author: EakiN, J.:

text:
    Brodie et al v. Watkins and wife
    1. Damages : Measure of in breach of contract — Attorney and client.

    Where there is a special agreement for labor, services, or the delivery of goods at a stipulated value, and the party bound to the services or delivery is ready and willing to perform his part, but is wrongfully prevented by the other, the measure of damages is the profit which would have accrued to the party willing to perform, if the contract had been fully executed on both sides. And in cases of special contracts for legal services which are wrongfully prevented by the client, and where the attorney holds himself continually ready to serve, he may claim the whole compensation agreed on, subject to such abatement as would, in the natural course of things, have been incurred by him if the services had been continued.

      On motion to settle amount of Attorneys' fees,

   EakiN, J.:

The property in this case sold for the sum of $10,000, which sum, in the adjustment of other attorneys’ fees, has been taken without objection, as the amount recovered.

B. D. Turner, Esq., an attorney-at-law, on the 1st of June, 1877, filed an application in this court for a lien upon the fund for services rendered the appellees; stating that they had agreed to pay him ten per cent upon the amount collected; that, under the agreement, he instituted the suit, and rendered material services in the prosecution.

Objections are made by Greer & Baucum, assignees of the claim upon which the decree was rendered. They allege that-Turner did not prosecute the suit to judgment, whereby they were compelled to employ other attorneys, who have also filed liens for services ; that the claim is exorbitant and unjust; and was not filed in the time prescribed by law,

The lien had been filed also in the court below, and no point is made by counsel as to time.

The testimony taken regarding this lien shows : That Turner was employed by Watkins to prosecute the suit under a special agreement to give him ten per cent on the amount collected. Turner drew the bill and commenced the suit in 1872 ; attended the Pine Bluff court in November ; filed an amendment to the bill, which, he states, was rendered necessary by disclosures in the answer; made arrangements for taking depositions, and was engaged in the prosecution of the suit until early in October, 1873. Meanwhile litigation had grown up between Watkins and Turner regarding other matters ; and about the last named date, Watkins peremptorily discharged Turner as his attorney; demanded of him the papers, and employed other attorneys. Turner expressed himself ready and willing to continue the case and fulfil his part of the contract, and from all that appears, has continued so since. Watkins says that he suspected Turner was not prosecuting the suit with diligence, but that he would not have discharged him but for the personal litigation which had arisen between them.

The duty of an attorney or solicitor, towards his client, and his obligation to regard the confidence reposed in him, should be wholly independent of, and above any personal affection or dislike; and these cannot be supposed to affect his conduct. An attorney, with the highest appreciation of the honor and dignity of his profession, should rather, in case of a personal quarrel, be stimulated thereby to more zealous efforts in his client’s behalf, and a more punctilious discharge of duty.

Where no want of fidelity is shown, a suspicion of it savors of insult; and a discharge of an attorney on account of feelIngs engendered by matters outside of his employment, is an injury to, or at least an imputation upon his professional honor, more grievous to a sensitive man than the loss of the particular business. Certainly it is desirable that the client should have for his adviser, one with whom hé has pleasant personal relations. If Watkins had courteously represented this to Turner, upon the breach between them, and proposed a dissolution of their relation on that account, with an offer to settle fairly for services rendered, no difficulty would probably have arisen. He chose to dismiss him, and employ other attorneys. It would not have been delicate, after that, in Turner, to have interfered with the business in the hands of the other attorneys, and he was absolved from any further duties in that regard. He had, nevertheless, a right to stand upon the contract.

Where there has been a special agreement for labor, service, or the delivery of goods, at a stipulated value, and the party bound to the services or the delivery, is ready and willing to perform his part, but is wrongfully prevented by the other, the measure of damages is the profit which would have enured to the party willing to perform, if the contract had been fully executed on both sides. It is not necessarily or commonly the gross sum agreed to be paid. In many cases the damages are easily estimable. For instance, in the class of cases where successive deliveries of produce, or commodities, are to be made to a certain amount, within a fixed time, at a stipulated price, and the vendee refuses to receive them. There, the complainant can only recover the difference between the market price and the agreed price of the articles rejected, for that would have been the limit of his profit. And so when contracts have been made for the whole time of a person in any employment, and the services have been rejected. There the employee is held to make a fair and reasonable use of the time which belonged to the employer, and can only recover the difference between what he received or might have received,, and the price agreed. These propositions are sustained by the' whole current of authorities in all the States, and commend themselves at once to the highest sense of justice and right. The criterion extends to all kinds of executory contracts, and the conflict of authorities arises upon the difficulty of its application to cases where the services are not easily partible.

Legal services are of this last named character. They cannot be apportioned either by time, or the amount of physical labor expended in drawing papers, attending courts, and oral arguments. It is the attorney’s judgment, his learning, his-responsibility and advice, which is relied upon, and which gives, the peculiar value to legal services. Perhaps the most difficult and valuable services of the attorney may be rendered in considering his client’s case, and giving him confidential information. before any visible act is done. These are general considerations, to show that the professional services of an attorney cannot justly be apportioned by the plain and obvious, mode indicated above for cases of other classes.

A review of all the authorities, cited on both sides, leads the-mind to the conclusion that in cases of special contracts for-legal services, which are wrongfully prevented by the client,, and where the attorney holds himself continually ready to serve, the latter may claim the whole compensation, subject to such abatement as would, in the natural course of things, have been incurred if the services had been continued. The value of the legal services proper, will not be apportioned : but whilst, upon the one hand, the attorney will not be put upon the quantum, meruit, he ought not to recover more than he would have made-if he had gone on with the case. His time, however, does not belong wholly to his client, and no deduction can, in ordinary cases, be justly made on the presumption that it was wholly-occupied in other professional business. Such a case might perhaps be made out, but it would be exceptional, and stand ■upon its own circumstances.

The attorneys who conducted the cause after Turner’s discharge, are of high standing and known ability. They assumed the duties, under circumstances consistent with the highest sense of professional etiquette, and brought it to a suceessful termination. Whilst it may be supposed that Turner would have done as well, it cannot be presumed he would have done bettor, and we may take the case as a guide in estimating his pecuniary loss in some approximate manner.

After the discharge of Turner, the case was pending in the Jefferson Circuit Court during four terms. It would have been necessary for the attorney to attend that court at an expense of $25 or $30 a term. He would have been under the necessity •of attending at this place at least twice at something about the -same expense. Doubtless other incidental expenses would have ■been necessary, which he could not have charged to his client. An accurate account of these probable expenditures would be impossible, and the court, in the exercise of a fair discretion, upon the evidence presented, is of the opinion that a deduction of $200 would be proper.

Allow the lien for $800, and let it be paid out of the fund in the master’s hands.


source: Caselaw Access Project

author: Eakin, J. :

license: Public Domain

text:
    American Land Company v. Grady et al.
    1. Vendor and vendee : Special contract between, as to settlement of adverse claim-Measure of recovery under, etc.

    An understanding between tbe agent of a vendor of lands and tbe vendee, that tbe latter should take such steps as he should deem prudent to settle the claim of an adverse occupant, or sue him if necessary, and that in either case the vendee was to be allowed upon his debt for the land such sums as he might expend, authorized the vendee to employ an attorney and pay him a reasonable fee and to execute such bond as might be necessary in the prosecution of the suit, and if the sureties in such bond have damages to pay in consequence of the failure of such suit, they have the right to be subrogated to the rights of their principal, the vendee, against the vendor for recovery of such damages and interest.
    2. Specific Performance : Assignee of title bond may have — Damages in

    The assignee of a title bond succeeds to all the rights oi his assignor under it, and may sue in equity for specific performance and recover damages when performance is impossible. The measure of damages in such case, will be the amount paid upon th-t purchase, whether to the vendor or to others with his assent or directions, with the understanding express or implied, that it would be taken and credited as part of the consideration.
    8. Same: Attorneys Fee — Pleading.
    Where there is a general prayer for damages in such cases, the attorney’s fee paid by the vendor in a suit to recover the land from an adverse occupant, may be allowed though not speeifiea ly prayed for.
    4. At rachments : In Equity.

    The Civil Code authorizes proceedings by attachment, in suits in equity.
    APPEAL from Si. Francia Circuit Court, in Equity.
    Hon. J. N. Cypert, Circuit Judge.
   Eakin, J. :

On the 28th of February, 1872, Charles Butler, as trustee for the American Land Company, held a legal title to the land in controversy. The defendant, Wiley Smith, agreed to purchase the land from the company, and upon that day said Butler for himself and as trustee, together with Erastus Corning and Joseph S. Fay, other trustees of the company, executed through W. A. Goodman, their attorney in fact, a title bond to said Smith, reciting the sale for the sum of $1,219,80-100, of which $100 was paid in cash, and for the balance Smith executed two notes, one for $571.30, payable December 1st, 1872, and the other for $548.50, payable December 1st, 1873, with interest from date on each at six per cent, per annum. The bond was conditioned in the usual form, for a conveyance on payment, with warranty of title.

