text:
    Atkinson et al. vs. Gatcher.

      Corn is embraced by the clause of the statute which exempts from execution “all small provisions as may be on hand for family use.”
    The court properly left it to the jury to determine whether the whole of the corn which the defendant in the execution had on hand at the time of the levy was necessary for family use.
    The defendant did not waive the benefit of the exemption by executing a delivery bond, he claiming the benefit of the statute at the time of the levy and salo, and protesting against both.
    Provisions on hand for family use are exempt, whether the defendant have other property subject to execution or not, and he is not obliged to furnish the officer ■with an inventory of his provisions.
    If a constable sell corn which is exempt from execution, against the consent of the defendant, he is a trespasser, and so is the plaintiff in the execution, if lie direct the levy or sale.
    Where an execution is directed to the constable of one township, aDd by'order of the justice who issued it, tlic direction is changed, and the execution directed and delivered to the constable of another township, the amendment though irregularly made, does not render the process null and void.
    Where an execution, regular upon its face, is directed to and placed in the hands of a constable of a township other than that in which the judgment is rendered, lie lias power, under the statute, to execute it any where in the county.
    Instructions based upon evidence which has been excluded by the court, are out of place, and have nothing to rest on.

      Appeal from, Columbia Circuit Court.

    Hon. Len B. Green, Circuit Judge.
    Oarleton, for the appellants.
    An authority by the justice to alter a particular execution is good, though authority to alter any and all executions is void. Pierce vs. Hubbard, 10 John R. 405. The alteration by the constable at the instance of the justice was his act.

      Justices of the peace have-jurisdiction throughout the county, and so have constables to execute civil process. Gotitd’s Dig. sec. 29, p. 254, sec. 34, p. 280.
    The execution was on a judgment valid on its face, and therefore justified appellant, Atkinson, and should have been read in evidence. Smith vs. Shaw, 12 John. R. 257; 5 Wend 240.
    Before a party can claim the benefit of the law exempting from execution he must render, under oath, to the officer, a schedule of all his effects. Gould’s Dig. sec. 23, p. 503. He must affirmatively show that he is entitled to the benefit of the act. 14 John. Rep. 474.

    The giving of bond for the delivery of the corn, and receiving credit on the execution, without objection, for the proceeds of its sale, w'ere a waiver of the trespass, if any was committed.
   Mr. Chief Justice English

delivered the opinion of the court.

This was-an action of trespass by John M. Gatcher against Wm. W. Atkinson and Elisha T. McClure, in Columbia Circuit Court, for taking and converting fifty bushels of corn.

The defendants pleaded not guilty and justification, in short by consent, there was a trial, and verdict against them for $40,' a new trial refused them, and they excepted and appealed.

The corn was levied on and sold by the defendant Atkinson, as constable, under an execution, in favor of his co defendant, McClure, against the plaintiff, Gatcher.

Gatcher was a farmer, and had a wife and two or three children., When the corn was levied-on, 30th November, 1858, he had but 85 bushels, which were not more than enough to support his family. He claimed that the whole of the corn was exempt from execution under ihe statute, as provisions, and forbid Atkinson to levy on it. But he levied on over fifty bushels of it, and Gatcher protesting that the corn was exempt from execution, gave a bond for its delivery on the 9th of December, 1858, the day fixed for the sale. The corn remained on his premises until the day of sale, when he again claimed that it was exempt from execution, as provisions, and forbid the sale of it, but Atkinson sold it, and it was measured out to the purchaser, and taken away.

I. At the instance of the plaintiff, the court instructed the jury as follows: (1.) “ It the jury find from the testimony that the defendant, Atkinson, took and sold corn belonging to the plaintiff, against the consent and protestation of plaintiff, and that the plaintiff, at the time of such taking and sale of the corn, did not have on hand more corn than was sufficient for family use, including the corn so taken and sold, they must find for the plaintiff against defendant, Atkinson, and also against defendant McClure, if they find that he instigated the taking and selling.”

The statute exempts from execution “ all such provisions as may be on hand for family use.” Gould's Dig. ch. 68, see. 23.

It is certainly not an unreasonably liberal construction of this statute, to hold that corn, so generally used in this country for bread, is embraced by the term provisions. Whether the plaintiff had on hand a surplus of corn, or only such quantity as was necessary for family use, was a question to be determined by the jury, from the evidence, and the instruction properly left it to them.

II. At, the instance of the plaintiff, the court instructed the jury as follows:

(5.) “ That the plaintiff is not estopped from a recovery and verdict herein, by the delivery bond read-in evidence, if the jury find that he protested against the taking of the corn by levy, under the supposed execution, and protested against the sale of the corn under the supposed levy.
(6 ) “ That the plaintiff is not estopped from a recovery and verdict, by the delivery bond read in evidence, unless the jury find there was a delivery under said bond.”

And the defendants moved the following instruction, on the same point, which the court refused to give:

(4.) “ if the jury believe from the evidence, that the plaintiff executed a bond for the delivery of the corn', to be sold at such time and place as it was sold, he thereby waived his right to claim it as necessary provisions, and they may find for defendants.”

The plaintiff was not estopped by the delivery bond from claiming the benefit of the exemption act. When Atkinson went to levy on the corn, the plaintiff claimed that it was exempt from execution,^forbid the levy, and told him he would act at his peril. He executed the delivery bond under protest, and on the day of sale, the'corn remaining where it was when it was levied on, he did not consent for it to be.sold, but again claimed the benefit of the exemption act, and forbid the sale. See Norris et al. vs. Norton, 19 Ark. 321; Tumlinson vs. Swinney ante.

III. The defendants also moved the following instruction, which the court refused:

(6.)’ “ If the jury believe from the evidence said corn was sold by virtue of the process specified in the delivery bond, they will find for defendants, unless they find that the plaintiff had no other property subject to execution, and further, before said sale, furnished said officer with a schedule under oath of his effects.”

It was of no consequence whether plaintiff had other property subject to execution or not. The eighth clause of the statute exempts all such provisions as may be on hand for family use,” regardless of what other property the execution debtor may have.

The fifth clause of the statute exempts all wearing apparel of the family, two beds with the usual bedding, and such other house-hold, and kitchen furniture as may be necessary for the family, agreeably to an inventory thereof, to be returned on oath, with the execution, by the officer whose duty it may be to levy the same.”

It is under this clause of the statute that the inventory is to be made, and returned by the officer, and not under the eighth.

IV. The defendants also moved the following instruction, which was refused.

(5.) “ If the jury believe from the evidence that the plaintiff foi’bid the sale of the corn, and was opposed to it; yet if they further believe he has since sanctioned it by receiving a credit in the settlement of said debt for sfeid sale, they will find for defendants.”

John Jeffrey testified, that after the corn was sold, and the sum for which it sold credited on the execution, he settled the balance of the execution by giving his note for it. Plaintiff did not authorize him to make the settlement. Witness told him of the settlement, and he did not object, but never ratified it. Witness had paid the note. Plaintiff had'never settled it with him, but witness expected that he would pay him.

This was the only evidence tending to show that plaintiff had sanctioned the sale of the corn, and compromised his right of action; and it was not sufficient to warrant the instruction above copied'.

