author: GRBSGt, J.

text:
    Freeman et al v. Reagan.

      ADMINISTRATION — Interposition of equitable powers. — While a court of chancery will not assume to take charge of an administration going on in the court of probate, yet there may arise cases of fraud or waste which would call for the interposition of equitable powers, not exercised by courts of probate.
    Where the removal of the administrator, by tlio probate court, would not show the fraud, nor cancel or shorten the process of cancellation of a deed obtained from the administrator by fraud and duress, nor the grounds of defense be made better or worse, a court of equity, having-power to control properly any proceeds that may result from its decree, may interpose.
    Fraudulent deed — When set aside, etc. — The rule in equity, that a party seeking to set aside a contract, must place, or offer to place the opposite party in stain quo, is not applicable to a case where a deed has been obtained by fraud and without a valid consideration.
    Practice. — Where a demurrer points out no specific defect in the bill, although allegations that ought to have been made, were omitted in the bill, yet, if the result of the suit, so far as the defendant is concerned, could hot have been different, and the decree in the court below is a full and final adjustment of all his rights in the premises; and if those who may be liable to further costs or litigations do not complain,, a demurrer ought not to avail the defendant.

      Appeal from Arkansas Circuit 'Court.

    IIon. ¥m. M.- Harrison,. Circuit Judge.

      Watkins Sp Rose, for appellant.
    The evidence of duress is confined to Bunyard, but it is. iiot made out. Burr v. Burton, 18 Ark., £18.

    The answer of Freeman being full, explicit and responsive in denial of the allegations of the bill, it is entitled, as evidence, to its full weight. Jordan v. Ftnno, 18 Ark., 593; Byrd v. Belding, 18 Id., 118; Spence v, Dodd, Id., 19,166.

    The complainants, seeking a recision, do not propose to place the defendants in statu quo or offer to restore the value of what. was paid by him. Desha v. Robinson, 17 Ark., £37; Seaborn v~ Sutherland, 17 ib., 60S; Bellows v. Cheek, £0 ib., 4-38; and this. is the rule even in cases of usury, 18 Ark , 869, 875. The answer of Ereeman contains a clause of demurrer, which is available. Lovett v. Langmire, 14 Ark, 839; Menlc v. Anthony, 11 ib., 711; Sullivan v. Hadley, 16 ib., 150.

    The heirs are competent to maintain this suit; the right of action passed to the administrators, Anthony v. Peay, 18 Ark., 24; Leman v. Lector 15, ib., 486; Pope v. Boyd 22 ib., 585; Worsham v. Field, ib., 41-8; 1 Hilliard on Mort. p. 280.

    Payment to the heirs would have been no defense by administrators. 17 Ark, 122; Bust v. Worthington, ib., 129; Slocumb v. Blackburn, 18 Ark , 819; Buck v. Cook, 21, ib., 572.

    The bill should have been dismissed without prejudice to ■administrators to sue.

      Clark Williams, for appellee.
    “Whether the acts of the administrators were fraudulent, was a question of fact, dependent upon and susceptible of proof, and the Chancellor in determining it, was sitting as a jury, bound to decide according to the weight of testimony— and the case comes clearly within the principle laid down in Branch v. Mitchell, 24 Ark., 481,448; Johnson v. Ashley, 7 Ark., 470; 18 Ark., 295; Myers v. State, 7 Ark., 174', Bremen v. Brown-, 20 Ark., 138; Mason v. Fdington, 23 Ark., 208; Bose Bigest, 559, and cases cited.
    The administrators were trustees, acting for the benefit of complainants, as the heirs of the estate, and as such were bound to the utmost good faith towards the interests of the ces-tui que trust. See Jackson v. Bepdegraff, 1 Bob. Va. 107; Nichols v. Peak, 1 Beasely (N. J.) 69; Barksdale v. Finney, 14 Gratt (Va.) 838; Hargraves v. Batty, 19, Geo., ISO; Morris v. Thompson, 19 III., 112'.

    The deed was not in accordance with the order made, and was never confirmed in any manner by the court — and was not valid. See 1 Kage 2 and p. 60, 61; Barkin v. Marze 1, as v. 22; 1 Town v. 406; 2 Baniel. 1454-6; Act 21st February, 1859; 1 Sugdon, 264, ®65, 266; 4 Trent, 880, and eases cited.
   GRBSGt, J.

The appellees brought their hill in equity, against the appellant and others, to the May term, 1867, of the Arkansas circuit court.

It is alleged in the bill that 'Lewis Thompson, now deceased, on the 21st day of October, 1808, sold certain lands to appellant for $3,840, executed his bond for title, and took three bonds for the purchase money, each for $1,280, due respectively the 25th of December, 1859, 1860 and 1861; that the first bond was paid, hut the others have not been paid; that Thompson died in 1862, leaving a widow, and the complainants, his heirs; that, in May, 1862, letters of administration were granted his widow and Larkin F. Bunyard, upon his estate, and that appellant and others, at the July term, 1863, of the probate court, fraudulently procured an order for said administrator and administratrix to make a deed to the appellant; that the deed was made; that lawful money was not paid, as provided for in the bond; that through duress and to avoid conscription into the rebel army, the administrator received Confederate notes and executed a deed, the notes being worthless; and that the widow, who has since died, also signed the deed through fraud and undue influence.

The appellant answered, admitting the contract for the lands, the execution of the obligations, the payment of the first bond, the death of Thompson and wife, the grant of letters of administration, and the making of the probate court order and the deed, and that complainants are the heirs, etc.; but he denies all frauds and confederation to obtain the title; alleges payment of the obligations, and that the deed was duly made.

Bunyard’s answer admitted all the material allegations in the bill.

The court below decreed in favor of the complainants, but allowed Freeman ten cents on the dollar for the amount paid. Whether or not the allowance of that sum was error, is a question not before this court, because no appeal was taken or complaint made by the parties against whom that allowance was made.

The validity of the deed and the payment of Freeman’s last two obligations, are the questions before us — one party alleging that only Confederate notes of no value had been paid, and that the deed was obtained through fraud; the other, that full consideration had been paid and the deed fairly obtained.

The substance of the proof is that Freeman made no attempt to pay off his indebtedness until the summer of 1868, when the Confederate 'States’ notes were rapidly declining in value; he then showed anxiety to pay such notes at their face value. Bunyard and the widow refused to accept. Freeman told them he would spend all he was worth before he would pay anything else; and he employed Colonel Morris, the sheriff of the county, and who was secretary for the administrator and administratrix, to influence them to take these notes, and make him a deed. Bunyard told Morris he thought they would be of no account, and the widow refused to take them. Bunyard had been keeping out of the Confederate army. Armed conscripting squads were scouring the country. Bun-yard was frightened and hiding, and men believed themselves in danger of great personal violence if they refused to accept Confederate notes as current money, which then were estimated as being worth about ten cents on the dollar; yet no one was known then to refuse them for debts or property.

Ho direct threats of violence were made against Bunyard. Morris told them they could get nothing but Confederate money; that Freeman had the advantage of them, and that it ■was that or nothing.

He swears that Mrs. Thompson was a woman of weak mind, and he used every effort he could think of to get her t© sign the deed. Finally he got her to' go to town to get the money. He asked her to give bond for the return of the money, etc., and she refused, and burst out to crying.

. When Bunyard refused to act, Morris told him it would be-better for him to take the money and execute the deed. If he-did, he thought “he would not he pestered,” as Bunyard swears,, he understood he would-not he conscripted, and that he believed Freeman and Morris could have him taken to the army or saved from conscription. No willingness was expressed, hut no further objection was made. Freeman had the deed written and sent to him, where he was secreted in the brush, and he there signed and acknowledged it.

The deed was very informal and did not properly recite the contract with Thompson, in his lifetime; the appointment of his administrators; the making of the probate court orders; etc., but, taken in connection with the orders shown to exist, it sufficiently shows the character in which the grantors conveyed; especially so, when both parties allege that the deed was made in their representative character, and proofs, aliunde, show that fact.

Upon these facts the chancellor found for the complainants, but allowed as a credit ten-cents on the dollar on $2,705 by Freeman, paid to Bunyard, in Confederate and Arkansas State treasury warrants, and decreed that the deed be cancelled; that Freeman pay the balance of the purchase price; that the same be a lien upon the land, and that a commissioner sell the same, if payment is not made, etc. From which decree Freeman has appealed to this court.

The [appellant makes some technical objections against a recoveiy. That these heirs are not legitimate complainants; that there is no offer to return the sums paid; etc., and then, that no sufficient fraud is shown on the part of the appellant to avoid the deed made him, and that the acceptance of the Confederate money was a consummation of the agreement made between himself and Thompson; and, being a contract executed, cannot now be inquired into or attacked for want of consideration.

There can be no question but the heirs are vitally interested in the preservation of the effects of the estate, and, while they might well have applied to the probate court to have removed a faithless administrator, we are slow to hold that there is no-' other court competent to relieve against any of the numerous frauds that may he practiced against estates in the hands of faithless, incompetent or corrupt administrators; and while a ■court of chancery will not assume to take control of an administration going on in the court of probate, we think there may arise cases of fraud or waste which would call loudly for the interposition of equitable powers not exercised by courts of probate.

In this case the removal of the administrator would not have shown the fraud nor have canceled the deed, nor would the process after that to a cancellation of the deed been any ■shorter than the course pursued in this suit; nor would the appellant’s grounds of defense been made better or worse, and we see no want of power in a court of equity to properly control any proceeds that may result from the decree, or orders, or process upon such decree as shall be rendered in doing justice between the parties.

