author: English, O. J.

text:
    Hare vs. Sebastian County, F. S. D.
    Jailor: His compensation: Employment of guards.

    Provision is made for the jailor’s compensation for keeping prisoners, by fees; but there is no statute allowing him a salary upon the certificate of the sheriff, of his services. If the jail be unsafe the county court may authorize the sheriff to employ guards.

      APPEAL from Sebastian Circuit Court.
    Hon. J.'A. Rogers, Circuit Judge.

      Du Val $ Cravens, for appellant.
   English, O. J.

On the tenth of July, 1877, John Hare filed for allowance in the county court of Sebastian county, Fort Smith district, the following account:

Sebastian County, Fort Smith District, •

To John Hare, Deputy Sheriff and Jailor, Dr,

To service as jailor for the Fort Smith district of Sebastian county from the twenty-ninth day of January, 1876, to the first day of July, 1877, @ $75 per month, one year and five months......................................'....$1,275,00

To wfiich account was attached the following affidavit:

“ I, John Hare, do solemnly swear that the above account is just and correct, and that no part thereof has been previously paid; that the services charged for were actually rendered, and that the charge made therefor does not exceed the amount allowed by law, or customary charges for similar services, when estimated and paid in lawful money of the Bnited States, and that such account is not enlarged, enhanced or otherwise made greater in consequence or by reason of any estimated, supposed or real depreciation in value of county warrants.”

The affidavit was made before the clerk, and subscribed by Hare.

To the account was also attached the following certificate :

“ I,' H. J. Falconer, sheriff of Sebastian county, do certify that John Hare was, and has been, appointed jailor of the jail in and for the Fort Smith district by me; and was acting as such during the time above charged for; that the services above charged for by said John Hare as jailor were actually and necessarily rendered as therein 'charged for; and were absolutely necessary for the safe custody of the prisoners under my’ charge.

1. Jailor:

His compensation. Employment 0 3 -guards.

“II. J. Falconer, Sheriff.”

The matter was heard by the county court in'November, ■ 1877, and the court refused to allow the account, and Hare appealed to the circuit court for the Fort Smith district.

At the March term, 1878, the matter was submitted to the court sitting as a jury-, by- consent, and the court found and rendered judgment as follows:

“The court, etc., doth find that the said John Hare was, during the period charged for in the account, jailor of the jail situated in the Fort Smith district under the sheriff of Sebastiau county, and that the services were rendered, but the court also finds that there is no provision in law’ for paying for such services. It is, therefore, considered by the court that the judgment of the county court, etc , disallowing said account, be affirmed.”

Hare obtained grant of appeal by the clerk of this court.

There was no motion for a new trial, and no bill of exceptions.

The sheriff is authorized to appoint a jailor, and provi- ' sion is made for his compensation for keeping prisoners by ’fees, etc. Gantt’s Dig , chap. 77. and later fee Acts. If the jail is unsafe, the county- coui’ts may authorize the sheriff to employ’ guards, etc. Dig , sec. 3575.

But w’e find no statute, and none is cited by counsel for .appellant, requiring the county’ court to allow the jailor a salary of $75 per month, on such certificate of the sheriff as is appended to appellant’s account.

If, in any case, the county court has discretion to allow the jailor extra compensation, as insisted for appellant, there is no evidence brought upon record in this case to-show that the county court abused such discretion in disallowing appellant’s claim, or that the circuit court abused its discretion in affirming the judgment of the county court on the trial de novo.

There is no error upon the face of the judgment of the circuit court, and it must be affirmed.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    Vance, Guardian, vs. Beattie, Ad., et al.
    1. Guardian : When may be sued on his bond.

    Until there is a final settlement of a guardian’s account in the proha.te court, and an order of the court for him to pay over some balance found due his wards on such settlement, there is no legal cause of action on his bond.
    2. Pleading and Practice : Judgment on demurrer to complaint.

    When a demurrer to a complaint is sustained it is unnecessary to dispose of the defendant’s pleas filed with it. The complaint being bad the defense is complete.
    APPEAL from Crittenden Circuit Court.
    Hon. L. L. Mack, Circuit Judge,

      Lyles (of Memphis), for appellant.

      Peters (of Memphis), contra.

   English, C. J.

This suit was brought in the circuit court of Crittenden county by William Vance, jr., as the guardian of Elizabeth and Sallie Thatcher, minors, against John R. Jenkins, administrator of Robert B. Malone, deceased,, former -guardian of said minors, and William Beattie, actministrater of Andrew J. Cunningham, deceased, one of the sureties in the bond of Malone.

The action -was founded on the bond of Malone, who was appointed guardian of said minors by the probate court of Crittenden county, on the twentieth of January, 1862, and executed the bond sued on, with Cunningham and LeviW. Jones, not sued, as his sureties. The plaintiff succeeded Malone in the guardianship of the two minors, under appointment by the same court.

The complaint alleges as a special breach of the bond, that on the sixteenth of May, 1862, Malone, without legal authority, and without security, loaned $1,476 of the money ■of his wards to a firm styling themselves Pucket, ITodges .& “Ward, and took their notes therefor, which became worthless by their insolvency, and that neither Malone nor his sureties had paid the money, with interest, to plaintiff ■or his wards.

By an amendment to the complaint, it w7as alleged that on the eighteenth of October, 1865, Malone filed'an annual account current, in which he charged himself with said note and other effects in his hands, amounting to $5,273.85, which was approved by the probate court at the April term, 1869. But there is no.averment in the complaint or amendment that any final settlement of his accounts as such guardian had been made, or that the probate court had ordered him, or his administrator, to pay over to plaintiff, as his successor, the amount of the money sued for, or any other ■sum.

The defendants demurred to the complaint as amended, and added paragraphs pleading covenants performed, limitation, etc.

The court sustained the demurrer to the complaint; plaintiff rested; final judgment was rendered discharging defendants, and plaintiff' appealed.

1. Guardian:

Can nob be sued on bond until final settlement, etc.

2 Pleading and Practi .e:

Judgment on demurrer to co tapia nt

Before final settlement of the accounts of Malone as guardian, and an order of the probate court for him, or his administrator, to pay over to appellant as his successor in the guardianship, some balance found due his wards on such settlement, appellant had no legal cause of action on the "bond of Malone. Sebastian v. Bryan, 21 Ark., 447; Norton et al. v. Miller et al., 25 ib., 115.

Appellant complains that on sustaining the demurrer to the complaint, the court rendered judgment for appellees without disposing of their pleas.

A trial of the pleas was unnecessary, when the complaint was held bad in substance on demurrer.

A defendant may object that judgment is rendered against him without disposing of bis pleas. Williams et al. v. Perkins, 21 Ark., 18.

It was proper for the court to dispose of the demurrer to the complaint before trying the case on the pleas added • in the answer, and the complaint being bad, the defense was complete, and it was needless to dispose of the pleas'.

Affirmed.


text:
    St. L., I. M. & S. Railway Co. vs. Barnes et al.
    1. Practice: Appearance: What sufficient.

    An appearance of a defendant by an attorney and consenting to a continuance of the cause, is a substantial act, and dispenses with the service of process.
    *.2. Justices oe the'Peace: Presumptions as to their judgments.

    It is the duty of a justice of the peace to haye an account sued on, proved before rendering judgment on it, and in the absence of aiv affirmation showing to the contrary, it will be presumed that he did so.

      3. Same: Their judgment without evidence not void.

    A judgment rendered by a justice of the peace without evidence, is not void or so irregular as to be .quashable'upon certiorari. The error should be corrected by appeal.
    ■ 4. Certiorari : Practice on.

    The statute (Gantts Dig., sec. 1196,} does not enlarge the writ of certiorari into an appeal or writ of error for the correction of 'mere errors in judicial proceedings. The practice is still to affirm or quash the judgment on the trial of the certiorari.

    APPEAL from Nevada Circuit Court.
    Hon.--,--.

      J. M. Moore, for appellant.

      Smoote $ McRae, contra.

   English, C. J.

The St. Louis,Iron Mountain and Southern Railway Co. applied to the circuit court of Nevada county for a certiorari to bring up and quash a judgment rendered against said road by Daniel O’Leary, a justice of the-peace of said county, in favor of R. J. Barnes, upon an open account. The writ was awarded, with temporary super-sedeas ; returned by the justice with a certified transcript of the proceedings'and judgment before him in the suit referred to in the writ; and o-n the hearing the court refused to quash the judgment, and in effect affirmed it, by dissolving the temporary supersedeas, and ordering a procedendo to the justice of the peace; and the railway company appealed to this court.

In the petition two grounds were suggested for the quashal of the judgment: First, that there was no valid service of the summons in the suit upon appellant; and second, that the justice rendered the judgment on default, without proof of the account sued on.

I. The summons was issued on the seventeenth, returnable the thirtieth of August, 1876. It was directed to any sheriff or constable of Nevada county, and a return inclosed after the style of the case as follows :

1PltACTI0E.

ane^f'v/¿at

“I executed the within by leaving with H. Riley, railroad agent at Prescott, a true copy, this, August 17, 1876.

“¥. B. White, D. S.”

The writ was perhaps served by a deputy sheriff (Gantt's Dig., sec. 3727) who failed to sign the name of his principal, as he should have done.

In suits against railway companies for damages to persons or property, under the act of the third of February 1875 (Acts of 1875, p. 183), a summons may be executed by serving a copy thereof “on any agent of the railroad company sued, at any depot house in the county where suit is brought.” Sec. 6 of the Act.

The suit in this case was not for damages to person or property, but for the value of timber furnished the company. For mode of service in other suits see Gantt's Dig., secs. 4515-4520.

The return of service in this case was defective. Cairo and F. R. R. Co. v. Trout, 32 Ark., 17. Sec. 4415 Gantt's Dig. was amended by acts of March 9, 1872. See Acts of 1877, p. 59.