V. The defendants also moved the following instruction, which the court refused.

7. “ Unless the jury believe from the evidence that defendants forcibly took and carried away the com, they must find for the defendants.”

This instruction was properly refused. If the corn wras exempt from execution, and Atkinson sold it against the consent of the plaintiff, he was a trespasser; and so was the defendant, McClure, the plaintiff in the execution, if he directed the corn to be levied on, or sold. 1 Chitty Plead. 166, 185.

VI. The defendant offered in evidence thé execution under which the corn was sold, which the court excluded, on objections made by plaintiff.

The judgment was recovered before Clary, a justice of the peace of Alabama township, Columbia county, in which township McClure arid Gatcher both resided.

The execution was first issued 11th October, 1858, directed to the constable of Alabama township, and placed in the hands of Holton, the constable of the township, who levied it upon some cotton, which was released upon the claim of strangers, and the execution endorsed by Holton, no property, etc.

The justice renewed the execution on the 30th November, 1858, by endorsement, for twelve months. It seems that the renewed execution was in, the hands of Holton, who refused to execute it; and McClure applied to the justice to issue an execution to defendant, Atkinson, who was constable of Harrison township, in the same county; and the justice told McClure to tell Holton to strike “ Alabama ” township from the execution in his hands, and insert “Harrison,'' which was accordingly done, and the execution thus changed and directed to the constable, of Harrison township, was placed in the hands of Atkinson, who levied upon the corn, sold it, and returned the execution to the justice, etc. .

The court excluded the execution on two grounds: 1st, that the change in the direction of the execution was not made in the presence of the justice, and that he could not delegate his power to another to change the process: 2d, that there being a constable in Alabama township, where the judgment was rendered, and where the defendant therein resided, the justice could not issue an execution to the constable, of Harrison township, though the constable of Alabama, township refused to act.

In Price vs. Hubbard, 10 John. R. 404, the court said that any general authority, by a justice to a constable, to fill up or alter process, would be void and highly improper; but where a constable, by direction of the justice, changed the date of a particular execution, by way of renewal, it was held that the process was not thereby invalidated, and that the constable might justify under it.

Here, the change was made in the execution, by direction of the justice, before it went into the hands of Atkinson to be executed; and though the change was irregularly made, we think the process was not null and void m’that account.

Being, upon its face, directed to the constable of Harrison township, and having been placed in the hands of Atkinson, as such constable, he had power under the statute to execute it any where within his county. Go. Dig., ch. 35, secs. 34, 29.

' It follows that the court erred in excluding the execution from the jury.

The 2d, 3d, 4th, and 7th instructions given by the court, at the instance of the plaintiff, in relation to the validity of the execution, were out of.fdace and had nothing to rest on, the execution being excluded from the jury.- So with the instructions moved by the defendant in regard to the validity of the process, and refused by the court.

For the error above indicated, the judgment roust be reversed, and the cause remanded with instructions to the court below to grant appellants a new trial.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Dicus vs. Bright,
    No. 1.
    On certiorari to remove a judgment of a justiee-of the peace into the Circuit Court for review, the case is not properly before the court for final adjudication until, in obedience to the writ, the justice returns an authenticated transcript of the proceedings and judgment sought to be reviewed.
    When the transcript is returned, the court must quash or affirm upon inspection of it, and cannot consider matters dehors the transcript, alleged in, or exhibited with, the petition for certiorari, in passing upon the validity of the judgment of the justice.

      Appeal from Independence Circuit Court.

    ■ Hon. William C. Bevens, Circuit Judge.

      Stillwell & Woodruff, for the appellant.
    The deeds exhibited were no part of the record, and could not be regarded. Redmond vs. Anderson, 18 Ark. 449.
    We have examined the transcript with some care, but have not discovered how the Circuit Court got jurisdiction of the case. A writ of certiorari was issued, but no return was made.
   Mr. Chief Justice English

delivered the opinion of the court.

Upon an account for rent filed before a justice of the peace, Dicus sued out process of attachment and garnishment against the effects of Bright, and obtained judgment by default.

Bright applied to the judge of the Circuit Court of Independence county for certiorari and supersedeas, exhibiting with his petition a transcript of the proceedings of the justice of the peace, and alleging matters dehors the transcript to show that Dicus had no cause of action against him, and also averring irregularities in the proceedings.

Upon the order of the judge, the clerk issued a certiorari, ■with temporary supersedeas clause, returnable to September term, 1859.

The sheriff returned upon a copy of the writ, that he delivered the original to the justice of the peace, and a copy to the constable, etc., but it does not appear that the justice made any return upon the writ, or sent up a transcript of the proceedings before him, as commanded by the writ.

At the return term Bright filed an assignment of errors; and ■ Dicus moved to quash the writ of certiorari, and recall the supersedeas, as having been improperly issued.'

The court overruled the motion to quash the writ, and, it seems, upon the ex parte transcript of the proceedings of the justice exhibited with the petition for the writ, rendered judgment perpetually superseding the judgment of the justice, and Dicus appealed

The court was premature in pronouncing the judgment oí the justice irregular, and making the supersedeas perpetual.

Until the justice, in obedience to the mandate of the writ of certiorari, sent up to the court a certified transcript of the proceedings before him, the matter was not properly before the court for final adjudication. Derton vs. Boyd, 21 Ark. 264.

There is no ground here to presume (as in Redmond vs. Anderson, 18 Ark. 449,) that a transcript was sent up by the justice of the peace in obedience to the writ, because the only transcript in the record before us is manifestly the ex parte one that was exhibited with the petition for certiorari, which was made out for Bright before the writ issued (as shown from the date of the certificate of the justice), and which had accomplished its purpose when the writ was granted by the judge upon the prima facie showing made by it.

It may be remarked upon the matters alleged in the petition dehors the transcript, and the deeds, etc., exhibited in support of the allegations, that they are foreign to the case. When the transcript of the proceedings before the justice of the peace is properly returned, upon the certiorari, the court ipust quash or affirm upon inspection of the transcript. Redmond vs. Anderson, ubi sup.; McCoy vs. Jackson county, 21 Ark. 475.

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


text:
    Dicus vs. Bright,
    No. 2.

      A justice of the peace has jurisdiction of an account for rent not exceeding one hundred dollars.
    Where a written lease is made the foundation of the suit, it should appear that the legal right of action upon it is in the plaintiff.
    But the recital of a lease in an account filed for rent, doe3 not necessarily make the lease the foundation of the suit. .
    If by any manner of proof the plaintiff might have shown, on 'the trial before the justice, that he was entitled to recover on the account,, the judgment in his favor should not be quashed on certiorari for want of jurisdiction.

      Appeal /rom. Independence Circuit Court.

    Hon. William C. Bevens, Circuit'Judge.
    Stillwell & Woodruff, for appellant.
    The account, upon its face, showed an indebtedness by the-defendant to-the plaintiff, and the court could not know, except by a trial de novo, whether the title to. land was involved. It was therefore error to dismiss for want of jurisdiction under the decision in Beebe vs. Fitzgerald, 2 Eng. 308. The court could not look beyond the record of the justice in determining the question of jurisdiction. Redmond vs. Anderson, 18 Ark-449. ^
    Rose, for the appellee.
    1. The account filed showed that if there were any cause of action it Was evidenced by an agreement in writing, which-should have been made the foundation of the suit.
    2. The account did not show any legal liability on the part . of the defendant to the plaintiff. Levy vs. Shurman, 1 Eng 182.
   Mr. Chief Justice English

delivered the opinion of the court.

