author: Eaicin, J.

text:
    Taliaferro, Ex'r of McGehee, vs. Rolton.
    1. Deed : Cancellation or surrender procured by fraud.

    The cancellation or surrender of a deed will not revest the title in the grantor. But where such cancellation has been made under circumstances which would render it a fraud on the part of the holder of the legal title to retain it; such circumstances, for instance, as would render a restoration to the statu quo impossible, a constructive trust will be adopted as a convenient machinery for the fulfillment of justice; saving, always, the rights of innocent parties.
    APPEAL from Dorsey Circuit Court in Chancery.
    Hon. D. H. Rosseau, Special Judge.

      M. D. Jones, for appellant.

      Me Gain, contra.

   Eaicin, J.

McGehee sued Rolton in equity to enforce a lien on land, stating in his bill: That he had sold the tract to Rolton on the fifteenth of April, 1875, for $983.33, and given him a bond for title, to be made on payment of the-purchase money, that defendant gave him his note of that date, for the amount, due at twelve months, with ten percent. interest from maturity until paid. The note is exhibited by copy, and mad^ part of the bill, from which it appears that it bore the date alleged, but was due, and bore interest from date. ®

This discrepancy, developed by oyer in a suit at common law, might have been grounds of demurrer. Under our Code practice, in law or equity, the note sued upon, being part of the pleadings, may correct the allegations, which would be amendable to conform to the legal effect of the instrument. It need be no further noticed. The note expressly states that it was given for 200 acres of land bought of complainant, describing it as in the bill.

Complainant says, further, that defendant was put in possession of the land; and that, on the seventh of August,. 1876, complainant tendered a deed, and demanded the purchase money — which was refused, and no part has been paid.

Defendant is alleged to be insolvent, and the bill prays foreclosure, and general relief.

Defendant, in his answer, admits the execution of the note, but denies that the' complainant, at that time, sold him the land, or gave him the title bond, as alleged, or placed him in possession. Tie admits the tender of the deed as alleged, but denies that complainant had any lien for the sum demanded.

He proceeds to make his answer a cross-bill, and charges: That he bought the land of complainant in 1869, for seven bales of cotton; to be delivered, three of them in the fall of 1870, three in the fall of 1871, and one in the fall of 1872 ; and that complainant, at the time of the purchase, made him a warranty deed in fee simple, reserving a lien for the consideration, aud gave him possession. That he paid the three bales, respectively, in the years 1870 and 1871, and that, afterwards, the complainant requested to see his deed, which he delivered to him accordingly, for the purpose of examination; aud that complainant ever afterwards refused to return it. He says that he was then largely indebted to complainant for goods, wares and merchandise, and was, consequently, in great trouble and distress. That complainant, “ by deceit, fraud and misrepresentation,” compelled him to take a title bond, which is exhibited. It bears date April 15, 1873, and provides for title to be made on the payment of $1,000 — with interest at ten per cent., one half on the first of the next January, and the balance in a year afterwards ; to be void, however, if one half should not be paid by the first of January, 1875, or if all should not be, by the first of January, 1876, with a further proviso that if the bond should thus become void, complainant would return all part payments. Defendant avers that, although he took this bond, he did not consent to receive it instead of his deed.

He further avers that, on the day of the date of said title bond, being largely indebted to complainant for supplies, the latter required him to make a partial settlement of existing indebtedness. "Whereupon, complainant prepared and defendant executed the note sued on. That the note was procured through “ fraud and misrepresentation, and executed through mistake and inadvertence;” the true consideration being supplies of merchandise, etc., save the one bale of cotton then due on the land, and which has since been paid in cotton. And so lie claims that lie owes nothing on the land, and that the lien is discharged.

He farther claims credits for payments on account, which have not been allowed by complainant.

He prays that the original notes which he gave for the cotton may be surrendered, and that his original deed may be produced and his title quieted, and for other relief.

Complainant, responding to the cross-bill, admits the sale and execution of the deed in 1869, and the consideration alleged ; but says that, before anything was paid, defendant came to him and requested that the contract be changed, saying that he preferred to have it in the shape of a title bond. That the deed was taken back and the title bond set forth by defendant was executed at defendant’s special request, in order to give him an extension of time and enable him to pay the land out, and to prevent a foreclosure of the original lien. lie denies all fraud and misrepresentation. That, afterwards, having paid but a small portion of the $1,000 due on the bond, on the fifteenth of April, 1875, defendant still expressed a desire to hold the land. Complainant agreed to take his note for the balance, amounting to $983.83, and defendant thereupon executed the note in suit. The original deed made to defendant; and returned, has been mislaid or destroyed, and can not be produced. That in 1870, defendant became indebted to complainant, ior advances and supplies to the amount of $400.09; and, to secure the same, executed to him a mortgage oí his personal property and interest in said laud ; that he continued to make advances and receive payments from defendant upon an account separate from the land mailers; and that defendant, to secure successive balances struck ou said accounts, renewed said mortgage and executed others. Exhibits are made of such other mortgages, on the dates and for the sums following:

On the fifteenth of November, 1871, $988.05; on the fifteenth of April, 1878, $1,152.75, expressly for plantation supplies; on the thirtieth of June, 1874, $755.64; on the seventh of May, 1875, $723.77; and on the twenty-sixth of February, 1876, for $406.39.

The last is expressly for supplies. It recites that there are three hales of last year’s crop in complainant’s hands, undisposed of, the net proceeds of which are to be credited “ either on this note, or another note that McGehee holds of $988.33, for two hundred acres of land in the same section 21, dated April 15, 1875.” It further provides (being a crop mortgage in part), that McGehee is to have the privilege of crediting the half of the receipts, more or less, on laud note, that may arise from this mortgage after the amount of this mortgage is paid, except the recording of this mortgage.”

Complainaut denies the failure to give credits, save as to a small clerical error — says the accounts were truly stated whilst the matters were fresh, and admits payment of all save the land note sued on.

The cause was heard before a special chancellor, upon the pleadings and voluminous mass of testimony — concerning which it is only necessary to say that, taken as a whole, it is very confused and conflicting; but there is not a particle of evidence of fraud, deceit, misrepresentation or mistake in the whole series of transactions between the parties. If there could he a suspicion even of anything improper, it would be of undue influence or oppressive conditions imposed by a creditor on a debtor. But that is not charged, and, we may add, the proof would not sustain it. The chancellor did not find any fraud; but found, as a fact, that six bales of the cotton originally agreed to be paid had been delivered, and announced as law, that the title was not revested by the surrender of the deed, but remained in defendant; that neither the title bond nor the note for $983.33, nor any subsequent transaction, gave any additional lien to complainants, but that the land was bound for the value of one bale of cotton only — for which a decree was rendered. Both parties appealed.

This court has heretofore, on mature deliberation, and comparison of authorities, adopted and announced the broad doctrine that “ the surrender or destruction of a deed will not operate to revest the grantor with the title,” whether the first deed be registered or not; and has intimated that this doctrine should apply, on principle, even to cases between the parties, conducted in perfect iairness and good faith, and with due regard to the rights of creditors of the grantee. Strawn v. Norris et al., 21 Ark., p. 80.

The question presented by .the record, in that case, did not require the court to go so far, nor to announce the rule so broadly. It was a case of fraud and misrepresentation, in which the grantor had been induced to believe that the first deed had not been recorded, and, under that impression, to receive it back, and execute a deed to one alone of two grantees in the first deed. Meanwhile, between the execution of the two deeds, the grantees in the first had conveyed a part of the land to a thiid party, by which the original grantor had become bound to the third party on the covenant of general warranty. This uourt held that the grantor was entitled to relief, and that the second deed should be canceled. This relief would have been proper under all or any of the authorities determining the effect, upon the legal title, of the surrender of a deed. All hold that such a surrender can not affect the intervening rights of others, and the jurisdiction on the ground of fraud was, moreover, independent of this question.

In the case of Neal v. Spingle, 33 Ark., a deed of land, with a mortgage back for the purchase money, had both, by agreement of the original parties, been destroyed, with the design of thus canceling them, and rendering them of no effect. At the time this was done, the vendee had caused his deed to be recorded, and falsely represented to the administrator of the grantor that it had not been done. He afterwards sold the land to Neal, who was aware of the agreement to cancel, and who afterwards claimed to hold against the unrecorded mortgage, through the recorded deed of the original vendee. Chief Justice En&lish, conceding the principle as to the legal title, announced in Strcaon v. Norris, held, nevertheless, that as the administrator of the first vendor acting under the agreement had neglected to record the mortgage, and destroyed it, so that he could not be placed in statu quo, it would be a fraud upon him if the original agreement for cancellation were not effected. This the court ordered to be done, not by restoring the administrator to his lost morfgage, but in effect, by holding Neal as a trustee of the legal title for the purpose of the agreement, which he knew had been made and carried into execution, and which he had co-operated in endeavoring to defeat. The deeds were directed- to be canceled, so as to revest the legal title in the estate of the original vendor. He had died after the agreement had been made for the destruction of the instruments, and his administrator, knowing all the facts, had carried it out. This is but an application of the. familiar principle in equity, upon which rests the whole doctrine of part performance. The courts of chancery will not allow auy one to make use of the statute of frauds as an instrument to perpetrate a fraud; and in general, where the action of one party with regard to land has been so influenced by the agreement of the legal owner that the former can not be placed in statu quo if the latter should recede from his agreement, will make use of the machinery of a constructive trust, and compel performance. Legal titles are subject to the statute of frauds, and must be transferred by writing. Cancellation or surrender will not answer. But where such cancellation or surrender has been made under circumstances which would render it a fraud on the part of the holder of the legal title to retain it, such circumstances, for instance, as would render a restoration of the statu quo impossible, a constructive trust will be adopted as a convenient machinery for the fulfillment of justice, saving, always, the rights of innocent parties. Constructive trusts are not themselves within the statute. In their nature they can not be created by writing. In the absence of fraud on the part of the complainant in this case, the circumstances are such as would make it fraudulent in the defendant to insist upon the terms and conditions of the original conveyance of 1869, and to have the land subject only to the payment of the original consideration. He is now insolvent, and the collection of the debt of $983.33, which is the balance due upon the title bond of 1873, would, without the lien, be rendered precarious, if not hopeless. But for his taking that title bond, the original lien might have been at once enforced, and the complainant would not have given him the further credits, which seem to have been quite extensive, and very beneficial, through a course of years, during which, up to the last mortgage, he recognized the debt now sued upon as a lien upon the land. If he had not given the note in 1875, for an extension, the lien of the title bond might have be’áfc 'at once enforced, and the land taken for the debt of $1,000. To remand the complainant now to his rights of 1869 would defraud him of the advances subsequently made under the new arrangement.