But the transcript of the justice shows that on the return day of the summons the plaintiff (Barnes) appeared, “and the defendant by E. A. Warren, attorney, and asked that the cause be continued until the eleventh, day of September, 1876.”

The appearance of the defendant by attorney, and consenting to a continuance of the cause, was a substantive act, dispensing with the service of process. Rogers v. Conway, 4 Ark., 70; State Bank v. Walker, 14 Ark., 235.

In Kimball et al. v. Merrick, 30 Ark., 12, there was a recital in an entry made by the clerk, that Merrick, who had not been served with process, and.who was a non-resident, appeared, but there was no entry in term showing that he did any substantive act, and hence it was held that there was no waiver of service of process.

II. The statute provides that where the plaintiff’s claim is not founded on a written instrument purporting to have been executed by defendant, and the defendant does not appear, the justice shall proceed to hear the allegations and proofs of the plaintiff’, and shall render judgment thereon for the amount to which he shows himself entitled, not exceeding the amount claimed in the action. Gantt’s Dig., secs. 375-8.

The statute requires every justice of the peace to keep a docket, in which shall be entered in continuous order, with the proper date, each act done: First, the title of each cause; second, a brief statement of the nature of the plaintiff’s demands, and the defendant’s set-off (if any), giving dates to each, where dates exist; third, the issuing of the process and the return thereon; fourth, the appearance of the respective parties; fifth, every adjournment, stating at whose instance and for what time; sixth, the trial, and whether by the justice or a jury; seventh, the verdict and judgment; eighth, the execution, to whom delivered, and the amount of debt, damages and costs indorsed thereon; ninth, the giving of a transcript for filing in the clerk’s office, or for set-off, if one is given; tenth, a note of' all motions made, and whether refused or granted; eleventh, an itemized statement of all the costs in the case. Gantt’s Dig., sec. 3723.

These docket entries are quasi records, and when properly certified, are evidence in the courts, lb., sec. 2447.

20-lfJus£

then- fuds°-

|:¿e¡r. d: “)®nttsewjtf void?’ not

<t. certio-

Practice

On the eleventh of September, 1876, the day to which the parties, by agreement, had continued the cause, the justice made this entry:

“Having waited three hours for defendant, and it came not, but made default.

“This action is founded on an account (shown to be on file) for $183.36.

“It is therefore by me considered and adjudged that plaintiff' have and recover of said defendant the sum of $183.36 for his debt, and the sum of $3.50 for his damages, and all his costs,” etc., etc. /

It does not appear that plaintiff’s account was proved, nor does 'it affirmatively appear that it was not. Nor was the justice required by the statute to note the proof on his docket, if any was made.

The jurisdiction of the justice of the cause of action and the parties affirmatively appears. It was plainly his duty by the statute to have the account proved before rendering judgment, a'nd the presumption of law is, in the absence of an affirmative showing to the contrary, that he did his duty. Haynes et al. v. Butler, 30 Ark., 72; Stewart v. Houston, 25 ib., 311.

But if the justice rendered judgment without evidence, the judgment was not therefore, void, or so irregular as to make it quashable on certiorari. The error should have been corrected on appeal. Allston, ex parte, 17 Ark., 580; Hill v. Steele, ib., 440.

The statute (Gantt’s Dig., sec. 1196,) enlarging the office of a writ of certiorari, dojes not so enlarge it, we think, as to make it answer the ends of an appeal or writ of error, for the correction of mere errors in judicial proceedings. The practice is still to quash or affirm the judgment on the hearing of the certiorari, and not to try the cause anew, as on appeal from an inferior. to the circuit court, or to reverse and remand for a new trial as on appeal, or writ of error, from the circuit court to this court.

Where it appears that a justice of the peace has jurisdiction of the parties, and the cause of action, and renders a judgment, it would be bad practice to quash such judgment on certiorari for mere errors or irregularities.

Affirmed.


text:
    Stroud vs. Pace & Allison.
    1. Bora Pide Purchaser: Notice: Pleading.

    An allegation in a vendor’s bill to enforce his lien for the purchase-money against the assignee of his purchaser, that the assignee had notice of the non-payment of the purchase-money at the time of his purchase, must be proved if denied. But it is otherwise where the defense of innocent purchaser is set up affirmatively by plea or answer.
    2.. Same: Notice: Recitals in deeds.

    The purchaser of real estate is bound to take notice of all recitals contained in the chain of title through which he derives title, and to fully investigate and explore everything to which his attention is thereby directed; and if any of such conveyances contain notice that the land has-been sold on a credit, he is bound to inform himself as to whether the purchase-money has been paid.
    3. Yendor’s Lien: When waived Toy taking security for the purchase-money.

    The acceptance of a note with a security on. it for the purchase-money, is not a waiver of the lien unless so intended by the vendor.
    APPEAL from Benton Circuit Court in Chancery.
    Hon. J. M. Pittman, Circuit Judge.
    Gregg, for appellant.
   English, O. J.

Bill to enforce a vendor’s lien.

On the eighth of July, 1872, John ~VV. Stroud and wife, executed to James D. Houston a deed, in substance as follows:

“Know all men, etc., that we, John W. Stroud and wife, etc., of the county of Benton, etc., in consideration of two promissory notes of two hundred- and twenty-five dollars each, bearing date February 8, 1872, one payable eight mouths after date, and the other eleven months after date, executed by Nathaniel Davis and J. D. Houston, the receipt whereof is hereby acknowledged, have granted,bargained and sold, and do by these presents grant, bargain, sell and convey unto said J. D. Houston, his heirs and assigns forever, all that following described real estate situate,” etc.

Here follows a description of the property conveyed, being a part of lot Nó. 80 in the town of Bentonville, the .metes and bounds of which are given. Then follow the habendum, covenants of warranty, the signatures of the vendors, etc.

The deed was acknowledged by the vendors on the day it bears date, filed for registration on the next day, and recorded. Afterwards, but at what time does not appear, James D. Houston, the vendee in the deed, conveyed the lot to B. F. Allison, and he to Christopher S. Pace, and Houston became a non-resident of the state.

Some time in the year 1877, Stroud filed the bill in this case in the circuit court, of Benton county, against Houston, Pace and Allison, to enforce a vendor’s lien upon the lot for balance unpaid on one of the notes for purchase-money recited in the deed.

It appears that the bill, exhibits, summons, warning order, etc., were lost, and by agreement of parties, the bill and exhibits substituted.

1. Bona Fide Purchaser:

Notice: Pleading.

The bill alleges that Allison & Pace purchased with full notice that the purchase-money due to plaintiff had not been paid.

There is some confusion in the transcript as to which of the two notes recited in the deed was sued on, perhaps growing out of the substitution of the lost bill and exhibits. The substituted bill purports to .be founded upon, and to exhibit a copy of the note due at eleven months, but in fact the note due at eight months is copied, and was, it seems, read in evidence on the hearing. No point, however, was made in the court below as to this matter.

Houston made no defense. ' Pace and Allison answered, denying that the note sued on was given to plaintiff for part of the purchase-money of the lot, and alleging that it was executed for other property. Also denying that they purchased with notice, etc.

The cause was heard upon the pleadings and evidence, and the court found that the note sued on was given by Houston and Davis to plaintiff for part of the purchase-price. of the lot in controversy, and that there was due to plaintiff §>194.95, after deducting payments proved, and a personal decree was rendered against Houston in favor of plaintiff'for that sum.

But the court held that plaintiff had no lien for his debt as vendor, upon the lot in controversy, as against defendants Pace and Allison, and discharged them with costs. Prom this part of the decree the plaintiff appealed.

I. No express lien was reserved in the deed from appellant to 'Houston for the payment of the notes given for the purchase-money. Appellant had a vendor’s equitable, and not a contract lien. He alleged that the appellees purchased with notice that the purchase-money was not paid, •which they denied in their answer, and the burden of proof was upon him. Pearce v. Foreman, 29 Ark., 563; Gerson v. Pool, 31 ib., 89; 2 Leading Cases in Equity; Hare and Wallace, 124-125, etc. The rule is otherwise where the defense of innocent purchaser is set up affirmatively by plea or answer. Same authorities.

2. ---:

Notice: Recitals in deeds.

II. Appellant made no proof of actual notice to appellees, but relied upon the recitals in the deed from him to Houston, showing notes for purchase-money, which was upon the public records.

The recitals in the deed from appellant to Houston were constructive notice to appellees, who claimed title under Houston.

Nothing is better settled than that the purchaser of real estate is bound to take notice of all recitals in the chain of title through which his own title is derived. Not only is he bound by everything stated in the several conveyances constituting that chain, but he is bound fully to investigate and explore everything to which his attention is thereby directed. "Where, therefore, he is informed by any of the preceding conveyances, upon which his own deed rests, that the land has been sold on a credit, he is bound to inform himself as to whether the purchase-money has been paid since the execution of the deed. Deason v. Taylor, 53 Miss., 701; Wiseman v. Hutchinson, 20 Ind., 40; Croskey v. Chapman, 26 ib., 333; Johnston v. Gwathmey, 4 Little (Ky.), 317; Wade on Law of Notice, sec. 330.

It appears that appellant and appellees lived in the same community, saw each other frequently, and appellees could have ascertained by inquiry whether the notes for the purchase-money 1 recited in the deed had been paid, before they purchased.

Lre™D0R S

waived^by eurity for money1 unless so intended.

HI* It appears that Houston procured Davis to sign the notes for the purchase-money with him, but that appellant did not intend, by accepting the notes in that form, to waive his lien for purchase-money, and it was not a waiver. Lavender, Ad., et al., v. Abbott, Ad., 30 Ark., 179.

Reversed and remanded, with instructions to the court below to render a decree enforcing the lien of appellant as vendor upon the lot in controversy for balance of purchase-money found due him by the decree against Houston.


author: Harrison, J.

text:
    Lawrence vs. Meyer.
    1. Pleading and Practice : Plea of nit debet a nullity: Judgment on.