Dicus sued Bright before a justice of the peace upon an account1 as follows;

“ JOHN W. BRIGHT,
To Edward Dicus, Dr.
To one-half of lease on lands from John Foster to said Bright, as per deed of lease from said Foster to said Bright, at $50 per j'ear from the 1st of January, 1857, to the 1st of January, 1859, making two years, on the south-east fractional quarter of section twenty-six, in township twelve north, in range five west, containing one hundred and three acres, at the one half of $50, or $25 per year- • ..................... • $50.”

Dicus obtained judgment against Bright before the justice for the amount claimed in the account, with interest, and Bright appealed to the Circuit Court of Independence county.

On the motion of Bright, the Circuit Court dismissed the case for want of juiisdiction in the justice of the peace, and’ Dicus appealed to this court.

It (hies not appear that the suit was founded upon the lease from Foster to Bright, but upon an account for rent, in which the lease is referred to. The amount of the account, and the subject matter (rent) Were within the jurisdiction ofthe justice, there being no showing upon the face of the justice’s transcript, upon which the court below acted in dismissing the case for want of jurisdiction, that the case falls within the ruling of this court in Fitzgerald et al. vs. Beebe, 2 Eng. R. 305.

If the suit had been founded on the lease from Foster to Bright, referred to in the account, and there had been no showing that Dicus had succeeded to the legal right of the lessor to sue upon the instrument, or'was in some way privy to the contract, the case would have fallen within the ruling of this court in Latham, vs. Jones, 1 Eng. 372, and Levy vs. Shurman, lb. 182,

Had the Circuit Court pro’ceeded to try the case de novo, instead of dismissing it for want of jurisdiction, we cannot undertake to say that Dicus could, by no manner of proof, have shown that he was entitled to recover of Bright the rent claimed lathe account which was,made the foundation of the suit. (Booth vs. Estes, 16 Ark. 111).

The judgment must be reversed, and the cause remanded for a trial de novo, and if, upon the trial, it should appear that the justice of the peace had no jurisdiction of the subject matter of the suit, or that (he suit should have been founded on the lease referred to in the account, or that Dicus has no cause of action against Bright, the Circuit Court, of course, will render the proper judgment upon the facts of the case as they may appear in evidence.


text:
    Hirsch & Co. vs. Patterson et al.
    The suppression of a portion of a deposition before the parties go into trial, or the issues are made up, is not cause for a new trial on the ground of surprise.
    Where the portion of a deposition suppressed could have been of no benefit to the party offering to read it, if it had been admitted, its suppression is no cause for granting a new trial.
    Where it was the appropriate province of a jury to determine a matter of fact before them, and their conclusion is not without evidence to sustain it, this court will not disturb their finding upon the matter.
    Where judgment is for an excessive amount, it will be affirmed, under the rule, on a remittitur of the excess; otherwise it will be reversed.

      Appeal from Independence Circuit Court.

    Hon. William C. Bevens, Circuit Judge.

      Stillwell & Woodruff, for appellants..
    Nose, for appellees.
   Mr. Chief Justice English

delivered the opinion of the court.

Patterson, Marshall & Co., of Memphis, sued Hirsch & Co., of Batesville, on a note for $512 73, bearing date April 3d, 1857, and due at sixty days. The case was tried by a jury upon issues to the pleas of nil debet, payment, and set-off; verdict and judgment in favor of plaintiffs for $308 49, balance of debt, and $37 damages. The defendants moved for a new trial, which was refused, and they excepted, and appealed.

Before the trial, a portion of the deposition of W. E. Milton, taken and published by appellants, was suppressed, on the motion of the appellees, and this is made one of the grounds of the motion for a new trial.

Passing over the fact that the motion to suppress was made and sustained 'before the parties went into the trial, or the issues were made up, and the decision of the court was not, therefore, matter of surprise to appellants; and passing over the further objection that the deponent stated his impressions, without stating their sources, or the facts from which they were derived ; it is manifest that if the portion of the deposition which was suppressed had been read to the jury, it could have been of no benefit to the appellants. If it tended to prove anything material, it was that appellants were not entitled to a credit which they in fact received.

Upon the trial, appellants produced an account current between the parties, in the handwriting of one of the appellees, commencing November 6th, 1856, and ending December 11th, 1857, covering an item, for which the note sued on is supposed to have been given, and showing a balance in favor of appellees of $308 49, the amount of debt for which the jury rendered their verdict. In this account the appellants are credited with proceeds of their draft in favor of appellees, on George Philler, $453, and they insist that they should have been credited with $478 50, the full amount of the draft.

The draft was drawn 24th August, 1857, at sixty days, and on the day it was drawn appellees gave appellants a receipt for it, stating that the proceeds of the draft were placed to their credit. The appellants are credited in the account current with proceeds of draft, $453, on the day it was drawn, and sixty days before its maturity, and the jury must have concluded that the draft was cashed at that time. It was payable in bank. This was a matter for the jury upon the facts before them, and we shall not disturb their finding on that point.

The appellants also produced in evidence an account between the parties, in the handwriting of one of the appellees, composed of a number of items, commencing November 7th, 1856, and ending 18th February, 1857, footed up -balance against appellants $724 69, under which is written a receipt, as follows :

Rec’d payment by note at sixty days, from Feb’ry 18th, 1857.
PATTERSON, MARSHALL & GO.

The appellants also produced, and read in evidence, the following instrument, which they proved to be in the handwriting of one of the appellees:

$724 69. Memphis, 18th Feb’y, 1857.

Sixty days after date we promise to pay to Patterson, Marshall & Go., or order, seven hundred and twenty-four 69-100 dollars, for value received, payable at Southern Bank of Tennessee, in Memphis.

. The items which compose the account last referred to, extending from November 7th, 1856, to February 18th, 1857, are also embraced in the account first referred to, commencing Novem7 her 7th, 1856, and ending December 11th, '1857, the debits of which are footed up $2,639 71.

Appellants insist that, inasmuch as the items of the account first rendered, are charged in the account last rendered, they should have been credited with the note for $724 69, by which the account first rendered appears to have been closed ; but that they were not so credited.

It does not appear that the note for $724 69, produced in evidence by appellants, was ever signed by them, or was in the hands of appellees after it was written.

It is probable that the jury concluded from the evidence that the note was sent to the appellants, by the appellees, with the first account for their signature, but that it was never signed and returned, and hence the second account was made out, embracing the items included in the first. There was certainly some ground for the jury so to conclude.

The appellants proved that the appellees collected for them, of an insurance company of Philadelphia,$1,645, and credited them, in the account last rendered, with but $1,612 90 of the sum so collected, and this error, it seems, went into the verdict of the jury.'