"We think the chancellor erred in holding that he should be so remanded. An account should have been taken of ■what was due on the note sued upon, whether that note was for original purchase money, or whether other advances had been added in. The equity is the same for either, and the whole new contract should be carried out. The court below will determine all questions of the application of payments which may arise in taking the accounts, and for the balance found due on the note in question, a lien should be declared, and enforced by proper proceedings.

Reverse the decree upon the appeal of complainant, and remand the cause for further proceedings consistent with equity and this opinion.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    Halbrook vs. The State.
    1. Bigamy :
    If A marries B, and afterward, while B is alive, marries O, and aftei'ward, when B is dead, or divorced, marries I) while G is living, this last marriage is not bigamous, the second being absolutely void.
    2. Same: Evidence of marriage : Admissions — Cohabitation, etc.

    In-prosecutions for bigamy, the deliberate admissions of a defendant that a woman was his wife, and evidence that he cohabited with, treated and held her out to the community as such, may go to the jury for what they are worth, as tending to prove an actual marriage.
    3. Marriage : Divorce decree, evidence of.

    The record of a decree of divorce, in a suit of which the defendant has had legal notice, is evidence of the marriage.

      APPEAL from Conway Circuit Court.
    Hon. W. D. Jacoway, Circuit Judge.
    :Fletcher, for appellant.
    Henderson, Attorney General, contra.

   English, C. J.

It appears from the transcript in this case, that, on the first day of the October term, 1875, (eleventh of October), of the circuit court of Conway county, a grand jury was impanneled, and retired to consider of their duties.

Then follows an indictment against Jeremiah H. Hal-brook for bigamy, indorsed by the clerk: “ Filed in open court, this sixteenth day of October, 1875,” but no record entry is copied in the transcript, showing that the indictment was presented in court by the grand jury.

Supposing there was such an entry, as there should have been, and that the clerk had failed to transcribe it, a certiorari was ordered, upon which the clerk has returned that no entry showing that the indictment was presented in court by the grand jury, appears of record.

The indictment charges, in substance, that on the second of November, 1866, the defendant was married, in Conway county, to Jane Honeycutt, and that, on the twenty-sixth of July, 1875, when she was living, and still his wife, he feloniously married Mary Mahan, in said county.

He was tried at the September term, 1879, found guilty, and the jury fixed bis punishment at imprisonment for three years in the penitentiary; a new trial was refused, he was sentenced, took a bill of exceptions, and prayed an appeal, which was allowed by one of the judges of this court.

It appears from the bill of exceptions that, on the trial, the state proved by the record of marriages of Conway county, that appellant was married to Jane Honeycutt, on the second of November, 1866, in Conway county, by a justice of the peace of said county, he then being forty-three years of age, and Jane seventeen.

The state also proved, by the same record of marriages, that defendant was married, under a license, on the twenty-seventh of July, 1875, to Mary Mahan (seventeen years of by a minister of the gospel.

The state then proved, by two witnesses, that they were present and saw defendant married to Jane Honeycutt, on the second of November, 1866, and were present, subsequently, and witnessed a marriage, on the twenty-seventh of July, 1875, in Conway county, between defendant and Mary Mahan, and that Jane Honeycutt was still living in Conway county at the time defendant was martiedto Mary Mahan.

The court excluded all of the evidence offered by appellant, as shown below.

I. The first ground of the motion for a new trial is that the verdict was not warranted by the evidence.

The statute provides that: “Every person, having a wife or husband living, who shall marry any other person, whether married or single, except in the cases specified in the next section, shall be adjudged guilty of bigamy. Gantt’s Digest, section 1312.

The next section makes five exceptions, which are matters of defense. 1 Greenleaf Evidence, sec. 208.

The indictment' (says Mr. Greenleae) states the first and second marriages, and alleges that, at the time of the second marriage, the former husband or wife was alive. The proof of these three facts, therefore, will make out the case on the part of the prosecution. In regard to the first marriage, it is sufficient to proye that a marriage, in fact, was celebrated according to tbe laws of the country in which it took place ; and this, even though it were voidable; provided it were not absolutely void. This may be shown by the evidence of persons present at the marriage, with proof of the official character of the celebrator; or, by documents legally admissible — such as a copy of the register, where registration is required, by law, with proof of the identity of the person; or, by the deliberate admission of the prisoner himself.

In proof of the second marriage (he continues) the same kind of evidence is admissible as in proof of the first. But it must distinctly appear that it was a marriage in all respects legal, except that the first husband or wife was then alive; that it was celebrated within the 'county, etc. Proof of the second marriage, by reputation alone, is not sufficient. 1 Greenleaf Ev., secs. 204, 205.

The state proved both the first and second marriage, alleged in the indictment, by the record of marriages, which our statute makes evidence (Gantt’s Digest, sec. 4140), and by witnesses present at the marriages.

The case -was well made out on the part of the state.

II. After the state had closed, appellant introduced Miles Price and Thomas Halbrook, who stated, after being sworn as witnesses in the case, that they had been acquainted with the appellant for many years; that he was married when about nineteen years old to one Margaret Halbrook, in Perry county, Tennessee; that he was now (time of the trial)fifty-seven years of age; that they were not present at such marriage, but, by reputation, such marriage occurred within ten miles of where they^ resided, and that, within a few day^s thereafter, appellant brought his wife into the immediate neighborhood of witness Price, and there they remained together as husband and wife for two or three months, and that appellant and his said wife, Margaret, lived and cohabited together as husband and wife, in the state of Tennessee, and later in the states of Arkansas and Missouri, for many years, and had born to them, and reared by them, a large family of children; that some of said children now reside in the neighborhood of witness, and that witness had, within the last three months, seen letters from Margaret, wife of appellant, who, by reputation, still lives in Green county, Missouri, but witness had not seen her since 1863.

But the court ruled that such evidence was irrelevant and incompetent, and excluded the same from the jury; to which ruling appellant excepted.

Appellant then'offered in evidence a certified transcript of the record of a decree, rendered in the circuit court of Phillips county, in the state of Missouri, on the twenty-eighth of November, 1866, in a suit for divorce by Margaret J. Halbrook against Jeremiah IT. Halbrook, dissolving the bonds of matrimony theretofore contracted between them, and giving her the care of their infant children, and alimony to be chai’ged upon certain real estate of the defendant in that suit. The decree shows that the defendant therein had notice by publication, and that there had been a previous default entered against him, but does not show when the bill was filed, nor when the marriage dissolved by the decree had been entered into by the parties to the suit.

The court refused to permit appellant to read in evidence the transcript of the record of the decree, and he excepted.

Appellant offered no other evidence.

The appellant asked the court to give the jury seven instructions. The court gave the first, which defined the crime of bigamy (having given a similar instruction on the part of the state), and refused the others.

{a) The court having excluded all of the evidence offered by appellant, there was nothing on which the instructions refused could be based. They were mere abstract propositions of law.

The instructions refused presented, in different forms, the propositions that appellant’s marriage with Jane Honeycutt, when his first wife, Margaret, was living, and undivorced from him, was null and void, and that his marriage with Mary Mahan, after the first wife obtained the divorce, was not bigamous, because he then had no lawful wife.

(b) If the facts hypothecated in this proposition had been proved by competent evidence, it would have been good law.

Upon the hypothecated facts, the case would have been similar, on principle, to Lady Madison’s case, reported in 1 Hale’s Pleas of the Crown, p. 693, thus: “ A takes B to husband in Holland, and then in Holland takes C to husband, living B, and then B dies, and living C, she marries I); this is not marrying a second husband, the former being alive, for the marriage to C, living B, was simply void, and so he was not her husband; but if B had been living, this had been felony to many I) in England ; ruled at Newgate sessions, about 1648, in the Lady Madison case.”

Mr. G-reenleae, after stating the points that the state is required to prove, as above, adds : “ The defense may be made by disproving either of the points above stated. Thus, where a woman married a second husband abroad, in the lifetime of the first, and afterward the first died, and then she married a third in England, in the lifetime of the second, and for this third marriage she was indicted; upon proof that the first husband was living when the second marriage was had, it was held a good defense to the indictment; the second marriage being a nullity, and the third, therefore, valid.” 8 Greenleaf Ed., sec. 208, citing Lady Madison case; State v. Goodrich, 14 West Va., 834, is similar to the case now before us.

So in this case, if appellant vras married to Margaret Halbrook in Tennessee, and she was living when he married Jane Honeycutt, the latter marriage ivas null and void; and if Margaret Halbrook had obtained a divorce from him before he married Mary Mahan, this third marriage was valid, and not bigamous, as alleged in the indictment; but the marriage with Jane Honeycutt was bigamous

Appellant, however, could not be convicted on this indictment for the bigamous marriage rvitb Jane Honeycutt, because that is not the offense with which he is charged.