    An answer which is merely a formal plea of nil debet, or nothing more than that the defendant does not owe the debt, 43 but a conclusion of law. It must deny or state facts, and where it does neither, it is a nullity, and judgment will be by default.
    2. Appeals from Justices of the Peace: On judgment by default for insufficient answer.

    Before an appeal can be taken from a default judgment of a justice of the peace on an answer which is a nullity, a motion to set aside the j udgment must be made and overruled in the justice’s court.
    APPEAL from Garland Circuit Court.
    Hon. J. M. Smith, Circuit Judge.

      Harrell, for appellant.

      Lose, contra.

   Harrison, J.

Leo Meyer sued G-. W. Lawrence before a justice of the peace on an account for $192.80.

The summons was returnable on the eleventh day of February, 1878, and was duly served; and, as appears from what seems to be a transcript of the entries on the justice’s docket, but which was not certified by him as such, the case was, on that day, continued until the twenty-first, when, the defendant not appearing, the justice, after waiting three hours, proceeded to hear the allegations and proofs of the plaintiff, and rendered judgment for the plaintiff for the sum claimed.

An affidavit for an appeal made before another justice, and an appeal bond, were filed on the twenty-second, but no mention of them was made in the docket, and no application to set the judgment aside appears to have been made; nor appeal granted or prayed for.

An answer — a mere formal plea of nil debet — is found among the papers as filed on the nineteenth of February, but no entry in respect to it appears to have been made by the justice in his docket. The papers mentioned were filed with the clerk of the circuit court on the twentieth day of April, 1878.

In the circuit court the plaintiff moved for a dismissal of the case, because no application had been made to set aside the judgment by default, and no appeal had been taken from it, and because there wras no case before the court, or of which it had jurisdiction. Before the motion was heard a rule was made upon the justice, at the instance-of the’ defendant, to amend the transcript, as to what defects, does not appear, but no amendment nor any response to the rule was mad'e; and the court dismissed the case for want of jurisdiction.

The defendant appealed to this court.

The appellant insists that, having filed an answer, the judgment was not by default, and no application to set it aside before appealing was necessary.

ipleadins:

cfetoVnuimen'tJon!s”

An answer which is merely the formal plea of nil debet, or nothing more than that the defendant does not owe the debt, is but a conclusion of law, and the Code requires that the answer shall deny or state facts, and where it does neither, it is a nullity. Newm. Plead, and Prac., 510; Gwynn v. McCauley, 32 Ark., 97; Clark v. Finnell, 16 B. Mon., 329; Francis v. Francis, 18 B. Mon., 57.

And where the answer is a mere nullity, the judgment is by default. 1 Tidd., 562.

The statute requires that an application shall have been made to the justice to set aside the judgment, and been refused, before an appeal shall be granted from a judgment by default. Gantt’s Digest, sec. 3820; Page v. Sutton, Orlopp & Co., 29 Ark., 304.

The paper appearing to be a transcript from the justice’s docket afforded no evidence of the matters stated in it; but if an application to set aside the judgment was made, and refused, and appeal was taken, the justice might have been required to certify a full and perfect transcript from his docket of the proceedings inthenase.

A response by the justice to the rule upon him might have been compelled by proper steps by the appellant, but as they were not taken, we must presume it was waived and abandoned by him. Parker v. Calvert & Thompson, 16 Ark., 485.

The circuit court had no jurisdiction of the case, and it ■was properly dismissed.

The judgment is affirmed.


text:
    Carnall vs. Looper.
    Equity : Relief vn, against judgments at lam.

    Equity will not relieve against judgments at law upon a ground purely legal and exclusively cognizable in a court of law, which the party might have pleaded to the action at law, unless he was prevented from making the defense by surprise, accident, or mistake, or fraud of the adverse party unmixed with negligence on his part, or unless he was ignorant of important facts material to his defense, and which he could not by due and proper diligence have discovered and pleaded in the action.
    APPEAL from Scott Circuit Court in Chancery.
    Hon. Thomas II. Barnes, Special .Judge.

      William Walker, for appellant.
   Harrison, J.

This was a suit in equity by Eenry Looper against John Carnall.

The complaint alleged that Wiley A. Tomlinson, on the tenth day of November, 1852, entered at the United States land office at Clarksviile, the north half of the southeast quarter of section twenty-eight, in township five north, of range twenty-nine west, and a patent was issued on the sixteenth day of June, 1856, and the said Tomlinson sold and .conveyed the same to the plaintiff on the fifth day of March, 1858.

That after the entry by Tomlinson, the tract was, in 1853, selected and reported to the general laud office as swamp and overflowed land, but which selection was never confirmed ; yet, though no patent was ever issued for it to the state, it was afterwards sold by the commissioner of state lands to the defendant as swamp and overflowed land, and a deed was executed to him by the governor. That after his purchase from the state, the defendant brought, on the second day of February, 1875, an action of ejectment for the land against John B. Long, the plaintiff’s tenant, to which the plaintiff, upon his application, made himself a defendant, but that he made no defense; and at the August term, 1875, and on the thirteenth day of said month, the defendant recovered judgment against him for the land, and the possession had been surrendered to him.

Equity:

Relief judgmenTs*

That Tomlinson died long before the commencement of the action of ejectment; that his patent was never placed upon record, and the plaintiff, when the judgment was recovered against him for the land, had no knowledge or information that he had received the patent, or that the land had not been confirmed and patented to the state, and he did not learn these facts until on or about the twenty-fifth day of January, 1877.

The prayer of the complaint was that the defendant restore possession of the land and account for and pay the plaintiff' rents and profits during the time of his possession, and that the deed from the state be set aside and canceled.

The defendant, in his answer, denied none of the allegations of the complaint, but set up and relied alone upon the judgment recovered by him as a bar to the action.

The court decreed that the defendant should surrender and restore the possession of the laud to the plaintiff, and pay him one hundred dollars, the value of the rents and profits admitted upon the hearing, and that the deed from the state be set aside and canceled.

The defendant appealed.

- The doctrine is well settled that equity will not interpose x x to relieve against a judgment of a court oflaw upon aground purely legal and exclusively cognizable in a court of law, which the party might have availed himself of as a defense to the action at law, unless he was prevented from making such defense by surprise, accident, or mistake, or fraud of the other party, unmixed with negligence on his part, or unless he was ignorant of important facts material to his defense, and which he could not by due and proper diligence have discovered, and availed himself of in the action. Andrews v. Fenter, 1 Ark., 186; Cummins v. Bentley, 5 Ark., 9; Watson v. Palmer, ib., 501; Hempstead v. Watkins, 6 Ark., 317, Jamison v. May, 13 Ark., 600; Conway v. Ellison, 14 Ark., 360; Hodges, ex parte, 24 Ark., 197.

No reason whatever is shown why the appellant might not, before the judgment, have ascertained that the land had not been confirmed and patented to the state, which he might readily have done by applying to the commissioner of the general land office, or to the commissioner of state lands, for information upon the subject.

The answer put no averment of the complaint in issue; but the complaint stated or set forth no cause of action, and it should have been dismissed.

Decree reversed.


author: Eakin, J.

text:
    Fain vs. Goodwin.
    1. Pleading : Plea of nil debet bad.

    The plea of nil debet is a mere conclusiou of law, to be drawn from facts, and is not good under the Code if objected to in proper time.
    2. Same : Defective must be objected to in circuit courts.

    When parties accept pleadings as raising issues and go to trial on them, it is too late to object to them in the supreme court.
    3. New Trial: Verdict not impeachable by affidavit of juror, except, etc.

    A juror can not be examined to sustain a motion for new trial, except to show that the verdict was by lot.

      4. Juror: Objections to, too late after verdict.

    It is too late, generally, to except to the qualifications of a juror after verdict.

      IPleading:
    _ Plea of nil debet bad.
    APPEAL from Lincoln Circuit Court.
    Hon. J. A. Williams, Circuit Judge.
    Cunningham, for appellee.
   Eakin, J.

Goodwin sued Fain in an action at law, for wages, as book-keeper and salesman in a drug store; setting up and exhibiting a contract in writing, whereby Eain agi’eed to furnish and keep up a stock of drugs, suitable for a retail trade at Star City, in Lincoln county, to the value of $450, and to pay complainant, Goodwin, $50 a month for his services as salesman, book-keeper, etc., from January 1, 1877, to January 1, 1878. The latieron his part agreed to serve as stipulated; to do faithful work, and deduct for lost time, in the same proportion.

He states that he served, as agreed, until the first day of August of that year, when, against his will, he was discharged by defendant, and prevented from rendering further service. He asks judgment for $250.

The defendant pleaded in his first paragraph that he did not ovxe said sum or any sum whatever. This was properly held bad on demurrer. An answer should deny the “material allegations” of the complaint, or else set up some new matter by way of defense, counter-claim or set-off. Lfil debet is a mere conclusion of law, to be drawn from facts, and is'not good, under the Code,if objection be made in proper time.

The second paragraph admits the contract, as stated, and that plaintiff served until the fifteenth day of July, at which time defendant was compelled to discharge him on account of the negligent and unskillful manner in which he discharged his duties. He charges that by reason of defendant’s negligence and want of skill, whereby erroneous entries were made on the books,- etc., the defendant was damaged to the extent of $1,000.

2. ■■■ : j^“tetcibto0& eouít?u 1 *

The third paragraph charges that the defendant was induced to invest money in the drug business, by plaintiff’s representations that he could sell from $1,800 to $2,000 worth of drugs in the year, the profits of which would more than pay the salary; that he furnished drugs to the value of $700, and that by reason of plaintiff’s unskillfulness, as a salesman, he sold most of them at less than the wholesale price ; to defendant’s damage $1,000.

He also pleads payment of $350, and on his part prays judgment for damages.