The appellant places stress upon the rule that those in equity, attempting to set aside a contract, must place, or offer to place, the opposite party in statu quo, returning, or offering to return, what may have been received. We fail to see the application ■of the rule in this case. The complainants ask to set aside a ■deed because it was obtained through fraud, in violation of a contract that they were ready and willing to abide by, and without any consideration, upon a mere pretended payment in worthless paper.

If a trustee conveyed away valuable property to which they were entitled, for worthless and illegal notes, they could offer to return nothing upon asking to cancel the deed; and especially so, when such notes are in the hands of one of the defendants.

In answer to the bill the appellant responded that the allegations of confederation and fraud were wholly untrue; and it is insisted that such answer is responsive to the bill, and is entitled to full consideration and weight before the court. That is not questioned, but, like other testimony, it is subject to such criticism as the circumstances justify; and in this case -we would infer the chancellor examined it with some severity. He answers that the administrator was at perfect liberty to act in the premises, without any compulsion on his part or otherwise. He could with propriety respond as to the influences he brought to bear on him; but, where others are charged with aiding in the duress, and respondent responding that he himself was not present, how then did he know the administrator acted with perfect freedom? Yet he unequivocally asserts that as a fact. He answers that the order, authorizing the execution of the deed, was obtained by the grantors on their own motion, and without his knowledge. How could he positively answer that the order was made bn their own motion, when in the very same sentence he’ declares he had no knowledge of the making of the order ? The assertion of facts that could not have been within his knowledge, gave the chancellor room to doubt like assertions of matters that might or might not have been within his knowledge.

He responds that Confederate money was current, etc. To assert that these notes were current, does not well comport with the testimony of the witnesses. He further avers that the grantors were not only willing, but anxious to receive such currency in payment for the land. Weighed with the other evidence, the chancellor may have thought this wilfully untrue. If they were anxious to receive such Confederate not 3s, why did respondent express his gratitude to Colonel Morris for influencing her beyond what any one else could have done? These responses were made not as beliefs, but as facts.

No steps to pay were taken before or soon after Thompson’s death; but when the death of the Confederacy seemed approaching, and her notes had gone down to ten cents on the dollar, the appellant became quite active in his demands for title, and, with the unusual influence of Colonel Morris, he pressed this matter to a conclusion.

Armed squads were scouring the country and forcing into the Confederate ranks all who were able to carry a musket or answer at fatigue call. In this condition of things, much less than an ordinary effort would reach the fears and control the actions of such men as Bunyard; and such influence as was brought to bear on the widow, seemed sufficient to control her judgment and induced her to do what she would not have done,, if properly advised and protected.

The testimony shows that Bunyard was a timid man, whose fear of death or injury would have influenced him to any pecuniary sacrifice, rather than assume the responsibility of a campaign in the army; and, when convinced that the act would save him from conscription, he executed the deed and surrendered Freeman's obligation.

In the case of Strayhorn v. Giles, our court said: “Fraud avoids a contract ab initio, both at law and in equity, whether committed by the party himself or his authorized agent.” 22 Ark., 517.

Judge Story says: “Actual or positive fraud include cases of the intentional and successful employment of any cunning,, deception or artifice used to circumvent, cheat or deceive another.” 1 Story Equity Jurisprudence, 186.

Mr. Bouvier, in his Law Dictionary, says: “Positive fraud-consists in doing oneself, or causing another to do, such things-as induce the opposite party into error or retain him there.”

The widow’s ignorance, Bunyard’s cowardice and readiness to forfeit a valuable estate to save himself from hardships and danger, might be viewed with less sympathy if they had been conveying away their own individual property, and they alone-were to suffer from their stupidity or cowardice; but a court of equity cannot wink at their attempt to consume a trust fund in their hands for the benefit of persons then unable to-protect themselves.

The evidence not only shows appellant’s consent to obtain this property without consideration, other than illegal and almost worthless notes, but that he was the moving, active-agent in producing that result, fully cognizant of and party to the fraud.

The demurrer clause in the appellant’s answer, points out no specific defect in the bill.

We are of opinion the bill should have alleged that the ¡amounts of these obligations should be paid to a properly-qualified administrator, for the extinguishment of such demands as may have been legally probated, and the residue to ■he distributed among the heirs, or that all such demands had been paid, the administration closed, and that the same were ■due them as heirs.

In either event, however, the result of this suit, so far as the appellant is concerned, could not have been different; and to order a rehearing could not shorten litigation; and whether or not this is a final settlement of all the matters connected with this litigation, is of but little concern to him; it is a full and final adjustment of all his rights in the premises; and if further controversy arises between the heirs and legal representatives of Thompson, as to the distribution of the proceeds of this suit, this appellant will not be a party thereto; or in any manner liable therein; and the court below certainly has ample power to require such bond, of any commissioner appointed therein, as will well secure the proceeds until competent proof be legitimately brought before that court to show whether an .administrator or the heirs are entitled thereto, and the same paid out accordingly. And' if those liable to be involved in further litigation and costs do not complain of such defect, we ■are inclined to hold that one not affected by it cannot complain; and heneo, the appellant’s demurrer, here urged, ought not to avail him, and that the decree of the court below ought to be affirmed, with directions to that court to require a commissioner, under sufficient bond, to proceed to collect the amount decreed, with interest, and to pay the same over to such parties onhy as that court may direct.

With these directions, the decree is affirmed.

HaRRIson, J., being disqualified, did not sit in this case.

How. S. R. HaRRInotox, special Supreme Judge.


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    Hutton, adm’r. of Bogan, et al. v. Moore, adm’r.

      Equity — Pleading and practice.- — ’When tlie defendants to the original hill, by their cross-bill, take upon themselves the affirmative and submit their rights to the consciences of those originally complaining, they are compelled to abide by the responses of the original complainants, unless by more than equal evidence, they disprove such responses.
    What constitutes sale and delivery. — In the agreement for the sale of goods, when the price is to be subsequently fixed by means agreed upon, until the price is so fixed, there is no such action or contract as amounts to a perfect sale or delivery.
    Vendor’s lien — When available to assignee, etc. — When the vendor of lands neither makes nor agrees to make a conveyance, until the purchase money is paid, and the vendee’s obligations executed for the purchase money, claim upon their face, that they were executed for the specific lands, and the public records show that the vendor holds the title, the vendor’s lien is available to the assignee of the notes or obligations, as also to the vendors’ legal representatives.

      When not available. — If vendor conveys title without reservation, his lien is an individual equity, of no force, until declared by a court of equity and does not pass as a right to an assignee of the purchase money notes.

      Appeal from Phillips Circuit Court.

    Hon. John E. Bennett, Circuit Judge.

      Adams § Dixon, and Pike ‡ Pike, for appellant.
    All that is essential to the sale of a chattel at common law, is the agreement of the parties, that the property, in the subject matter, should pass from the vendor to the vendee. 1 Parsons on contracts, 519; 5th edition.

    Where the terms of the contract expressly postpone delivery,, or payment, or both, to a future day, here also the sale is valid, and no legal presumption obstructs the intention of the parties, and the property, in the chattel sold, passes immediately. In this case no earnest is necessary to bind the bargain. Id. See also note (a).

    Upon a completed sale, the property in the thing sold passes to the purchaser; one of these things implies the other; if the-property passes, it is a completed sale, and if a completed sale,, then the property passes. 1 Parsons, 525, 526.

      If the property passes, though not the right of possession, and the thing sold perish, the loss falls on the purchaser. 1 Parsons on Contracts, 526: 5th edition.

    A sale, says Sir V^illiam Blackstone “is a contract for the transfer of property from one person to another for a valuable consideration.” 2 Bl. Com., 463.

    To constitute a sale at common law, all that is necessary is the agreement of competent parties, that the property in the subject matter shall then pass from the seller to the buyer for a fixed price. Parsons Mercantile Law, J$.

    The sale is made when the agreement is made. The completion of the sale does not depend upon the delivery of the goods by the seller, nor upon the payment of the price by the buyer. By the mutual assent of the parties to the terms of the sale, the buyer acquires, at once, the property, and all the rights and liabilities of property; so that in case of any loss or depreciation of the articles purchased, the buyer will be the sufferer, as he will be the gainer by any increase in their value. Parsons Mercantile Law, J$.

      Watkins f Pose, Palmer f Sanders, for appellees.
    When anything remains to be done by the vendor, unless some mere trifling act, the property does not pass, as in Shepley v. Davis, 5 Taunton, 617; Buck v. Davis, 2 M. S. 397; Wallace v. Breeds, 13 East. 522; Simmons v. Swift, 2, B. G., 857; Ckitty’s Cont., p. 399. In this case there was clearly no delivery, nor anything approaching it, though afar off. See-Kaufman v. Stone, 25 Ark., 336; Belleer v. Block, 19, Ark., 573.

    In Fagan v. Faulkner, 5 Ark., 165, the decision was based on the same rule; as-also in Qillam v. Tawles. 15 ih., 64Jones v. Pearce, decided at the present term.
    There is no attempt to show that Bogan ever made any appropriation of any payment of these notes. If any payments were made, in default of Bogan to make the appropriation,., the creditor could make it. 2 Pars. Cont., 14,1.

      Garland Nash, for appellees.
    Payment is the only question presented in the whole case. The appellants’ pleading payment, the burden of proof was upon them, of course. Gresley Eq. Ev. 288; and this must have been established beyond any fair or reasonable question. Ib, sup., 1 Ark. 888.