At the time of the purchase the land was in the possession of defendant, Robert Anderson, holding adversely to both parties, under an independent legal title. Smith afterwards brought suit against Anderson for the possession in the St. Francis Circuit Court. The complainants, Grady and Kuthley, became security in a bond with Smith in that suit, whereby the land was taken from Anderson and given to Smith. The suit was finally decided in Anderson’s favor, and judgment rendered against the obligors in the bond for the sum of $750 and costs. Afterwards Smith, by writing, assigned the title bend to Grady and Kuthley and directed the deed to be made to them in accordance with its provisions.

This bill was filed by said Grady and Kuthley against the company, the trustees, Smith and Anderson, alleging: That complainants had joined in the bond given in the possessory action for the accommodation of said company; that the proceedings were instituted by the advice, concurrence and consent of the Land Company, the trustees and said Charles Butler ; that complainants became bound in said bond on the faith and credit of the obligors in the title bond ; that they were forced to satisfy the judgment and had done so ; that by the assignment of the title bond they had obtained all the rights of Smith against the obligors ; that they have the right to be indemnified againt the judgment for damages, and to have the amount allowed them out of the purchase money due on the land, if the contract for sale can be consummated, or if not, to have a return of the money. They say they have offered to pay said company, through said Goodman, said balance, if they would allow said sum so recovered as damages out of the .purchase money, and make title in accordance with the title bond, which was refused, and complainants now offer to do so.

It was further alleged that said Walter Goodman was properly authorized to act in the premises.

Complainants pray, as to Anderson, that his title be declared void ; and, as to the company and trustees, .and said Butler, in his own right, that they be decreed to perform the stipulations of the title bond, allowing in payment of the purchase money said sum recovered against complainants as damages : Or, if the contract cannot be performed, that complainants may have a decree against them for that sum, together with said sum of $a.00, paid by Smith on the puichaseand “allproper damages” for the non-performance of the contract, and for general relief. They state further that they are residents of St. Francis county, in this State, and append to their complaint an affidavit that the Land Company, and said trustees are non residents of the State, that they are bound to complainants in the sum of $1,500, which complainants believe they ought to recover. Wherefore an attachment was issued and levied on other lands of the company.

Corning, one of the trustees, was dead when the suit commenced, and during its progress Butler and .Fay resigned. Other trustees, Greenoughand Carden, were substituted. The Land Company and the trustees appeared and answered. They admit the agency of Goodman and that he transacted the whole of the business on the part of the vendors. They say that Smith at the time of the purchase informed Goodman that Anderson claimed the land by some sort of tax title, but deny that Goodman knew he was in possession. They deny that Smith instituted the proceedings at law by and with their advice and consent, or that of their said agent. They allege that Smith himself undertook to settle the question as to the pretended tax title. The agent agreed in that case, to allow •Smith as a credit on the purchase “any reasonable cost that he might properly incur in settling the matter,” and “if necessary, that Smith should institute proper suit,” but they deny that Smith had any authority to employ counsel, or to institute a suit that could by no possibility, be sustained. They deny that they knew of the employment of counsel by Smith until after the suit was in progress ; or that they requested any one to go on a bond for the purpose of the suit; or that complainants became so bound on the faith and credit of respondents, •or for their accommodation. They deny any tender of the purchase money, but admit the proposition to pay them if they would allow the said sum of $750, and now proffer to make to them full payment of the purchase money.

They make their answer also a cross-complaint againt Anderson, and join in the prayer of the bill to have his title set ■aside.

The answer of Smith supports the bill. With regard to defendant Anderson and his title, it suffices to say, that in various ways by motions to strike out, and by demurrers to the bill •and cross bill, he continually resisted being made a party to the proceedings at all. All of which being overruled he saved •exceptions, ana answered, setting up legal title paramount to that of the company. His answer was sustained, and he was •dismissed upon hearing, with costs against the company. He joins in the appeal, and his attorney complains here of the ■errors of the court in compelling him to abide the litigation, and not dismissing him at first upon his motions and demurrers. His counsel has certainly very respectable authority for maintaining that as he was not a party to the contract sought to be enforced, nor claiming by privity from either of the parties, he ought not to be harrassed in the contest between them, growing out of the contract; that it gave neither any equities against him, and that he had a right to await an action at law from any one better entitled. But if we were to concede that, it is somewhat perplexing to discover any mode of aiding him here. He has gone out with his title confirmed, and with provisions for recovery of his costs, and as to him we can only affirm. His trouble has been the accidental result of his position, and unless he can make out a case of malicious prosecution, he is remediless, not only here but elsewhere. If the design of Anderson had been to settle the law upon the points, raised, he should have stood upon his demurrer.

With regard to the other parties, the court upon final hearing held that complainants ought not to be required to take the title of the land company ; that the bond should be rescinded that complainants were entitled to the purchase money paid, and to be reimbursed in the amount expended by them on the account of, and as securities for, the company and Smith. A reference was made to the clerk for an account of those amounts, with interest at six per cent on the amounts expended on account of the law suit from the date of the period when complainants offered to perform their part of the contract. The clerk found due the sum of $1,134.28, for which a decree was rendered against the company, and the trustees, Canada, and Greenough. The attachment upon other lands, sued out at the beginning of the suit, was sustained, and they were ordered to be sold for the satisfaction of the decree. In arriving at the amount, the master in his account included the sum of $100 paid by Smith in the action at law, as an attorney’s fee to Aldridge, and interest on the whole amount from 17th October, 1874, the time of the offer of complainanis to perform, to date of decree. All the defendants, save Smith, appealed.

The evidence in this cause leads the mind to the conclusion that there was an understanding between Goodman, acting on behalf of the company, and the trustees, and Smith; that the latter should take such steps as he might deem prudent, to. settle the claim of Anderson ; or in case that could not otherwise be done, to bring suit; and that, in either case, Smith was to be allowed, upon his debt for the land, such sums as he might expend. It would result that he might employ an attorney for the pui’pose and pay him a reasonable fee, and execute^ such bond as might be necessary. There is nothing to show-that he acted in bad faith, although there appears to have been a mistake in judgment in bringing an action of forcible entry and detainer. It appears, moreover, that Goodman knew of' the proceedings at the time of their commencement, and during their progress ; and, at least, made no objection. Grady and Kuthley signed the bond at the request of Smith and his-, attorney, Aldridge, with the undérstanding that the writ was. prosecuted by the advice and directions of the land company,, which was joined in the writ.

If there had never been any assignment'of the title bond .to-the complainants, they would have had the right in equity,, after paying the judgment for damages, to be subrogated to-the rights of their principal, Smith, against the company for-indemnity, to the extent of the amount paid with interest.. Before suit they had paid the judgment in part, and arranged to pay the balance, Avhich they afterwards paid in full.

If, without any judgment against them, and damages paid,, they stood merely as assignees of the bond for Smith, they would succeed to all his rights under it. They might sue in, equity for specific performance, and pray for damages in case-specific performance should be found impossible. The measure of damages, in such case, would be the amount of money which Smith had paid upon the purchase, whether paid to the-company itself or to other persons by the assent or direction of the company, with the understanding, express or implied, that it should be taken as part of the consideration, and so credited. Such sums would be all in effect paid as part of the ■consideration, and would be considered as damages.

Both these rights combined in complainants. They were entitled to indemnity for the judgment paid by them, and to ■other damages on failure to perform the contract, which Smith might have claimed if he had brought the suit. Smith is in the suit and assents to this. All the matters grow out of the transactions resulting from the title-bond and the agreement ■concerning the suit, and the whole relief was properly sought in one bill.

There was no specific prayer for the $100 paid Aldridge, nor was the master specifically directed to take an account of it. But there was a prayer, for damages, and the account of the master might properly include it as part of the consideration. No proof was returned with the master’s report. The reference, the report and the decree appear all to have been made on the same day, and are recited in the same decree. Some of the items of the report concerning costs, were easily ascertainable upon the spot. Some facts are wanting to show periods affecting calculations of interest, aud there are other minor irregularities. It was hasty practice, and somewhat careless. But the parties were all in court, and no one filed exceptions, or asked time to do so. Enough appears from the evidence used on hearing to show that the sum total was within the limits of what complainants might well claim, and we presume the Chancellor thought, as he might well, that substantial justice would be done by the decree.

As for the attachment, our code provisions are broad enough to authorize sueh a proceeding in an equitable suit. It is the prevailing practice in Kentucky and other States having laws similar to ours. It has been adopted and used here by members of the bar, and has heretofore passed sub silentio under-the notice of the court. Although it does not belong to the traditionary system of equity practice, as adopted here under our territorial government and transmitted to the State, it commends itself to the court as proper under the statutory provisions embracing all civil actions.