(c) Hid the court err in excluding all the evidence offered by appellant, as incompetent and irrelevant?

In indictments for bigamy, proof of marriage is required to be more strict than in civil cases.

But it is reasonable to hold that appellant should have been allowed to introduce any evidence conducing to prove his marriage with Margaret Halbrook, relied upon by him to defeat the case made by the state, wThich the state might have been permitted to introduce to prove the same marriage, had the indictment alleged it to be the first marriage, and a subsequent marriage to be the bigamous marriage.

It is established by the current of adjudications, that in prosecutions for bigamy, the deliberate admission of the defendant that a woman was his wife, and evidence that he cohabited with, treated and held her out to the community as such, may go to the jury for what they are worth, as tending to prove an actual marriage. Regina v. Simmons, 1 Carrington Kirwan, N. P., 164, 47 Eng. C. L., 164; Commonwealth v. Jackson, 11 Bush. (Kentucky), 679, in which the English ancl American cases are reviewed; Warner v. Commonwealth, 2 Virginia cases, 95; Cameron et al. v. State, 14 Ark., 546; Cook v. State, 11 Georgia, 54; State v. Britten, 4 McCord, 255; Wolverton v. State, 16 Ohio, 173; Clayford's case, 7 Greenleaf, 57; State v. Hodskins, 19 Maine, 158.

In New York, where it has beeu held that an actual marriage must be proved, and that the prisoner can not be convicted on mere admissions, or evidence of cohabitation (People v. Humphrey, 7 Johnson, 314), yet in Gahagan v. People, Parker's Cr. R,, 380, such admissions and proof of cohabitatien as husband and wife, were held to be admissible as tending, with other facts, to prove an actual marriage.

In this case, appellant offered to prove, by two witnesses, a reputed marriage with Margaret Halbrook in Tennessee; that they cohabited as husband and wife there, and later in this state, and in Missouri for many years, and reared a family of children. This cohabitation occurred before there ■could have been any object on the part of appellant to make evidence to be used in this prosecution.

Presumption of marriage arises from cohabitation as husband and wife.

There was also a presumption that appellant’s marriage with Jane Honeycutt was lawful, innocent, and not criminal. It is supposed that a man will not incur the guilt of felony and danger which attends it by marrying another woman during the life of one to whom he has previously been lawfully married. 2 Wharton’s Evidence, sec. 1297; Jones v. Jones, adm’x, 48 Maryland, 39.

Had appellant’s evidence'of cohabitation beeu admitted, it would have been the proviuce of the jux’y, under proper directions from the coxxrt, to weigh the presumptions in making up their verdict.

(d) But the court also excluded the transcript, of the record of the Missouri divorce decree.

With some evidence aliunde of identity of parties, this decree would have proven that on the twenty-eighth day of November, 1866, about twenty-six days after appellant’s marriage with .Jane Honeycutt, and before he married Mary Mahan, Margaret Halbrook obtained a divorce from him.

The decree would also have provecí that Margaret Hal-brook was living at the time appellant married Jane Honeycutt, because she obtained the decree, aud was awarded by it care of her infant children after that marriage. The decree was also evidence that a marriage bad been contracted between the complainant and defendant in that suit, because courts do not grant divorces without proof of marriage.

Marriage is the foundation ' of the whole proceedings, and the decree or sentence granting a divorce, in form and effect, affirms the marriage as well as declares the separation. Bishop on Marriage and Divorce, sec. 315.

The decree would also have conduced to prove that appellant’s marriage with Margaret Halbrook occurred before his ■ marriage with Jane Honeycutt, but about twenty-six days having transpired between the dates of the latter marriage and the time of the decree, which wras obtained on publication. These twenty-six days were periods of appellant’s honeymoon with Jane Honeycutt, a young woman whom, according to the theory of his defense, be it said to his shame, he deceived and deluded into an illegal marriage, and made her in law an adulteress. But a man indicted tor one crime can not be convicted on proof that he has committed another.

After offering the decree in evidence, appellant offered no evidence of identity of parties, but the decree having been excluded, this would have been useless.

The evidence of cohabitation should have gone to the jury for what it was worth, and the decree should have been admitted.

The judgment must be reversed, and the cause remanded for further proceedings.

If the indictment was in fact presented in court by the grand jury, it may be shown by a nunc pro tune entry when appellant is in court, and he may be tried again on the same indictment. Otherwise he may be held to answer a new indictment if the state elects further to prosecute him. Green v. State, 19 Ark., 178; Halcomb v. State, 31 Ark., 427.


text:
    Ebos vs. The State.
    1. Evidence : Medical expert, opinion, etc.

    A medical witness, after examination of a wound upon the head, inflicted by a blow with a club, may testify his opinion that the blow produced the death of the party by concussion of the brain, without opening the skull and examining the brain.
    ERROR to Garland, Circuit Court.
    Hon. J. N. Smith, Circuit Judge.

      G. W. Murphy, for appellant.

      Henderson, Attorney General, contra.

   English, C. J.

Indictment in the circuit court of Oar-land county, charging in substance that John Ebos, on the twenty-sixth of April, 1878, murdered Mary Ebos, by striking her on the right side of the head with a large stick or club.

The accused was tried by a jury, on plea of not guilty, found guilty of manslaughter, and his punishment fixed at imprisonment in the penitentiary for seven years; a new trial was refused him, and he was sentenced in accordance with the verdict, took a bill of exceptions and brought error.

The court gave all of the instructions to the jury, moved for the prisoner, which were fair and favorable, and he objected to none given on the part of the state.

■ I. In the motion for a new trial there were the usual assignments, that tire verdict was contrary to law, the instructions of the court, and the evidence.

It will be sufficient to state the leading facts, which the evidence introduced at the trial conduced to prove.

About dark, on the evening of the twenty-sixth of April, 1878, when Mary Ebos, wife of Bertrand Ebos, and step-mother of the prisoner, was in her kitchen with a half-sister of the prisoner, Josie Ebos, about ten years old, getting supper, the prisoner went into the kitchen, and struck her {Mary) on the right side of the head, with a piece of board timber, which, with other pieces, had been brought into the house to kindle a fire. She fell on the stove, rolled off the stove on to the floor, and remained there awhile, sitting, supporting her head with her hands, and then pulled herself up by the safe and got on a bed. She seems to have said but little after she was struck, but to exclaim,‘-Oh, my head!” She finally became speechless and died shortly after midnight. This was in Garland county.

Immediately after the prisoner struck her with a stick, “he took down a pistol,” went to a neighboring house where he lodged, and put it under the head of his bed.

That he disliked his step-mother is shown by expressions made by him, both before and after he struck her the fatal blow.

Had the jury found him guilty of murder, we should not have disturbed the verdict.

II. Hr. William H. Barry testified that on the twenty-seventh of April, 1878, he was called upon to make a post-mortem examination upon the body of Mary Ebos, and did make a superficial examination of it. That he found upon the right side of her head, just above the temple bone, a severe contused wound, about six inches in length, and from about one and a half to two and a half inches in width, to the skull.

That the skull was not fractured, and he discovered no injury to if. That this was the extent of the post-mortem examination. That there was a burn on the left breast and arm, which, however, did not contribute to the death. That he did not open the- head or examiue the brain.

That he was a graduate of medicine, and a practicing physician and surgeon. That the body had been dead for several hours, and was offensive when he saw it.

The attorney for the state then asked the witness his opinion as to the cause of the death of the deceased. The prisoner objected, on the ground that no sufficient foundation had been laid for such opinion. The court overruled the objection, and the prisoner excepted.

Witness then testified, in answer to the question, that such a wound as that upon the head of deceased might produce death, and frequently did, and that in his opinion, said wound did cause the death of the deceased by concussion of the brain.

The ruling of the court, permitting the witness to give his opinion as to the cause of the death of the deceased, upon examination made by him, was made ground of the motion for a new trial.

The medical witness examined the wound, its character, extent and dangerous location, and was aware of the length of time that had transpired between the giving of the blow and the death of the subject, the appearance of the body, etc. 2 Beck Med. Jurisprudence, pp. 330, 338. From the examination which he made, his observation, experience, and professional reading, he formed the opinion that the wound caused- the death ; and we are aware of no law that required him to open the slcull and examine the brain before he could be permitted to express such opinion to the jury. Of course, the opinion of a medical witness in such case would have more or less weight with the j ury, according to the extent of the examination, the professional rank and character of the witness, etc.

III. The prisoner asked a witness (J. Bull) whether the deceased was not addicted.to excessive use of snuff', and violent fits of passion. Objected to by the state, ruled out by the court, and made ground of the motion for a new trial.

“ Counsel for the prisoner stated, that they asked the question for the purpose of proving that deceased was subject to extreme fits of passion, and had been for many years excessively addicted to the use of snuff’ and they desired the evidence as a basis for the introduction of medical witnesses to prove that the habits and temperament indicated the probable presence of a condition from which sudden death might well have resulted, without reference to the blow.”

It has been held not admissible for a medical witness to give an opinion on merely speculative data. 1 Wharton Evidence, sec. 441.

No evidence was introduced, and none was offered, to prove that the deceased was in a violent fit of passion, or had taken an overdose of snuff, at the time tbe prisoner struck her with a stick. She appears to have been engaged in getting supper, and manifested suffering and increasing stupor from the time of the blow to her death.

If she was addicted to fits of passion and excessive use of snuff, such habits furnished no excuse for the prisoner to strike a woman, and his step-mother, a blow with a stick, that manifestly, from all the evidence, caused her death.

Affirmed.


author: Harrison, J.

text:
    Nathan et al. vs. Sloan.
    1. Practice at Law : Findings of court, when reduced to writing. The findings of the court may be reduced to writing after judgment.
    2. Same : When findings not special.