    The fact that the notes or claims were in the hands of Moore’s administrators, makes a strong presumption that they were not paid. ■ 5 Ark., 558; 2 Greenleaf, Ev. sec. 516 — 86.
    The court properly excluded the depositions relative to the contract in writing. Gresley sup., 174■, k76, 195; Btarkie, Ev. 58-61, 542, et seq.; Nose Eig., 820; {20 b.) Also the deposition of Kittrel. Gould’s Dig., p. 486, sec. 6; also the deposition of Mrs. Bogan. 16 Ark., 671; 15 ib., 281.

    The payment sought to he established, if made at all, was upon a debt due Wm. P. Moore & J. T. Moore, in mercantile business, and not to J. T. Moore for the land, and could not be set off against the claim here, if proven. 4 Ark., 602; 14 Ark., 668.

    The declarations by J. E. Moore, at this late day, must he received as the weakest kind of evidence. Prater v. Frazier, 6 Eng. {11 Ark.) 249. From the depositions, every presumption is, the debt was not paid at all. Kaufman f Go. ¶. Stone, 25 Ark., 836. If the testimony is conflicting, so as to leave doubt, the court will not disturb the verdict below. Branch v. Mitchell, 24 Ark., 432.

    The minors were not necessary parties. Bogan’s administrators being entitled to hold the land, as well as its rents and profits, were the only defendants, necessary to be made. 3 Ark., 864.

   Gregg, J.

On the second day of April, 1866, the appellees filed their hill, in equity, in the Phillips circuit court, against the executor, widow and heirs of Isaac M. B.ogan, deceased, and John S. Horner and Edward D. Ragland.

They charged in the bill that, on the 14th of May, 1859, James T. Moore owned in fee the northwest quarter of section twenty-seven, in township one south, of range four east; and that, for the sum of twenty dollars per acre, he then sold the same to Isaac M. Bogan, and took his three notes therefor, each for the sum of $1,086 66|-, due respectively on the first of January, 1860, 1861 and 1862, and gave bond for title. That James T. Moore, in 1861, assigned and transferred to John D. Horner the note due the first of January, 1861; that all of said notes show upon their face that they were given for said land, and that they are wholly unpaid; that said Isaac M. Bogan and James T. Moore both died, and that lettters of ex-ecutorship and administration had been granted to parties named in this suit, and that the lands are in the possession of Ragland, as a tenant of the executor of Bogan. It is. also charged that all of said notes are liens upon said lands; that Horner is not attempting to enforce his lien, and by reason of James T. Moore’s indorsement, his estate is liable for the account. They pray that a decree may be rendered for the amount of all the notes, and that Horner may be compelled to bring in his note; that a lien be declared upon the lands for the payment of all the notes; that all equity of redemption on. the part of Bogan’s legal representatives be foreclosed, and if the money be not paid by a day certain, that the lands be sold, etc.

At the May term, 1866, of that court, Anna 8., the widow, and William F. Motley, the executor of Bogan, deceased, answered the bill.

They, admit the title, sale and purchase for the price alleged, and that the parties executed notes and a title bond, as alleged; that letters of executorship and administration were granted, as stated; that Motley, as such executor, holds the lands, and that Ragland is his lessee. They declare that they know nothing of the alleged assignment of one note to Horner, and aver if such was made, it was a fraud upon the rights of Bogan,' and ask all the ■ advantages that can be claimed against such note, etc.' They 'respond that the other two notes- are not justly in the hands of said administrator, as assets of the estate of James T. Moore, but that they properly belong to respondent, Motley, as the executor of Bogan, because he, in his lifetime, had fully paid off the same. They deny any knowledge of Horner’s interest, and‘admit that he has made no effort to establish any lien against such lands, and ask that he be held to strict proof as to the assignment, etc.

These respondents then, in a cross bill, allege that Moore, the deceased, and his father, were the merchants of Isaac M. Bogan, through whom he made all his moneyed arrangements, and that, through them, he paid off' the full amount of all of said notes — partly in cash, and the remainder in cotton; that in the fall of 1861, he delivered them one hundred and thirty-six bales, weighing eighty-two thousand seven hundred and twenty pounds, at ten cents per pound, the price agreed upon between the parties; that amounted to $8,272, out of which said James T. Moore was paid the entire balance due upon the purchase price of the lands; that Isaac M. Bogan was in the habit of leaving his valuable papers, for safe-keeping, with Moore and these notes he failed to lift when paid off. They pray that all the notes may be brought into court and canceled; that the contract be specifically performed by the complainants, and a decree that they make deeds, etc.

The complainants respond to the cross bill, that their intestate was a merchant; that Bogan dealt with him, and made most of his moneyed arrangements through his firm, but that no part of said notes was ever paid; that the mercantile firm of their intestate kept regular books, etc., and that, as shown by the books for the years 1859, 1860, 1861 and 1862, Bogan purchased of the firm over $8,000 worth of merchandise and plantation supplies, and that he paid in cash and otherwise large sums, but not equal to his purchases, by over $2,300; they admit that the Moores agreed to buy Bogan’s cotton crop in the year 1861, and they were to pay for the same ten cents per pound, if the cotton equaled a certain sample, but that they never received any part of the cotton, because none was tendered them equal to the sample.

Horner responded.to the cross bill, that he did not know as to the business done between the Moores and Bogan, but he believes nothing was ever paid on the note assigned to him. He responds that he knows nothing of such representations made by the Moores, as his co-defendants to their bill, have alleged, but that James T. Moore assigned the note to him in August, 1859, for a valuable consideration; that not over thirty days thereafter he notified Isaac M. Bogan that he held that note of his, and would look to him for its-payment; that Bo-gan admitted he owed it, and promised to pay, but did not; and about the 12th of April, 1861, he brought suit against Bogan, on the note, and had him served with process. lie charges that Bogan never did pay that note; but if he did, it was after the assignment and notice, and is not binding on him. lie offers to bring in the "note, and asks to be discharged.

Replications were entered, and the cause set for hearing, and depositions taken and read to the following effect:

Ilutton, the appellant, testified that Isaac M.Bogan, in June or July, 1861, sold the Moores all his crop of cotton, then growing, at ten cents per pound, to be delivered in Helena; that Bogan raised that year one hundred and ninety-seven bales, and delivered to the Moores one hundred and seventy-six bales of that crop (or one hundred and seventy-eight, not positive which;) that the remainder (twenty-one or nineteen bales,) were burned on Bogan’s plantation; that after Bogan had delivered fifty or sixty bales, Moore’s clerk refused to receive any more ; that Bogan, the next day, sent lor him, and told him the Moores had refused hie cotton, and they went to Helena to see the Moores, and that James T. Moore said the cotton would not sell, and for Bogan to go home and put up his cotton like a white man and send it in. He did so, and they received it. Bogan owed me $2,000, and by Moore’s consent sixteen bales were delivered me at ten cents per pound, in part payment. The cotton delivered to the Moores was to go in liquidation of ithe notes given for the land. After Bogan’s death James T. Moore told .me to send for Mrs. Bogan, that he wanted to make Bier a title to the land; that but little was between them; that if he had to pay for the twenty-one bales burned at Bogan’s, he -would owe her, but he thought he ought not to pay for what ~was not delivered; and if I would bring her in he would make her the deed; that the land had been fully paid for, and she was •entitled to the deed.

Upon cross examination he said: “I was not present when ‘the contract was made, but was when the agreement was written; the sixteen bales I received were delivered me by Riter; the order was upon him; I was on Bogan’s farm when the bales ■of cotton were sent, but do not know that the Moores received them, of my own knowledge.

Jasper Hays testified that in the fall of 1861 he was in "Moore’s store, and heard James T.f Moore say he was taking "Bogan’s cotton on the last payment for his land. "W. E. Moore i-pulled a sample out of a bale, a load being present, and said it -was not as good as we expected, but said nothing about not taking it.

Mary A- Russell testified that she heard James T. Moore, mear Christmas, 1861, say he had bought Bogan’s cotton; that they had settled with Bogan easier than he expected; that he did mot think there was more than twenty-seven or thirty-seven dollars between them, any how not exceeding fifty dollars; he had bought Bogan’s cotton, and thought he would loose largely on fit.

M. B. Kittrell testified that in the spring of 1861 he bought ‘two sections of land of Bogan, and deposited his deeds at Helena in Moore’s safe, and Moore said he was surprised that Bogan had made him the deed, as he was the most careless man he ever saw; that he had sold him the place on which he lived, two or three years before, and that Bogan had paid him the purchase money, or nearly all of it, and he did not have •tie scratch of a pen to show for what he had paid. These' statements were made by Moore in February, 1861.

Anna S. Bogan testified that in the summer of 1864, James, T. Moore, in Helena, told her that he wanted her to come in town that he might make her a deed for the land; that it was paid for, and he wanted her satisfied; that he was willing to* pay for all the cotton he had received, but did not think h& ought to pay for the nineteen bales burned on Bogan’s farm.

For the original complainants, Bumpass testified .that he» was clerk for the Moores in 1859, 1860, 1861, and until they’ quit business in 1862;. that in the fall or winter of 1861 the-Moores bought Bogan’s cotton by sample; the sample was-placed in witness’ care and classed as middling; they were to give ten cents per pound, to be delivered as picked, and to correspond with the sample; that witness was to inspect and weigh, and to report to Moores if the cotton brought in did not come up to the sample; two or three loads came up to sample; after that it was nothing like the sample; that, he quit weighing, and Bogan came in and canceled the trade, so far as. the ten cents per pound was connected with it; they then, agreed to leave the matter to disinterested persons, and the-rate was to compare with middling at ten cents per pound;, that the cotton was very inferior ordinary; over one hundred bales were delivered; did not know the number; that he frequently heard James T. Moore tell Bogan he did not claim the-cotton, and would not receive it until he brought in referees as. agreed upon; this was after the cotton had been stored in Burton’s shed; all cotton sent to Moores at Helena was stored there,, whether owned by them or stored for customers, and the. Moores were responsible for storage.-

Manier testified that he was employed by Moores as bookkeeper, from December, 1861 to June, 1862; the books showed that Bogan was indebted to the Moores, and he heard conversations between them to the same effect; he drew off Bogan’a-account, and gave it to him, and he never heard any objections, to it; the accounts were kept correctly; Moores agreed to takes. cotton from Bogan, of a certain-grade and at a stipulated price, but he thinks the Moores did not receive the cotton; that it was stored at Burton’s shed, but he does not know by whose order.