If the appellees will enter a remittitur for $32 10, excess of finding, the judgment will be affirmed, under the rule; otherwise it must be reversed, and a new trial granted.


author: Mr. Justice Fairchild

text:
    Ingram vs. Marshall et al.
    The jury are the proper judges of the effect of testimony, and of the weight to be given to it in sustaining any proposition; and an instruction which undertakes to say what weight shall be given to evidence, is erroneous.
    Although an instruction may be erroneous, yet if, upon’ the whole record, the appellant was not injured by the ruliug of the court, the judgment will • not be reversed.

      Appeal from Union Oi/rouit Court.

    Hon. Len B. Green, Circuit Judge.
    Carleton, for appellant.
   Mr. Justice Fairchild

delivered the opinion of the Court.

The appellant, with another person, made á note to A. II. Moffit, or bearer, on which the appellees brought an action of assumpsit against the appellant. He pleaded that the note and two hundred dollars in cash were given to Moffit for eleven horses and four mules, that were warranted by Moffit to be sound, that four of the horses and one mule were unsound, which in the sale were rated at one hundred and fifty dollars each, by which means the consideration of the note to the amount of seven or eight hundred dollars had failed.

After proof by the defendant in support of this plea,' the plaintiffs, to rebut it, proved by Tatum that upon,presentation of the note to the defendant, he stated that he had an off-set to it of one hundred and twenty-five dollars, and that he would pay the note when it should become due, lessened by the amount claimed to be deducted.

The court instructed the jury, at the request of the plaintiffs, that if the defendant, in full possession of the facts of the unsoundness of the horses, agreed to pay the note, except one hundred and twenty, or one hundred and twenty-five dollars, they must find against him to that amount; to which, the defendant objected.

The court also refused to instruct the jury, as asked by the defendant, that if they believed the admission of the defendant to Tatum, was merely a proposition to compromise, they might disregard it, or give it such weight as they should think proper, or that, at most, it was but evidence to be considered with other evidence.

Although we think there is no reason to impute to the conversation of the defendant with Tatum, the character of a pro-position for a compromise, the jury were the proper judges of the effect of the testimony, and should they regard it as such a proposition, the consequence contained in the instruction would follow, in the jury giving it such weight as the meaning that seemed proper to them should require. And the instruction given on the part of the plaintiff seems to approach the line of instructing the jury what weight to give to evidence.

This instruction of the court, and its refusal to instruct, though only slightly erroneous, might call upon us to reverse the judgment, upon the defendant’s motion for a new trial, did it not appear from an examination of the whole record that the defendant was not injured by these rulings of the court.

Upon the plea of breach of warranty, which was the one upon which the defendant introduced evidence of the unsoundness of the four horses and of the mule, the defendant proved his loss ' upon these animals. In the estimate by us, each of the eleven horses and five mules is taken to have cost one-fifteenth of fourteen hundred dollars, that being their aggregate price in the sale by Moffit. The plea alleges that the unsound horses and mule were estimated in the trade at one hundred and fifty dollars each, but there is no proof of this ; and if does not seem reasonable that, among horse dealers, the five animals that proved to be unsound wex-e rated at one hundred and fifty dollax-s each, while the ten sound ones wex-e-counted at eighty dollars a head. On this mode of computation, the defendant lost about one hundred and thirty-eight 33-100 dollars; that is, about sixty-five and a third dollars on the fine looking sorrel horse sold to the defendant’s brothex’, aboxxt fifty-six and two-thirds dollars on the two horses sold to Bradly, and about eighteen and a third dollars on the mule. Taking out of this the profit of forty or forty-seven dollars, the defendant made on the horse swapped to Bichardson, and he seems to have had better success than his evidence required, when the jury x-educed the vei’dict from the amount due on the note, about twelve hundred and forty-six dollars, to the sum found, • one thousand and eighty-eight 30-100 dollar's.

The defendant conld not ask for a new trial, but to be relieved from an injurious verdict, and such an one has not been inflicted upon him. Judgment affirmed.


text:
    Waters vs. Grace & Murray.

      The plaintiff, in an action for money had and received, having introduced evidence conducing to show the receipt of the money by the defendants, and his right to it at the time of the receipt, the court erred in excluding it from the consideration of the jury.
    An attorneyhas a lien apon the funds of his client in his hands for labor and money expended about the business.of that fund, but not for any services or costs about other business of his client.

      Appeal from Jefferson Cvreuit Court.

    Hon. J. Gould, Special Judge.
    Bell & Carlton, for appellant
    Gallagher, for appellees.
   Mr. Justice Fairchild

delivered the opinion of the Court.

In 1856, Grace & Murray, partners in the practice of the law, had in their hands for collection, a demand of M. Greenwood & Col, upon Bayburn & Atkins, which was afterwards collected. From some dealing between Greenwood & Co., and Waters, the latter claimed the proceeds of the demand from Grace & Murray, as belonging to himself. A part of the money collected was paid to Waters, and this suit was brought for the residue. The defence is that Waters has no legal right to the money upon which the suit can be sustained, and that the money is properly retained by Grace & Murray, in payment of a debt Greenwood & Co. owe to them.

By the deposition of Thomas E. Adams, one of the firm of M. Greenwood & Co., Waters proved facts that abundantly show his right to the money, as between himself and Greenwood & Co., and the charge of Grace and Murray, for previous business performed for Greenwood & Co., was not proper to bo taken out of the money sued for; as it had been embraced in a settlement made between Grace & Murray and Greenwood & Co.

But as the deposition of Adams was objected to on account of his interest, as one of the firm of Greenwood & Co., it may be’seen what other testimony tends to support the cause of action.

D. W. Carroll testifies that, by the authority of Murray, he made out the accounts of Grace & Murray, with Greenwood & Co., in which the former firm was charged with the amount of the money collected from Atkins & Rayburn, and credited with the commission for collecting it, with six 15-100 dollars for costs paid for Greenwood & Co., and with two hundred and fifty dollars for a fee in a case of Bell, administrator of Byrd, against Greenwood & Co., leaving a balance due from Grace & Murray of one hundred and eighty 55-100 dollars, and that this was paid to Waters. This testimony shows an acknowledgment of the receipt of the money which is the object of this suit, and that Grace & Murray recognized the right of Waters to receive, but whether as his own or for Greenwood & Co., is not made known. There is other testimony in the case in the shape of admissions made in court, and in the evidence of Bell, to the same effect as Carroll’s testimony, but showing that Grace & Murray paid the money to Waters on his representation, that it belonged to him; and that they did not assent to his right legally to demand it of them.

Although our opinion might be that there was evidence enough without the deposition of Adams, to make Grace & Murray liable to Waters for the two hundred and fifty-six 15-100' dollars, which they retained as due to them from Greenwood, that is a. question for the proper tribunal and not for us to decide. .But the evidence of Carroll and Bell, and of the admissions made, in'court by the defendants, was proper to be given to the jury for their consideration. The alleged incompetency of Adams to be'a witness did not affect this evidence; it was not dependent upon his deposition; and it has not been explained to us why all the evidence of Waters should have been excluded, though the court below supposed that of Adams to be incompetent, as the testimony of an interested witness. A charge was made upon Grace & Murray, by the evidence of the plaintiff, that was entirely disconnected from the evidence contained in the deposition of Adams; while the claim made by Grace & Murray to relieve themselves from the charge, was but a simple indebtedness from Greenwood & Co., to them, which was no lien upon the money collected from Bayburn, or Atkins & Bayburn, whether the money belonged to Greenwood & Co., or to Waters. Grace & Murray could well retain out of that money their charges for collection, but the other charges were mere demands against Greenwood & Co., which, however just they may have been, could not be retained out of this fund in controversy. If Greenwood & Co. owed Grace & Murray for services in the suit charged for in the account which Carroll stated, they could resort to the law to collect the debt, or set it. off in any demand Greenwood & Co. should prosecute against them; but an attorney’s lien is not a charge upon a fund for any services or costs, but those that relate to labor and money expended about the business of that fund.