    The conclusion of facts found, are in the nature of a special verdict; and, when the finding of facts is not special, or such as the law requires, the party desiring it, may have them made so, by motion in the circuit court; and if he fails to make such motion, this court will not reverse.
    3. Promissory Notes: Indorsers, when joint makers.

    Parties who indorse their names in blank upon an obligation to another, at the time it is executed by the maker, and for the same consideration, are joint makers with him, and not guarantors.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      T. B. Martin, for appellants.
   Harrison, J.

This was an action by M. Sloan against Henry Nathan, J. C. Meyer and Sol. Meyer, Jr., indorsers upon the following instrument of writing :

“Pine Bluer, Ark., August 15, 1874.

“ Ninety days after date I promise to pay M. Sloan 'the sum of seven hundred and fifty dollars — being balance of purchase money of five-twelfths (5-12) interest in the steamer ‘ Ella Plughes;5 and it is hereby further provided that this note is only valid and of force after expiration of ninety days, when said M. Sloan will make full title to me; and any claims arising against his five-twelfths interest in said steamer ‘Ella Hughes,5 shall be an oif-set against this note. John Clacomb.55

The indorsements were in blank, and made at the time of the execution of the instrument; and it was alleged in the complaint that the indorsements were a part of the consideration upon which the sale, mentioned in the instrument, was made. It w.as also alleged that the plaintiff', within the time stipulated, made Clacomb a good title to the part of the steamer sold him, and delivered the steamer to him; and that, when the debt fell due, payment was demanded of him, and notice of its non-payment given the defendants.

The defendants, in their answer, denied that the plaintiff had made Clacomb a good title; and averred that by his failure to do so, the steamer had been taken from him to satisfy a claim against her, existing at the time of his purchase, and that the consideration for which they indorsed the instrument had failed.

The trial was by the court, which found in favor of the plaintiff. The defendants moved for a new trial, which was refused, and judgment was rendered against them for the debt and damages.

The defendants appealed.

The only grounds for a new trial, assigned in the motion for it, were: that the court did not state, in writing, its conclusions of fact found, and that the finding was against the law and evidence.

After the motion for a new trial was filed, the court, as its conclusions of fact, found the following:

“ The court finds the facts as stated in the complaint; and finds for the plaintiff the sum of seven hundred and fifty dollars for his debt, and the further sum of one hundred and thirty-five dollars for interest on the same.”

Tlie findings of the court may be reduced to writing after the judgment. Apperson & Co. v. Stewart, 27 Ark., 619; Insurance Company v. Boon, 5 Otto, 117.

Its conclusions of fact found, are in the nature of a special verdict. Obermier & Co. v. Core, Thompson & Co., 25 Ark., 562; Woodruff v. McDonald et al., 33 Ark.

A special verdict is a special finding of the facts of a case; the design of which is to submit the questions of law arising upon the matters of fact specially found, to the consideration of the court, and must state the facts as proved, and not the evidence of them; and must leave no room for presumption. Bac. Abr. Verdict, (D); Gantt’s Digest, sec. 4678.

There may be some question whether the finding in this case was a special or a general one; but we have no occasion to consider it, for, if not special, or such as the law requires, the defendants, if they had wished, could have required it to be made such; and this court will not reverse a judgment for an error, which might have been corrected on motion in the court below, unless motion has been made there and overruled. Sec. 1100, Gantt’s Digest.

There was but one issue in the case, and that was upon the averment in the complaint that the plaintiff had made title to Clacomb to the shares or part of the steamer sold him; and the only evidence in the case was the plaintiff’s deposition. He testified that he had, when he sold the five-twelfths of the boat to Clacomb, a clear title to, and there was no lien on, or claim against the same; and that he made him, through the custom-house at Nashville, within ninety days from the date of the instrument, a good title thereto. The evidence sustained the finding.

The defendants were not guarantors; they became, by their indorsement of the instrument at the time of its execution, and upon the same consideration for which Clacomb executed it, joint makers with him, the same as if they had written their names under his upon the face of it; writing their names upon the back, did not change the nature of their liability; it was not the making of a new contract, but simply becoming sureties in that then being-made. Killian v. Ashley et al., 24 Ark., 511; Nelson v. Dubois, 13 Johns., 175; Moies v. Bird, 11 Mass., 436; Rey et at. v. Simpson, 22 How., 341; Burton & Co. v. Hansfield et al, 10 West Va., 470; 1 Pars. on Con., 244.

The judgment is affirmed.


text:
    Chandler vs. Smith.
    1. UffiPLEVix : For bales of cotton, seed cotton not to be talcen.

    An order of delivery directing the officer to replevy bales of cotton, gives him no authority to seize seed cotton.
    2. Same : Interpleader. Judgment against.

    On the trial of an interplea in an action of réplovin, no verdict or judg-. ment for either property or money (except for cost) can be rendered against the interpleader, where the property has never been delivered tp him.

      ERROR to Montgomery Circuit Court.
    Hon. L. J. Joyner, Circuit Judge.

      Gallagher $ Newton, for plaintiff.

      Battle, contra.

   Harrison, J.

This was a suit in replevin for two bales of cotton, commenced before a justice of the peace, by J. 33. Smith, the defendant in error, against C. B. Hazleton.

The return of the constable on the order for the delivery of the property to the plaintiff was as follows :

“I executed the within by proceeding to the residence of C. B. Hazleton, and seized about three thousand pounds of seed cotton, and told plaintiff to take charge of it and haul it away; went to Caddo Gap gin of M. M. Chandler, seized one bale of cotton weighing four hundred pounds, and about thirteen hundred pounds of seed cotton, which I pointed out to plaintiff, and told him to take possession of it.”

At the return day of the summons, M. M. Chandler, the plaintiff in error, filed with the justice a claim to the property, and interpleaded therefor.

Upon the trial, the plaintiff' recovered judgment against the defendant for the sum of $95 principal, and the further sum of $40 damages. No disposition appears to have been made of the interplea.

Both Hazleton and Chandler appealed to the circuit court.

There was a trial upon the interplea in the circuit court, and the jury returned the following verdict: “Ve, the jury, find in favor of the plaintiff, two bales of cotton valued at $120;” and the court rendered judgment in favor of the plaintiff, against Chandler, for the $120, or a return of the cotton to him.

No bill of exceptions was taken.

Chandler brought error.

The proceedings, from beginning to end, were very irregular.

It does not appear that Chandler delivered to the constable an affidavit that he was entitled to the possession of the property, in order that the constable should not deliver it to the plaintiff, as he might have done, under sec. 50^ Gantt’s Digest; and the return of the constable to the order of delivery does not show whether he retained the possession, or delivered it to the plaintiff. Indeed, the return is so defective as not to clearly show that the property mentioned in it was in fact replevied. The plaintiff', in his affidavit, claimed two bales of cotton, but no seed cotton ; and the order of delivery only directed the constable to replevy the two bales, and he had no authority to take seed cotton. How there could be a verdict for either cotton or money against Chandler, who was but an interpleader or claimant of the cotton, or judgment against hjm in the ease, except for costs, we are unable to conceive.

The judgment is reversed, and the cause remanded for further proceedings.


text:
    Williams vs. Skipwith.
    1. Attachment: Release bond, where there is no attachment, void.

    In a suit in which no affidavit or bond for attachment was filed, nor order for attachment issued, the defendant filed the bond of a surety to perform such judgment as should be rendered in the case. Afterwards, judgment was rendered against both defendant and the surety, without notice to him, for the plaintiff’s demand ; and execution was issued, and the surety gave a stay bond; and afterwards appealed to the supreme court. Held, That the bond of the surety was unauthorized by law, and answered no purpose in the suit; that it gave the circuit court no jurisdiction as to him, and the judgment against him was coram non judice, and void ; and.that, there being no judgment against him, the execution and stay bond were also void.
    APPEAL from Pulaski, Circuit Court.
    Hon. T. C. Peek, Special Judge.

      Gallagher Newton, for appellant.

      Dodge $ Johnson, contra.
   Harrison, J.

E. H. Skipwith sued the Memphis and Little Rock Railroad company, before a justice of the-peace, on an account for $250.

The suit was commenced on the seventeenth day of March, 1873, and the summons was served the same day.

No affidavit, nor bond, as required in suits by attachment, was filed, nor order of attachment issued; but the defendant, on the eighteenth day of the same month, filed with the justice, and which was approved by him, the bond of B. D. Williams, to the plaintiff, in the sum of $500, conditioned that the defendant would perform the judgment that should be rendered in the case.

Upon the trial, the justice foundin favor of the defendant; and the plaintiff took an appeal to the circuit court.

The case was tried in the circuit court, at the May term, 1876, by the court without a jury, which found for the plaintiff the sum claimed in his account, $250, and rendered judgment therefor against the defendant, and also, without any notice to him, against Williams.

An execution on the judgment was issued on the second day of October, 1876, to Jefferson county, and Williams gave a stay bond. After the return of the execution, he applied for, and obtained, an appeal to this comí.

There was no attachment against the defendant’s property. The bond filed with the justice was unauthorized by law, and answered no purpose in the suit.

It could, therefore, give the circuit court no jurisdiction as to the appellant, and the judgment against him was coram, non judice, and void.

There being no judgment against him, the execution and stay bond were also void.

The judgment of the circuit court against the appellant is, therefore, reversed, and, together with the subsequent proceedings, set aside and held for naught.


author: Eakin, J.

text:
    Jacks et al. vs. Nelson & Hanks.
    1. Justice ov the Peace: Practice before. Filing account, etc.

    I'n ordinary actions before justices of the peace, the plaintiff must indicate in the paper filed as his cause of action, the matter upon which liis claim is founded; but he is not held to exhibit in any paper or written statement (unless he chooses to proceed by regular pleading), a complete cause of action, unaided by proof aliunde.