Tappau testified that in the spring of 1861 he filled up the-indorsement on the note transferred to Horner, and as an attorney brought suit on it, etc.

Cage testified that in the spring of 1862, Bogan and Moore came to him and stated that Bogan had sold his cotton crop to Moores and it did not come up to sample, and they wished arbitrators to determine how much it was worth, compared with middling, at an agreed price; that Bogan said his cotton did not come up to his contract, but it was the best he could do, and Moores wore willing to receive it at what it was worth; he declined to act as arbitrator, and did not know whether or not they settled.

Righter testified that this cotton staid in his warehouse, and he understood, from Moores and Bogan, that Moores had bought the cotton; it was to be of a certain class and'price, and they differed about the class, and Moores would not receive a portion of it, and he was appealed to to examine and class the cotton, and he did so, and classed it from inferior to middling'; a number of bales were not above good ordinary, and the cotton was rejected by Moores; that Bogan offered to sell the cotton to him, and he thought he purchased some of it, but if so, did not remember to whom he paid the money; that Bogan repeatedly- offered to sell him the cotton; some of the cotton in witness’ care was burned by the Confederate authorities; but his books were destroyed by soldiers, and he did not know what became of this particular lot of cotton.

"Weatherly and Cage prove the handwriting of Jamos T. Moore and Bogan to a written agreement -dated November 6, 1861, produced, in which it was said Moores have this day bought Bogan’s cotton croj) for 1861, at ten cents per pound, but to be delivered as fast as gathered, in good order and in good merchantable condition, etc.

Richard Cook testified that in the spring of 1865 he heard Moore tell Bogan he would not receive his cotton at the price agreed upon, etc.

" James Cook testified that he heard old man Moore tell Bo-gan that his son James would not receive the cotton on his note, hut they would take it on store account at nine cents, etc ; that he examined this cotton; it was low middling, badly 'handled, etc.

The court below ruled out the evidence of Anna S. Bogan and Kittrell, and also oral statements as to the terms of the contract.

Upon the final hearing, the court found for the original complainants; decreed that the notes be paid, and declared the sums due a lien upon the lands, and ordered them sold if payment was not made by a day named; from which decree this appeal was 'taken.

Under the issues made up in this cause thedefendants to the original bill assumed the burden of proof; Ihey canceled the bargain and sale upon the terms alleged; the execution of the notes; and that they are still held by the legal representatives of the payee. This entitled the complainants to a decree. And, to rebut the presumption thus raised against the defendants, they allege that the notes ■ were paid off, but by accident or misplaced confidence, left in the payee’s possession. The question therefore is, whether or not the defendants have shown payment.

In their cross-bill they call upon complainants to answer, who respond that such payment was not made; that the large sums, by them received, were not equal to the goods and supplies sold deceased; and these responses they attempt to fortify by their clerk, book-keeper, etc.

The defendants neither confessed or denied the purchase of the goods or plantation supplies, only they state that their testator was to pay $1,556 *75 for rent, corn, stock, and farming implements; but they allege he paid the Moores large sums of money, amounting to about $15,200, besides his whole cotton crop for the year 1861, which was worth over $8,000. They seem, however, to have failed to introduce any proof of these payments, except general admissions made by James T. Moore, in his lifetime, and those -mostly in reference to the .cotton crop of 1861.

If, as alleged, large sums of money were paid the Moores by Sims, by Hill, and by the Memphis bank, as well as by Bogan himself, it seems strange that neither receipts or witnesses could he found to certify to any of these payments.

If we should admit the depositions that the court below,, under the practice then, excluded, we would have Hutton, Haynes, Kittrell, Anna S. Bogan, and Mrs. Russell testifying that James T. Moore, in his lifetime, admitted that he bought Bogan’s cotton crop in 1861, and that Bogan had paid off, or nearly paid off', all that he owed him.

Yet this could not prevail over the answers and strong proofs of the complainants.

Proof of oral admissions, especially when gathered from .casual hearing of varied conversations, interrupted by business and social engagements, is far from being the most satisfactory evidence. Under such circumstances witnesses may misunderstand the language, or more likely misinterjiret the meaning of those speaking.

In this case some of these witnesses assert quite positively that James T. Moore, declared he had been paid the full amount of all these notes; yet, take the whole testimony together, and it is to some extent inconsistent in itself, and with our business, experience. Hutton testified that the Moores bought the cotton in June or July. The written contract shows that it was made the 6th of Uovember.

Kittrell testified that in February, 1861, Moore told him that Bogan had bought the land two or three years before, and had paid for it, but had not the scratch of a pen to show for it. And it seems that Kittrell would have remembered the time of this conversation, as he had bought two sections of land, and was then talcing the deed for that, and was quite a distance from home, etc.

Hutton testified that Moore told him he wanted Anna S. Bogan to come to town; that he wanted to make her a deed to the land; and she testified that he told her, in Helena, that he wanted her to come in, that he wanted to make the deed to her. No reason is giren why the deed was not then made; and if Moore was such a practical business man, as the evidence shows him to have been, he well knew that the deed could as well be made in her absence as with her present; and, so far as giving her satisfaction, she could not have been other than satisfied to have had the land conveyed to her; and there certainly could have been no good reason for having her again eome to Helena, or having her and Hutton come together, merely to receive a deed; and if Moore expressed a desire to see her satisfied in the settlement, it would strongly imply that ho held some claims against the estate that might be unsatisfactory to her.

Again, if Moore, with his general business information, had been going to make a deed for those lands, would he not likely have named the other legatees, who were alike interested in that estate?

It is true that slight variations from ordinary business transactions often appear in testimony, and contradictions as to time, distance, etc., when not directly material to the issue, may elicit comment and require the close attention of the court or jury, and yet not destroy the force of the evidence. The importance of such discrepancies depends much upon their materiality upon the issue made up, upon their connection with ether facts, upon the means of the witness’ information, and such circumstances as tend to show whether the discrepancies arise from want of attention or from intentional misrepresentation. *

To rebut the proof introduced by the defendants, the complainants proved by. the book-keeper and clerk of that mercantile firm, that correct accounts were kept; that Bogan waft over $2,000 in arrears, without reference to the land transaction; that Bogan received his account and made no objection to it; that the cotton crop of 1861 was not received; and this is corroborated by Gage, Righter and Cook. They show that Bogan and the Moores had not settled as late as tlie spring of 1862; and by others, it is shown that Bogan knew Horner had one of his notes, and he did not pay it.

The testimony strongly tends to show that Bogan and the Moores, in the Spring of 1862, had not agreed as to the transfer of the cotton, and, consequently, the property must have been in the original proprietor. The testimony also tends strongly "to the conclusion that the first agreement between ■the parties failed to ripen into an' executed contract, because such cotton as was contracted for was not delivered, and an-1 other agreement was had to take cotton of a different grade, and at a different price, to be fixed by referees, who failed to act.

Then, if the first agreement was not carried into effect, or ; was by consent rescinded, and another and different understanding had to the effect that the Moores should take the cotton when the price, by the means agreed upon, had been fixed, until that was done there was no such action or contract as amounted to a pefected sale and delivery.

This court, through Justice HaRRISON, in the case of Jones et al v. Pearce, Ark., 545, referred to authorities and commented upon the law of sale and delivery, and we refer thereto for authorities and a more full exposition of this subject.

In this transaction the Moores were acting as the merchants and agents of Bogan, and at the same time attempting to deal with him for the cotton, and to this extent were acting in a double capacity; and without considering this fact, we might, at first glance, suppose the evidence sufficient to constitute a delivery of the, cotton and the passing of title, with such action to be had as would ascertain the amount to be paid; but as it is shown the Moores were the merchants of Bogan, through whom he was accustomed to do such business, and the cotton was stored in tlie shod of Burton or Righter, where ■cotton belonging to Moores’ customers, as well as their own, was stored by their direction, tends to show that they were receiving that cotton for .Bogan, and in the ordinary course of business, as his merchants or agents; and this, taken in connection with what seems to be well established facts, that after the rescinding of the first contract, Bogan disposed of some of the cotton in payment of other debts, and frequently tried to agree upon terms by which the Moores would take it on his indebtedness to them, and repeatedly offered to sell to others, •and the cotton remained in the custody of the warehouseman •until it was finally lost, we think makes it sufficiently clear that the cotton, so far as it was controlled by the Moores, was under their ordei’s as Bogan’s merchants, and for his use, and not in their possession as their own property under a purchase from Bogan. At all events, as the burden of proof was on the representatives of Bogan, the evidence is not sufficient to disturb the finding of the chancellor.

Upon the proof, the finding of the Chancellor in favor of the complaints, in our opinion, was right, and this is the more ■clear in view of the fact that the defendants took the affima-ative and submitted their rights to the consciences of those originally complaining, by whose response the law compels them to abide, unless by more than equal evidence they disprove such responses.

We are therefore clearly of the opinion there was no error in the finding of the facts by the court below.

We are also of opiniou that the Chancellor did not err in ■declaring a vendor’s lien upon the lands, and that they bo held subject to the payment of all the notes and interest thereon.