Affirm the decree.


author: ENGLISH, C. J.:

text:
    Wilson v. State of Arkansas.
    1. Criminal Pleadinq : Indictment, when should negative exceptions in a statute..

    When there is an exception in the enacting clause of a statute, it must be negatived in the indictment, but when a statute contains provisos and exceptions in distinct clauses it is not necessary to state that the defendant does not come within the exceptions, or to negative the proviso it contains.
    2. Evidence : Declarations of prisoner. Res gestee.

    The statements of a defendant of his intended use of a pistol at the time he. borrowed it of the witness, and a like statement when he exhibited it to another witness, were admissible in evidence as part of the res gestee.

    3. Criminal Law : Garryiug weapons: Constitutional right to bear a?ms.

    The Legislature may to some extent regulate the mode and occasion of wearing war arms, but to prohibit the citizen from vearing or carrying a war arm - except upon his own premises or when on a journey, or when acting as or in aid of an officer, is an unwarranted restriction upon his constitutional right to keep and bear arms.
    APPEAL from Arkansas Circuit-Court.
    Hon. J. A. WilliaMS, Circuit Judge.
   ENGLISH, C. J.:

Chancy Wilson was indicted in the Circuit Court of Arkan-. sas county, at March term, 1878, as follows :

“The grand jury, etc., etc., accuse Chancy Wilson of the crime of carrying side arms, committed as follows, to-wit: The said Chancy Wilson in the county aforesaid, on or about the 14th clay of February, 1878, did then and there unlawfully carry a pistol as a weapon, contrary to the statute in such case made and provided, and against the peace and dignity of the State,” etc.

The defendant demurred to the indictment, the court overruled the demurrer, he was tried and convicted, a new trial was refused him, and he took a bill of exceptions and appealed.

I. It is submitted for appellant that the indictment is bad, because it does not negative the exceptions contained in the proviso of the act under which it was preferred. Acts of 1874-5, p. 155.

When there is an exception in the enacting clause of a statute it must be negatived; but when a statute contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the proviso it contains. Britton v. State, 10 Ark., 301; Matthews v. State, Ib. 485; Shaver v. State, Ib. 259; Bone v. State, 18 Ib. 113; 1 Wharton Cr. L. (6 Ed.) p. 378.

The enacting clause of the statute makes it a misdemeanor, punishable by fine, for any person to wear or carry as a weapon, any pistol, dirk, butcher or bowie knife, sword or spear in a cane, brass or metal lrnucks, or razor. In a proviso, exceptions are made in favor of persons on their own premises, or travelling through the country on a journey with baggage, officers of the law engaged in the discharge of official duties, or persons summoned by an officer to assist in the execution of process, or a private person authorized to execute ¡process.

It is sufficient for the indictment to charge the offense prohibited by the enacting clause of the statute, and if the accused is within any of the exceptions mentioned in the proviso, it is matter of defense.

It follows that the court below did not err in overruling the demurrer to the indictment.

II. It was proven on the trial that appellant borrowed of witness, Bowers, a large army size six shooter, a revolving pistol, 44 caliber, eight inches in the barrel, such as is commonly used in warfare, stating at the time he borrowed it, that lie was going over to Pearman’s to shoot wild hogs. On the next day he went to Pearman’s, stated to him the purpose of his visit, and while conversing with him, before going into dinner, pulled the pistol out of his boot, cocked it a few times to see if it would revolve, and then put it around under his coat, and went in to dinner.

The court excluded from the jury the statement made by the appellant to Bowers, when he borrowed the pistol from him, as to the use he intended to make of it, and a like statement made by appellant at Pearman’s where he took the pistol from his boot in his presence, etc. These declarations were admissible as part of the re.s gestee. Pitman v. State, 22 Ark., 357.

III. The appellant, among other instructions, asked the court to charge the jury that if they believed from the evidence, that the pistol carried by him was an army size pistol, such as are commonly used in warfare, they should acquit; which was refused by the court.

In Fife v. State, 31 Ark., 455, on review of authorities, we held that the Legislature might constitutionally prohibit the carrying of such pistols and other arms easily concealed about the person, as are used in quarrels, brawls and fights between maddened individuals, but that the Constitution guaranteed to the citizens the right to keep and bear arms for defense, etc.

And it was indicated in the opinion that the Legislature might, in the exercise of the police power of the State, regulate the mode of wearing war arms, and no doubt the occasions of wearing such arms may be to some extent regulated.

Thus it has been made an offense to wear a pistol, etc., concealed {Gantt's Dig., sec. 1517) and this may well apply to the character of the pistol used as a war arm.

So hunting with a gun with intent to kill game, or shooting-for amusement, on the Sabbath, are made offenses. Gantt’s-Dig., sec. 162.

No doubt in time of peace, persons might be prohibited from wearing war arms to places of public worship, or elections, etc. Andrews v. State, 3 Heiskel, 182.

But to prohibit the citizen from wearing or carrying a war-arm, except upon his own premises or when on a journey traveling through the country with baggage, or when acting as or in aid of an officer, is an unwarranted restriction upon his. constitutional right to keep and bear arms.

If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by'a general deprivation of a constitutional privilege.

The judgment is reversed and the cause remanded for a new trial.


author: ENGLISH, C. J. :

text:
    Holland v. The State.
    Criminal Law: Carrying vjeapons.

    The carrying of army sized pistols, such as are commonly used in the military and naval service of the United States, is not prohibited by the laws of Arkansas.
    APPEAL from Tell Circuit Court.
    Hon. W* W. Mansfield, Circuit Judge.
   ENGLISH, C. J. :

James Holland was indicted in the Circuit Court of Yell county, for carrying a pistol as a weapon.

On the trial but one witness was examined. He stated, in substance, that the first time he ever saw defendant, was on the 1st of October, 1875, in Yell county. He had two large sized six shooting pistols, one of them a Remmington, navy size and loaded, and the other a Colt’s army pistol. The pistols were such as are commonly used in the United States military and naval service. Defendant was carrying them in.his saddle-bags, and stated he was from Texas. Witness did not know whether he was on a journey or not.

Upon this evidence, the defendant asked the court to charge the jury that if they found from the evidence that the pistols, proven to have been carried, were army sized pistols, and were such as are commonly used in the United States military and naval service, they must acquit defendant.

The court refused this instruction, defendant was convicted, a new trial refused him, he took a bill of exceptions and appealed.

The court erred in refusing to instruct the jury as moved by appellant. Fife v. State, 31 Ark., 455: Wilson v. State, M. S.

Reversed, and remanded for new trial.


text:
    Clary et al v. State of Arkansas.
    1. Criminal Law : Robbery — Value immaterial.

    To constitute robbery the taking must be either directly from the person rjr-in the presence of the party robbed, and must be by force, or a previous putting in fear. It is the previous violence or intimidation that distinguishes rob--bery from larceny. It is immaterial of what value the thing taken is,
    2¡ Indictment for Robbery.
    In an indictment for robbery it is sufficient to allege that the taking was done-by violence, without alleging intimidation.

      3.-
    A Code indictment is the substance of the common law indictment, and must be direct and certain as regards the party charged, the offense, the county, and particular circumstances of the offense charged, where they are necessary to constitute a complete offense.
    4. Indictment : Robbery — Larceny.
    There can be no conviction for larceny under a bad indictment for robbery.
    APPEAL from PulasM Circuit Court.
    Hon. W. F. Hill, Circuit Judge.
   ENGLISH, C. J.:

James Clary, George Hall and Charles Hall were indicted in the Circuit Court of Pulaski county for burglary and robbery. On the first count, which charged them with breaking and entering a railroad car in the night time with intent to commit .a felony, they were acquitted. They were found guilty on the .second count, and the jury fixed their punishment severally at imprisonment in the penitentiary for seven years and six months. They filed a motion in arrest of judgment, which the ‘Court overruled.

On motion of the prosecuting attorney, and upon a showing made to the court (not disclosed by the record) the court reduced the punishment to five years imprisonment and sentenced them according^. They prayed an appeal, which was .allowed by one of the judges of the court.

The second count of the indictment upon which appellants ■were convicted is literally as follows :

ji‘The grand jury aforesaid, in the name and by the authority of the State of Arkansas, accuse said James Clary, Charles Hall and George Hall of the further crime of robbery committed as follows: The said James Clary, Charles Hall and George Hall, on the 4th day of November, 1878, in the county of Pulaski, and State aforesaid, feloniously and wilfully did make an assault upon one James Fisher, in bodily fear and •danger of his life then and there feloniously and wilfully and one pair of boots worth six dollars, one pair of shoes worth four dollars, a lot of painting tools to-wit: ten worth three dollars each, one valise worth six dollars, one hat worth four dollars, one pistol worth ten dollars, all the property of said Janies Fisher, then and there feloniously, wilfully and violently did seize, take and carry away with intent from the person of the said James Fisher, the said property from the said .James Fisher to rob and steal, against the peace and dignity of the State of Arkansas.”