    The instruments filed are not pleadings. If a proper paper or statement be not filed, the suit may be dismissed on motion. If the paper filed is sufficient to indicate a cause of action, the plaintiff may supply full proof aliunde.

    2. Negotiable Instruments : Certificate of deposit.

    A certificate of deposit is prima facie evidence of a chose in action, which is assignable by statute, and givéfe a right of action to the assignee. It, itself, implies a contract to pay the amount deposited.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Oypeut, Circuit Judge.

      Palmer, for appellant.

      Thioeatt, contra.

   Eakin, J.

Appellants sued defendants before a justice of the peace, filing, before summons, the following paper :

Nelson & Hanks, Bankers:

“ Helena, Ark., 12-19-1877.

“Deposit for credit of Charles Hicks $148.60-100, 3-B-6.

“ N. & PI.”

This was indorsed, in writing, by Hicks to Mayfield & Co., and by them to plaintiffs. Judgment was rendered by the justice for plaintiffs, and defendants appealed to the circuit court.

There, defendants filed a written demurrer “to the instrument ” sued on; first, because it does not show cause of action; second, because there was no account nor written contract, or written statement of the facts on which the action was founded ; and, third, because there was nothing on file showing cause of action.

The court sustained the demurrer; and, refusing to allow plaintiffs to amend by filing a written complaint, gave judgment for defendants. Plaintiffs appealed.

The statute regulating the practice before justices requires that ordinary actions shall be commenced by summons, and that the plaintiff shall first file, “ the account, or the written contract, or a short written statement of the facts on which the action is founded.” This is for the convenience of defendant, that he may not be surprised; and to protect him from a second suit on the same ground. The plaintiff’ is required to indicate the matter upon which his claim is founded, but is not held to exhibit in any paper, or by written statement — (unless he should choose to proceed by formal pleading) — a complete cause of action unaided by proof aliunde. That would not be done by filing an account.

The demurrer in the circuit court was not proper practice. The instruments filed are not pleadings. If there is no compliance with the statute by filing any proper paper, or written statement, the suit might be' dismissed on motion. If the paper filed is sufficient to indicate the cause of action, the plaintiff should be allowed to supply full proof aliunde, or, failing in that, should have judgment against him.

A certificate of deposit, although not commercial paper, negotiable by the law merchant, when not containing a promise to pay, is, nevertheless, prima facie evidence of a chose in action, which is assignable by statute, and gives a right of action to the assignee. If there be any defense to it, of any nature, it should be made out by defendant. The certificate, itself, implies a contract to pay the amount deposited. That is meant by a deposit. Something left in another’s hands; not for his use, but the depositor’s. The doctrine laid down by Mr. Daniels, in section 1704, of his excellent work on Negotiable Instruments, to the effect that such a certificate “ is nothing more than a receipt, and could not be the basis of an action against the bank,” does not mean that it can not be used as evidence of an implied contract. The case he cites, shows this more plainly. Hotchkiss v. Mosler, 48 N. Y., 482.

The better doctrine, upon reason and authority, is to consider certificates of deposits by a bank, if payable at a future day, as promis .ory notes. If not accompanied with an express promise to pay, as simple evidences of indebtedness, subject to defenses. Morse on Banks and Bankruptcy, p. 52.

The plaintiffs below sufficiently complied with the statute, and the court erred in rendering judgment against them for costs.

Reverse the judgment, and remand the cause for further proceedings.


text:
    Jacks vs. Chaffin et al.
    1. Collector’s Deed: Uncertainty in description makes void.

    A collector’s deed which recites that a quarter section of land was offered for sale, and that B purchased 35 acres of it, and then conveys to him said land, is void upon its face for uncertainty.
    2. Same : Recital of 'survey of part sold.

    If a collector’s deed for land sold under chapter 128, Revised Statutes, be otherwise sufficient, a failure to recite in it the survey and return of the part sold, will not invalidate it; they may be shown aliunde. But, in the absence of any recital of a survey, or any evidence of it aliunde, the deed itself, describing nothing, is an absolute nullity. ,
    3. Tax Sale: For territorial taxes.

    There was no law in existence in 1847, authorizing the sale of lands for territorial arrearages of taxes.
    4. Title by Possession : Statute limitations.

    Possession of land during the full period of limitation, under such circumstances as would make a valid defense, amounts to an investiture of title, which may be actively asserted in all respects, as effectively as if acquired by deed. The continuity of possession has reference to the time the statute is running, and is not necessary after the bar has attached.
    APPEAL from Phillips Circuit Court
    Hon. J. N. Cypert, Circuit Judge.

      Rose, for appellant.

      Tappan JHornor, contra.

   Eakin, J.

Jacks, in September, 1875, sued Chaffin and others, to recover a tract'of about thirty-five acres of land (less a few acres described by special metes and bounds), in the southwest quarter of1 section fourteen, in township two north, of range three east; claiming it in a square off the southeast corner.

He set forth his documentary evidences of title, and exhibited copies. They consist of two certificates of the county clerk; one, to show the collector’s advertisement of the sale of delinquent lands, for taxes, to be made on the first of November, 1847, including said quarter section, which had been assessed for the taxes of twenty-one years; and the other, to show that, on the day appointed, thirty-five acres of said tract had been purchased by George Bond, for the taxes and penalties. Appended to the advertisement was a notice: That, “ if a less quantity than the whole of any tract be sold, it will be surveyed off' of the southeast corner of said tract. If less than the whole of any tract be sold, and more than one-half, it will be surveyed off the south side of the tract, so as to avoid the improvements, if possible to do so.”

Then followed an exhibit of the collector’s deed, reciting other usual matters, that at the sale George W. Bond bid the amount of taxes due on said quarter section, for thirty-five acres of the same, and that the time for redemption had expired. Whereupon, the collector conveyed to said Bond “ the above described tract or parcel of land.” There was no more definite description. Then followed exhibits of other conveyances, bringing down Bond’s title to plaintiff. In one of them, dated February 5, 1855, the land is described as “ thirty-five acres in the southeast corner” of said quarter section, without defining the shape as a square. No other deed in the chain contains a more definite description than did that of the collector, which is taken throughout as the basis of all.

Plaintiff charged that defendants held possession -without right, and for a year and a half had unlawfully kept him out.

Defendants answered, denying the right of plaintiff’, and setting up their own claims, as all derived through mesne conveyances, from an original patent- from the United States, issued upon a military bounty warrant in 1828. They excepted to the documentary evidence of plaintiff; amongst other reasons, for the following: First, because the collector’s deed to Bond does not describe the land set forth in the complaint; second, because it appears upon the face of the deed that thirty-five acres were sold off of. said quarter section ; and does not appear that the county surveyor ever laid off said land, or made out, and returned to the collector, a certificate of survey; third, because the deed showed, on its face, the tax to be illegal — and failed in necessary recitals; and, fifth, because it showed that the sale was for the back taxes of a period of twenty-one years.

The first of these was overruled, and the second, third and fifth sustained. Both parties saved exceptions to the ruling.

Plaintiff then, by leave, filed an amended complaint, in which he set forth, as before, the circumstances of the pui’chase by Bond at tax sale, axxd the subsequent chain of title to himself; and alleged, in effect, that those under whom he claimed had beexi in the peaceable, adverse possession of the lands, so purchased, from the year 1848 to lBYO. That, at the latter period, some of the defendants first begun to assert their claims ; that the defendants now hold possession without right, and have for a year and a half unlawfully kept plaintiff out.

Defendants demurred to the amended complaint, because of genex’al insufficiency; and, especially, because it showed that defendants were ixx possession, and did not allege that they acquired possession forcibly and illegally. The demurrer was sustained by the court;. The plaintiff declined to amend, and the suit was dismissed.

Plaintiff' moved for a new trial on the ground that the court had erred in sustaining the exceptions to the evidences of title filed with the complaint. This motion was overruled. The plaintiff brought the evidences offered, and the action of the court, upon the record by bill of exceptions, and appealed.

The act of 1875 prescribes a new and anomalous practice for the recovery of land; which accords with neither common law nor chancery practice, throughout; but is sui generis. It requires the plaintiff to set forth and ex: Mbit, by copies, his evidences of title; and the defendant, in Ms answer, to set forth exceptions to any of the documentary evidences so filed.

The defendant must also exhibit, in like manner, the evidences upon which he relies, to which the plaintiff may except. The exceptions are passed upon by the court, and if any exception is sustained, to any documentary evidence, the same can not be used on trial; unless “ the defect for which the exception is taken shall be cured by amended complaint.” The practice, under this act, will be most easily harmonized with our general system by assimilating the record to one in chancery. The exhibits and exceptions thereto will thus become parts of the record, but not of the pleadings, which are still required to be sufficient of themselves. No motion for a new trial, nor bill of exceptions, will be considered necessary to bring to the notice of this court any error in ruling upon exceptions.

The defendants have saved their exceptions to the action of the court in overruling the first ground of their exceptions to plaintiffs evidence. The fourth need not be noticed, as it concerns only dower. But defendants do not now appeal, and it is necessary only to consider the exceptions that were sustained, against the exceptions of plaintiff.

It appeared from the face of the .deed that thirty-five acres were sold off of the 160 acre tract; and did not appear that the county surveyor laid off the tract, and returned a certificate of survey to designate the land. The exception on this ground is to be considered in connection with the whole of the collector’s deed, which is before us, and is clearly void, upon its face, for uncertainty. It recites that the quarter section was offered for sale, and that Bond purchased 35 acres of it, and conveys to him said land. That passes nothing, proprio vigore, and would give the plaintiff no right, in equity even, to have the deed reformed ; -without a showing aliunde of some matter by which a more definite intention than that expressed might be manifested.