Without deciding the question of Adams’ incompetency, which is not properly before us, we are clearly of the opinion that the court erred in excluding all of the testimony adduced by Waters, and for so doing, its judgment is reversed.


text:
    George, ex. vs. Norris.
    V here no motion for a new trial was made in the court below, the propriety of the verdict upon the admitted evidence, is not to be questioned in this court. But when no question, tending to infringe upon the province of the jury, is involved, when the case presents simply leading points upon the pleadings, and upon the instructions and rulings of the court, it is the established practice of this court to disregard a particular error, if the judgment upon the whole record is according to law; and so, notwithstanding conceded errors, the judgment will not be reversed, if, upon consideration of the whole case, the party was not injured by them.
    When the execution of a bill of sale has been proved by the subscribing witness, and the witness interrogated as to the fairness of the sale, the opposite party may interrogate him os to such facts as tend to show fraud; both, because fraud maybe enquired into, and because the vendee had opened the door to such enquiry by proof of the fairness of the sale.
    But evidence cannot be introduced to show that the transaction witnessed by the bill of sale was other than it recited: whether intended to be an absolute or conditional sale, a mortgage or a pledge, must be determined by the written contract.
    Where the question and answer, in the examination of a witness, are entire, including some matter that might be legal and some that was illegal, the entire answer should be excluded.
    The Probate Court being a court of constitutional jurisdiction, and having authority to order the sale of slaves belonging to the estate of a deceased person, the Circuit Court cannot judge of the propriety or legality of such an order, upon its introduction as evidence in a collateral proceeding,
    Judgment and execution against an administrator — delivery bond given and forfeited — execution on the delivery bond'judgment: MM, that the return of the sheriff on the latter execution, showing a seizure and sale of the property of the intestate, was not competent evidence for him — the acts being without legal authority.
    Where evidence has been erroneously admitted, and excepted to, the court may well refuse to give an instruction that such evidence was not legal, and could not be considered by the jury — the party must rest upon his exception to the admission of the evidence. ______

      Error to Ashley Circuit Cowrt.

    Hon. John C. Murray, Circuit Judge.
    Waddell, for the plaintiff.
    On the trial, the plaintiff read an absolute bill of sale from Elmyra Hundley, to said Hosea George, for the negroes in question, dated 13th September, 1855, and proved the due execution of the same, and that at the time Elmyra Hundley had actual possession of the slaves; but there was no formal delivery of them to George, and in fact, they were left in the said Elmyra Hundley’s possession, but for no fraudulent or improper purpose ; and that the sale was a fair and honest, one. This was sufficient jori/ma fade proof of the title to the negroes. 2 Eng. 200; Story on Sales, sec. 311, and note 3, a/nd authorities cited; 17 Ark., 176. ,
    The court erred in rejecting, as evidence, the transcript of the order of the Probate Court directing a sale of the negroes. The order was by a superior court of competent jurisdiction, and not void if erroneous.
    The court clearly erred in admitting evidence of the seizure and sale of the negroes under the delivery bond execution against Mrs. Hundley and her surety. These executions were not liens upon the slaves. Biscoe vs. Sandefwr, M Ark., 592. ,
    There was error in admitting proof that the bill of sale, absolute on its face, was intended as a mortgage. Parol evidence cannot be given to vary a writing, and it was. not material, whether the bill of sale was intended as a mortgage or not; for though it were a mortgage, still the plaintiff was entitled to recover, unless indeed the instrument was intended to have a fraudulent effect. But it had already been proven that this was not the easel 18 Ark. 170; ib. 579; Phil, on Mo., Cowen <& ILilVs Motes, ml. 4, yp. 572; latter clause of note 286.
    Tell and Hutchinson, for the plaintiff.
    According to our understanding of the rule, the judgment must be reversed, if there has been any error of law in the decisions of the inferior court, no matter how this court may regard the merits of the case: that there can be no question as to the propriety of the verdict, but the court will look merely at the isolated questions of law presented, and at the evidence, no further than as it may affect them, by showing their pertinency. State Bank vs. Conway, 8 Mng:, Duggms vs. Watson, 15 Ark:, Still-well vs. Qra/y, 17 Ark.

    The court clearly erred in permitting the defendant to ask the witness “to explain to the jury what was meant or intended by the bill of sale,” etc. Upon the ground of accident, mistake or fraud, parol evidence has been admitted in courts of equity to show that a bill of sale or deed, absolute upon its face, was intended as a mortgage or pledgej but the courts have, without an exception, it is believed, refused to apply the rule in trials at law. 6 Hill 219; 8 Corm. 117; 7 ib. 409; 6 liar. & John. 128; 7 Greenlfo 435; 36 Maine 562; 14 Pick. 467.
    The executions and returns read in evidence by the defendant, instead of excusing him in selling the property of the plaintiff, showed a gross violation, on his part, of the law. ■ .
    The Probate Court, being a court of superior jurisdiction, must be presumed to have acted according to law. Its orders and judgments are to be held valid in collateral proceedings, unless there is something upon the record showing them to be void. Borden vs. State, 6 Mng. The court, then, clearly erred in excluding the record of the order of sale of the negroes in controversy.

      Jambs Johnson, for the defendant.
    First: In order to entitle the plaintiff to recover, it was absolutely necessary that he should hope shown property in himself, and a right to the immediate possession of the negroes, at the time he brought his smt. 2d Greenlf. Ev., section 636.
    2d. The plaintiff claims title by virtue of a purchase from Elmyra Hundley; and in this case a question was made as to the time when the property in the negroes passed, and it was material for' him to prove that everything that the vendor had to do was already done, and that nothing remamed to be done on his part. 2d- Greenlf. Eh., section 638; 3 d Starleie Ev., page 1,221.
    3d. The rule that parol evidence cannot be introduced to vary or alter the terms of a valid written agreement, only applies' in a suit between the parties to the instrument. 1 Greenlf., section 279.
    4th. The court did not err in excluding the order of the Probate Court; first, because the order itself was a nullity. Gould’s Dig., pages 116 and 117. And, second, because the plaintiff did not pretend to claim under the order, he claimed under a bill of sale made by Elmyra Hundley, and the very rule which he has invoked, viz: that parol evidence cannot be introduced to vary or alter the terms of a valid written agreement, forbids his changing the parties to the contracts, and showing by parol that Elmyra Hundley was selling other than her own individual interest. 1 Greenleaf, section 275.
    5. The bill of sale was absolute upon its face, and yet the negroes were left in the possession of the vendor — this fact has been held in several states conclusive evidence of fraud,' viz: Virginia, 6 Randolph, 285 ; Massachusetts, 1 Piole. 288; Tennessee, 3 Yerger 475; South Carolina, Eg., É. 8. C. 229; Pennsylvania, 2 Watts <& 8erg. 147; and by the Supreme Court of the Hnited States in Edward vs. Harben, 1st Craneh 309, and in every state it has been held as líprima facie evidence of fraud.” \

    6th. It is admitted that the 7th and 8th instructions asked for by the plaintiff in error, should have been given, and that the third instruction asked for by the defendant should have been refused; but if the view which we have taken of this case be correct, then the plaintiff was not, nor' could not, have been injured by the action of the court, and this court has decided in Swevpizer vs. Games et al., 19 Ark., 96, “ that where verdict and judgment upon the whole record are right, the judgment will be affirmed, though the court may have erred upon some question of law,” and in 1 Uh Ark., 114.
   Mr. Justice Fairchild

delivered the opinion of the Court.

