evidence, which, for the sake of brevity- and perspicuity in pleading, ought not to be stated; and if stated under a videlicet, might be rejected as surplusage. In that case, the court said, it could not “ admit of serious doubt, that it was competent for either party on the trial, to have proved that the assignments had been made, or that payment had been demanded, or notice of non-payment given at different periods from those averred in the declaration. Neither party was bound by those precise dates, and might, as we have seen, have treated them as surplusage, and for aught we. can know, such proof might have been actually made as above indicated.”

It follows that the court erred in sustaining the demurrer to the declaration, for which error, the judgment must be reversed and the cause remanded for further proceedings.


text:
    Campbell vs. Garratt & Scudder.
    To consider mere memoranda endorsed on, or written at the foot of the declaration aB a part of it, would be to sanction a practice at variance with the estab. lished rules of pleading.
    The refusal of the circuit court to permit a bond for costs to be filed by a nonresident plaintiff, after plea, is within the sound discretion of the circuit court, which this court will not control; so, also, the refusal to permit an additional replication after issue to the plea.

      Appeal from Jefferson Circuit Cow't<

    Hon. ¥i. M. HaeeisoN, Circuit Judge.
    Nice, for the appellant.
    This suit was brought by Campbell a non-resident for the use and benefit oí ¥m. A. Coit a resident of the state, and hence no-bond for costs was necessary. Dig., ohcvp. 40, sec. 1; Palmer use etc. vs. Hioks, 17 Arle., 505; State use etc. vs. Lawson, 5 Ark., 665; 3 Ark., 142.
   Mr. Justice ComptoN

delivered the opinion of the court.

This suit — an action of debt — was brought by Campbell against Garratt & Scudder on a promissory note. The declaration is in the usual form, and is signed by the attorney for the plaintiff. At the foot of the declaration, and below the signature of the attorney, is a memorandum in the following words : “ This suit is brought for the benefit of William A. Coit,” which memorandum is also signed by the attorney for the plaintiff.

At the return term, the defendants pleaded in abatement, that Campbell, the plaintiff, was a non-resident of the state, and had not filed a bond for costs, as required by law. To this plea the plaintiff replied generally, issue was joined and the cause continued. At the next term, the plaintiff offered to file a bond for costs, which the court refused to permit him to do. The plaintiff then moved the court to declare the issue upon the plea immaterial, and to order a repleader, for the reason that it appeared from the memorandum, at the foot of the declaration, that the suit was brought for the use of Coit, who was the party liable for the costs — which was refused. The plaintiff then moved for leave to file an additional replication to the plea, setting up, that the suit was for the use of Coit, who was a resident of the state — which was likewise refused. The issue to the plea in abatement was then submitted, by consent of the parties, to the court for determination, who, on the evidence adduced, found for the defendants : whereupon, the plaintiff moved the court for judgment notwithstanding the finding, which motion was overruled, and judgment rendered dismissing the suit and for costs.

The motion tor a repleader, as also for judgment non obstante veredicto, was based upon the assumption that the memorandum at the "foot of the declaration, above quoted, was, in legal con-templatioir, a part of the declaration-. We have been referred to no authority, and none has fallen under our observation, that would warrant us in so treating the memorandum. The attorney, himself, seems not to have regarded it as part of the declaration, until after leave to file a bond for costs was denied; because, if he had, it must be supposed that he would have demurred to the plea, instead of taking issue upon it. If the object was to sue for the use of Coit, it should have been accomplished by appropriate averments in the declaration. To consider mere memoranda, indorsed on, or written at the foot of the declaration — which is sometimes done for the convenience of the attorney — as a part of the declaration, would be to sanction a practice at variance with the established rules of pleading, and wholly unsupported by authority, so far as our examination has extended.

Whether the plaintiff should have been permitted to file a bond for costs, when he offered to do so, was matter within the sound discretion of the circuit court; and this court, adhering to the decision in Perkins vs. Reagan, 14 Ark., 47, will not control that discretion. In that case, which was a bill in chancery by a nonresident, the defendants pleaded in abatement, that no bond for costs had been filed: and, afterwards, and before any action had been taken on the plea, the complainants offered to file a bond, but the court refused to permit the same to be filed, and dismissed the bill. On appeal the judgment was affirmed, this court remarking, that the provision of the statute being express, it had, therefore, gone no farther than to recognise the exercise of a sound discretion by the circuit court, in analagous cases, citing Town vs. Evans, 6 Eng., 10, and Modglin and wife vs. Slag, 6 Eng., 696.

In refusing to permit the plaintiff to file the additional replication, the court exercised a like discretion, which, under the circumstances in this case, we will not disturb. Besides we are not prepared to admit that the bringing of the suit for the use of Coit, was a fact which could have been made to appear, for the purpose for which the plaintiff sought to establish it, otherwise than by the declaration itself. This, however, is a question which we need not determine, and as to which we express no opinion.

Let the judgment be, in all things, affirmed with costs.


author: Mr. Justice ClendeNIN

text:
    Crow ad. vs. Hardage.
    This court has no jurisdiction by appeal, unless the prescribed affidavit is filed( or waived of record.

      Appeal from Ciarle Circuit Court.

    Hon. A. W. Hargroves, Circuit Judge. ■
    Flanagin, for appellant.
    ENglish, contra.
   Mr. Justice ClendeNIN

delivered tbe opinion of the court.

"W"e learn from the record in this case that it was a case tried before a justice of the peace, appealed to the circuit court, and tried and determined in that court, and an appeal prayed therefrom to this court.

The first question that presents itself for our consideration is as to the jurisdiction of this court.