The law then in foi'ce (Revised Statute, chap. 128, sec. 78), required, in case of the purchase of a part of a tract at a tax sale, that it should be laid off in a square, adjoining one or other of the corners of the tract, “so as not to include the improvement, if any, if it can be avoided,” and directed the collector, in his advertisement, to state, “from what part of any tract,” any portion less than the whole, which may be sold, shall be laid off. He "was also directed (sec. 91) to specify in the certificate of purchase given to the buyer, “ at what part of the tract the same shall be laid off,” and, in the same certificate, to require the county surveyor, on the request of the purchaser, to lay off such tract by metes and bounds. If the lands should not be redeemed, it was made the duty of the collector, after the lapse of a year, on production of the county surveyor’s return of the survey, in conformity with the requisition of such certificate, to execute a deed accordingly, (Ib., sec. 95.)

It is plain from the law, and the collector’s notiee, that the right of a purchaser to a square off the southeast quarter of any tract, did not become absolute on his bid for a certain number of acres generally, and the failure of the former owner to redeem, — at least not to the extent of supplying a failure in tbe deed to define with certainty the shape and locality of the partial purchase. The legislature had not considered it sufficient to designate the figure of a square, even in a fixed corner, — although this court may judicially know that such a designation is as certain as anything in mathematics. It still required a survey by metes and bounds to be made — perhaps from some policy of notice and due information to such purchasers, and owners of main'tracts, as might not have sufficient education to calculate the side of a square in yards, or rods, from a given area in acres, but who ought, nevertheless, to know, and be held to observe their true boundaries. Besides, the designation by the collector of the southeast corner as the one from which partial purchases were to be taken, was qualified, not only by the law, but the notice itself. It must not include improvements, if it could be avoided.

For this reason, also, a survey was important. If the deed itself had been certain, and had failed to set forth the survey and return, that, like any other material matter, might have been shown aliunde (Bonnell v. Roane, 20 Ark., 114), and the deed would not be invalid. But when the deed itself is so imperfect that, unaided, it would convey nothing at all at law, the want of some evidence or recital which might supply the requisite certainty, is obviously ground of exception. A recital of the survey and return would have been proper; and, if made, would have given certainty to the deed. If it had been shown by other documentary evidence, it might, at least, have given the plaintiff a vested right in equity. But in the absence of any recital of a survey, or any evidence 6f it aliunde, the deed, itself, describing nothing, is an absolute nullity. The exception on the second ground was well sustained.

The third and fifth grounds may be considered together.

The right of the state to collect taxes which had accrued under the territorial government, is unquestionable. But it is a sovereign right, to be exercised under sovereign direction. Mere agents of the state, without express authority of law, have no right to collect them. There was no law in existence in 1847 authorizing the sale of lands for territorial arrearages of taxes. Sec. 24, of chap. 128, of the Revised Statutes, approved in 1838, applies only to prospective omissions.

Upon this, and the former ground, .the court did not err in sustaining the second, third and fifth exceptions to the evidence filed with plaintiff’s complaint. He did not then rely upon possession and the statute of limitations, and the question of admitting the deeds to stand as color of title was not presented by the parties.

In the amended complaint the land claimed is not described with any more certainty than was shown by the original complaint with its exhibits. There should have been a motion to make it more definite. It can not be said there was no cause of action. It was defectively stated, which is not ground of demurrer.

The demurrer admits that those under whom plaintiff claims, had been in the quiet, peaceable, continuous, adverse possession and enjoyment of the land claimed, from 1848 to 1870 — that since the latter date the defendants had asserted a title, were in possession at the beginning of the suit, and wrongfully keeping plaintiff out. It is based upon the idea that the statute of limitation is a mere negative prescription, affording a defense, but conferring no right which may be actively asserted, beyond the mere redress of the tenant against a tort-feasor.

The weight of authority in the United States seems now in favor of the doctrine that possession of land during the full period of limitation, under such circumstances as would make a valid defense, amounts to an investiture of title; which may be actively asserted, in all respects as effectively as if acquired by deed. (See cases referred to in Wash. on R. Property, Book III, chap. 11, sec. 7, sub. sec. 48.) This court has repeatedly approved this view of the effect of the statute. It was applied to a case of personal property in Hicks v. Flint, 21 Ark., p. 463— and is announced, or underlies the reasoning in Sharp v. Johnson, 22 Ark., 79; Walker v. Towns, 23 Ark., 147; Kirby v. Vantrue et al., 26 Ark., 368; Mayo & Jones v. Cartright, 30 Ark., 407; Mooney et al. v. Coolidge, ib., 640; Farguson v. Pelin (MS.) The continuity of possession, always insisted upon, has reference to the time during which the statute is running — and is not necessary after the bar has attached.

The demurrer should have been overruled. No question of the nature of the possession, or of color of title is presented. These may arise on issues to be made, and will not be anticipated.

Revei’se the judgment of dismissal, and remand the cause for further proceedings consistent with law and this opinion.


text:
    Adams et al. vs. Jacoway.
    1. Attachment: Forthcoming bond, when broken. Pleading on.

    The obligors in a delivery bond, executed under sec. 406, Gantt’s Digest, have a right to retain the property attached until the court orders a sale of it to satisfy the judgment against the defendant; and when such order is made, they may pay off the judgment, or must, by the terms of the bond, deliver the property or its value to the sheriff. Until such failure, there is no breach. And a complaint against the obligors on such bond, which fails to allege any order of court concerning the attached property, shows no cause of action.
    2. Mistake: Suit and bond in wrong name.

    "Where a suit is brought against one in a wrong name, and a "bond is given to secure some action on his part, describing him by the same name, and there is no doubt of identity, the bond is for the action of the person. The insertion of the true name by the court in the subsequent proceedings, and the judgment against the same individual for whom the obligors became bound, although by a different name, is sufficient; and the change made, with or without notice to the obligors, can not affect their liability. But when the persons are actually distinct, a bond given for the conduct of one can not, by change of names in the proceedings, be made to stand good for the action of the other. The test is, the person had in view by the obligors in executing the bond. If judgment is rendered against the same person by a different name, the bond holds good. If it be a different person not contemplated in the bond, the obligation can not be transferred.
    APPEAL from Yell Circuit Court.
    Hou. Thos. W. Pound, Special Circuit Judge.

      Ratcliffe, for appellant.

      Clark Williams, contra.

   Eakin, J.

Mrs. Jacoway sued the appellants, as obligors in a forthcoming attachment bond, which is set forth at lengthen the complaint. It appears to have been executed before a justice of ihe peace, on the fifteenth of December, 1874, in a suit entitled “M. Jacoway v. Q-. A. Parsons.” It is in the penal sum of $200, conditioned that the defendant, G. A. Parsons, should perform the judgment of the court in said action; or that the obligors would have forthcoming 100 bushels of corn, attached in the action, or its value ($100), subject to the order of the court. The complaint then proceeds to state:

That, on appeal to the Yell county circuit court, at the June term, 1876, it appearing that by mistake, in all the pleadings and proceedings in said cause, the defendant had been G. A. Parsons, when his proper name was James H. Parsons ; and the constable who served the process having-appeared in court and identified James H. Parsons as the person actually served, he, was allowed to amend the return on the order of attachment in accordance with the facts; and, on motion of the plaintiff in said cause, due notice of which was given to said James IT. Parsons and these defendants, all the pleadings and proceedings in the cause were amended by striking out the said initials, “ G-. A.,” and inserting £! James H.,” after wrhich the suit proceeded in the new style. The plaintiff obtained judgment at said last named term against James PI. Parsons, for $200 debt and interest, and $14.05 costs, upon which an execution was afterwards issued, and was returned nulla bona, of which defendants had notice. Breach alleged, that neither James PI. Parsons nor defendants, nor any one for them, had complied with the conditions of the bdnd, but had refused to pay the judgment or render- the corn or its value.

Defendants answer that they executed the bond for, and on behalf of, G. A. Parsons, and' no one else, and to release Ms property. They deny that there was any mistake on their part as to the person for whom they executed the bond. They say they were well acquainted with “G. A.” as well as with “James II.” Parsons, who were distinct persons, reported to be brothers, residing near each other and not far from defendants. They had both cultivated land on the Jacoway farm. That on the trial before the justice, of the suit in which the bond was made, judgment was rendered against G. A. Parsons, who appealed to the Yell county circuit court, and there filed his written answer to the complaint, praying that the cause might be dismissed and the attachment discharged; and they say that cause has not yet -been tried. That at the May term, 1876, on the petition of plaintiff', and by consent of G. A. Parsons, the cause was transferred to the Dardanelle district. That it is still there pending, and no judgment has been rendered against said G. A. Parsons. They deny liability upon any pretended judgment against Jam.es H. Parsons, or that they had any notice of the motion set out in the complaint for the substitution of the name of James H. for G. A. Parsons, or that they authorized or consented to the change. They say further that G. A. Parsons is solvent, and James H. insolvent. They close with a demurrer to the complaint, which demurrer was overruled.

The court sustained a demurrer to this answer. Defendants rested upon it, suffered judgment and appealed.

The bond was executed under section j.06 of Gantt’s Digest, and conditioned that the defendant “shall perform the judgment of the court in this aclion,” or that the obligors “will have the one hundred bushels of corn attached in this action, or the value — one hundred dollars —forthcoming, subject to the order of the court, for the satisfaction of such judgment.” The defendants had the option on the failure of defendant to pay the judgment, to pay in the value of the corn, or deliver the corn itself, subject to the order of the court.