This case is to be reviewed here for alleged errors of the Circuit Court, in allowing and prohibiting the introduction of evidence, and in giving and refusing instructions to the jury. It is thence insisted, for the plaintiff in error, that this court will not look through the record to ascertain if a right decision is made in view of the whole case, but will determine the points of law one by one, and upon the errors, or upon a single error, that may seem to us to have been committed at the trial, will reverse the case, from legal necessity, without regard to its merits. If by this is only meant that, as no motion for a new trial was made, the propriety of . a verdict upon the admitted evidence, is not. to be questioned here, the argument is founded upon legal principle that is well settled, and which is recognized by numerous decisions of this court. But if it should appear, from all the evidence in a case, that the verdict was right, and that it could not have been affected by testimony that was admitted, and should have been excluded, or that was excluded when it should have been admitted, we should not be observing the spirit of the law to disturb a judgment for errors that were immaterial to a right issue of the case, and unproductive of injury to the party against whom they were committed. And this course would be taken upon examination of a bill of exceptions showing the evidence that was admitted, without or with objection, and the facts that were offered in evidence but were not admitted, although no question was submitted to the court below upon the evidence by a motion for a new trial, or by a demurrer to the evidence. Such a matter would deserve to be cautiously approached, as the confines between the right of review by this court, and the effect of an unimpeached verdict, might be faintly traced. But that is no reason why a question should be avoided. That a case. involves considerations of difficulty and delicacy, is often the cause of its being brought into a court of the last resort. The course here indicated has already been marked out by this court in cases arising upon matters of evidence. The State vs. Lawson, 14 Ark., 122; Ryburn vs. Pryor, Ib. 513; Clinton vs. Estes, 20 Ark., 235; Walker vs. Byers, 19 Ark. 323.

When no question tending to infringe upon the province of the jury is involved, when the case presents simply leading points upon the pleadings and upon the instructions and rulings of the court, it is the established practice of this court to disregard a particular error, if the judgment upon the whole record is according to law. Williams vs. Miller, 21 Ark., 472; Hathaway vs. Jones, 20 Ark. 111; Sweiptzer vs. Gaines, 19 Ark., 97; Abraham vs. Wilkins, 17 Ark., 325.

Upon both of these divisions of the point under consideration, Maxwell vs. Moore, 18 Ark., 491, is a decided authority.

Then, notwithstanding the conceded errors of the Circuit Court in refusing the seventh and eighth instructions asked for by the plaintiff/ and in giving the third instruction of the defendant, and any other errors that shall be found in the case, the judgment is not to be reversed if the plaintiff in error was not injured by them; if, in other words, the judgment is right upon the whole record.

In December, 1855, and in April, 1856, the defendant in error was sheriff of Ashley county; in' the former month he levied upon certain slaves, to satisfy executions against Elmyra Hundley and her security in delivery bonds before given and forfeited, and in the latter month he sold the slaves under the executions. To recover the value of these slaves, Hosea George brought this suit, an action of trover, -against the defendant in error, claiming that the slaves were Ms own property at the times of the levy and sale. During the pendency of the suit, he died, and it was prosecuted by Ms administrator, who, to a judgment in the Circuit Court adverse to thé claim of George, has brought his writ of error.

If the slaves were the property of Hosea George, the defendant had no right to take them for the satisfaction of the debts of Mrs. Hundley. To maintain the claim made in the suit, the plaintiff read in evidence a bill of sale of the slaves from Mrs. Hundley to George, dated the 13th of September, 1855. As the bill of sale had not been recorded, the plaintiff proved its execution by a subscribing witness. The plaintiff also proceeded to prove by the witness, facts concerning the sale; as, that he, as the agent of his mother, Mrs. Hundley, negotiated it with George, the particulars of payment by George, the fairness and honesty of the transaction on the part both of George and Mrs. Hundley, and that Mrs. Hundley had possession of the negroes before and after the sale, and that after the sale they continued in •her possession till the defendant took them in execution; that he could not tell whether the negroes were positively delivered to George, but was of the impression that they were not; that the defendant took the negroes and sold them under executions, and that George claimed them as Ms own, and made Ms claim known at the time of the sale.

The defendant then, upon cross-examination, asked the witness what was meant by the bill of sale, whether the sale was intended as an absolute sale, and if not, what was intended by it, and under what circumstances it was made. The plaintiff objected to testimony of tMs sort, but the court overruled the objection, and the plaintiff excepted. The question was proper so far as its object was to show the sale to be fraudulent, because fraud may be enquired into in an action at law, and because the plaintiff had opened the door to such enquiry, by affirmative proof of the fairness of the. sale from the mouth of the witness. The defendant then had a right to prove, if he could, such facts as would avoid the sale for its fraud.

It may, however, be remarked here, to save another reference to the subject, that nothing tending to prove fraud, was shown, except that Mrs. Hundley retained the possession of the negroes after the sale, and that is not, connected with other explanatory facts, sufficient to sustain a charge of fraud. Cocke vs. Chapman, 2 Eng. 200; Danley vs. Rector, 5 Eng. 224; Hempstead vs. Johnson, 18 Ark. 134.

But the defendant had no right to introduce evidence to affect the bill of sale, or to show that the transaction it witnessed, was any thing else than the bill of sale recited. Whether the transfer of the negroes was an absolute or a conditional sale, a mortgage or a pledge, was to be determined only by the written contract, and every thing said by the witness tending to show that the dealing between Mrs. Hundley and George, amounted to a mortgage, or to something short of what the bill of sale purported, was illegally permitted to go to the jury. And because the question was an entire one, including some matter that might be legal, and some that was eminently illegal, the whole question was bad, and the entire response to it was improper evidence. Conceding the propriety of the exclusion of that part of the evidence of the witness that related his own dealing with his mother about the negroes, no part of his testimony adduced upon cross-examination was proper, except the single fact that Mrs. Hundley held the negroes as the administratrix of her husband. That was in denial of the plaintiff’s right, and was admissible to defeat the suit.