The grounds of the motion in arrest were, that the facts alleged in this count did not constitute a public offense, etc., and that the allegations in the count did not constitute the offense .attempted to be charged.

It is submitted by the Attorney-General, that though the •count may not be good under the common law definition of robbery, it charges every material fact necessary to constitute robbery under our statute.

Robbery, the rapiña of the civilians, is the felonious and forcible taking from the person of another of goods or money to any value, by violence or putting him in fear. The taking must be either directly from his person or in his presence to make it robbery. It is immaterial of what value the thing taken is. A penny as well as a pound thus forcibly extorted makes it robbery. The taking must be by force, or a previous putting in fear, which makes the violation of the person more atrocious than privately stealing, for, according to the maxim of the civil law, qui vi rapuit, fur improbior esse videtur. This previous violence or putting in fear is the criterion that distinguishes robbery from larceny; for if one privately steals six-pence from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent, etc. Not that it is in deed necessary, though usual, to lay in the indictment that the robbery was committed by putting in fear ; it is sufficient if laid to be done by violence . And when it is laid to be done by putting in fear, this does not imply any great degree of terror or affright in the party robbed ; it is enough that so much force or threatening by word or gesture be used as might create ah apprehension of danger,, or induce a man to part with his property without or against his consent. Thus, if a man be knocked down without previous warning and stripped of his property while senseless » though strictly he cannot be said to bq pul in fear, yet this is undoubtedly a robbery. 4 Blackstone’s Bom., 243-4.

Robbery, says Mr. Archbold, is- defined to be a felonious-taking of money or goods from the person of another, or in his presence, against his will, by violence or putting- him in fear. And this violence or putting him in fear must precede- or accompany the stealing. (In note.) The words of the definition of robbery are in the alternative, “violence orputting-in fear,” and it appears that if the property be taken by either of these means, against the will of the party, such taking will be sufficient to constitute robbery. The principle, indeed, of robbery is violence, but it has been often holden, that actual violence is not the only means by which a robbery may be effected, but that it may also be effected by fear, which the law considers as constructive violence. 3 Arch, Cr., Prac. and Plead. 417, 418, 6 Ed.

By Statute: — “Robbery is the felonious and violent taking of any goods, money, or other valuable thing from the person of another by force or intimidation ; the manner of the force» or the mode of intimidation, is not material, further than it may show the intent of the offender.” Gantt’s Digest, sec. 1329.

The statute substitutes the word “intimidation” for the words ‘ ‘putting in fear’ ’ used in the common law definition of robbery, but the definitions are substantially the same, the statute making no material change.

The Attorney-Gfeneral further submits that though the count in question may bo bad under the common law form of indictment for robbery, yet it may be good under the criminal code.

The following is a common law precedent:

“Barry (to-wit).: The jurors for our lord the King, upon their oath present, that A. O. late of etc. or etc., with force and arms, at etc., then and there in and upon one A. J., in the peace of Gfod and of our said lord, the King, then and there being, feloniously did make an assault, and him the said A. J. in bodily fear and danger of his life then and there feloniously did put, and one gold watch, of the value of eighteen pounds of the goods and chattels of him the said A. J., from the person and against the will of the said A. J., then and there felo-niously and violently did steal, take and carry away, against .the peace of our said lord, the King, his crown and dignity.” 3 Chitty, Cr. L., 577, 806. 3 Arch. Cr. Prac. and Plead., (6 Ed.) 117.

Under the code the indictment may be substantially in the following form, after stating the court and parties in the caption : “The grand jury of Pulaski county in the name and by the authority of the State of Arkansas, accuse George Smith of the crime of (here insert the name of the offense) committed as follows, viz. : The said George Smith, on the-day ■of-, in the county aforesaid (here insert the acts constituting the offense) against the peace and dignity of the State of Arkansas.”

It must be direct and certain as regards the party charged, the offense, the county, and the particular circumstances of the offense charged, where they are necessary to constitute a ■complete offense, etc., etc. Gantt’s Digest, secs. 1775 to 1779.

A code indictment is the substance of the modern common-law indictment. Barton v. The State, 29 Ark., 69.

Doubtless the count in question was drafted hastily and in the press of court business. Its allegations as to the offense charged are confused and uncertain, and it falls below the standard of good common law or code pleading.

No doubt the intelligent prosecuting attorney who hurriedly drafted the count, could now deliberately make it a good charge for robbery, by adding some words, transposing parts, of sentences and'striking out parts of others, but he could not, neither can we, so alter an indictment after it is returned into court by the grand jury.

It is further submitted by the Attorney-General that if the count be bad for robbery it may be good for larceny.

Mr. Chitty says, if in the trial, it should appear that any of the circumstances of robbery are wanting, but the taking is proved, the defendant may be acquitted of the aggravated offense and foundguilty of simple larceny. 3 Ohitiy, Cr. L. 806..

But that ought to be on a good count for robbery.

Perhaps on a trial for robbery, if the State fail to prove that the goods were taken from the person of the party charged to have been injured by putting him in fear, or by intimidation,, or by violence, and proves that the goods were taken from his person, or presence, furtively, the accused might be convicted! of larceny. But in this case the appellants were indicted, tried, convicted and sentenced for robbery, on a count which we cannot approve as valid for any offense without degrading the standard of good criminal pleading, and setting a precedent to encourage unwarrantable looseness.

The judgment must be reversed, and the cause remanded with instructions to the court below to hold appellants to answer a new indictment, but not for the burglary of which they were acquitted in this case.


text:
    Ware v. State of Arkansas.
    Larceny : Value must te proved.

    Without proof of value of stolen property, there can be no conviction for larceny.
    APPEAL from Mississippi Circuit Court.
    Hon. L. L. Mack, Circuit Judge.
    Henderson, Attorney-General.
   ENGLISH, C. J.:

John Ware and Solomon Bass, Jr., were jointly indicted in the Circuit Court of Mississippi county, for stealing a hog, alleged to be of the value of $10, and the property of James Perry. Ware was separately tried, and the jury found him guilty, as charged in the indictment, and fixed his punishment at imprisonment for one year in the penitentiary. Pie moved for a new trial, on the ground that the verdict was not sustained by the evidence ; the court overruled the motion, and he took a bill of exceptions, which purports to set out all of the evidence introduced on the trial. He was sentenced in accordance with the verdict, and prayed an appeal, which was allowed by one of the judges of this court.

Perry lost thirty or forty of his hogs which ranged back of Friend’s field, a neighbor of his. Friend found a hog freshly killed, at the back of his field, and Bass, with a gun, and Ware standing by it. The hog was in Perry’s mark, and fat; but no witness swore that it was of any value; at least the bill of exceptions fails to show that there was any evidence of the value of the hog.

Without evidence that the value of the hog exceeded $2, the accused could not be punished by imprisonment in the penitentiary. Acts of 1874-5, p. 112.

The judgment is reversed, and the case remanded for a new trial.


author: Harrisok, J.:

text:
    Garibaldi v. Carroll.
    1. Prácticos at Law : Bill of exceptions: Mandamus against Judge.

    The refusal of a Circuit Judge to sign a bill of exceptions tendered to him, is not the subject of an exception in a subsequent bill of exceptions. A judge should allow and sign a bill of exceptions'if true; if not, he should correct and then sign it. If the party is not then satisfied, the statute points out his remedy.
    A Circuit Judge may in a proper case be compelled by mandamus to sign a bill of exceptions.
    2. Bill os Exception's: When to be allowed and signed: Statute construed,

    Section 4694, Gantt’s Digest, does not mean that when time is given for filing a bill of exceptions it will extend to the last day of the next term if not specially limited.
    3. Lost Judgment : Remedy to restore.

    At common law the plaintiff has a right of action on a judgment as soon as it is recovered. The remedy provided by see. 3774 Gantt’s Digest, to revive or restore a lost judgment, is but cumulative. The plaintiff may at the same time prosecute an action on the judgment and a scire facias to revive it, and have judgment in both.
    APPEAL from Pulaski Circuit Court.
    Hon. J. W. MartiN, Judge.

      Bishop for appellant.

      Alex. D. Jones, contra.

   Harrisok, J.:

This was an action by John Carroll against James Garibaldi on a judgment recovered by the former against the latter, before a justice of the peace, on the 5th day of February, 1870, for the sum of $184.50. The complaint alleged the record of said judgment to be lost.

This action was commenced on the 16th day of March, 1876.