Moore sold Bogan the lands, but neither made or agreed to make any deed of conveyance until the purchase price should be paid; and Bogan, in executing his obligations for the purchase price, showed upon their face that they were executed for the specific lands in litigation, which might have given them better circulation as negotiable paper, and the public records showed that Moore. held the title of the land, which gave him a lien at least equal to a mortgage; and, under this-state of case, we hold the vendor’s lien was available to Horner as well as Moore’s representatives.

In some of the States the courts have holden that a vendor’s equitable lien passes by the mere assignment of the notes-given for the purchase money. Kerr v. Hazelliegg, 11 Ind., 443; Moore v. Raymond, 15 Texas, 554; Norville v. Johnson, 5 Hump., 489; Johnson v. Gwathmey, 4 Litt., 317.

The better opinion is, that when a vendor conveys title without reservation, his lien is an individual equity of no force-until declared by a court of equity, and does not pass as a right to an assignee of the’purchase money notes. 18 Ark., 142; 20 Miss., 165; 14 Ga., 216; 3 Yerg., 27; 9 Ga., 86; 32 Ill., 524.

In this case the vendor withheld the title of the lands, and •took notes showing upon their face for what lands they were given. See Lewis v. Coralland, 21 Cal., 178; Terry v. George, 37 Miss., 539; Murray v. Able, 19 Texas, 219; McAlpin v. Bennett, 19 Texas, 497; Amory v. Riley, 9 Ind., 490; Haley v. Bennett, 5 Porter, 452; Brisco v. Bronaugh, 1 Texas, 326; Clover v. Rawlings, 9 S. and M., 122; Stratton v. Gould, 40 Miss., 777; Brumfield v. Palmer, 7 Blackf., 230; 7 Ala., 318; 9 Hump., 508; 3 Yerg., 84.

The decree of the court below is in all things affirmed with costs.

Bennett, J. did not sit in this case.

Hon. S. R. HaRRInuton, Special Supreme Judge.


author: (3-Regg, J.

text:
    Bogan’s Adm’r. v. Otey, et al.

      Appeal from Phillips Circuit Court.

    Hon. John T. Bennett, Circuit Judge.

      Adams f Dixon and Pike f Pike, for appellant.

      Palmer $ Sanders, Watkins f Pose and Garland f Nash, for appellees.
   (3-Regg, J.

All the questions presented in this case have been determined in the case of these appellants against W. E. & C. L. Moore, as administrators of James T. Moore, dec’d.

The decree of the court below is affirmed.

Bennett, J. did not sit in this case.

Hon. S. R. HaRRINGTON, Special Supreme Judge.


author: HaRRikgton, Special Judge.

text:
    Bumpass & Hicks v. Taggart.

      Evidence — When presumed legal. — Wlierc tlie record shows nothing to the contrary, it must, ho presumed that the evidence received by the court below was legal.

      Dbeauit — Admits truth of allegations — Where the defendant has been duly notified and makes no answer, he thereby admits the truth of the allegations in the declaration.
    Hote may be stamped aster suit commenced. — A note not .stamped in accordance with the stamp act, does not thereby become void or invalidated, but may bo stamped, oven after suit commenced, to the satisfaction of the court.
    Stamp Act — Row construed — While Congress has the power to prescribe evidence, and especially what shall be instruments of evidence in the Federal courts, it is powerless to proscribe them for State courts, and the act of Congress of June 80, 1864, known as the “stamp act,” is not to bo so construed.

      Pahtneiis — Suit against — requisite of pleadings. — In declaration on promissory note, signed by defendants, by their firm name, it is sufficient to allege that they made the note, without stating that they were partners or sotting forth in the body of the declaration, the manner or style in, which they executed the note. ,

      Appeal from Phillips Circuit Court.

    Host. John E. Bennett, Circuit Judge.

      Palmer Sanders, for appellants.
    Before tlie note could have been offered as evidence in a court of law, it should have be&n stamped with the proper amount. Dorris v. Gfrace, Ark. §26. There is a fatal variance between the note sued on and the one offered in evidence. See notes to Ky. Code, page 1 Mete. 839, ib. 4$0. There is an entire failure of proof as to John H. Hicks. Notes io Ky. Code, p. J$b., g. g. et seg; Gasper v. Adams, 28 Barb.

      Clark $ Williams, for appellee.
    That it was not necessary to allege the partnership in order to connect Hides with the note (it being signed in the firm 5 name of O. M. Bumpass & Co.) See Sweeney v. Burnside, 17-38. Iroxcbridcje v. Pilcher, í-157; Kent v. Wells, 21-JB-

   HaRRikgton, Special Judge.

This is a case brought by Edward R. Taggart, plaintiff in the court below, against Creed M. Bumpass and John H. Iiicks, upon a promissory note.

The complaint is as follows:

“Edward R. Taggart, plaintiff, vs. Creed M. Bumpass and John H. Hicks, defendants.
Phillips circuit court. Complaint at law.
“The plaintiff, Edward R. Taggart, states that the defendants, Creed M. Bumpass and John II. Hicks, by their promissory note, dated July 3,1869, agreed to pay to the plaintiff one thousand and eighty-eight dollars, on or before the first day of J muary next after said date; which note is herewith filed and made a part of this complaint. No part of said debt has been paid; wherefore ho prays judgment for his debt and for other relief.”

The note filed therewith is in the following words:

“Helena, Aek., July 3, 1869.
“On or before the first day of January next we promise to pay to the order of E. R. Taggart one thousand and eighty - eight dollars for value received.
“O. M. BUMPASS & CO.”

This action was commenced on the 7th day of May, 1870, and on the same day an affidavit was made by the attorney for plaintiff, and filed in the case, setting forth that he believed there was no good and valid defense to said action upon the merits of the case, and that, if a defense was made, it would be for delay merely. Service was duly made on each of said defendants, and, no answer being made, judgment was given the plaintiff.

An appeal, with supersedeas, was granted by this court, and the appellants now ask that said judgment be reversed, and allege as grounds therefor:

First. That the note sued on and offered in evidence was not stamped, as required by law.

Second. That the note described in the complaint is not the instrument exhibited therewith.

■ As no answer was made in this case, in the court below, no ruling of that court can properly be before us, unless it fall under the maxim that “all acts of an inferior court are presumed to be rightly done, in a superior court;” and. as the record shows nothing to the contrary, it must he presumed that the evidence of indebtedness received by the court below was legal evidence.

Resides, notice was duly given the defendants, and no answer made; thereby the. defendants admitted the truth of the allegations contained in the declaration. See 12 Ark. 599, and authorities there cited.

Or, if the note were sufficiently stamped, or without stamp, it would not thereby become void, but could, even after suit had been commenced thereon, have been stamped to the satisfaction of the law. See 24 Ark. 326 — and our statute expressly declares “that no judgment will be reversed, impaired or affected for any defect of form contained in the record, pleadings, process, entries,returns, or other proceedings therein, which by law might be amended by' the court in which such judgment was rendered; but such defects and imperfections shall be supplied and amended by the Supreme Court, or shall be deemed to have been supplied and amended.” See Gould’s Digest, chapter 134, section 36.

Again, no instrument of writing is subject to the invalidating effect of the stamp act, unless the stamp was omitted “with intent to evade the provisions of this act.” Act of Congress, June 30, 1864, section 158. And, in order to defeat a recovery on an unstamped note, it must appear not only that the note is unstamped, but that the stamp has been fraudulently omitted. 34 Cal., 167; 10 Allen, 250, and 47 Barbour, 187.

But tbe case before us.does not require us to go to the extent we have already gone, in sustaining the court below in giving judgment for the plaintiff. Yet, another question presents itself, involving a closer consideration of the law itself — the act of Congress of June 30, 1864, entitled “An act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes,” and especially section —, which provides “that hereafter no deed, instrument, document, writing or paper required by law to be stamped, which has been signed or issued without being duly stamped, or a deficient stamp, nor any copy thereof, shall be recorded, or admitted, or used as evidence in any court, until a legal stamp or stamps, denoting the amount of tax, shall have been affixed thereto as prescribed by law.”

Does this refer to State courts?

This law was placed upon our books in the time of the nation’s need and the nation’s haste, and so willing were the people at the time to provide the revenue to support the government, that courts, under the pressure of public sentiment, may not have well considered the statutes, and have given it a more liberal interpretation than Congress ever intended it to have, for we cannot presume that Congress intended to do what was clearly unwarranted by the constitution of the United States.

The object of this act is to raise money to support the government, and for this purpose vast powers were granted by the States, in forming the constitution of the United States, to the Congress established by it; but all powers not delegated to the United States by the constitution, nor prohibited by it to the States, were reserved to the States respectively, or to the people.

The character of our government, somewhat complex, is fitly expressed in the motto on the seal of the United States — “H7 pluribus anum.” It is one government composed of many governments. Each government must be, and is, equally sovereign within its sphere, and Congress is just as much bound to respect and not to impede the free exercise, by the States of their retained rights, as States are to respect and to not impede the free exercise by the federal government, of all her delegated rights. See, on this subject, the very able opinion of Chief Justice MARSHALL, in McCulloch v. State of Maryland, 4 Wheaton, 316.

"While, then, the power to levy taxes, for the purposes indicated in the constitution, may be admitted, it cannot be admitted that it can be so exercised as take, from the domain of State legislation, such subjects as are properly and naturally confided to it, and the care of which has not been surrendered to Congress by the States.