To avoid the effect of that evidence, the plaintiff produced the record of the Probate Court of Ashley county, and offered to read therefrom, of its proceedings, at the January term, 1853, the following entry:

“ Comes Elmyra Hundley, administratrix of Joel Hundley, “ deceased, and presents her petition in writing, setting forth « that, in order to pay the debts of said deceased’s estate, it is « necessary that the slaves thereof should be sold; and it appear- “ ing to the satisfaction of the court, that sufficient causes exist « to require said sale, therefore it is ordered that said adminis“.tratrix sell said slaves, either at public or private sale, which “ to her shall seem most advantageous to said estate, according “ t.o law, and make report thereof to this court.”

The decision of the court in not permitting the record entry to be read is another error, of which the plaintiff complains.

To sustain the ruling of the Circuit Court the order of the Probate Court must be held to be void. That is the view, doubtless, in which the court considered it; it is so argued for the defendant in this court.

The Probate Court is a court of constitutional jurisdiction, and upon all subjects wdthin its jurisdiction and matters submitted to it, its determination, till reversed by a superior tribunal, is conclusive. Borden vs. The State, 6 Eng. 552; Ringgold vs. Stone, 20 Ark. 534: Bennett vs. Owen, 13 Ark. 179.

The jurisdiction of the Probate Court extended to the matter of this petition, the order itself was the measure of its validity, and the Circuit Court was not to judge of the propriety or legality of the order upon its introduction in a collateral proceeding. The Probate Court, upon a subject within its jurisdiction, exercised its discretion, which must be presumed to have been v/ell exercised. Redmond vs. Anderson, 18 Ark. 452. However erroneous the decision of the court may have been, whatever was done under it while it was in force,- was legal. The court erred in not receiving the record entry as evidence. In addition to the cases in this court, which include many more than those cited, we refer to a few of the abundant authorities to be found in the books sustaining this position. Thompson vs. Palmer, 2 Pet. 157; Grignan’s Lessee vs. Astor, 2 How. U. S. 319; McKee vs. Whitten, 25 Miss. 33; Wyman vs. Campbell, 6 Port. 219.

Whatever other evidence the plaintiff might or would have introduced in support of what was done under the order, or whether any was necessary, we are not to decide, and will not suggest. The first step to show an administration sale was properly attempted by the plaintiff in offering to read the record entry of the Probate Court, and was improperly arrested by the Circuit Court.

The executions upon the delivery, bonds, under which the defendant took and sold the negroes, and which he read in evidence, against the objection of the plaintiff, did not authorize the defendant in taking property belonging to the estate of Joel Hundley. The sheriff was directed to make the money due upon the executions out of the property of Elmira Hundley and her security in the delivery bond. The returns of the sheriff on the executions, showing a seizure of negroes of the assets of the estate of Joel Hundley, were not evidence, being acts done without authority from the writs.

The plaintiff alleges, as error in the court, that it refused to give the first, fifth, seventh, eighth and tenth instructions she' asked, and did give the third instruction of the defendant.

The counsel for the defendant concede that the seventh and eighth instructions of the plaintiff should have been given, and that the third one of the defendant should have been refused. The tenth instruction affirmed the right of George, as a mortgagee of personal property, to bring his action against the defendant. It was founded on the parol evidence, that the court admitted to enable the defendant to show that the sale recited in the bill of sale was a mortgage. No instruction need here be considered that does not refer to legal evidence.' The first and fifth instructions asked the court to declare, that evidence which it had admitted against the objection of the plaintiff was not legal and could not be considered by the jury. The court did not err in refusing the instructions, its error was in allowing parol evidence to go to the jury, to construe the bill of sale as a mortgage, but when the evidence was before the jury the plaintiff should have rested his objection to it on his exception to its introduction, should not have asked the court to pronounce that not to be law which the court in a former period of the case ruled to be the law — the instructions were properly refused.

But for the errors herein indicated, the judgment is reversed.


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    Crump et al. vs. Starke.
    In an action of trespass against the plaintiffs, their attorney and the sheriff, for levying an execution upon, and selling the property of a third person, if there be any evidence, though slight, against the attorney as a co trespasser, this court could not set aside the verdict against him for not being supported by evidence.
    Where the record states that the suit against a defendant not served with process, was discontinued, this court will hold such statement to be true, although the bill of exceptions presents a different stale of facts.
    The owner of property, levied upon under an execution against another person, and who had claimed it as his own, is not estopped, by bidding for the property at the sale, from asserting his title in an action of trespass against the sheriff.
    The death of a witness at the time of the trial does not make his writing any more evidence than his unsworn declarations would be.
    An objection to the testimony of a witness after verdict, comes too late — it should be made when the witness is called to the stand.
    The objection that the damages are excessive, will be considered as waived, if not made one of the grounds of the motion for a new trial.
    That a jury on the trial of the right of'property, has failed to find for the claimant, is no bar to an action of trespass for selling his property.

      Appeal from' Crittenden Circuit Court.

    1-Ion. Mark W. Alexander, Circuit Judge.
    Garland & Randolph, for appellants.
   Mr. Justice Fairchild

delivered the opinion of tile court-..

Crenshaw and Chambers were plaintiffs in an execution against James B. Harris; Kortricht was their attorney, and Crump was the sheriff of Crittenden county. Crump lévied on thirteen bales of cotton as the property of Harris, which Starke claimed; a contest was had in a trial of the right of property before the sheriff, which resulted in nothing, as the jury could not agree upon a verdict, and was discharged by the sheriff, with the consent of the parties. Kortrieht had been the attorney of Crenshaw and Chambers in the suit in which judgment was rendered, appeared for them on the trial of the right of property, and, after the disagreement and' discharge of the jury, declared his purpose to have the cotton sold under the execution. Against this, Starke, by his attorney, protested, and notified Crump and Kortrieht that if they proceeded to sell the cotton, he would hold them responsible for so doing. Crump and Kortrieht were heard to talk about the former being indemnified for selling the cotton, but the witness could not say that he had seen the bond of indemnity. Neither Crenshaw or Chambers was present; Kortrieht, as their attorney, had the whole management of their business. This was at the trial held by the sheriff, which seems to have been an animated and protracted contest, lasting for two days.

The above statement contains all the facts that bear personally upon Kortrieht, except that it is put down in the sheriff’s report of the sale, endorsed on the execution' as his return, that he^had paid four hundred and fifty dollars of the proceeds of the sale of cotton and other property to the plaintiffs’ attorney. And it is evident that the proof is slight to charge him as a co-trespasser with the sheriff for taking the cotton; yet it is evidence appropriate to the issue of not guilty, which Kortrieht pleaded to the action; the jury had it in charge to determine its effect, and having found a verdict against Kortrieht, we cannot say fiiat it ought to be set aside for not being supported by any evidence. If - this had been an action of trover, as stated by counsel, the argument would have been good that the verdict was wrong. For, as Kortrieht did not sell or buy the cotton, no conversion being proved against him, an action of trover would necessarily have failed; but in trespass, he could be regarded as an encourager of caking the cotton, and therefore as a participator in the alleged wrong.