It was the duty of the court, on rendering judgment for the plaintiff against the defendant, first to apply to its payment any moneys which may have arisen from sales of perishable property, or from proceedings against garnishees. In case there should he none, or they should be exhausted, then, and not before, the court should order a sale by the sheriff of any other attached property which may be under its control. Property bonded under section 406 is presumed to be left in possession of the obligors instead of the officer, but remaining virtually subject to the control of the court, for the purpose of ordering a sale at the proper time, if necessary to satisfy any judgment against defendant. Perchance it may not be necessary, even in case of srich judgment. The judgment may be personal, without sustaining the attachment. It may be satisfied by proceeds of sales of perishable property, or by funds recovered from garnishees. Until the contingency occurs, of an order of sale of the property attached in the action, the obligors may keep it. They hold it subject to such order, and when such order is made, may pay off" the judgment for defendant, or must, by the terms of their bond, deliver the property bonded or its value, to the sheriff. Until such failure, there is no breach. The obligors must have the right to exercise their option when the contingency arises, and if they fail to do either, the court may force them by attachment at once to bring up the property, or order the sheriff to retake and sell it. lb., sec. 425 to 431.

It is not alleged in this case that any judgment was rendered in the attachment suit against the obligors, under the act of November 10, 1875, and it is not necessary to determine how far that act applied to bonds already executed.

The demurrer to the answer reaches back to the com-plaint, which fails to allege any order of the court concerning the attached property, and therefore shows no cause of action. The complaint should have been held insufficient.

It is good enough so far as it regards the change of the name of defendant during the suit, from “ G. A.” to “ James H. Parsons.” Where a suit is brought against one by a wrong name, and a bond is given to secure some action on his part, describing him by the same name, and where there is no doubt of identity, the bond is for the action of the person. The insertion of the true name by the court in the subsequent proceedings, and the judgment against the same individual for whom the obligors became bound, although by a different name, is sufficient. The name is merely a means of identification. The change, made with or without notice to the obligors, can not affect their liability. It only imposes on the obligee the burden of alleging and proving the identity of the person intended.

But when the persons are actually distinct, a bond given for the conduct of one can not, by substitution of names in the proceedings, be made to stand good for the action of the other. The test is, the'’person had in view by the obligors in executing the bond. If judgment is rendered against the same person by a different name, the bond holds good. If it be a different person not contemplated in the bond, the obligation can not be transferred. The true state of the case depends on proof, to be taken on issues duly made by pleading.

The answer states that there were two distinct persons— brothers — both cultivating portions of the Jacoway farm; ■“ G. A.” being solvent, “ James IT.” insolvent. That they gave the bond for “G. A.,” to release his property, having him in view — meaning to be responsible for him, and no other. The mere statement of the case is sufficient to show that on no just principle can .they be held answerable for the default of “James H.,” although his name may have been afterwards substituted in the action for that of “ G. A.” They say they had no notice of this. But if they had even had notice, they were not bound to interfere. They were not parties to the suit, and might well have rested under the belief, that if the plaintiff desired to change the party defendant, and obtain a judgment again3t a different person, he was content to waive his advantage under the bond, or, in other words, accept the legitimate legal consequences of his election. If the complaint had not been defective,-the demurrer to the answer should have been overruled. It set up a valid defense.

Eor the errors indicated, let the judgment be reversed and the cause be remanded for further proceedings consistent with this opinion, and with leave to all parties to amend their pleadings.


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    Logan et al. vs. Jelks.
    1. Statute Limitations: Ttle by possession.

    A"*void patent may be used to give color of title and fix the limits of possession, and a continuous adverse ■ possession under it, or without any color at all, when the limits of possession may be shown, for a period of over seven years, as against parties whose rights are not saved, will create a title which may be used to maintain ejectment.

      APPEAL from Woodruff Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.
    Goody, for appellant.

      Turner, contra.

   Eakin, J.

Jelks sued appellants in ejectment, claiming-under parties who had entered-the land at the United States office at Batesville, on the first of Januaiy, 1852, and obtained a patent on the first of September, 1856. He alleges that from the date of the pateut until some time in 1876, when defendants obtained ^possession, he and those under whom he claimed were in the continuous, peaceable possession of the land, holding in person or by tenant, by virtue of said patent, adversely to all others. The patent and some mesne conveyances are exhibited.

Appellants, in their answer, denied the right of plaintiff-, and also his continuous adverse possession, as alleged. They claim title by showing that the land in controversy had been selected and confirmed to the state, as swamp and overflowed, and bought from her on the twenty-seventh of January, 1872, by appellants, who obtained the patent of the state on the twenty-seventh of February, 1872.

It appeared upon trial, from the certificate of the state land commissioner, that the land was confirmed, to the state on the fourth of August, 1860, and sold by her to appellant, Logan, and the ancestor of the other appellants, on the fourth day of March, 1862. They perfected their title under act of March 23, 1871, and obtained a state patent, as alleged.

The plaintiff testified that from the twentieth of- April, 1864, the date of his own purchase, until some time in 1870, when he sold it again and delivered possession to his vendee, lie was in the continuous, peaceable possession of the land, holding the same as his own under his deed; that the person to whom he sold in 1870 “kept it” about two years, when, being unable to pay, the trade was canceled and possession returned; and that afterwards plaintiff’, by himself and his tenants, had been in possession until dispossessed wrongfully by defendants in 1876.

The court, sitting as a jury, found the facts as above stated, and held the plaintiff entitled to recover on his adverse possession under color of title. Judgment was rendered accordingly, and defendant appealed.

In the absence of any conflict of evidence as to the nature of the possession, the court properly found the possession of the plaintiff and those under whom he claimed to have been adverse, from the year 1866 to the year 1876.

Conceding the patent from the United States to have been void, it may be, nevertheless, used to give color of title and fix the limits of possession, and a continuous adverse possession under it, or without any color at all, when the limits of possession may be shown for a period of over seven years as against parties whose rights are not saved, will create a title which may be used to maintain an action of ejectment. This question has been directly decided in the case of Jacks v. Chaffin, at the present term, and the principles of that case govern this.

The purchase from the state in 1862 was valid, and gave the purchaser a right to the possession of the land, and to bring an action as soon as the statute of limitation should commence' running again, which period has been fixed at the second day of April, 1866. More than seven years had elapsed before plaintiff lost possession, and his title had ripened. The act of 1871 did no.t extend the time of limitation or fix a new period for rights accrued. The defendants might have sued upon their entry in the swamp land office, without the patent. See Gantt’s Digest, see. 8857.

Affirm the judgment.


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    Hearn vs. The State.
    I. Ckimixal Pleadixg: Using insulting language io a crowd.

    When an offensive denunciation is addressed to a company of men, and intended to apply to all of them, it may be charged as having been made-to all, or any one or more of them.
    APPEAL from Mississippi Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Henderson, Attorney General, for appellee.
   English, C. J.

This was an indictment in the circuit court of Mississippi county, under the statute known as the peace ancl tranquility act. Gantt’s Dig., sec. 1512.

The indictment charged, in substance, that Jeff. A. Hearn, in the county, etc., on the twelfth day of August, 1878, did unlawfully use insulting language towards one John Lamberson, in his presence and hearing, which language, in its common acceptation, is calculated to cause a breach of the peace-.

The defendant was found guilty by a jury, and fined $10. A new trial was refused by the court, and he took a bill of exceptions, and appealed.

I. The evidence conduces to prove that about the time alleged in the indictment, a company of men were working a road in Mississippi county, and at noon stopped for dinner in front of appellant’s house, which was near the road, some of them having brought food with them, and others, living near, going to their homes to eat their dinners.

After dinner, the company assembled in the road in front of appellant’s house, near his yard gate, to resume labor.

Appellant walked out from his gallery to the gate, with a pistol in his pocket, and said to John Lamberson, one of the company: “ Don’t you owe me $2.50?” Lamberson replied: “Yes; I owe you for marrying me, and I will pay you in corn.” Appellant responded: “Damn you, and yoiir corn too!” And then, turning to the crowd, said: “ Any man that made fun of my dinner is a damned son-of-a-bitch, and his mother is a bastard!”

Lamberson replied: “I have not said so much about your dinner.”

Other words passed between them, and appellant said: “I learn you have said I was a mean man, and I don’t know what made you say it, unless it was because I married you, and you did not pay me the $2.50 fee.” Lamberson replied : “I did not have the money, but I will pay you in corn.”

During the altercation, Lamberson approached appellant, with his spade in both hands, not uplifted, but so as to be easily used. Appellant had his hand upon his pistol, partly drawn, and Lamberson said: “ Don’t draw that pistol on me.” Appellant replied: “ If I do, I will use it.” Lambeyson kept close to him, with the spade in his hands, and no fight occurred.

Lamberson testified substantially to the above facts, and stated that he took it that appellant was addressing himself to him when he said: “Any man that made fun of my din-n er is a damned son-of-a-bitch, and his mother is a bastard !”

The witnesses agree that he turned to the crowd when he made this offensive denunciation, but it is probable, from all the facts and circumstances in evidence, that ho intended it for Lamberson.

The words were calculated to produce a breach of the peace, and very nearly caused a conflict between appellant and Lamberson with pistol and spade, and the verdict was warranted by the evidence.

II. The' court charged the jury as follows, to which appellant excepted:

“ If the jury find, from the evidence, beyond a reasonable doubt, that the language used by defendant was addressed to a company of men approached by defendant, of which company John Lamberson was one, that said language was intended for the entire company, or John Lamberson individually, and the same was, in its common acceptation, calculated to cause a breach of the peace, etc., they will find defendant guilty.”

No doubt when an offensive denunciation is addressed to a company of men, intended to apply to all of them, it may be charged as having been made to all, or any one or more of them.

The latter part of the instruction, however, was more appropriate to the facts of this case, but the defendant was not prejudiced by the form in vhich the whole instruction was given. He was rightly convicted on the evidence.

Affirmed.


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    Thomas vs. City of Hot Springs.
    1. Municipal Corporations : Power to punish drumming.