There was a reply denying the damage as alleged, which was accepted as good, and the parties went to trial.

Allegations of value, or amounts of damages, need not be put in issue at all; but must, in any event, be proved. Gantt’s Dig., sec. 4608.

The facts, from which damages flow, form the material issues, to be alleged. The Code is more rigid than such pleading as this supposes: and should be enforced in its true spirit, before its merits .can be fairly considered as tested. The second and third paragraphs made good counter-claims under the Code; answering to the recoupment at law; and to make a good reply the plaintiff should have denied that he contracted for skill and diligence as a druggist or salesman; or, admitting that, which would be implied without proof, should have denied the allegations charging his failure to use them. When parties accept pleadings, as raising issues, and go to trial upon them, it is too late to make the objections here; and this court only takes notice of them now to urge upon the profession, and the circuit courts, a closer regard to the true intent ancl meaning of the new system. It is becoming too prevalent an error that any kind of pleading will do, and it is frequently brought to the notice of this court, through the transcripts, that parties, without objection on either side, go into long and expensive trials, without any issue on the record, which would be good either by the old or new system. The correction of this must originally begin with the profession, which owes it to the legislature to study carefully the true spirit of the Code, and to endeavor to test its merits fairly, as an improvement on the common law. This each attorney may do by requiring of his adversary good Code pleadings — or that the court cornpel him to make them good by amendment.

The jury found, for complainant, two hundred and thirty-five dollars. Judgment accordingly. Motion for a new trial overruled and appeal taken.

The appellant has not prosecuted the appeal, and the case having been reached, and there being a supersedeas bond, the appellee has been allowed to submit the case on his briefs.

Upon inspection of the record we observe no material error, to justify reversal. The trial seems to have been fair, without any misconduct of the jury, prejudicial to defendant. No instructions were asked on either side. The verdict is sufficiently sustained by the evidence, and does not seem excessive. The proof tended to show the contract, the service for about seven months, and the discharge without sufficient cause. It is further shown that the plaintiff could not get other employment for the remainder of the year, save for some small services, for which he received fifteen dollars. This was correctly credited to defendant by the jury.

3. new verdict not b“eE|yCaffiror?tofju"

4,0d™°E: Ífter°vere diot‘

The defendant, in his motion for a new trial, alleged, and showed by affidavit, that one of the jurors was not a citizen of Lincoln county. He offered, also, but was not allowed, in support of another ground, to show, by the affidavit of a juror, that the verdict was made with reference to a previous arbitration in the Baptist church, known to some of the jurors, and not upon the evidence.

A juror can not be examined to sustain a motion for a new trial, except to show that the verdict was by lot. Gantt’s Digest, sec. 1971.

It is too late, generally, to except to the qualification of a juror after verdict. Daniel v. Guy et al., 23 Ark., 50.

In civil cases these matters rest very much in the discretion of the court, which might, doubtless, in a case of fraud or manifest wrong, regarding an unqualified juror, order a new trial. In this case it is not apparent that any fraud was intended or wrong done.

We find no error, and affirm.


text:
    Bryan vs. Morgan.
    Chancery Practice : Taking account should he l>y Master,
    It is not error, but bad practice, for a Chancellor to take an account himself, except in simple and obvious cases, in order to save expense to litigants. In complicated transactions a reference should he made. There may be a reference in the supreme court, but the Master cannot go outside the evidence on the record to clear up obscurities.
    APPEAL from Sebastian Circuit Court.
    Hon. James Brizzclari, Special Judge.

      DuVal Cravens for appellant.
   Eakin, J.

This bill was filed by Morgan, against Bryan and one Kitchens, in the circuit court of the Greenwood district of Sebastian county, on the fifteenth of November, 1875. The parties had been all equal partners in building and running a cotton gin during the fall' and winter of 1869-70.

The object of the bill was first to have a dissolution of partnership declared, and an adjustment of the interests of the partners between themselves; and second, to declare Bryan a trustee of the partnership with regard to certain lands alleged to have been bought with pai’tnership funds; or, at least, to affix a lien upon them to the extent necessary for the adjustment. The answer admitted the partnership, as alleged, but denied all the material statements of the bill going to show the defendant’s liability to account any further, or that anything remained due from h'im to complainant.

The controversy with regard to the land seems to have been abandoned ; and by consent of parties the cause was transferred, as if by change of venue, to the Fort Smith district, where the suit progressed.'

• A voluminous mass of testimony was taken with regard ■to partnership transactions and accounts. The court refused the motion of defendant, Bryan, for a reference to a Master to state and report the account, but heard .the cause upon the- pleadings and evidence. • The Chancellor found, as cited in the decree, that the partnership business closed in the month of November, 1870, when all the partnership effects were sold for $750, and he proceeds equally divided; that there were no outstanding debts due to, or from, the concexm, axid that there had been no settlement of the pai’tnership mattex’s, nor account stated between the partners.

Chancery Practice:

Taking f,y°¡$astere

In talcing account, the Chancellor found that complainant advanced and expended for the concern, the sum of $541.87, and drew out $18; that defendant, Bryan, advanced and expended $252.36 and drew out the same amount, and over; .that Kitchens advanced and expended $100, and drew out $18, and that therefore the concern was indebted to the complainant $523.37, and to Kitchens $82.

Wherefore, it was decreed that complainant should recover from Bryan and Kitchens the sum of $523.37, and that Kitchens should recover from complainant and Bryan - dollars, which blank was intended doubtless to be filled with $82 ; that the partnership be dissolved and that each party pay one-third of the costs.

Erom this decree Bryan appealed.

It was n'ot erroneous in the Chancellor to refuse a refer<enceto,the Master to take and state the account, but it was not good practice. The Chancellor may, himself, take an account, announce the result, and decree accordingly. But this practice should be confined to simple and obvious cases, in order to save expense to litigants. In complicated transactions, justice can not be well done without a reference.

The exceptions to the report may then eliminate from the confused mass of testimony the particular issues, or points of difference, disentangled from’ all other matters which may be conceded to be correct. These points, in case of appeal, may be clearly presented here, and save the judges of this court the loss of valuable time in going through minute details of business to test the accuracy of the Chancellor’s findings. There may be a reference ordered here, but the Master can not go outside of the record. He can ¡not call in witnesses to clear up the' obscurities. The business more properly belongs to the original than the appellate tribunal. The former can confer upon the Master all necessary power for obtaining the necessary information,, by authorizing the examination of such witnesses as the-parties may produce. The powers of the chancery courts, are, for this purpose, larger and more flexible than those-of a court having appellate and supervisory powers only. Besides, this court, in justice to other causes, can not take-the requisite time to make references, receive reports, and.' settle exceptions, even within the record. It may, and has done so in important cases,but it should not be allowed to grow into a habit.

The decree, upon its face, and upon the findings of the Chancellor, is grossly erroneous. What complainant and Kitchens failed to draw back was lost by the concern, of which they were members. They were responsible as partnei’s, each to themselves as individuals, for a third of their respective losses in the concern. The whole losses should have been estimated, and adjusted among them. This upon the findings would have been easily done by a decree, in favor of complainant, against Bryan, for $201.79, and against Kitchens for $119.79. The decree must, in any case, be reversed.

We have carefully examined the pleadings and evidence to satisfy our minds as to the. propriety of remanding the cause. The evidence is very confused and unsatisfactory, and we do not see how any clear statement of the partnership transactions can be made from it. It appears that the business of the partnership ceased in March, 1870; that the effects were sold in November of that year, and were equally divided. There were outstanding debts which pressed; and the only difference among the members was as to who should pay them. After sundry ineffectual efforts to adjust this matter, it was, finally, agreed to refer them to a friend, who took the gin-book and the accounts of the house with which the concern had dealings, and made a statement, designating the several debts which each partner should pay. This was in 1872. The weight of the evidence is strongly preponderating to show that this statement was accepted by the parties as a settlement-so far as it went, and that it was acted upon. The debts were all settled, which were thus distributed, and nothing more was said about it for three or four years. Meanwhile the gin-book remained in the hands of complainant, and became, by accident or carelessness, so much mutilated by torn leaves, and altered by other entries, that its original condition can not be ascertained, and it has lost its character as evidence. No settlement, can be made from it now, and the memory of witnesses as to facts has become more or less obscure.

Besides, it is pretty clear that the settlement made in 1872, by the referee, was understood and accepted by the parties, as doing substantial justice. It was not complete, and did not embrace every outstanding debt. But those -omitted were evidently of very trifling amount. There is no separate account sought of these, nor any proof of what they were. Probably they did not, in. the whole, reach twenty-five dollars. A matter of so little significance may be considered stale after the lapse of over five years from the time the business ceased, and three years after the last mention of it in the way of claim. Complainant had the book and has, by delay and carelessness, lost the means .of making a certain and definite adjustment. The defendant, Bryan, may not be wholly free of laches, and costs may be -divided, as was done by the court below, but there are not sufficient equities to sustain the complaint.

Reverse the decree save as to costs below, and let the appellee pay costs of appeal. As to all other matters let the complaint be dismissed.


text:
    Binns vs. The State.
    1. Criminal Practice : Perfecting record in circuit court after appeal.

    Where the transcript in the supreme court fails to show that the jurors trying the case were sworn, the defendant maybe carried into the circuit court and the record be perfected by a nunc pro tunc entry showing the fact, and a transcript of the amended record be brought to this court by certiorari.

    2. Same: Change of venue: Perfecting transcript after verdict.

    Where there is a change of venue and the transcript to the court to which it is changed contains no entry showing the opening of the court from which it was changed, at the term at which the indictment was found, and no entry showing the impanneling the grand jury, the omitted entries may be obtained by certiorari, and the transcript perfected after a verdict of guilty; and a pending motion in arrest of judgment for these omissions in the transcript, be then overruled.
    3. Same : New trial: Separation of jurors.