The defendant answered the complaint. He admitted the recovery of the judgment before the justice of the peace, but averred that an appeal was taken from it to the Circuit Court, and that the cause was, in the Circuit Court, dismissed; and denied the loss of the record of the judgment.

The cause was, at the October term, 1876, submitted to the court, without a juiy, which found as facts, that no appeal had been taken from the judgment and the same remained in force, and that the record of the judgment was lost; and thereupon rendered judgment for the plaintiff for the sum of $184.50 debt, and the further sum of $76 damages, sustained by the detention of the debt.

The defendant appealed.

After the filing of the transci’ipt in this court, an agreement in writing between the parties was filed, that the transcript of a bill of exceptions therewith filed, allowed and signed by the Circuit Judge on the 17th day of December,1877, should be taken and considered as a part of the record in the cause, as if the same had been made part thereof by certiorari.

From this bill of exceptions it appears, that the defendant at the April term, 1877, presented to the judge a bill of exceptions as to certain rulings of the court at the previous term, or that at which the judgment was rendered, and setting out therein a motion for a new trial that was overruled, which the judge refused to sign. That at the next or October term, 1877, the record on motion of the defendant was so amended as to show that when the exceptions were taken, time, but not until any particular day, was given him to prepare his bill o'f exceptions; and that after the amendments were made, the defendant again presented the same bill of exceptions, which the judge again refused to sign, and to this refusal the defendant excepted and tendered the bill of exceptions referred to in the agreement, and in which is set out the bill of exceptions tendered and rejected.

The Circuit Judge should have declined to allow and sign the bill of exceptions to his refusal to sign the other. It was not the subject of an exception.

There can nó more be an exception to the refusal to sign a bill of exceptions than there can be a demurrer to a demurrer. It is the duty of the judge to allow and sign the bill of exceptions presented to him, if true; if not, to correct it and then sign it. If the party excepting is not satisfied with the correction, the statute provides, upon his procuring the signatures of two bystanders attesting the truth of his exceptions as by him prepared, the same shall be filed as part of the record; and that the truth of the exceptions may be controverted and maintained by affidavits, not exceeding five in number, on each side, filed with the clerk. Gantt’s Digest secs. 4697, 4698. And we do not doubt that a judge might, in a proper case, be. compelled by mandamus to sign a bill of exceptions.

“The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exceptions to writing, but not beyond the succeeding term.” Ib. sec. 4694. It is not implied by this language, that the time when given, if not specially limited, will extend to the last day of the next term. Washington and N. O. Tel. Co.. v. Hobson & Son, 15 Gratton 135.

A judgment becomes final and passes beyond the control of' the court, upon the expiration of the term at which it is rendered, unless suspended by the order of the court; and it cannot be conceived, with any reason, that giving time to a party-for the mere purpose of reducing an exception to writing can. have the effect, if no day is named, of suspending the judgment until the end of the next term, and that an exception might then be reserved to the refusal of the judge to sign the-bill of exceptions as an act done in the cause.

It is more reasonable to suppose that the time, like the= power of the court over its judgment, expires with the term.

But it is contended that the court had no jurisdiction of the-subject of the action.

The judgment sued on being for more than one hundred, dollars, exclusive of interest, the sum in controversy is clearly-within the jurisdiction of the Circuit Court.

At common law a party has a right of action upon his judgment as soon as it is recovered, although having the right to-take out execution, his action seems unnecessary. Freeman on Judgments, see. 432.

The plaintiff may at the same time prosecute an action upon the judgment and a scire facias to revive it, and a judgment in his favor in the latter proceeding, does not affect the former, Ib. Carter v. Coleman, 12 Ind., 274.

The remedy provided by section 3774 of Gantt’s Digest, when the record of a judgment of the justice’s court has been lost or destroyed, that such court may on motion of the judgment creditor, after five day’s notice, render a new judgment for what may remain due, is but a cumulative or additional remedy, Sedgw. Con. and Stat. L. 100 (n.) Two remedies-may co-exist.

The judgment is affirmed.


author: HarrisoN, J.:

text:
    Cavaness v. Ross.
    -PAYMENT : Of part, when will discharge the whole.

    In eases of contract far the payment of a liquidated sum of money,- the payment of a less sum will not be a good satisfaction unless it was paid and accepted before the time when it was to have been paid, or at a different place from "•that appointed for the payment.
    APPEAL from Lincoln Circuit Court.
    Hon. T. F. Sorrells, Judge, on exchange of circuits.

      •Garitón & McCain, for appellant.
    Cunningham, contra.

   HarrisoN, J.:

This was an action by Johnathan H. Cavaness against William H. Ross upon two promissory notes for $1000 each, made •by the defendant and one Harvey Jaggers, bearing date the l(5th day of November, 1871, and payable to H. S. Odom,' with ten per cent interest from date, respectively, on the 25th ■day of December, 1872, and 1873, and indorsed to the plaintiff by said Odom, on the 23d day of February, 1876.

The complainant shows a payment on the note first due, of $100 — on the 23d day of February, 1873.

The defendant pleaded in answer as a defense to the action : 'That Odom, on the 4th day of February, 1876, brought suit in the Lincoln Circuit Court against him on the notes, and that the case was afterwards compromised by his paying him $350, in full satisfaction and discharge of his liability on the notes, which Odom so received, and dismissed the suit; and that he was not indebted to the plaintiff.

The cause was tried by a jury and a verdict returned for the defendant. The plaintiff moved for a new trial; his motion was overruled, and he appealed.

H. M. Rattenee, a witness for the defendant, testified: that ho was the agent of Odom, who lived in Texas, and as such agent instituted the suit bj him against the defendant, on the. notes ; that he Avas instructed by Odom to accept $1400 as satisfaction and discharge of the notes. Ross was, he said, as between himself and Jaggers, to pay one fourth of the debt, and ho agreed to pay one fourth of the $1400, and Jaggers the remainder, That Ross paid $350 — the one fourth, and the witness delivered to him a deed, to him from Odom, for his. part of the land for which the notes were given — and as was agreed between him and Ross, ho dismissed the suit. This was in the month of February, 1876. He sent the money to Odom.. Jaggers failed to pay his part of the $1400, and he as Odom’s agent sold the notes to the plaintiff for $1050 — telling him at the time that Ross had paid his part of them.

The witness thought when Ross paid the $350 he was released from further liability on the notes ; but said that Odom had. never said anything to him about releasing him ; nor did he say anything about his having released him either to Odom, when he sent him the money, or to the plaintiff when he sold him the-notes.

The defendant himself testified — that he purchased one-fourth of the lands for Avhich the notes were given. That Odom, in 1876, brought suits on the notes against him and Jaggers. That Rattenee, the agent, offered to compromise the case for $1400 — saying to him that his part of that sum would be $350, and Jaggers’s the remainder ; and that he accepted the compromise offered, and paid him the $350, and the suits were-dismissed, and a deed from Odom to him for his part of the land Avas delivered to him by Rattenee He understood at the-time, he said, from Avhat Rattenee told him, that he was. released from further liability on the notes.

The plaintiff in behalf of himself, testified, that he purchased, the notes from Odom, through his agent, Rattenee, and paid for them $1050 ; and that nothing, at the time, was said about a release of the defendant.

The only grounds of the motion for a new trial, which need be noticed are : that the court improperly instructed the jury for the defendant, and that the verdict was not supported by the evidence.

The instruction complained of was as follows :

“ If the jury believe from the evidence, that Odom brought suit on the note against the defendant, and that Rattenee, as his agent, compromised and dismissed it in consideration of $350, paid by the defendant; and that Odom ratified the action of Rattenee, they shall find for the defendant.”

There was no evidence of a ratification by Odom of Ratte-nee’s action, but if such fact had been proven, the instruction, as we shall presently show, should not have been given,

In cases of contract for the payment of a liquidated sum of money, the payment of a less sum will not be a good satisfaction, unless it was either paid and accepted before the time when it was to have been paid, or at a different place from that appointed for the payment. 2 Greeril. Fv., sec. 28.

Chitty says: “The payment of part of a liquidated and ascertained sum is, in law, no satisfaction of the whole; although it may, in certain circumstances, be evidence of a gift of the remainder. And a plea which alleged the payment by the defendant, and receipt by the plaintiff, of a smaller sum in satisfaction of a larger, would be bad even after verdict.” Chit, on Con. 645.

And Story says: “A parol agreement by a creditor to accept part payment of a debt in money, in satisfaction for the whole debt, will not be binding upon him, for want of consideration, although he actually receive such part payment, and give a receipt for the whole debt.” 2 Sto. Con. 978, b. Fitch v. Sutton, 5 East, 230; Cumber v. Ware, 1 Str. 426; Geiser v. Kuthner, 4 Gill & J., 305; Blanchard v. Noyes, 3 N. H., 518; Bailey v. Day, 26 Maine, 88; Wheeler v. Wheeler, 11 Ver., 60; Warren v. Skinner, 20 Conn., 559.