The court, whose action we are reviewing, was created by the State, and is maintained by the State, and created and maintained by those rights and powers inherent and reserved to the States, and in no manner prohibited by the federal constitution. To this court, the laws of the State are supreme rules of action. Can Congress, then, come into this court and change her rules of action? In other words, can Congress declare what instrument shall be or shall not be evidence in a State court, in a case therein pending, growing entirely out of a domestic transaction, and which the laws of the State declare shall be evidence?

We do not think it inquires any argument to prove that Congress, under the constitution,has no such power, and under pretense of levying taxes, caiinot so direct that power as to enter into a State court, and take from it the powers with which the State laws have vested it.

The Supreme Court of Illinois, in Craig v. Dimock, said: “ To hold that Congress, in the exercise of the taxing power, can enter into State courts and prescribe what shall be evidence therein, is so revolting to all our notions of federal and State powers as to compel us to refuse to yield acquiescence in such a doctrine. By admitting it, the power and sovereignty of the State over legitimate subjects of State power and sovereignty, is at once annihilated.” 47 Ill., 308, also, 38 Ill., 343 and 349.

And the Supreme Court of Massachusetts, in Carpenter v. Snelling, said: “We are sot aware that this power” (referring to the application of this law to State courts) “has ever been judicially sanctioned.” There are numerous and weighty arguments against its existence, and we cannot hold that there was an intention to exercise it; whereas, in the provision now under consideration, the language is fairly susceptible of a meaning, which will give it full operation and effect within the recognized scope of the constitutional authority of Congress.’’ 97 Mass., 457.

W e will not deny the power of Congress to require such’ instruments to be stamped, nor the consequent power to punish by fine, intentional evasion of the law.

By conceding this, we yield all that is necessary to enable the Government to carry into full effect the taxing power, and at the same time sustain and uphold, in its utmost limit, the exclusive power of the State to say what shall be evidence in her own courts of justice, in a domestic transaction wholly unconnected in every respect with the General Government.

It is not questioned that Congress has power to prescribe evidence, and especially what shall be instruments of evidence, in the Federal courts, but it is powerless to prescribe them for State courts.

Since, then, the act does, in terms, prescribe such rules to State courts, we must conclude that the provisions of the act were only intended to apply to Federal courts; for we can not, by implication, hold that the intention of Congress was to invade the jurisdiction of the State in the administration of justice between her citizens.

The second ground urged by the appellant for reversing the judgment, is that the note described in the complaint is not the instrument exhibited.

The complaint sets forth that Creed M. Bumpass and John H. Hicks, by their promissory note, agreed to pay, etc., said note, filed herewith, etc. And the note filed agrees in every particular — date, terms and amount — with, the declaration, except it is signed “C. M. Bumpass & Co.”

No plea of non assumpsit, or other, has been made by the defendants; neither is it claimed nor alléged that Creed M. Bumpass and John II. Hicks are not the copartners, C. M. Bumpass & Co. And the practice is well settled that it -is sufficient, in a declaration upon a promissory note, signed by the •defendants by their name, to allege that they made the note, without stating that they were partners, or setting forth in the body of the declaration the manner or style in which they executed the note. See 17 Ark., 38; 4 Ark., 157, and 21 Ark., 411.

The appellee claims that the proceedings have all been regular, and according to law, and, by his attorney, indorses upon the record that he has carefully examined the case, and believes that the appeal is prosecuted for the purpose of delay merely.

Thereupon he moves the court to affirm the. judgment with ten per cent, damages, as a delay case.

And the court, having examined the record, and finding no error in the proceedings, are of opinion that the appeal was prosecuted for delay merely.

Judgment is affirmed.

BeNNEtt, J. did not sit in this case.

HoN. S. R. HaREIN&toN Special Supreme Judge.


author: GliESU, J.‘

text:
    King v. Caldwell.

      Peactice — Amendments—Under section 8, Code of Civil Practice, it is competent for the court to substitute a several for a joint cause of action— make changes of parties — insert allegations necessary to a full and fair investigation of the merits, and no objections to such amendments will avail a litigant, unless such changes have misled a party to his prejudice, and not then, unless the party misled, show to the court in what respect he has been misled or prejudiced.

      DISCONTINUANCE — Beeord should be amended. — Whore several defendants are jointly sued, the action may be discontinued as to all but one, and prosecuted as to that one, on the joint action — but if the plaintiff wish to proceed as in a single action against that defendant, the record should be so amended.

      Defendant — Untitled to benefit of joint plea. — Wliere the action is prosecuted against the remaining defendant, on the joint cause of action, it is error in the court to refuse him the benefit of the joint plea and to give instructions which cut off his defense under it.

      ’Veudiot — Not disturbed if defendant had all his defense. — When there aro several counts and the pleas have been abandoned as to one, it is incorrect for the jury to return a verdict on more than one issue; but if the evidence offered by defendant would have only defeated the first .count and the others would not have thereby been affected, and he had the full benefit of all his defense, and the plaintiff was entitled to recover under the testimony on the other counts — the verdict will not be disturbed.

      Dismissal — Error in, how made available. — Error in refusing to dismiss as to some defendants and in permitting the record to be amended after jury sworn, will not avail, unless asked for by the defendant in the court below.

      Appeal from Pope Circuit Court.

    IIoN. W. N. May, Circuit .Judge.

      Gallagher, Newton $ Hempstead, for appellant.
    The rule is well settled, in this State, that in actions ex-con-tractu, a dismissal as to one defendant served with process, is a •dismissal as to all. Frazier v. State Hank, 4, Ark. 509; Hehee v. R. H. Hank, 4 Ark. 54-6-, Sillivantv. Reardon, 5 Ark. 540; Ashley v. Hyde, 1 Eng. 93; Pleasant v. State Bank; 3 Eng. 456; Pinjoy v. Hill, 18 Ark. 361.

    The plea of non-assumpsit sworn to putin issue the execution of the instrument sued on, and the court should have allowed evidence going to show that it was a forgery; Gould’s Dig. p. 86, sees. 103, 105; McCollum v. Gushing, 33 Ark. 544-

    The instrument sued on was of a two-fold character; that of a receipt aud a promise to pay. Receipts are always susceptible of explanation or contradiction by parol evidence. Hum-phries v. McGraw, 5 Ark. 61; H. E. Bank v. Reardon, 5 Ark. 558; Burton v. Merrick, 31 Ark. §57; 3 Pars, on Cont. 68.

    The first instruction of the appellee was erroneous, as it withheld from the jury any inquiry as to damages to King by appellee’s breach of the contract. King’s special plea being in substance, if not technically, a plea of recoupment. Davis v. Calvert, 17 Ark. 85; Desha v. Robinson, 17 Ark. 888; Wheat v. Dotson, 7 Dng. 699; Smith v. Gapers, 8 Dng. 9.

      Clark ^ Williams, for appellee.
    The plaintiff’s only remedy, before the adoption of the Code, was to dismiss and bring a new action. Could he under the Code accomplish this, by a change of proceedings, without going out of court? We submit that it was competent to do so. See Code of Civil Practice, sec. 155. The plaintiff* should have amended the declaration, so as to show that the contract was a separate one, made by defendant King — but was it error in not doing it? And if it was, has not the defendant waived it by his subsequent proceedings? The record shows that he did, by his subsequent pleas of failure of consideration and non-assumpsit, wherein he treated the contract as separate and made by defendant, King. And the testimony on the trial adduced, was adapted to the contract, as a separate contract; and not having required the declaration to be amended so as to adapt it to such proof, he cannot object to the variance for the first time in this court. See Code of Civil Practice, sec. 150.

    There is no conflict in the testimony to sustain the verdict and judgment under these common counts, and the judgment is right on. the whole record. Davis v. Gibson, 8 Ark. 115; Payne v. D rutón, 10 ib. 54; Sweepser v. Gaines, 19 ib. 96; Walker v. Wal-Jcer, 7 ib. 5f3.

   GliESU, J.‘

On the 7th of August, 1867, the appellee filed his declaration in assumpsit, in the Pope circuit court, against the appellant, Daniel Ilarkey and James ‘Williamson, founded upon an instrument in writing, signed G-. E. King, in which the receipt of thirty bales of cotton was acknowledged, and a promise to pay ten cents per pound for the same. The declaration also contained common counts for cotton sold etc., and alleged that the three, jointly, undertook and promised in the name and style' of G-. E. King. At the October term, 1868, the defendants all appeared, craved oyer of the instrument sued-on, and finally plead non-assumpsit and non est factum.

On the 2d of April, 1869, the plea of non est factum was, by the court, stricken from the files and the plaintiff, in short, entered his replication to the plea of non-assumpsit; and in the same record entry, it appears that on the plaintiff’s motion, the cause was discontinued as to the defendants, Daniel C. Harkey and James Williamson, and it was ordered that “they go hence without day,” and thereupon the defendant, King, filed a separate plea of failure of consideration, to which replication was entered, a jury was called, who found the issues for the plaintiff, and assessed his damages at $733 ff0-.

The defendant moved for a new trial, upon the ground that the court refused to dismiss the suit as to him, when a discontinuance was taken as to his co-defendants; that the court excluded competent testimony; that the court improperly gave the plaintiff’s instructions and refused the defendant’s instructions ; that the plaintiff was allowed to answer his pleadings after the jury was summoned; that the verdict was contrary to evidence.

The court overruled the motion, and the defendant prayed an appeal. The defendant filed his bill of exceptions, in which he set out the evidence and instructions, and his exceptions to the rulings of the court.