    The separation of a juror from his fellows in a criminal case, in violation of the instructions of the court, will subject him and the ofiicer-in charge to punishment for contempt; but is no ground for new trial where it is shown that the prisoner was not prejudiced by it.
    APPEAL from Bradley Circuit Court.
    Hon. T. E. Sorrells, Circuit Judge.

      Henderson, Attorney General, for the State.
   English, C. J.

On the twenty-first of August, 1879, William Binns was indicted in the circuit court of Drew county for murdering Thomas P. Edwards with an ax. On his application the venue was changed to the circuit court of Bradley county, where he was tried on plea of not guilty, at the September term, 1879, and the jury found him guilty of murder in the first degree/ Motions for a new trial and in arrest of judgment were made and overruled; bill of exceptions taken; he -was sentenced to be executed on the twenty-fifth of November, 1879, and prayed an appeal, which was allowed by one of the judges of this court.

i- Ckiminai. P RA CTICE!

perfecting rocord ter appeal,

I. The transcript on which the appeal wras allowed, failed to'show that the jurors by whom the appellant was tried were sworn. Afterwards, he was brought into the court below in term, and the omission wTas cured by a nunc pro tunc entry, and a transcript of the amended record brought into this court on certiorari. ' The proceedings to amend the record appear to have been regular. It was shown to the satisfaction of the court below that the jurors were in fact duly sworn when impanneled, but that the clerk had omitted, by inadvertence, to make the record show that fact.

II. Before appellant pleaded not guilty, he was permitted to demur to the indictment in short on the record by consent, and the court overruled the demurrer.

What particular objection was taken to the indictment by his counsel in the court below, does not appear of record, and appellant is not represented by counsel here. The indictment is in Code form, and contains all the requisite allegations to make a valid indictment for murder in the first degree. The time and place of the offense, the name of the person killed, and the instrument of death are alleged, and the usual -technical words to show the character and grade of the crime are employed.

2._; after°1'vel,t diot-

3;__: tiorf ofaju-

III. The motion in arrest of judgment was upon two First — That the'transcript of the record trans-from Drew to Bradley, on change of venue, contained no entry showing the opening of the circuit court of Drew county at the term at which the indictment purported to have been found.

Second — That it contained no entry showing the impanneling of a .grand jury.

These objections were well taken in point of fact, but after the verdict was rendered, and the motion in arrest of judgment filed, and before final judgment upon the verdict, a certiorari was ordered and sent to the clerk of the circuit court of Drew, and a transcript returned embracing the entries omitted in the original transcript; and the motion in arrest of judgment was overruled; and in this the court below followed the decision of this court in Green v. The State, 19 Ark., 178.

IV. It seems that the court gave all the instructions moved for the prisoner, as well as for the state. In the motion for a new trial no objections are taken to the instructions; they are not referred to in the bill of exceptions, and, hence, not brought upon the record, though the clerk has improperly copied them in the transcript.

V. It is made ground for a new trial, that after the jury wereimpanneled, and in charge of the sheriff, under an order of court not to separate, and before final submission of the case-to them, one of them left his fellows, and went into a saloon, where one of the attorneys for the state was at the time.

From supporting and counter-affidavits made part of the record by the bill of exceptions, it appears that one of the jurors, who complained of being unwell, and in want of some'stimulant for a pain in his lungs and shoulder-blade, and whose habit it was to use such remedy, was permitted by the officer in charge to go into a saloon near the hotel where the jury were kept, and' take a drink of whisky, perhaps. It is affirmatively shown that he left the saloon and returned to his fellows immediately after getting the drink, and that while in the saloon he spoke to no person, and no one spoke to him, about the case on trial or any other matter.

The officer in charge of the jury violated the order of the court in permitting the juror to separate from his fellows and go into the saloon for a drink, and the court might have punished the officer and juror for contempt, but it being made to appear that the prisoner was not prejudiced by the misconduct of the juror, it was not error in the court to refuse a new trial on that ground. Palmer v. The State., 29 Ark., 248.

VI. The only further ground of the motion for a new trial which need be noticed, is that the verdict was contrary to • law and evidence.

It appears from the evidence that Thomas P. Edwards, the person alleged to have been murdered by appellant, was a livery stable keeper of Monticello, and kept a colored woman named Dory Crook, who lived in a house east from the public square of the town about eleven hundred and twenty yards. About 8 o’clock of the evening of the twenty-eighth of June, 1879, Edwards left his stable and went eastwardly in the direction of Dory Crook’s house, where he was found about twenty minutes before 10 o’clock of that night, lying on his back in her bed in a dying condition. There was a wound over his right eye, extending to the brain, and his right cheek- bone, under the eye, was broken down. An ax was found in the house, with blood and brains on its handle near the ax-, and there-were indications upon the pillows of the bed and the floor that'much water had been used upon the head of the deceased before any of the witnesses got to the house.

The corpus delicti was clearly proved.

The jury found, upon circumstantial evidence, that appellant was the guilty agent of the crime.

It appears that he was displeased by the cohabitation of Edwards and Dory Crook, and threatened to put a stop to it, and, shortly before the former was murdered, inquired of a witness, who knew his habit, which way he went-in going to the house of Dory Crook, and was informed that he went sometimes by the fair grounds, and sometimes by the road.

About sundown of the evening on which Edwards was killed, a witness, who went to the house of Dory Crook to return an ax which he had borrowed of her, saw appellant come to her back yard fence and call her to him, where theyr talked in low tones of. voice for half an hour. Other witnesses saw him at her house about dark of that evening.

About 10 o’clock at night the sheriff', being ai’oused by parties proclaiming that Edwards had been killed, went to the house of Dory Crook, and after causing deceased to be taken home, determined if possible to discover his murderer. Having ascertained that appellant was at the house of Dory Crook about sunset, and remained there for some time, he went, between the hours of 1 and 2 o’clock of that might, to the house of appellant, where he found á brilliant light, there being no light in any of the surrounding houses.

On making an alarm, appellant carné to the door, and the sheriff told him he wanted him. to go to town with him. Appellant-insisted on permission to put on a clean,shirt’, but was forbidden to change his clothing. He then went to' the back part of the house, and took from a ridge pole-a black coat, advanced a few steps toward the door, then returned and hung-the coat on the pole from which he had taken it, and took a light-colored coat.

Next morning the sheriff and a medical witness examined the clothing of the prisoner, and found blood On his shirt bosom and on his right side.

The sheriff returned to the house of the prisoner, and found in a pocket of the black coat which he had taken from the ridge pole and replaced, a pair of stockings rolled up, besmeared with blood, as though he had wiped his hands on them.

Many witnesses were examined,-and other circumstances were proven, which may have had more or less weight with the jury, but which we deem it unnecessary to state. It is sufficient to say that the verdict was not without evidence to sustain it, and we find in the record no error of law for which the judgment should be reversed.

Affirmed.


text:
    Leigh vs. Armor.
    New Trial : Equity jurisdiction to grant Not ousted by statute.

    When a judge of a circuit court is disabled by sudden sickness to dispose of a motion for new trial during the term at which the judgment was rendered, the party filing the motion may, upon showing the facts in his complaint, and that he was guilty of no negligence, and had a meritorious defense or cause of action, obtain relief in equity. Such case ' does not fall within any of the provisions of the statute empowering the law judge to grant a new trial after the lapse of the term at which the judgment was rendered (Gantt’s Dig., sec. 3596-4692); and if it did, the ancient and inherent jurisdiction of a court of equity to relieve against fraud, accident or mistake, would not thereby be divested.

      APPEAL from Lafayette Circuit Court, in Chancery.
    Pión. J. K. Young, Circuit Judge. ”

      Williams $ Battle for appellant.

      Cork, contra.

   English, O. J.

Cassius Leigh filed the bill in this ease •on the chancery side of the circuit court of Lafayette •county, against Virginia ~W. Armor, alleging, in substance, ■as follows:

That complainant brought suit against defendant on the law side of the same court, on a note for $600, executed by her to him, the twenty-seventh of December, 1870, payable at twelve months, with 10 per cent, interest. That defendant filed an answer, and at the September term, 1877, the case was submitted to a jury, and on the evidence and instructions of the court, a verdict was returned in favor •of defendant, and thereupon judgment was entered in her favor .and against complainant for costs. That he moved for a new trial, which was submitted tó . the court, and taken under advisement. That his counsel prepared a bill of exceptions, setting out the evidence introduced .on the trial, the instructions given and refused by the court, etc., and had it ready to present to the judge for his signature if the motion for a new trial was overruled, and take an appeal. That while the motion for a new trial was .under advisement, the presiding judge was suddenly taken sick ; was unable to. do any further business, and the court was closed for the term, and the motion for a new trial left undecided, and the judgment entered on the verdict was not opened.

By reason of such unavoidable accident, whereby he was prevented from having his motion for a new trial disposed of, etc., complainant prayed a decree for a new trial, etc.

1. • new Trial:

chancery tiolndlto

Defendant demurred to the bill on the ground that the facts stated therein were not sufficient to entitle complainant to relief. The court sustained the demurrer, and complainant filed an amended bill, averring, in addition to the allegations of the original bill, that in the suit at law the defendant pleaded that the note sued on was executed by her without any consideration whatever, and exhibiting a transcript of the record of the pleadings and proceedings of the suit, etc., and setting out the evidence introduced by both parties on the trial, and the instructions given and refused by the court, etc.

Prayer as in original bill.

The defendant demurred to the amended bill; the court sustained the demurrer, and complainant resting, the bill was dismissed, and he appealed.