    A corporation may make it a penal offense for any person to drum customers to gaming nouses and strumpet houses, and such other immoral and pernicious occupations, as it has power under its charter to suppress. But it has no power to make it a crime to solicit custom for hotels, competent practitioners of medicine, or other ordinary lawful and useful occupations.
    APPEAL from Garland Circuit Court.
    Hon. J. M. Smith, Circuit Judge.
    Benjamin, for appellant.

      Henderson, Attorney General, contra.

   English, C. J.

On the twenty-third of May, 1879, Harry Thomas was arrested under a warrant issued by the police judge of the city of Hot Springs, on a charge of having committed the offense of drumming John "West to Hr. C. J. 'Weatherby, etc.

The defendant was tried before the police judge, convicted, and appealed to the circuit coui’tof Garland county, where the case was submitted to the court, by consent of parties, on the plea of not guilty. The court found defendant guilty upon the evidence, and fined him $10. He moved for a new trial, which the court refused, and he took a bill of exceptions, and appealed to this court.

On the trial, the following ordinance was read in evidence:

“ ordinance on drumming.

“City of Hot Springs, May 5, 1879.

Be it ordained by the Mayor and Board of Aldermen of the

City of Hot Springs, that:

“Whereas, The laws of the state for the incorporation, organization and government of municipal corporations, approved March 9, 1875, give power to the city council to license, regulate and suppress ordinaries, corn doctors, private and venereal hospitals, and to make and publish bylaws and ordinances which to them shall seem necessary to secure such corporations and their inhabitants against thieves and other persons violating the public peace, and to promote the prosperity, and improve the morals, order, comfort and convenience of such corporations and their inhabitants, against thieves and other persons violating the public peace, and to promote the prosperity, and improve the morals, order, comfort and convenience of such corporations and their inhabitants; and,

“Whereas, It is well known that persons who run, drum and solicit patronage for physicians and quacks, boardinghouses, bath-houses and gambling dens, cause great inconvenience to this resort, provoke disorder, and greatly injure the morals, comfort and business thereof;

“ Sec. 1. Therefore, be it ordained by the mayor and board of aldermen of the city of Hot Springs, that, any person who shall be found drumming, running, or soliciting strangers or visitors to this place for any hotel, boardinghouse, bath-bouse, physician, or pretended physician, quack, or vendor of nostrums — and any person who shall employ another for any such purpose, or shall in any way encourage or countenance such drumming, running or soliciting for any hotel or boarding-house he or she may control, or for any business, profession or vocation he or she may be engaged in, or for any purpose whatever in the limits of this city, shall be deemed guilty of a misdemeanor, and on conviction shall be fined in any sum not less than ten dollars nor more than tw.enty-five dollars.

“ See. 2. If any physician, or pretended physician, quack or vendor of nostrums, hotel or boarding-house keeper, or any other person, shall receive patients, boarders or customers at the hands, and upon the recommendation or reference of such persons as are recognized as drummers, he or she shall be deemed guilty of a violation of section one of this ordinance, and punished as therein provided.

“Sec. 3. Any person engaged in drumming, running, or soliciting strangers or visitors for any hotel, boarding-house, bath-house, physician or pretended physician of this city, by going back and forth from this city on the railroad train, shall be deemed guilty of a violation of section one, of this ordinance, and upon conviction shall be punished as herein provided.

“ Sec. 4. Every person engagedin drumming, running, or soliciting strangers or visitors, for any hotel, boardinghouse, bath-house, physician or pretended physician, shall be deemed guilty of a misdemeanor, an^d upon conviction shall be fined in any sum not less than ten dollars; and every day such person continues so engaged drumming, running or soliciting, he shall be deemed guilty of a violation of this section, and for each repetition of the offense made punishable under this section, he shall be fined double the sum of the fine imposed at the former trial, until the same amounts to fifty dollars.

“ Sec. 5. Any person furnishing information leading to arrest and conviction of any person for a violation of this ordinance, and any police officer arresting such person at his own instance, shall receive one-half of the fine that may be collected out of the defendant upon conviction fox-violation of this ordinance.”

Section 6 repeals conflicting ordinances, etc., and puts this ordinance ixx force froxn its passage.

The parties consented to try the case on an agreed statement of facts, as follows:

“ That on the twenty-second day of May, 1879, in the city of Hot Springs, etc., defendant, Harry Thomas, by words of request and persuasion, solicited or -drummed John "West, a visitor to said city, etc., to employ Ur. C. J. Weatherby, a graduate of medicine and practicing physician in said city, etc.; and by such request and persuasion induced him to employ said Weatherby as his physician, and that defendant received therefor pay from said Weatherby; that he was then, and had been for some time, engaged in so soliciting for a firm of physicians, and that for procuring patients he is paid at the rate of five dollars per patient, and was so paid by said Weatherby, and that he has not and does not drum or solicit for any physician or physicians save such as are graduates, and skillful in their profession.”

The above being all the evidence, appellant moved the court to declare, as a proposition of law applicable in this case:

“That the solicitation of business and patronage is matter of common right, and that no municipal corporation can prohibit the same; and that the ordinance introduced in evidence in this case, and upon which this ease is based, is uimeasonable and void.”

But the court refused so to declare the law, and found appellant guilty, etc.

The twelfth section of the act of March 9, 1875, for the organization and government of municipal corporations {Acts of 1875, p. 8), empowers such corporations to license, regulate, tax or suppress a large number of occupations, exhibitions, amusements, etc., which are named, but drumming is not among them. Nor is there any provision of this act, or any other act, which authorizes such corporations to license or prohibit drumming.

A drummer is one who solicits custom.— Webster.

Drummers are, and have been for ages, a large and active class of commercial and business agents. They, it must be presumed, were as familiar to the law-makers as brokers, hawkers, peddlers, pawn-brokers, and others mentioned in the above act; and yet they are not named, nor has our legislature, by any act, thought proper — if it might do so in the exercise of the police power — to require drummers to obtain license from any source, or undertaken to make it a criminal offense to drum for any lawful business.

.It was conceded by the Attorney General, who argued this case for appellee, that drummers are not embraced in ■the twelfth section of the act, but he submitted that appellee had power, under the latter part of the twenty-second section of the act known as the general welfare clause, to make it a criminal offense for any person to drum for lawful occupations.

In Tuck v. Town of Waldron, 31 Ark., 462, the corporation attempted, under an ordinance passed by its council, to punish Tuck criminally for selling a half-gallon of whisky without obtaining license.

By the twelfth and seventeenth sections of the above act, municipal corporations are expressly empowered to license, regulate, tax or suppress tippling-houses and dram-shops, and also to regulate and prohibit ale and porter shops and houses, and public places of habitual resort for tippling and intemperance, etc.; but they are not expressly empowered to require persons selling ardent spirits, as Tuck did, to obtain license, and it was claimed that the corporation ot "Waldron had power, under the general welfare clause, to require persons selling in any quantities to procure license. This court said:

“The rule seems to be, as stated by Judge Dillon, that when there’are both special and general provisions, the power to pass by-laws under the special express gi’ant can only be exercised in the cases, and to the extent as respects those matters allowed by the charter or incorporating act; and the power to pass by-laws under the general clause does not enlarge or annul the power conferred by the special provisions in relation to their various subject matters, but gives authority to pass by-laws, reasonable in their character, upon all other matters within the scope of their municipal authority, and not repugnant to the constitution and general laws of the state.”

Under this rule, it was decided that the council at Waldron had no power to pass the ordinance under which Tuck was convicted.

So in Martin, ex parte, 27 Ark., 467, Martin was fined for violating an ordinance of the city of Little Rock, regulating sales by auctioneers. The ordinance was passed when the city derived its powers from the general act of incorporation of April 9, 1869, in which authority was not expressly given to tax and regulate auctioneers. Auctioneers were only mentioned in the act in connection with selling horses or other domestic animals on the streets. Martin was an auctioneer of merchandize in a house, and it was held that the ordinance under which he was convicted was void, for want of power in the corporation to pass it.

No'doubt a corporation may make it a penal offense for any person to drum customers to gaming-houses, gambling-tables, banks, etc., strumpet-houses, and other occupations which are immoral and pernicious in their character and tendencies, such as it has power under its charter to suppress.

But the keeping of hotels, boarding-houses, bath-houses, and the practice of medicine, by competent persons, are ordinary, lawful and useful occupations, and to make it a crime to solicit custom for them, is an unwarranted interference with constitutional rights and privileges of citizens under our form of government.

In this case appellant was charged and convicted for soliciting a patient to a physician, who was a graduate of medicine, and skilled, it is admitted, in his profession. It may be in bad taste, and a violation of the ethics of his profession, for a physician to employ a drummer to procure patients for him, but appellee had no legal power to make such drumming a crime, and punish it as such.

The judgment must be reversed, and the cause remanded with instructions to the court below to discharge appellant from further prosecution upon the charge made against him.


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    Medical and Surgical Institute vs. City of Hot Springs.
    1. Injunctioh :
    Chancery does not enjoin criminal prosecutions.
    APPEAL from Garland Circuit Court in Chancery.
    Hon. Jabez M. Smith, Circuit Judge.
    Benjamín, for appellant.

      Henderson, Attorney General, contra.

   English, C. J.

The appellant corporation filed the bill in this case against the city of Hot Springs, in the circuit court of Garland county, to enjoin said city from prosecuting its agents, etc., under the ordinance (copied in Thomas v. City of Hot Springs, ante) to prohibit and punish drumming. The court granted a temporary injunction, and, on final hearing, dissolved it, and appellant obtained from the clerk of this court an appeal.

Chancery does not enjoin criminal prosecutions, as held in Portis v. Fall et al., MS.

Affirmed.