In Fitch v. Button, where it was held that the acceptance of £17 10s. could not be a satisfaction for a debt of £50, Lord Ellenborough said : There must be some consideration for the relinquishment of the residue ; something collateral, to show the possibility of benefit to the party relinquishing his further claim, otherwise the relinquishment is nudum pactum.”

It is thus seen, that the answer, if proven to be true, which however, it was not — for the evidence shows that Jaggers was to have paid the remainder of the $1400, but had not done so— set up no defense to the action except as to the partial, payment of the $350. There was no averment in the complaint, or any attempt to prove, that any dispute or controversy existed as to the sum due on the notes, when the agreement for the payment of the $1400 was made. And if that sum had been paid, and the notes given up, it might justly have been inferred or presumed that Odom had made them a gift of the residue.

The judgment is reversed, and the cause remanded, for further proceedings according to law, and not inconsistent with this opinion.


text:
    West and wife et al v. Waddill et al.
    1. Probate Courts : Jurisdiction, Judgment of, Conclusive.

    The jurisdiction of the Prohate Courts since the adoption of the Constitution of 1874, is precisely what it was before the transfer of probate jurisdiction to the Circuit Courts by act of 1873 ; and their judgments are conclusive until corrected by appeal or other proper proceeding of a supervising court.
    2. Same : Chancery jurisdiction over judgments of.

    There is an inherent power in equity to set aside the orders and judgments of Probate Courts, as of all other courts, for fraud; or, if such a state of facts and circumstances is presented as shows an irreparaole injury impending, against which a Probate Court can grant no relief, courts of equity may interpose,, but not for mere errors however gross.
    3. Administrator : Discharge of, by Probate Courts.

    The discharge of an administrator by the Probate Court, is on'y for so much of the funds belonging to the es'ate as is found by his settlement to be in his hands. He will still be liable for funds received and not accounted for by him.
    4. Samii : What not fraudulent purchase by.

    An administrator is not precluded from dealing with the purchaser of property purchased at his sale, where there is no understanding express or implied at. the time of the sale that, he shall share in the purchase.
    6. Same: Attorney of, not allowed to buy at his sale.

    An attorney of an administrator who prepares and files the petition and obtains-an order for sale of property of the deceased, is not allowed to purchase at the sale.
    6. Fraudulent Purchaser : Rejits and profits, repairs, etc., where no actual; fraud.

    Where a purchase of land is set aside as fraudulent for being against public-policy, but in which the purchaser has been guilty of no actual or intentional fraud, he should be charged with only such rents and profits as he has re-, ceived, or should by' prudent management, have received; and should be credited with the purchase money paid by him, and taxes and all other reasonable expenditures, including improvements : and if these exceed the rents 8nd profits, he will be entitled to the excess with a lien upon the property for-its payment.
    APPEAL from Jackson Circuit Court in Chancery.
    Hon. WilliaM Byers, Circuit Judge.

      Qause, Butler, Minor, Clark & Williams for appellants.,

      Boswell, Goody, Rose, contra.

   EakiN, J.:

The bill in this case was filed by the two minor children and sole heirs of James L. Robinson, deceased, against Wad-dill, the administrator .of the estate, and divers persons who had become purchasers of the lands of the estate, at a sale . ordered by the Probate Court for the payment of debts. Pending tbe suit one of the complainants, Alice, was married ; and both became of full age. The husband, West, was made a party, and, by order of the court, the other complainant, Jno. M. Robinson, prosecuted the suit suo jure.

The object of the bill was to attack and correct the settlements of the administrator as fraudulent, and to set aside the sales, on the grounds that the order therefor was procured by fraud, based upon the fraudulent settlements. As touching the purchasers, it is charged, that one of them, Hyer, bought in trust for the administrator, and that two of them, Dos well and Jones, were employed by the administrator as attorneys to procure the order of sale, and became purchasers under the order.

The bill further discloses : that a portion of the lands, the the S. W. l-4of sec. 24, in T. 11, N. of R. 2 W., was highly improved, and was the residence of the deceased at the time of his death, in the fall of 1865. Before the application for sale, the widow had, for a while, held the home and farming lands under her quarantine ; afterwards dower was assigned to her of the N. 1-2 of this quarter section. When the lands were sold under order of the court, her dower was excepted, and the remainder sold only. The complainants were then minors. The widow intermarried with Lax, and died before suit, in 1870, when this portion was taken possession of by Doswell and Jones under their purchase and whilst complainants were minors.

The circumstances charged in the bill as indicative of fraud, are substantially as follows : That intestate died possessed of a large personal estate worth $3,700, consisting largely of horses, cattle, hogs, wagons, farming stock, etc., and of which about $2,000 worth was never inventoried, appraised nor accounted for ; that of the articles inventoried, some amounting in value to $33.33 1-3 were not included in the sale bill nor accounted for.

That a debt due Malloy contracted in 1860 was allowed March 11th, 1867, and classed in the fourth class. That letters were granted on the 2d of January, 1866, and the debt was barred. That an account in favor of Dill had been allowed and classed, which was also barred. That a number of other accounts were allowed which had never been presented ; and taxes were charged for which no receipts were liled. By these means the amount of debts was swelled so as to make an apparent necessity for the sale of the lands. That the administrator had failed to charge himself with large amounts of rents which he either received or should have received, and had failed to charge himself with interest of a considerable amount due to the estate. That he had credited himself, in some instances, with more than he had actually paid out, aiid charged excessive commissions. The result of all the allegations is, that if the personal estate had been honestly accounted for, and the liabilities truly shown, there would have been ample personalty to pay the debts, and the sale would not have been necessary.

The second paragraph of the bill, more particularly directed against the purchasers, to set aside the sales, charges that the appraisement of the lands had not been duly made before the sale ; that it was made by neighbors of Waddill, at his suggestion, who were not on the land, and not duly sworn. That it was made at a time when the State militia was ravaging the country, when citizens were in a state of alarm and confusion, and there were no buyers ; and that, in consequence, lands worth $10,000 were appraised at only $1,175. That Doswell and Jones acted in collusion with Waddill, as his attorneys, in procuring the order of sale, and conducting the business in court, and purchased the lands bought in by them for the joint benefit of themselves and Waddill, and that Hyer bought for the use of Waddill, and afterwards sold his purchase to Anderson, for Waddill’s benefit, who received the consideration. That the lands altogether brought only a little over $900, being over two-thirds of the appraised value. That Doswell and Jones took possession of the homestead tract after the ■death of the widow, notwithstanding the minority of the children, and that all the lands so bought by them have been all the time under the control and management of Waddill for the joint benefit of himself and the purchasers.

They pray that the accounts of the administrator may be restated; that the sales may be set aside and the deeds can-celled ; that title may be decreed in the heirs ; that an account be taken between them and Hyer, and also Doswell and Jones ; that they be respectively charged with i*ents and profits, and credited with improvements and money paid out for the benefit of the estate, and that personal decrees be rendered against them accordingly.

There is also the general prayer for relief.

These, in substance, are the material charges, although made in detail at considerable length.

The bill is in two paragraphs, the first seeking to set aside and correct the settlements of the administrator, and the second, to cancel the sales of the land and hold the purchasers liable for rents.

Doswell & Jones, in their answers to the original and amended bills, deny specifically all the material charges in the first paragraph, made to show fraud in the settlements of the administrator, and contend that the settlements were made honestly and in good faith. With regard to the second, they admit that they were the attorneys of the administrator, Waddill, in procuring the order of sale from the Probate Court, and that the}'- purchased at the sale, but deny that they purchased for the benefit of the administrator, or for the use of any other than themselves. They deny all collusion with the administrator in procuring the order by fraud, if any was practiced, but say they founded the petition on the matters disclosed by the records of the court, and upon information given them by Waddill. They contend that the proceedings were in good faith throughout, and in accordance with law, and that they were bona fide purchasers for valuable consideration . Moreover they say ;

That a part of the lands so purchased by them, to-wit: the southwest quarter of sec 24 (which includes the homestead and widow’s dower) was duly assessed on the resident’s list, for the taxes of 1867, and the warrant placed in the collector’s hands ; that he made due demand of the taxes from the administrator Waddill, and from Lax, which demand was refused ; that there was no personal property of the estate upon which to levy ; that on the 22d day of April, 1868, being a day of the April term, the court ordered the collector to proceed to sell residents’ lands for non-payment of taxes; that demand was. again made for the taxes, penalties, and costs, and again refused ; that the lands were levied upon on the 8th of May following ; and, due notice having been given, they were sold on the 8th of June, being the second Monday; that they were bought by one Wishow, to whom a collector’s deed was executed ; that by possessory action begun 19th of October, 1869,, Wishow recovered the lands from the possession of Lax (the wife being dead) and sold to Dos well, and conveyed, on the 1st day of April', 1870; and that the complainants, before bringing this suit, did not file in the cleric’s office an affidavit of the tender of the full amount of taxes, penalty, and costs with 100 per cent, thereon, as required by law. This defense of a tax title was set up in the answer to the original complaint, and not noticed in the amended bill filed afterwards. No. xelief as to this title is sought upon either side. It is set up it ¡seems, as matter of defense to that prayer of the bill, which ¡seeks that the title to the lauds be decreed to be in the complainants as heirs.