It is well settled that where a judgment is obtained in a . -i -i-i court of law by fraud, accident or mistake, unmixed with negligence on the part of the party against whom it is rendered, a court of equity has jurisdiction, on a showing of a meritorious defense or cause of action, to compel the party obtaining the judgment to submit to a new trial. But it-is agreed that this power should be exercised with great caution, and the application of the doctrine is generally restricted, and is confined to eases which present peculiar circumstances, under the maxim that there must be an end of litigation. Pelham v. Moreland et al., 11 Ark., 442; Watson et al. v. Palmer et al., 5 ib., 501; Jamison et al. v. May, 13 ib. 604; Peagram v. King, 2 Hawk. (N. C.), 611; Burgess v. Lovingood, 2 Jones Eq. (N. C.), 460; How et al. v. Mortell et al., 28 Ill., 478; Executors of Powers v. Adm’r of Butler, 3 Green Chancery (N. J.), 465; 3 Graham & Waterman on New Trials, pp. 1455-1482; Campbell v. Edwards, 1 Mo., 231; Saunders v. Jennings, 2 J. J. Marsh, 513; Triplett v. Scott, 5 Bush, 81.

Knifong v. Hendricks et al., 2 Grattan (Va.), 212, is'a case ¡similar to this. In that case, after the plaintiff had obtained a verdict, the counsel for defendants announced that ■ they would ask for a new trial, but were prevented from making the motion by the dispersion of the justices composing the court, and the court of appeals held that they were entitled to relief in equity.

It appears from the evidence set out in the amended bill, and alleged to have been introduced on the trial at law, that the deceased husband of appellee left a will, by which he devis.ed to her and her infant son valuable legacies. That a married daughter and her husband brought suit to set aside the ’will on the grounds that appellee had procured her husband to make it by undue influence, and afterwards poisoned him. That appellant, a lawyer in good standing, defended the suit at the instance of the executor and the acquiescence of appellee, took depositions proving that the allegations against the will were groundless, and the contest was abandoned. That the services of appellant were worth $600, which he charged as a fee, and for which appellee executed to him the note sued on at law, and that the verdict was given in her favor by misdirection of the court.

Whether the law judge would have granted a new trial, had he not been taken ill, we do not know ; but had he refused it, appellant would have had a remedy by appeal; but by unavoidable accident, the presiding judge, if the allegations of the bill be true, was deprived of the power to grant or refuse a new trial; and such accident, without fault or negligence of appellant, .and upon the showing of merits made by the bill, entitled him to relief in chancery.

This case does not fall within any of the provisions o the statute empowering the law judge to grant a new trial after the lapse of the term, at which the judgment was rendered, (See Gantt’s Dig., sec. 3596, 4692); and if it did, the ancient and inherent jurisdiction of a court of equity to relieve against fraud, accident or mistake would not be divested. Jacks et al. v. Adair et al., 33 Ark., 161; Hempstead et al. v. Watkins, Ad., 6 Ark,, 317; Carington v. Holabird, 19 Conn., 84; 3 Graham & Waterman on New Trials, pp. 1476-7-8.

Not ousted by the statute.

The court below should have overruled the demurrer to the amended bill, and required appellee to answer.

Decree reversed, and cause remanded for further proceedings.


text:
    Seesel et al. vs. Ewan et al.
    Trustee’s Sale: Sis purchase at, for the beneficiaries.

    The beneficiaries in a trust can not make the trustee their agent to purchase the trust property for them at the best advantage, but they may send him their bid, and request him to sell them the lands at the sale if no one will bid more; and he may do so without any breach of trust.
    APPEAL from Prairie Circuit Court in Chancery.
    Hon. J. N. Cypert, Circuit Judge.

      Clark Sp Williams, for appellants.

      Hv.ghes, contra. ,

   Eakin, J.

Complainants, A. .Seesel, Son & Co., filed this as a creditors’ bill, in behalf of themselves and other creditors of the estate of J. W. Harrell,’deceased, whose debts had been probated, allowed and classed. It sought to reach lands, as assets of the estate, which,, it claims, were fraudulently sold in 1874 by the trustee in a deed of trust, executed by Harrell in the spring of 1873, to secure Messrs. Harris, Mallory & Co., of Memphis, in a debt of about $5,000. The trustee, the beneficiaries, the widow and heirs, as well as the administrator of Harrell, were all brought in as defendants.

The bill set forth the deed of trust, duly executed by Harrell and wife, conveying about 400 acres of land, all lying in the same neighborhood, but not entirely in a body, together with some lots in Des Arc. It does not controvert the validity of the deed, or the debt it was made to secure, but charges that the whole property was unfairly sold in a mass by the trustee, at an inadequate value, and purchased by him for the secured creditor. It charges, further, that the purchase was so made upon a secret trust to allow Harrell to redeem, and, upon redemption, to have title to his wife.

That there was a considerable number of creditors of Harrell at the time of the sale, whose claims were in the hands of an attorney for collection, and that the trustee refused an application on behalf of other creditors to sell the property in parcels, whereby it would have brought more than the debt, and would have left something for the other creditors. The gist of the charge is that the proceedings under the deed of trust had been in fraud of the interest of the other creditors, and detrimental.

It is further charged that said firm of Harris, Mallory &. Co. had been otherwise paid a large portion of their debt by shipment of cotton from Harrell. Harrell afterwards, died, and letters of administration were granted on his. estate to defendant Williams.

The bill was filed in January, 1877, when the defendants, Harris, Mallory & Co., had been three years in the enjoyment of the rents and profits under their purchase. It seeks to avoid the sale, and to have the property resold to pay what may be1 actually due on the secured debt, after holding defendants responsible for net profits, and to have the balance of the proceeds divided amongst the probated claims as classified, and for general relief.

Harris, Mallory & Co. and the trustee answered, denying all the materiaL allegations as to fraud, and insisting on the fairness of the transaction. The cause was heard upon pleadings and proof, and the Chancellor dismissed the bill for want of equity.

Complainants appiealed.

About the actual facts of this case, there is little controversy. Harrell, in the spring of 1878, owed Harris, Mallory & Co., of Memphis, about $5,000, and gave the deed of trust to secure it, with power of sale, upon thirty days’ notice, to pay the debt.

At the same time, they agreed to furnish Harrell with further supplies and goods, to be paid by further shipments of cotton, and did so furnish them. The balance of the shipments of cotton after paying the new bills, was credited •on the secured debt, which was thus reduced to about $4,400. In the spring of 1874 the whole property was-advertised by the trustee to be sold for the payment of this debt.

Harrell had become much embarrassed; owed many other debts, and had little other property. The debts had, many of them, come to the hands of Gatewood, an attorney, for collection. It is not shown that any of the claims were liens upon the land. Gatewood says that upon two of them, not held by the plaintiffs in this suit, he had obtained judgments, without specifying whether they were before a magistrate, or where. The debt of complainants was, then, a simple contract debt. They did not obtain judgment till 1876.

Gatewood attended the sale and had with him about $2,000 of his own money, which he was willing to use for the benefit of his clients; and believing that if the land was put up in small pai’cels, he could, by bidding on separate tracts, stimulate competition and make the whole bring more, he requested the trustee to put it up in separate parcels. The trustee declined, stating that his instructions were to sell in a body.

Pie further said that all that Harris, Mallory & Co. wanted was the debt. That he was instructed to bid that for it, and if any body gave more they could get the property. He put it up “en masse ,” announced the bid, and, no one giving more, sold it to one of the members of the firm for the debt. He afterwards made, them a deed, and they went into possession.

There is no evidence that defendants, Harris, Mallory & Oo., had any agency in directing the mode of the sale, further than to inform the trustee of their bid of the debt, and that it was all they desired.

Nor is there any evidence, binding on them,, that they had any collusion with any fraudulent .purpose, on the part of Harrell, to have the lands sacrificed, nor of any agreement, on their part, to hold the lands in trust for Harrell, or his wife. The evidence tends to show that it was Harrell who insisted on having the property sold together, and not the beneficiaries, Harris, Mallory & Co.

The evidence as to the value of the property is conflicting. Some witnesses say it was estimated to be, and one that it actually was, worth $1,0,000, one says $8,000, others not more than $6,000. The result, of all the testimony does not make it clear that the property would have been apt to sell for more than $5,000 cash, even if it had been divided. There is evidence to show that the lands brought as much in a body as if sold separately; although there is no reason why the lots and warehouse should have not been sold separately.

. Trustee ' s Sale:

chase Pat, forthebenefioi&ries.

There is evidence to show that the latter were worth $450, although none to show that any one desired to bid for them separately, at the sale, or would have given that much cash. Gatewood demanded, generally, that the land should be sold in separate parcels, without indicating any particular portion which he wished to purchase. There is no allegation nor proof that there was -any one attending the sale who wished to purchase any particular tract, at any price. Gatewood offered, on behalf of his clients, to bid the debt for the whole property if the trustee would wait for the money until he could draw for it. This the trustee declined. The whole effect of the allegations and proof is, that if the lands had been sold separately, they ■might have brought more, but if they had, there is nothing to show that the surplus would have inured to the benefit of complainants, or any others in whose behalf they sue. None of them appear to have then had liens, either by judgment of a court of record, or by attachment, or otherwise. Gatewood, their attorney, could not have taken the surplus, if the lands had sold for $10,000. It would have .gone to Harrell, and might have been expended by him before his death. No grounds for attachment are shown.

The proof does not sustain the allegations of .fraud on the ■■ ‘ part of tlie defendants, Harris, Mallory & Co,, but shows pretty clearly that Harrell, the debtor and grantor, was ° anxious that the property should be sold en masse, and that it should be purchased for the debt. He entertained hope that Harris, Mallory & Go. would allow him to redeem and convey title to liis wife. There is absolutely nothing, however, to connect them with any such purposes. In receiving their bid, and crying it, the trustee committed no breach of trust. It was his duty to do so. They had the right to bid for the lands. They could not have made the trustee their agent to purchase it in at the best advantage; but they could send him their bid, and request him to sell them the lands if no one offered more. This is not within the purview of the prohibition, against trustees, from purchasing for themselves or others. It involves no conflict of duty. It gave no discretion to the trustee as agent. •

The trustee should have sold the property to the best advantage of the grantor in the deed, and those claiming under him, subject to the creditor’s light to his secured debt.