Changes in parties and the substitution of a sevez’al instead of a joint cause of action, after the parties had all appeard in court azid plead, formerly could not be allowed; but chapter eight, of the Civil Code of Practice, requires the court, in which the trial is had, to allow any and all changes in parties, or the insertion of different allegations, necessary to a full and fair investigation, upon the merits of the matter in controversy between the parties, and no exception taken to the allowing of such changes or amendments can avail any adverse litigant, unless such changes or amendments have misled that party to his prejudice, and then that fact must be shown to the lower-court and the party misled must show in what respect he has been misled and prejudiced. See Code of Civil Practice of Ark., p. 60.

We seldom find a record which exhibits more carelessness on the part of attorneys, or irregularities in the proceedings of a court, than appears in this. ‘When the plaintiff determined to abandon his suit as to Harlcey aud Williamson, and treat the matter as a separate transaction with King, which, from the various steps taken, wo must suppose he proposed doing, he should have so amended his declaration and other proceedings, as to have conformed them - to the new state of case.

If his action had been well brought, and he saw fit to discharge two of the defendants from responsibility, he might have dismissed such two, and continued proceedings upon a joint cause of action, against one defendant- only. If, however, the plaintiff wished to proceed against a single defendant, upon an individual cause of action, his record should have been amended.

In this case, from the time of the discontinuance as to Ilark-ey and Williamson, other than the filing of a separate plea by King, there was no step taken to conform the l’ecord to a proceeding against him in a several action; however, it seems the court and plaintiff’s counsel treated the case as an action against King alone, but as the record stood upon the trial, it was certainly erroneous for the court to refuse to allow King the benefit of his joint plea of non-assumpsit, and so far as his defense went to the first count in the declaration, wherein the-plaintiff had declared upon a written promise, the court re~ fused to recognize the idea, and allowed evidence and gave instructions, which cut off that defense.

Notwithstanding this plea was by the plaintiff’s counsel and the court treated as abandoned, they had the jury to return a verdict on more than one issue, wdiich was manifestly incorrect, if only one plea and issue was before the court; but if the evidence, offered by the defendant, had been received and had fully established all he proposed to, it would only have defeated, the plaintiff’s recovery on the first count, the others would not have been affected thereby, and as to them, he had the full benefit of all the defense he was able to make; and taking his own testimony, in connection with that of the plaintiff and his witnesses, the plaintiff was entitled to recover, on the common counts. There was no conflict in the evidence on but one material point, and as to that, the jury seemed to have no difficulty in forming a conclusion. If permitting the record to be amended after the jury was sworn, as alleged, or the refusal to dismiss King, after Harvey and "Williamson had been dismissed, had been error, it could avail the defendant nothing, because the record does not show that he ever asked to be discharged, nor that such amendment was ever asked for, or made. Notwithstanding the errors alluded to, upon the whole record, as it appears before us, the finding and j udgment is right, and in accordance with the former rulings of this court. It is affirmed with costs. Sweepser v. Gaines, 19 Ark., 96; Payne v. Bruton, 10 Ark , 84, and other cases.


author: GrREGG, J.

text:
    Marr, et al. v. The State.
    Fom’EITBD Recognizance — Practice on. — Errors in tlie recitals of a writ or scire facias, on forfeited recognizance, are amendable on motion to quash, in the court below, and unless such motion is made, it will not avail hero.
    The proper practice on forfeited recognizance, is to take an interlocutory judgment, and issue a scire facias thereon, though a mere default may be entered, and a scire facias issued, requiring the delinquents to show cause why a judgment should not be entered.
    Where the proper interlocutory judgment was taken in the first instance, the later judgment should only declare the former final, and order execution.

      Appeal from Scott Circuit Court.

    IIoN. E. D. Ham, Circuit Judge.

      Clark 8g Williams, for appellants.
    . We submit: That tlie instrument entered into before the sheriff, was not a recognizance, but simply a bond, and that no forfeiture could be had, nor could a scire facias issue upon it: Hicks v. The State; and if it were a recognizance, it is not in the form prescribed by the statute. See Gould’s Digest JfiO, chap. 52, sees. 59, 60; nor was it acknowledged, 5 Jacobs, S98; 2 Saund. Id. p 8 i n (<§.) It was not a record, and could not be a recognizance. See Hicks v. State 3 Ark., 313; Gray v. The State 5 Ark., 266; Stale v. Williams, 17 Ark., 371; Tidd’s Practice, 984; Long v. 7he State, 3; Jb 289; JBlachf 808.

    The judgment is erroneous on the face of the scire facias; the party was bound to appear on the 5th Monday in August, 1868 ; whereas, the scire facias alleges that he failed to keep the recognizance, by failing to appear on the 5th Monday after the 4th Monday in August, 1868. See Acts of 1860-61, p 378; the recitals were therefore void; Thurston v. Commonwealth 3, Dana 224; Commonwealth v. Crayhorn 2, Dana 138; Carlies v. Waddle 1, Barb. 855; Butler v. The State of Miss. 12, S. M. 470; Commonwealth v. Bolton 1, Serg’t Tl 328; State v. Sali-van 3, Yerg. 281. '

    The judgment should have been affirmative of the judgment upon the forfeiture, and not generally against the securities. Dangerfield v. Ihe State, 4 How. Miss. 658 ; Johnston v. State 8 Ark. 524; Davis v. Commonwealth, 4 Monroe, 118; Pinkard v. The People 1, Scam. 187. .

      Montgomery, Attorney General, for appellee.
   GrREGG, J.

It appears from the record that a capias issued upon an indictment, filed in tbe Scott circuit court, against Allen Marr, for arson, upon which he was arrested by the sheriff of said county, and to procure his release from custody, he, his co-appellants and William C. Gibson, on the 25th of July, 1368, entered into a recognizance, bound in the sum of one thousand dollars, reciting therein, his arrest upon a capias, the charge against him, that he was to appear before the judge of said court, at the court house in said county, on the 5th Monday after the 4-th Monday in August, 1868, and then and there answer to an indictment pending against him for arson; and conditioned that if he should so appear on the first day of said court, at the time and place aforesaid, and answer said charge, and not depart the court without leave, the bond to he void.

At the next regular term, in October, 1868, the defendant, Allen Marr, ivas called and failed to appear, and his securities above named (except J. A. Marr, omitted) were called to produce him in court, and they also made default, whereupon the court adjudged the recognizance forfeited and that the State recover of the defendants called, the’sum of one thousand dollars ; upon this a scire facias was issued against all the obligors; service was had on all but William C. Gibson ; at the next term of the court a discontinuance was taken as to him. The defendant, Hough, then appeared in court, and filed a motion to quash the recognizance. First, because the capias was made returnable on a day when the court was not authorized to sit. Second, because said Allen Marr, by the- recognizance, was bound to appear on the 5th Monday after the 4th Monday in August, 1868, when, by law, the court could not be h'olden on that day. Third,, because there was no law authorizing said sheriff to take a recognizance at the time they entered into this one.

This motion was, by the court, considered and overruled, and exceptions taken thereto; no further pleadings were interposed, and on motion of the prosecuting attorney, the court rendered judgment, for the amount of the recognizance, against all.the defendants, except Gibson, as to whom a discontinuance had been taken, to which the defendants excepted and appealed to this court.

When the capias had been served, and Marr had entered into recognizance for his appearance, and the writ returned, it had fulfilled its office, and whether all the recitals in it, or the scire facias were correct or not, was not then material. If they had been erroneous and material, the writs could have been amended by the court. So the first ground, assigned for quashing the recognizance, was not well taken.

The second ground assigned amounts to nothing. The counsel, for appellants, here admit that the fifth Monday after the fourth Monday in August was the proper time for holding the court.

The third was as groundless as the second, because the statute law, in such eases, expressly authorizes the sheriff to take such recognizance.

The counsel here submit, that Allen Marr, being required to be before the court on the 5th Monday in August, 1868, is fatal. It is only necessary to say that this misprision was in the scire facias only. The scire facias was amendable, had a motion to quash it been made in the court below; as no such motion was made there, it cannot be heard here, and the recognizance, as appears in the record, recites the correct dates, and the obli-gors thereon, are estopped from going behind it. It is further urged that the failure to render a judgment against J. A. Marr, before the issuance of the scire facias, is fatal to the final judgment. The practice in this State has not been uniform, but the better practice is, to take the forfeiture, and at the same time an interlocutory judgment, as directed by statute, and to issue a scire facias, calling upon the delinquents to show cause, if they can, why the judgment shall not be made final. But this practice is not regarded as the only remedy. A mere default may be entered in the first instance and a scire facias issued, requiring the delinquents to show cause why judgment shall not be rendered for the amount of the recognizance so forfeited. But this departure from statutory regulation, in practice, is not encouraged, and especially is it irregular to enter judgment for the amount of the recognizance upon the return of the scire facias, if the proper interlocutory judgment was entered upon the default. The latter judgment should only declare the former final and order execution.

It is further urged, that this recognizance is not conditioned in the terms of the law; that it is not.properly acknowledged before. the sheriff1, and that the recitals therein are not sufficiently full and explicit. It is sufficient to say, it is a substantial compliance with the statute. If the acknowledgment was not in due form, or the recitals full, the court below was the proper tribunal to have heard such objections. 5 Ark. 433. The parties, who knew the condition of their obligation, and were sufficiently advised of the proceedings being had to obtain judgment thereon, interposed no defense, and cannot profit by raising technical objections in this court, to the forms of proceeding in the court below. No substantial error appearing, prejudicial to the merits in this case, the judgment of the court below is affirmed with costs.


author: BENNETT, J. GrRE&Gt, J.,

text:
    Sykes v. Lafferry.

      ArrEALS — How prosecuted — Under the Code of Civil Practice, to give this court jurisdiction on appeal, the record should disclose, the fact, either that a motion was made for an appeal, during the term at which the final order or judgment was rendered, or that a formal application was made to the clerk of the Supreme Court, in term time or vacation, for an appeal and the granting of the same by him.