The defendant Hyer claims to be an innocent purchaser, and •denies that Waddill has or had any interest in his purchase.

The cause was heard upon the pleadings, exhibits and evi■dence, and the court rendered a decree for the defendants, referring in the decree to sec. 128 of Gantt’s Digest, and finding that the allegations of fraud had not been sustained by the ■evidence. As to other matters of complaint the court found that complainants had a complete remedy at law. The bill was •dismissed for want of equity but without prejudice. Complainants appealed.

By the laws, as they existed when the accounts of the administrator were acted upon, and the order made for the sale of the land, the Courts of Probate had original, exclusive jurisdiction over those subject matters, as they still have, under the constitutional provisions of 1874. In other words, thepeculiar jurisdiction of Probate Courts in the matter of the administration of estates, is now as it has ever been, since the system was established, and the decisions with regard thereto, made previous to the adoption of the constitution of 1874, apply now, save as to such proceedings as were had in the Circuit Courts, ■during a short period when courts of probate were abolished. Their judgments are conclusive unless conected upon appeal, ■or by some proper proceeding of a supervising court. But ■over the judgments and orders of these courts, as of all other ■courts, there is an inherent power in equity, to set them aside for fraud. In the absence of fraud Chancery will not interpose for mere errors, however gross. These must be corrected on appeal. But when fraud is shown, or such a state of facts or circumstances presented as shows an irreparable injury impending, against which a Probate Court is powerless to grant relief, the courts of equity may interpose. (See Ringgold v. Stone, 20 Ark., 526; Stone v. Stilwell, 23 Ark.,444; Hoaget als v. Sparks, 27 Ark., 594.) In all such cases the fraud, or the peculiar circumstances must be clearly shown, to the satisfaction of the court.

The case of Ringgold v. Stone, (supra) was one in which the administrator had taken possession of a large number of notes and choses in action, and made settlements running-through a number of years, without charging himself with any interest collected upon the debts, or showing what interest they bore. This was held to be satisfactory proof of fraudulent intent, and the settlement was set aside. There, the misconduct was gross, and such as no honest administrator could be supposed capable of, through mere mistake or carelessness, without fraudulent intent.

It does not follow that every case of omission to charge himself with interest, however small, will be proof conclusive of fraud against an administrator. It will depend upon the circumstances of the particular case.

On inspection of the accounts of Waddill it appears that the choses in action were very small in comparison with the personal property and the lands, and mostly worthless. The dates, amounts and times due, are given in the inventory.. There were only four of them for the sums respectively of $90.00, $78.50, $34.00, and $190.00. He charges himself with all these on his first settlement, filed at the January term 1868, showing by a separate cash statement that he had collected the-note for $190 without interest. The inventory shows that the note was due in 1861, and, in strict law, some interest must have accrued. The other notes were all credited as worthless, on the second settlement. Taking cognizance of the fact that the intervening period from 1861 to 1868 embraced the time of tbe civil war, it can scarcely be imputed as fraud that the administrator failed to collect, or charge himself with interest on the only note that was paid — although it was error in the Probate Court not to have required some showing of the exact state of the facts. The proper practice would have been to charge the administrator with interest on this note from due until the time of settlement, unless he had shown an earlier collection ; and then if he had shown that it could not be collected, or was remitted under circumstances which the court could approve, to give him credit. But the failure to do so is not proof of fraud.

There are other errors and irregularities, relied on as indicia of fraud in the settlement. Some small articles of no great value, included in the inventory and appraisement, are not accounted for. But it is sufficiently shown that they were not sold for want of bidders. The administrator was allowed a trifling excess of credit for the widow’s dower in the personal property. Some of the debts are alleged to have been barred by the statutes of limitation, but that is not apparent, allowing for the time during which the statute ceased to run. Some credits were allowed for payments without vouchers, and some debts reported not duly verified, whilst some of the vouchers fail by trifling amounts to show the full sum allowed in settlement. But of all these it may be said, that they do notinvolve amounts sufficient to present inducements to deliberate fraud, and that all come within the jurisdiction of the Probate Court, for its consideration. To pass them was error, which would not have stood the test of an appeal. The administrator should certainly have been ruled to a stricter showing. But as he was not, every presumption must be made in favor of the court-, in a proceeding like this, requiring fraud to be shown affirmatively.

It is a graver charge, that the administrator did not show greater rents for a very valuable real estate. Up to the time of the last settlement for the years 1866-67, and ’68, he seems only to have collected and charged himself with $100, when all the proof shows that he should have received a great deal more, even excluding the lands assigned to the widow as dower. There seems to have been gross inefficiency or mismanagement, to say the least. The explanation given is that up to the time of the last settlement he had not actually collected more, which appears to be true, although it is clear that he should have done so, and it further appears that after the last settlements he did collect $245 on old rents, which he did not report as outstanding assets, and which he has not accounted for since. The failure to account for what he had not then received cannot, of itself, be considered as fraudulent. There is no evidence that the administrator has been discharged, although the settlement in its caption professes to be a final one. He is still subject to the Probate Court until actually discharged by its order, and may still be held to an account for sums which have come into his hands, and have not been duly accounted for. Even, if final, his discharge would only be for so much of the fund belonging to the estate, as was found by the settlement to be in his hands.

Whilst therefore this court cannot approve the settlements of the administrator, or seem to sanction the loose and irregular proceedings, we cannot say that the Chancellor erred in finding no such fraud in them as to justify him in the exercise of the power of setting them aside. All errors might have been corrected on appeal.

One of the charges m the amended bill is to the effect that the intestate had at the time of his death several thousand dollars worth of horses, mules, cattle, wagons, etc., of which the administrator takes no account. The proof on this point shows that he had controlled a large amount of such property, and bad it in bis possession jointly with Waddill, or mixed together, being partly the property of each, np to nearly the time of his •death. They were refugees together in Texas several- years before the death of intestate, in the fall of 1865, had worked a plantation together, and been engaged in making salt. They returned together with all their property to Jackson county, and some sort of division had been informally made. What ^remained of the property of intestate is not shown, and there is no clear and satisfactory proof that any considerable amount ■of the intestates property came into the administrator’s hands, not shown by the inventory.

The second paragraph of the bill seeks to cancel the sales made under the order of the Probate Court, on the ground that Doswell & Jones who purchased a portion of the lands, were the attorneys of the administrator and acted in collusion with him; and that Hyer, another purchaser, bought for the use and benefit of the administrator. Hyer has since sold to an innocent purchaser who is not made a party, and against whom no relief can be had. The proceeds of the sale can be traced, partly into the hands of Waddill, but the proof fails to show clearly that, at the time Hyer purchased, Waddill had any interest, present or perspective in the sale; and the fact that a part of the purchase money was afterwards transferred to him by Hyer, may be consistent with honesty and good faith. An administrator is not precluded from ordinary business transactions with his fellow-citizens, concerning property, or its proceeds, bought at a sale which he has conducted, provided there was no express or implied understanding at the time of the purchase, that the administrator should share the benefit. Such dealings may be evidence to raise the suspicion of fraud ; and, taken in connection with other circumstances, may establish it; but they are not conclusive, nor, standing alone, sufficient.

A large portion of the lands, including the home place, subject to the widow’s dower, was bought by Doswell & Jones., The sales were regularly made, and no fraud is charged in the conduct of the sale itself. The appraisement was very low, but seems to have been made without collusion or undue influence. It is alleged that the proceedings for the sales were instituted and the sales made, at a time when lands were very low, and there were few or none willing to purchase, on account of the disturbed condition of the country, and the presence of the State militia. These were matters of which the Probate Court might judge, and must bo classed among the unfortunate accidents of the times. Property is ever fluctuating, and the proceedings of the courts cannot be arrested to await revivals in prices. Cases and circumstances may ai’ise, which would justify the courts in exercising a discretion to postpone proceedings, but it is difficult to imagine mere conditions of' depression which would make it imperative on them to do so or make it fraudulent in persons holding fiduciary relations to. proceed in the regular discharge of their duties as prescribed by the law. The administrator follows the due course of law, and cannot be held responsible for the depression of the market.