His fiduciary obligations extended no further.

Holders of liens, by contract, judgment or attachment, would have stood in the shoes of the grantor, and might have required of the trustee so to conduct the sale as to protect their junior rights.

But in this case the grantor having the right to control the surplus, might waive the means of producing it. The creditors had no vested rights in rem. They may indeed complain of any action on the part of the debtor calculated to cheat, binder or delay them, just as general creditors may complain of any sale made by any debtor for that purpose. They stand as if no deed of trust had been made at all, nor sale by the trustee, but as if Harrell had himself conveyed the property to Harris, Mallory & Co. in solido for the debt.

In such case it would be necessary to show actual fraud on the part of Harrell, in which the purchasers had participated, either by direct evidence or circumstances from •which it might be presumed. A sale for a grossly inadequate consideration is almost conclusive on this point, but not a sale in.solido. A debtor in failing circumstances, with no leins on his property, may honestly sell several pieces of property together if no secret trust be intended.

The adequacy or inadequacy of the consideration is to be considered only as it raises a presumption of fraud, in which the buyer participated. Otherwise human transactions would not be sate. No man could buy at a bargain without the rish of having the property afterwards taken by general creditors of the vendor, whilst he would be compelled to suffer any depreciation. It is enough to require good faith of purchasers and that they respect existing heirs, general or special, of which they have notice. The question here presented is simply one of good faith on the part of the principal defendants.

The eases which hold trustees to strict care in the conduct of sales, to make the property bring as much as it reasonably may, are those in which the rights of the cestui que trust are concerned, or of those who at the time claim interest under him.

Mere creditors are strangers to the trust, as such, having the same tights against the property and debtor as they would have if he were selling directly without the intervention of a trustee, and no more. Perhaps if a fraud were committed against the grantor in a deed of trust by the trustee, and purchasers, subsequent judgment creditors on bill filed, might be let into his rights to attack the sale, for the augmentation of the surplus ; but that is not this ■case. The question is simply one of bona fieles on the part of Harris, Mallory & Co., in the consideration of which the adequacy of the price foims an element. The case stands as if Harrell himself had declined selling in parcels to any one, and had sold all at once to defendants. "Whether this be fraudulent or not depends on circumstances and the intention of the parties.

In considering questions of fact, Chancellors, like jurors, are compelled to avail themselves of their general knowledge of practical affairs. Considering the high rates of money in the country, and the common difference between cash and credit sales of valuable property, the Chancellor might well have failed to see any gross inadequacy in the price given.. It is probable that the property could not have been sold for over $5,000 in cash, although one witness says it was worth $10,000. Others estimate it much lower. One witness says that, sold in the usual way, the land was worth about $8,000, but even under favorable circumstances, would not have brought at auction, for cash, over $5,000. Another (Hughes) did not think it xoorth $6,000, and that it never would have brought more than $5,000 in cash. The proof tends to show also that the lands would sell better together as one place, although one eighty-acre tract was detached. The lots in Des Arc are valued at $450. How much they would bring at cash sale is not stated, but perhaps much less. The advertisements were duly made, and notice of the sale was given. It was made known that Harris, Mallory & Co. would only bid their debt. Any one willing and able to give more, had every encouragement to bid. If what a thing will bring in open market, on fair exposure to sale, be any criterion, it can not be thought that a sum of $4,400 was' so inadequate as to raise presumption of fraud in the purchaser.

There is no proof that any one else desired to purchase a foot of the property. Gatewood did not. He had about $2,000 which, to promote the supposed interests of his clients, he wished, to use for the purpose of stimulating competition in bidding. If he was willing to risk this in promoting the interests of his clients, it was commendable in him as their agent; but its effects were merely speculative. How far he would have gone or what would have been the result of the experiment is conjectural. He did not seem to desire the land itself or any part of it. He offered nothing except to purchase all if time were extended. How long' a time is not specified. There is no proof that there was any other person present who would have bid anything for any part if it had been so put up.

It is true as urged that sales .by trustees, in pais, under powers, are narrowly watched. They may be oppressive and are not encouraged. If application be made in reasonable time, they will be set aside on slight equities. But this jealousy is not to be indulged beyond reason. The practice is common and much of the property of the country is held under such sales. They facilitate business. They should be sustained when made in strict pursuance of the powers, in good faith, and without detriment to vested rights in the property. Actual fraud on others always depends upon the circumstances of.the case and calls for redress when discovered. But it would seriously impair the business of the community to scrutinize sales under deeds of trust so severely, as to amount- to a prohibition.

The defendants seem to occupy unimpeachable ground. They had taken a security of all the property. The terms of the trust did not require a part to be sold. Any junior incumbrancer, by redeeming, or any contract creditor, by bidding their debt, might have taken their shoes. They were under no obligations to be active in securing the claims of other creditors. They had a right to stand on their security and demand their debt. Their instructions to the trustee amounted to no more than that. Beyond that, they threw no impediments in the way of others. If lands had fallen and the purchase had become a losing bargain, they would have suffered the loss. It would be hard if three years afterwards they should be held to account for the rents and profits of property they had held and managed as their own. The bill seeks to compel them to do this. To credit the profits on their expenditure of purchase-money, and to allow the corpus of the property to fall back to the estate of Ilarrell for the benefit of general creditors. This would be making them mere agents of others, working to increase the assets of the estate at their own risk. Such measure of justice is the severest known to a court of chancery, and would have been due to them, if they had caused the property to be sacrificed against the interests and wishes of junior incumbrancers, or of Harrell. He, or his heirs, or creditors, might then have sought this redress; and a court of chancery would have responded quickly to the invocation.

It is to guard against such oppression that the jealousy of the court is awakened. But to justify so harsh a procedure, there should be mala fides, or culpable negligence, with a disregard of the rights of others. The Chancellor could not find that in their conduct. Nor can we.

No less measure of relief would be apt to inure to the benefit of complainants; andas to them -would be futile. No third-class creditors have joined in the bill nor applied to be made parties. Their aggregate debts exceed $2,600. They ask nothing, yet their claims would be apt to absorb any surplus of the proceeds of a re-sale of the property over the original debt of defendants, if the latter are not held to an account of profits.

Upon the whole case the bill was properly dismissed.

Affirm.


text:
    Martin and Wife et al. vs. Campbell, Ad., etc.
    1. Administration: Settlements in equity: Statute of limitation.

    In suits in equity against administrators for an account and settlement, when the relief sought is purely equitable and not cognizable at law, courts of equity may and should refuse to entertain stale and antiquated demands, though not barred by any statute of limitations.
    2. Administrator: Allowance to in equity for support of infant heirs.

    An administrator, stricti juris, has no right to make expenditures out of the assets of the estate for the education and support of children of the intestate ; but in a suit in equity by the heirs against him for an account, after a great lapse of time, the Chancellor may exercise a discretion in allowing them, upon a view of all the equities of the case, if they were reasonable, made in good faith and suitable to the condition and circumstances of the children.
    APPEAL from Woodruff Circuit Court in Chancery.
    Hon. J. N. Ctpert, Circuit Judge.
    Coody, for appellant.

      JB. JD. Turner, contra.

   Eakin, J.

James E. Sasser died in Eayette county, Tennessee, in August, 1850, leaving some personal property, including two slaves. His family consisted of a widow, who died in 1858, and five children, two of whom died childless. The others, complainants in this, case, claim, and are conceded, to be entitled to the property of the estate. The debts were small and have been paid. Administration on his estate was granted, in said county, to Samuel B. Martin, his wife’s father, who took the family under his charge, made and reported to the court a sale of the-personal property, and, in April, 1854, filed a settlement, which seems, from the record, to have been intended as a final one. It included the hire of the slaves during that year.

In 1856 said Samuel B. moved to Jackson (now" Woodruff) county, in this state, bringing with him the slaves and family of, the deceased. He died there, testate, in the year 1870, and the defendant, Campbell, is his proper administrator, with the will annexed.

No further settlement of the affairs of the estate of Sasser seems to have been required of him during his lifetime. After his death, his son, complainant, James M. Martin, who had married a daughter of Sasser by a former wife, presented an account against the estate of said Samuel B., his father, in favor of his wife and the other complainants, for effects of Sasser’s estate which said Samuel B. had failed to account for or pay over. This being disallowed, the said James M. and his wife, together with the other children of Sasser, filed this bill, alleging :

That said Sas.ser had left personal property which came to the hands of the administrator, said Samuel B., of the value of $3,200, and also $942 in money; for a large portion of which he had fraudulently failed to account; but had removed it from Tennessee, without any order of the court, and whilst the children had no guardian; and that he-had received, also, and had failed to account for, the hire of the slaves from 1855 inclusive till their emancipation on the sixteenth of March, 1864, valued at $2,983. The bill pray* for an account, and other fit relief.

The administrator of Samuel B. answered: denying that Sasser left more property than was shown in the sale’s bill and accoTmted for in the settlement, save that turned over to the widow. He exhibits the receipts of said James M. and of the widow for their- share of the estate of Sasser, coming to them out of the balance found in the hands of the said Samuel B. by the Jackson court in the settlement of 1854, the wliole balance being $345.29. He admits the liability for hire during the years 1855 and 1856, when he says the slaves were turned over to the guardian of the minor children; and he files an account of the receipts and expenditures since the settlement, including said balarce, by which'it appears that the estate, or distributees of Sasser, would be indebted to the estate of Samuel Bl in a sum of $429.64.