      Appeal from Johnson County Circuit Court.

      Clark $ Williams, for appellant.
   BENNETT, J.

This is an action on a promissory note for the sum of thirty dollars, originally brought before a justice of the peace, from whose judgment an appeal was taken to the circuit court, where a judgment was rendered, in favor of the defendants, at the September term, 18G8. The Code of Practice, by which the courts of the State are now governed, had not then gone into absolute effect. We are at a loss to determine whether the appellant is prosecuting his appeal under the statute, regulating appeals before the adoption of the Code, or under it.

If under the former, this court has no jurisdiction in the case, as he has not complied with the statutory requirements regulating appeals. The old statute declares that the circuit court shall make an order allowing appeals, upon the performance of certain conditions therein specified. In the case of Berry v. Singer, 4 Eng. 129, this court say : “It is the order allowing an appeal, and not the prayer for it, that operates to transfer the jurisdiction from the circuit to the Supreme Court. This being a question of jurisdiction, no presumption can be indulged, so that although the record should affirmatively show every prerequisite had been complied with, yet no jurisdiction could attach, to this court, without an order expressly allowing the appeal.” Also, in the case of the Bank of the State v. Hinchcliff, 4 Ark. 444, the court say: “The filing of the affidavit, as required by law, constitutes a condition precedent to the right of a party to appeal.” There is nothing to show upon the record, in the case at bar, that there was either an affidavit, prayer for an appeal, or an order of court granting the appeal. • If the appellants are seeking to prosecute their appeal under the old practice, 'it is clear that this court has not acquired jurisdiction.

Under the Code there are two ways in which an appeal may be prosecuted. 1st. By a motion made during the term at which the judgment or final order was rendered. 2d. Upon application of either party to the clerk of the Supreme Court, in term time or in vacation. Sec. 859, Title XIX.

The record does not declare the fact, that there was any motion for an appeal, in the court below, nor that there has been application to the clerk of this court, to grant such an appeal.

True, the papers are marked “Piled Jan. 24, 1870,” but that does not constitute an application for an appeal. There should be a formal petition to that effect and a granting of the same by the clerk, in order to invest this court with jurisdiction to hear and determine the case on its merits; therefore, the case is dismissed.

GrRE&Gt, J.,

dissenting.

"We are of opinion the substantial requisites for an appeal have been complied with in this case, and that it should have been heard upon the merits and revei'sed.

Section 859, of the Civil Code of Practice, declares that an appeal shall be granted as a matter of right, either by the court in which the judgment is rendered or by the clerk of this court, in term time or in vacation, on the application of the party demanding such appeal. >

In this case, the appellant procured a duly certified transcript from the court below, filed the same in due time with the clerk of this court, and paid the fees necessary to have the case docketed and heard in this court. No summons was necessary; both parties appeared in this court and filed their respective briefs and arguments to the’merits, and made no objection to the manner in which the case had been brought into this court. The case being thus submitted, we think this court should not have raised a technical objection. See Harlin v. Binnie, etc., 22 Ark. 220. We are of opinion the appellant had done substantially all the law required of him; that no particular words are necessary to be used in asking an appeal of the clerk. No affidavit, or other pre-requisite is required of him, but when he brought a proper transcript, presented it to the clerk-for a hearing in tliis court, and paid the requisite fees, it then became the duty of the clerk to order the appeal and docket the case for a hearing in this court, and if the clerk docketed the case but failed to make any order granting the appeal, it was his fault, not the fault or neglect of the appellant, for which he should be turned out of this court, without having the case heard upon the merits, and especially so when the opposite party does not ask any benefit or advantage in this court, because of any neglect or omission in bringing the case into this court, and by order, the clerk, at any time, before a final disposition of the case, might make an order granting the appeal.


author: SeaRLE, J.

text:
    Barclay, et al. Exrs. etc. v. Dawson, adm’r. et al.

      Aesweb — When, as to matters within knowledge. — "Where the defendant answers as to matters within his own knowledge, and the answer is directly responsive to the allegations of the bill, it requires two witnesses, or one witness with corroborating circumstances, to overturn the answer.

      When as to facts not within knowledge. — Where defendant answers as to matters not within his knowledge, one witness on the part of the plaintiff, is sufficient to overthrow the answer.

      When bill dismissed on answer — Where the allegations of the bill are not within the personal knowledge of the defendant, and ho admits, or states in his answer, that he has no knowledge of the same, save as stated in the bill; and neither party introduces any proof on the trial, the bill is properly dismissed for the want of equity.

      Appeal from St. Francis Circuit Court.

    Hoy. ¥m, Story, Circuit Judge.

      W. Q. Whipple, for appellants.
    The testimony of one witness will be sufficient against the denial of an answer, where the defendant can have no personal knowledge of the fact. The same principle holds where the fact denied cannot be supposed within the knowledge of the defendant." In such case, the only effect of the denial in the answer,. is to put the complainant to the proof. Watson v. Palmer, 5 Ark. 506; Barraque v. Siler, 9 Ark. 550; Burr v. Burton, 18 Ark. 828; Combs v. Basnell, 1 Dana, 4174; Lawrence v» Lawrence, 5 Bibb, 357; JDuliih v. Cawsaull, 5 Craneh, C. C. 352; Lagans v. Gettings, 2 Gill Johnson, 216.

    The decrees, pro confesso, were simply interlocutory as to the defendants who failed to appear. Anthony v. Shannon, 8 Ark. 52; Crittenden, ex-parte, 20 Arle. 333; Tucker v. Yell, 25 Ark. 1¡.20; and the case should have thereafter been set down for hearing and proof. Rose v. Woodruff\ 1¡. Johns.' Chan. R. 54-7; Barb. Ch. Pr. 1, 369.

      Brown Lyles, for appellees.
    No proof is made of a mortgage, and a conveyance having been made, and no notice brought home to any of the vendees, the bill was properly dismissed by the court below, and that decree should be here affirmed.
   SeaRLE, J.

The facts and proceedings in the court below, so far as a statement of which is necessary to develope the questions to be considered and determined in this court, are briefly as follows: The complainants brought their action, in that court, to ■ foreclose a mortgage upon certain real estate, alleging, among other things, in their bill of complaint, that the original deed of mortgage was lost, and the county records, in which said deed was recorded, were destroyed. All the defendants were, either actually or constructively, subpoenaed; all failed to appear, with the exception of the defendant, Dawson, and decrees, pro confesso, were entered against them. Dawson answered. At the final hearing of the canse, no proof was offered on the part of the complainant, or of the defendant, Dawson; and the court rendered a decree dismissing the complaint, for ioant of equity. The only inquiry suggested by the record, as it comes before us, is, did the court below err in dismissing this cause for want of equity?

The bill is sufficient, both in form and substance; it contains, besides the averments necessary to be avered in ordinary bills for foreclosure, the further averments that' the complainants were not in possession of the deed of mortgage upon which the action was brought, the same having been lost; that they have not a copy of said mortgage, and that the records of St. Francis county, in which said mortgage was recorded, were destroyed by fire. The bill is verified by the affidavit of one of the solicitors of the complainants, who swears that the facts, are true “to the best of his knowledge, information and belief ;” but the extent of his knowledge or information is not shown, either by the bill or by depositions; nor does the note, exhibited with the bill, show that it was secured by mortgage.

The bill seems fully to set forth a proper case for the interposition of a court of equity', for the purpose of foreclosure. The answer is responsive to the matter of the bill, and after-admitting or denying the other allegations of the bill, avers, “that the appellants have no knowledge or information, save-by said bill of complaint,” and therefore denies it to be true-that a deed of mortgage was ever executed, acknowledged and delivered, as alleged in the bill of complaint. The answer is; sworn to by the defendant, Dawson, as administrator, etc.

It is a well established rule, in equity jurisprudence, that, when the defendant, under oath, interposes, in his answer, matters of defense, directly responsive to the allegations of the bill and within his personal knowledge, it is incumbent on the complainant to substantiate the averments of his bill by the testimony of two witnesses, or one witness with strong corroborating circumstances. Menifee v. Menifee, 8 Ark., 10; Aiken v. Harrington, 12 Ark., 391; Jordan v. Fenno, 13 Ark., 596.

It is also a well established rule that when the matter of the answer is not within the knowledge of the pleader, the evidence of one witness on the part of the complainant will be sufficient to overthrow the answer. Watson et al v. Palmer et al, 5 Ark., 506; Barraque v. Siter, 9 Ark., 550; Burr v. Burton, 18 Ark., 228; Combs v. Boswell, 1 Dana, 474; Lawrence v. Lawrence, 5 Bibb, 357.

Erom these rules it seems clear lhat the complainant in equity, appealing, by his bill, to the conscience of the defendant, makes his answer evidence, when it is under oath, responsive to the bill, and embraces matter within his personal knowledge.

In the case under consideration, if the matters of denial, contained in the defendant’s answer, had been within his personal knowledge, they would have refuted the averments of the bill and overthrown its equities. But the allegations of the bill were not within the personal knowledge of the defendant, for, as administrator, in which capacity he was sued, the material facts stated in his answer could not be supposed to be within his knowledge; moreover, he assarts in his answer that he had no knowledge of them, save by the bill of complaint. The allegations, then, of the defendant, not being evidence, simply presented issues of fact as to the matters they denied, and threw the burthen of proving them upon the complainants.

But at the final hearing of the cause, the complainants failed to produce any evidence to make good the allegations of their bill. The adjudication was upon the bill, answer and exhibits alope, and the chancellor properly dismissed the bill for want of equity.

Finding no error, the decree is affirmed.