Doswell & Jones were purchasers at the sale in good faith. There is no indication that they were influenced by any improper motives, or sought any advantages over other bidders, or had any fraudulent intent. The proof shows that they bought for themselves'alone, and that the administrator had no interest in their purchase. Notwithstanding this, the question arises, whether they stood in such position with regard to the property and the administrator as, upon grounds of public policy, to be competent to purchase.

They were not the attorneys of the administrators at the time of the first settlement, nor until the application for a sale-of the lands was made to the Probate Court. They were then retained and procured the order of sale. They probably made the report in his behalf and procured the order of confirmation. They do not appear to have taken any part in the appraisement, or other preliminary matters in pais. One of them attended the sale and bought in fair competition with other bidders. It is not pretended that any fraudulent means were used to-discourage attendance upon the sale or to suppress competition. In short, there is no proof of actual fraud, iior is there any reason to suspect that they intended anything unfair. If' their purchase fails it must be on the sole ground of public-policy, irrespective of any intention.

It has long been the established doctrine of equity that trustees cannot deal with trust property for their own benefit in any manner. It is plain that the admisistrator could not himself have purchased. The doctrine has been extended to all persons entrusted with the management and direction of sales, in such manner as to impose upon them the duty of taking-care that the property may be sold to the best advantage for all concerned. They cannot purchase at all, however fair their intentions. As purchasers their interests would conflict with their duties, and the courts of equity, regarding the weak mss of ordinary men, takes from them all temptations by rendering them incapable of purchasing at all.

This court has, very recently, applied this doctrine to the case of an attorney. After a careful examination of numerous authorities it was held to be a well settled principle that no one-can be permitted to purchase an interest, when he has a duty to perform that is inconsistent with the character of a purchaser ; quoting the remark of Lord Thurlow in Hall v. Hallett, 1 Cox, 134, that “no attorney can be permitted to buy in things in a course of litigation, of which litigation he has the management. This the policy of justice will not endure.”' (See Wright, Exr. v. Walker et al., 80 Ark., 44, and authorities cited.)

The application of the principle to this case is clear. It was the duty of the administrator to sell the lands to the best ■advantage. It was the duty of his attorneys to advise and aid him to that end. They were paid by the estate. Their interest as purchasers would have prompted many men in that position, to use means to depress the price. Although there is not the slightest ground to suspect that they did so, or wished to do so,yet the policy- must be preserved, of forbidding persons in that position, from purchasing at all. They •should have been held as trustees of the estate.

As such, the purchase by Doswell of the outstanding claim ■of Wilson under a tax title, must inure to the benefit of the estate, subject to all proper charges in the hands of the trustee for amounts paid out, etc.

In imposing these involuntary trusts upon purchasers, not .guilty of actual or intentional fraud, it has not been the custom of courts of equity, nor would it be just, to charge them in any penal manner as to rents or profits, or to deprive them -of improvements, or any reasonable expenditures. They are hard cases, made necessary by policy. In this case an account must be taken under the direction of the Chancellgr, of the rents and profits actually received by Doswell & Jones after they came into possession of the lands purchased at the sale, ■or which would have been the net result of a reasonably prudent and careful management of the property, allowing credits for the original purchase money, taxes, the amount paid Wilson for tax title, and all other reasonable expenditures including improvements. If the balance, when struck, may be in favor of Doswell & Jones, they will be entitled to a lien for the same upon the lands, if against them it should be paid to 'the administrator to be administered in due course under the further directions of the Probate Court. The title to the-lands subject to any lien of the said purchasers for the balance, should be divested from them, and re-vested in the complainants as heirs of the intestate, where they will be still sub-, ject to sale, by order of the Probate Court, for payment of debts, if upon further accounting it may be found necessary. Proceedings to that end should in that case commence de novo,. so that there may be a new appraisement to meet changes in,, value. The sale to Hyer should be sustained.

So much of the decree as dismisses the bill as against Hyer, and as against the administrator for the purpose of declaring • his settlements fraudulent is confirmed. The accounts have-not been finally settled in the Probate Court, and that tribunal: retains the power of compelling future settlements and charging the administrator with all amounts not heretofore passed upon. It may proceed with the administration in due course.

The relief herein indicated should have been granted against defendants Doswell & Jones. For the error in dismissing the-bill as to them, the decree must be reversed, and remanded for further proceedings, in accordance with equity and this, opinion.

The attorney for the appellants, on a day of this term sub-, sequent to the delivery of the opinion, and the entry of the order remanding the cause, requested the court to modify said opinion, with a view to closing all matters before the Chancellor. He calls attention to an exhibit to the amended com-, plaint purporting to be a copy from the records of the Probate Court, of the final order confirming the last settlement, as follows:

“September Term, 1869, (23d) )

“Estate of James L. Robinson, dec’d. 5

“This day was presented the account current of James R “Waddill, as administrator of the estate of James L. Robinson, “deceased, filed herein at the last April term of this court; “and no exception having been filed thereto, and the court “being sufficiently advised, it is considered that said administrator has paid off, according to law, to each of said creditors their respective pro rata claims in obedience to the “former order of this court; and that said account is just and “correct, and that the same be in all things affirmed as prayed ‘ ‘for, and that said administrator be discharged and go hence ; “and that all further administration on said estate cease, and “that said account current be recorded in the book of settle-“mont.”

It appears, however, from the same exhibits, that at a subsequent day of the same term of the Probate Court, further proceedings in the same cause were had, and an account placed in the fourth class not included amongst those in the list of pro rata division. Although the bill charges that the settlement was prepared and filed “for final settlement and discharge of said Waddill as administrator thereof,” and that it was thereafter re-examined and confirmed, it does not set forth the actual order discharging the administrator from all further proceedings with regard to the estate. The exhibits referred to ‘are not certified copies ; and no point being made upon this discharge, the case was treated in the opinion as if the administrator were still amenable to the orders of the Probate Court. In deference to the motion of appellant’s attorney, and to settle a practice which has fallen into confusion, this supplemental opinion is filed.

The proceedings in the Probate Courts ai'e not formal, and are not to be construed with a rigid regard to technical rules. It is sufficient, if it can be understood from their records what was meant, and the thing meant be within their powers. It may be fairly implied from the subsequent proceedings after the attempt to discharge the administrator and cause the administration to cease, that the court was satisfied the order had "been prematurely made, and meant to set it aside. This construction is necessary to sustain its action, which would in other respects be illegal in two respects. One in entirely renouncing its jurisdiction over an estate, and the other in proceeding with an estate after discharging the administrator and ordering the administration to cease. It was all done at the same term, whilst the matter was in control of the court: and this construction of the effect of the subsequent proceedings seems most consonant with reason, and that indulgence to the proceedings of the Probate Courts which their organization requires, being generally under the control of plain business men, who are not required by the Constitution to be learned in the law.

A dischai’ge of an administrator applies only to matters appearing in his settlements, and does not otherwise relieve him or his sureties of liability for moneys or property received and not reported, nor the effects coming into his hands after his settlement was filed. For these he must be called afterwards to account, and the Probate Court is the original and appropi'iate forum for this purpose, unless there be some peculiar grounds for chancery jurisdiction ; so the statute provides with regard to shares going to heirs or legatees ; and the reason applies a fortiori to creditors whose debts have been allowed and classed. (Gantts Dig., sec. 165.) If an administrator should desire to withdraw and be relieved from further duties with regard to the estate; or if, for cause, he should be removed, there are proceedings appropi’iate to that end, which should be resorted to, and an administrator de bonis non appointed. Ib., secs. 40-45.

In the final settlement filed April 23, 1869, the administrator prays that upon payment of their pro rata interests to the creditors, as indicated ill the statement of the debts, “he may be discharged,” etc. This the court should have understood to apply to the matters in the settlement. The court had no. grounds to release the administrator from all further duties, and no right to renounce its jurisdiction over the administration and order it to cease. The order is effective to discharge the administrator from liability upon all matters passed, upon in his settlement, and no further. By the subsequent proceedings it is evident that the court so understood it. However that may be, it is the opinion of this court that such is the legal effect of the proceedings, and that the administrator-may be held for further settlements in the Probate Court.

The opinion needs no modification'as to its directions. The-principles which should govern the Chancellor in fui’ther proceedings, have been recently gone over, and this court has. endeavored to make them clear in the case of Reinhardt v. Gartrell, decided at the present term.

There appear to be unpaid creditors, and rents seem to-have been paid to the administrator not included in his settlement. The lands, upon cancellation of the sale to Doswell & Jones, become assets in the hands of the administratorfor-the payment of the debts, although the legal title has descended to the heirs.

Proceedings under the statute are necessary to sell them,, unless sufficient assets to pay the debts be found in the hands of the administrator.

These and. such further proceedings as may be necessaiy to-a complete settlement of all the business of the estate, belong to the original exclusive jurisdiction of the Probate Courts.

The settlement with Doswell and Jones will be conducted, under the orders of the Chanceiy Court.