The cause was heard upon the pleadings and evidence, and an account was ordered to be taken, by a spec;al Master, of the management of -Sasser’s estate by his administrator. His directions were to take into the account and charge the balance of $345.29 found in the administrator’s hands by the Tennessee settlement, and the hire of the slaves, commencing with tike year 1855 and running to the time when said Samuel B. Martin delivered them over to the guardian of the children, and to charge interest from the time of the settlement, and from the time when the hiring moneys became respectively due. For the purpose of adjusting the account, he was directed to use the evidence in the case, and such other as the parties might adduce; and to give credit for such sums of money as may have been turned over; and necessary expenses incurred in taking care of the children.

The Master stated, and returned an account, showing a balance in favor of the estate of Samuel B: Martin of $102.07, finding as a fact that he had turned over in his lifetime (on the sixteenth of February, 1859,) to the guardian of the Sasser heirs, after accounting for the hire of slaves, that amount of assets, in excess of what is due. Upon exceptions, the court corrected the account, diminishing this balance by the amount of $12.27, overruling the exceptions as to all else. The suit was dismissed with costs against complainants, from which they appealed.

Leaving out of view, as not within the province of jurisprudence, all which may shock the sentiment in this case, and considering it as a contest regarding the action of strangers in blood to eacli other, it appears from the evidence, and was evidently so considered by the Chancellor, that there was no actual fraud, or conversion of the effects of Sasser’s estate by Samuel B. Martin. Without comment on the credibility of witnesses, it is enough to say, the proof does not sustain the allegations that more assets of any kind came into Samuel B. Martin’s hands in Tennessee than were shown by his settlement, and does show that the allegation is untrue which charges him with having received the hire of the slaves from the year 1855 inclusive until their emancipation. For more than two years of that time, one of the two, and the most valuable of them, was in the hands of the son, who, if any one, is, himself, accountable to the other children of Sasser, his wife being one.

Sam’lB. Martin’s administration was careless, and in some respects illegal, but evidently honest and well meant. The children, save his son’s wife, were his grandchildren, and under his protection. His duty to them would have been orderly and regularly discharged by procuring for them the appointment of a guardian, and turning over to them the slaves, and the balance iound due by the Tennessee settlement. He did pay over what was due of the money to-his son’s wife, and to Sasser’s widow, but brought the slaves, money, and other children with him on his removal to Arkansas. This was illegal, so far as concerned the property, and upon early application by any next friend or guardian of the minors, he wpnld have been held to aptriet accountability.

i. ¿ramsTRATION’

n.m ua®||1®^aensds'

There is no proof of other property brought by him to Arkansas. Defendant admits his liability up to 1859, when the slaves and all the hire notes, which seem to have been taken with care, were turned over to a guardian of the minor children. This, with charges for removing the family, tuition, provisions, etc., with his commissions, make the credit side of the account.

(From this time, to the presentation of the account against defendant Campbell, a period of eleven or twelve years, at least, whilst all the parties were in the vicinity, no demand was made upon Samuel B. for a settlement, nor was any complaint made of his management. There is no trace, indeed, of any dissatisfaction with him, in his lifetime, nor any charge against him while he was in existence to face it and defend himself.

In this aspect of the case the Chancellor might well have dismissed it on the first hearing. It was not barred by any statute, but tbe relief sought was purely equitable. In such cases courts of equity are not bound by the limitation acts, but consider staleness as an equitable element in determining that discretion to give or withhold relief, which originally governed every case. When the demand is not cognizable at law, courts of equity may, and should, refuse to entertain stale and antiquated demands. This applies with special force to family transactions, which in general are not conducted by rigid rule; although it applies, also, to all matters of account between strangers. Unless, says Mr. Story, there be peculiar circumstances justifying or excusing delay, “ courts of equity refuse” (in matters of account) ‘‘to interfere after a considerable lapse of time, from considerations of public policy, from the difficulty of doing entire justice, when the original transactions have become obscure by time, and the evidence may be lost, and from the consciousness that the repose of titles and the security of property are mainly promoted by a full enforcement of the maxim, '■vigilantibus non dormientibus jura subveniunt.’ ” To these general considerations may, in this case, be added, that between the transactions complained of and the filing of the bill, a devastating and confusing civil war had swept over the land, destroying lives of witnesses, scattering written evidences, and sweeping away, or confusing, the recollections of men concerning .petty events of the anterior time; and, more still, the man who knew most of all, and had the most interest in clearing up charges, was dead, without warning of such an attack upon his memory.

The defendant, however, might well enough agree to the reference, and he did not except to the order making it. It devolved upon the special Master to take the account in accordance with the directions. Whether he has done so or not, is all we have to consider. The exceptions will be considered seriatim.

The first is general; the second, third and fourth object that the Master failed to charge proper interest, and that he allowed a commission of 10 per cent, to the estate of Samuel B. upon .the amount found due in Tennessee, and the hire of the slaves afterwards received.

We have no evidence of the law of Tennessee concerning commissions to administrators. In our tribunals he might be allowed 10 per cent., and that seems equitable.

The Master commences the statement of the account with the balance of $310.77, as of date, May 31, 1854, charging interest thereon at the rate of 6 per cent, until October 21,1855, and giving credit for the sums of $50 each paid the widow and James W. Martin, with like interest to the same date, striking a balance then of $232.53 to the debit of the administrator, and making a new point from which interest runs.

This was an error against the administrator. The settlement was not confirmed by the Fayette probate court until the March term, 1856, and interest should not have then commenced running at once. The administrator was entitled to a reasonable time to distribute the fund, if a distribution had been ordered, which was not. We do not know how long thé court sat, and, therefore, can fix no time precisely, but the harshest measure against the administrator should not have included interest before April 1, 1856» Before that and after filing the settlement, he had paid out $100, reducing the balance to $210.77, to bear interest from the last mentioned date. Instead, though, the Master found a balance of $232.53, bearing interest from October 1,1855. The hire of the slaves, less commissions, is charged in the account with interest. This was correct.

Fifth and sixth, that he allowed a credit to Samuel B. Martin of notes, accounts and currency, with interest, turned over by him to the guardian of the children. This was done thirteen years before suit brought. There had been no complaint meanwhile, nor is there now presented any evidence of fraud, or misconduct in the transaction. 1 That a great portion of these assets could not be collected after the war, is well enough explained by the state of the country, of which this court has several times taken judicial cognizance. The assets, with accrued interest, should have been credited as they were.

2. Administrator:

Allowance to in equity of1's'infant heirs.

The seventh and twelfth are general, not pointing out errors.

The tenth and eleventh regard evidence excepted to, and are not well taken.

The eighth seeks to. go behind the Tennessee settlement, and is not sustained by weight of evidence as to property received and not accounted for.

The ninth objects to the allowance to the estate of Martin of sums expended in the removal of the family to Arkansas, and in furnishing provisions, education, etc.

The administrator, stricti juris, had no right to make 1 J ° these expenditures without the order or sanction of some comPetenf court. They were reasonable, however; made g00Ci faith, and were suilable to the condition and circumstances of the children. Samuel B. Martin was their grandfather and protector. They had no guardian. It doubtless was best for them that they should be brought to Arkansas with him when he removed, and the provisions and tuition were strictly necessaries. In holding him to an account, after so long a time, the Chancellor might exercise a discretion in allowing these items upon a view of all the equities of the case. .

■We find no substantial error in the record.

Affirm.


author: Enslish, C. J.

text:
    Garnett et al. vs. Richardson, et al.
    Corporation: Only .a partnership until corporate articles filed.

    An association of persons can not do business as a corporation until their articles of association are filed in the oifice of the secretary of state, as providodby law. (Gantt’s Dig., sec. 3341.) Ror purchases made by them before then they are personally liable as partners.

      APPEAL from Garland Circuit Court.
    Hon. J. M. Smith, Circuit. Judge.

      Harrell, for appellant.
    Davies, contra.

   Enslish, C. J.

Richardson & Co., druggists of St.. Louis, sued Algernon S. Garnett, John M. Huffman and Thomas W. Beaty, upon an open account for drugs, etc., amounting, without interest, to $458.50, in the circuit court of Garland county.

The amended complaint alleged that defendants, at the time of the sale and delivery of the goods, were partners, doing business at and near Plot Springs, under the firm name and style of the Plot Springs Ice Company; that said goods (described in bill of particulars filed) were sold and delivered by plaintiffs to defendants in their.said firm name, and were purchased by said defendants in their firm name, etc.

The bill of particulars shows that the goods were purchased at different dates from the twenty-third of June to the seventh of August, 1876.

The suit was dismissed as to defendant Beaty, for want of service of process, and Garnett and Huffman answered.

The substance of the defense was, that at the times the goods were purchased, the defendants were a corporation, and not partners, and that bef'oi’e suit they had transferred their stock in the Hot Springs Ice Company to others, and that the suit should have been against such corporation, and not against defendants as partners, etc.

The case was submitted to the court, and the court found from the evidence:

1. P'hat plaintiffs sold and delivered to defendants, Algernon S. Garnett, John M. Huffman and Thomas W. Beaty, the articles specified in their account filed, at the -time therein specified, amounting to the sum of $458.50.

corpora-

a sMp1 until artfoioAre

2. That defendants, at the times of the sales, were associated together in business, and known as the Hot Springs Ice Manufacturing Company, but not incorporated.

3. That plaintiff's are entitled to recover, in this action, the amount of said debt, with interest, etc.

Judgment was accordingly rendered against Garnett and Huffman; a new trial was refused, and they took a bill of •exceptions, and appealed.

On the trial it was proved that the articles of association, signed by Garnett, Huffman and Beaty, for the incorporation of The Hot Springs Ice Company, were filed in the office of the clerk of the county court of Garland county, on the twenty-first of June, 1876, but were not filed in the office of the secretary of state until some time in the following October.

Appellants could not do business as a corporation until their articles of association were filed in 1 the office of the secretary of state, as provided by the general act of ineorporation, sec. 3341 Grantt's Digest. Eor purchases made by them before then, they were personally liable as partners. Angel Ames, on Corporations, sec. 591, etc.

Affirmed.