O.ur attention is called by the counsel of the appellees, in his brief, to the fact that the record in this court does not show that the affidavit required by law to perfect an appeal to this court was filed by the appellant in the circuit court. Hpon inspection of the record, we find that it does not show that any affidavit was filed in the circuit court, nor was it waived. "We are, therefore, under the decisions of this court heretofore made on this point, without jurisdiction, and the appeal must be dismissed. See The Bank of the State vs. Hinchcliff, 4 Ark., 444; McJenkin, vs. State Bank, 2 English, 232; Town vs. Wilson, 2 English, 386; Wilson vs. Dean,, 5 English, 308.


author: Mr. Justice Clendenin

text:
    Burr vs. Engles.
    'Where the transcript of a judgment of a justice of the peace is filed in the circuit court and entered in the judgment docket, the statute of limitations commences to run from the time of such filing and entry, and not from the date of the justice’s finding.

      Appeal from Independence Cvrcuit Cov/rt.

    Hon. Richard H. Powell, Circuit Judge.
    "Watkins & Rose, for appellant.
   Mr. Justice Clendenin

delivered the opinion of the court.

On the 1st day of March, 1855, Burr recovered against Engles, before a justice of the peace of Independence county, two judgments, each for sums, exceeding ten dollars; executions were issued by the justice'of the peace to the constable of his township, who returned them unsatisfied, there being no goods or chattels whereof to levy them. On the 24th day of February, 1860, Burr filed transcripts of the judgments, executions and returns of the constable in the office of the clerk of the circuit court of Independence county, who entered them on his judgment docket; and on the 3d day of April, 1866, issued executions on the judg-.mentsso entered, which were returned unsatisfied; he then, on the 24th day of May, 1866, issued alias executions, returnable to the November term, 1866, of the Independence circuit court, which executions were levied on the real estate of Engles.

On the first day of the circuit court to which the executions were returnable, Engles appeared and filed his petition praying the court to quash the executions for certain reasons in the petition specified; the petition was sustained and the executions quashed; to which judgment Burr excepted and appealed to this court.

In reviewing the record in this case, we think it is only necessary to notice two of the reasons assigned in the petition, why these executions should be quashed, because the other reasons are in no wise sustained by the record and bill of exceptions.

•The first reason assigned (which we notice) is that the petitioner is a free-white citizen, a householder, the head of a family, and that the land levied, on has his residence erected on. it, and is all the land he has in his own or any other right. And second, that the said judgments were rendered more than ten years before the date of the executions.

"Waiving the question whether the petitioner could, in this manner, attack an execution, otherwise legal on its face, we will pass over the first of the reasons, by saying that he in no way, by his proof, sustained his petition in respect to it, ■ for the bill of exceptions, which purports to contain all the evidence heard on the application, nowhere shows that there was any testimony tending to prove that the petitioner was a householder, the head of a family and that the land lived on was all the land owned by petitioner; and to avail himself of the 28th section of chapter 68, of the Digest of this state, in regard to homestead exemptions, (if he could do so in an application of this kind) it was certainly necessary to have proven what he alleged: not having done so, we will presume that the circuit court based its action in quashing the executions, upon the second ground, to-wit: that the judgments were rendered more than ten years before the date of the executions; and which we confess, is not without difficulty.

In deciding on this point it will be necessary to give a construction to sections 139 and 140, of chwpt&r 99, of the digest of our statutes, which we have not been able to find have been given by any former decisions of this court.

The sections of the law are:

“Sec. 139. Every justice, on demand of any person in whose favor he shall have rendered judgment for more than ten dollars, exclusive of costs, shall give to such person a certified copy of such judgment, and the clerk of the circuit court of the same county in which the judgment was rendered, shall, upon the production of any such transcript file the same in his office, and forthwith enter such judgment in the docket of the circuit court for judgments and decrees, and shall note thereon the time of filing such transcript.

“See. 140. Every such judgment, from the time of filing the transcript thereof, shall be a lien on the real estate of the defendant in the county, to the same extent as a judgment of the circuit court of the same county, and shall be carried into execution in the same manner and with like effect, as the judgments of such circuit court; but- no execution shall be sued out of the circuit court thereon, until an execution shall have been issued by a justice and returned, that the defendant has no goods or chattels whereof to levy the same.”

Now, by the language of these provisions of our statute law, does the judgment take effect from the date of its rendition by the justice of the peace, or from the date of its finding and entry on the judgment docket of the circuit court?”

By the law an execution issued by a justice of the peace can only be levied by the constable upon “ goods or chattels;” if no goods or chattels are found, it must be returned; if the defendant has real estate, the judgment of the justice does not bind it. A man might, therefore, owe a large number of debts within the jurisdiction of a justice, be the owner of valuable real estate, but having no goods or chattels, could avoid the payment of his debts. To remedy this the law says to the judgment creditor, if you want a lien upon the real estate of your debtor, file a transcript of your judgment with the clerk of the circuit court, and then, if you show that officer legally, that the defendant has no goods or chattels, you may enforce your lien by execution against his real estate.

The filing of the transcript, we have no doubt, was intended by the legislature to be in the nature of a judgment of a circuit court, and took effect from the day of its filing; and was governed by the same limitation that judgments of the circuit court would be governed by, and that consequently, being filed on the 24th day of February, 1860, and the executions being issued on the 24th day of May, 1866, ten years had not elapsed since it became a judgment lien on the real estate of the petitioner. Sec. 19, ch. 64, Digest of Ark., and Hanley vs. Carneal, 14 Ark., 524.

G-iving this construction to the two sections of the law referred to, we are of the opinion that the circuit court erred in quashing the executions, and the judgment must be reversed.