It is urged for Crump and Kortrieht, that the judgment should have been arrested, and a new trial granted, inasmuch as Crenshaw and Chambers vrere not served with process, and had made no appearance to the suit. We need not discuss this prominent point of the case, as the record does not present it for our decision. ' The record of the court shows a regular discontinuance of the cause in proper time, before trial, as against Crenshaw and Chambers; the verdict and judgment are only against Crump and Kortricht, and does not notice the different state of facts disclosed in the bill of exceptions. That implies that the verdict was against Crenshaw and Chambers, that the discontinuance was not entered until after the motions for new trial and arrest of judgment had been filed, and that there was a contest between the parties, in which the court overruled the objection of the defendants in allowing the discontinuance. If the facts were as assumed by the bill of exceptions, they should have appeared among the record entries of the case. It was not the office of the bill of exceptions to contain the rulings of'the court upon this subject; that could include only such matters as are not matters of record, unless embraced in a bill of exceptions. And in the contrariety between the record and the bill of exceptions in this case, the record must prevail. Lyon vs. Evans, 1 Ark. 360; Hixon vs. Weaver, 4 Eng. 186. This court has held that the bill of exceptions would overcome the record in opposite statements respecting the rejection of evidence, as such fact is proper to be brought into the record only by bill of exceptions. Rogers vs. Diamond, 13 Ark. 482. This is not inconsistent with the other decisions cited, and has no application to the present case. And with this point, must also fall, as depending upon the same principle, the objection that Crenshaw was dead at the time of the trial.

When the cotton was sold by Crump under execution, Starke bid for and bought it; and Crump and Kortricht therefore claim that he is estopped from recovery in this suit. l

The pleadings in the case upon this matter are very irregular, but we shall consider the subject as if it were given in evidence, the only way in which estoppels in matters of fact can be brought to the notice of a legal tribunal. Each case of estoppel that does not depend upon a deed or record, must be considered upon its own circumstances, but generally a party is not estopped by an act or admission that was not designed to influence, and did not influence the conduct of a party relying upon the estoppel. Prater vs. Frazer, 6 Eng. 264. There can be no pretence that Crump was influenced by the presence and by the bidding of Starke at the sale of the cotton, which he, as sheriff, was making under the authority of the execution and of the law. It did not injure the sheriff that one who claimed the property as his own, and had notified the sheriff not to take or sell it but upon a view of his. responsibility to the claimant, was the purchaser. So that the ' sheriff got the most money that any man would pay for the-cotton, it was immaterial to him that the buyer had claimed it as his own, and not subject to an execution against Harris. And it could not have been the design of Starke to 'affect Crump, for no man in his senses would have expected a public officer to be influenced by the presence or absence of a single bidder, or by the assertion of a claim that had been considered by the plaintiffs in the execution, under whose directions Crump must be taken to have been acting in selling the cotton. The character of the transaction might be different, if this suit had been a controversy between Starke and one who had bought the ■cotton at the sale. Then, in favor of the purchaser, in the proper court, the acts of Starke might have been set up as an equitable estoppel, if it had been shown that the purchaser acted upon the conduct of Starke, and that having so done, the assertion of his claim would be injurious and inequitable to the right which Starke’s acquiescence in the sale had encouraged the purchaser to acquire. See Danlcy vs. Rector, 5 Eng. 226; Norris vs. Norton, 19 Ark. 321, where the principle is recognized, though the application in those cases was to a different state of facts.

The letter and receipt of Harris, which was the subject of„ the petition of Crump and Kortricht, would have been evidence against Harris, in any controversy, to which he was a party, concerning the ownership of the cotton, but it is not perceived how they could be used against Starke. They were' nothing but representations of Harris by which Starke could not be bound. Harris, if alive, might have been called as a witness, and according as his testimony might have been, the letter and receipt might, or might not, have been brought into the case as evidence, but that Harris was dead at the time of the trial in the Circuit Court, did. not make his writings evidence against Starke, any more than his unsworn declarations would have been evidence.

The objection to the testimony of Mrs. Harris was made too late, if it could have been made at all, which is not perceived, but which we need not decide. But if it had been intended to assign her testifying as a ground for new trial, a question should have been raised upon her competency when she was introduced as a witness, at least before an unfavorable verdict was given.

Although the only evidence of the value of the cotton is to be found in the price at which it was sold, and that was somewhat less than the amount of the verdict, it must be remembered that this is not an action of trover, in which the damages are exclusively measured by the value of the property, but an action of trespass in which a wider range in the assignment of damages is allowed. Clark vs. Bates, 15 Ark. 458. And this objection is waived, as it was not insisted on as a ground for new trial.

No question can be raised upon the third plea of Crump, but the demurrer to it was properly sustained. That the jury on the trial of the right of property did not find the cotton to be the plaintiff’s property, was no bar to his suit.

There are all the points that need to be considered in the case, although we have not felt it necessary to specify the manner in which they appear upon the transcript, which is fruitful of alleged difficulties.

The judgment is affirmed.


text:
    Morrison vs. Alphin.
    After the bond prescribed by the attachment law is given, there is no levy to be quashed.
    When the clerk takes the bond to release property attached, the presumption is that the writ was returned.

      Error to Union Circuit Court.

    Hon. Lem B. Green, Circuit Judge.
    Carleton, for the plaintiff in error.
    On the sufficiency of the motion, we refer the court to 1 Kent 411; United States vs. Mart, 1 Pet. C. R. 390; United States vs. Barney, 3 Hall’s Law Jour. 128.
    The record does not show that the writ was returned, therefore the clerk could not take the bond and release the levy. But if the defendant had given bond, he did not waive his right to have an illegal levy quashed.
   Mr. Justice Fairchild

delivered the opinion of the Court.

Alphin brought assumpsit against Morrison, sued out a writ of attachment, had it served upon four horses belonging to the defendant. Seven days after the service of the writ, the defendant executed his bond for the release of the attachment. At the return term of the court, the defendant plead the general issue, and then moved that the levy of attachment be quashed, because the horses attached were in the United States mail service. The plaintiff filed a motion to strike the defendant's motion from the files; the court overruled it; the plaintiff then demurred to the’ defendant’s motion; this the court sustained.

On trial judgment was given for the plaintiff, and the defendant sued out a writ of error against it, and assigns as error of the court below, that it did not quash the levy; that it sustained a demurrer to his motion to quash. After the bond was given? releasing the attached property, the levy was out of consideration. The suit was not an attachment suit, it was to proceed as other suits at law. Gould’s Big., ch. 17, sec. 19. Section 13 of the same chapter permits the bond to release the attachment to be entered into before the clerk, when the sheriff has returned the writ. The bond in this case was taken by the clerk: we presume that the writ had been returned to his office, though the return day of the writ had not come. The bond answered the purpose of the defendant in giving him the use of his mail horses, and he ough not to questtion it.

Judgment affirmed'.


author:
Mr. Justice Compton Mr. Chief Justice English:
      Mr. Justice Fairchild.

text:
    Clayton, Sheriff, etc., vs. Lafargue.
    The authority of a court of equity cannot be exerted to restrain, by injunction, the collection of the taxes assessed upon land as subject to overflow, under the act of 16th February, 1859, on the allegation that the land was erroneously assessed because it is not such as would be benefited by the levee work provided for by the act.
    Whether the land, upon which a levee tax may be assessed, would be benefited by the levee is a matter of fact to be determined by the county court, whose decision is declared to be final; and if it err in judgment, the remedy of the owner, if he has any, is strictly at law by certiorari, and not in equity.

      General allegations in a bill to enjoin the sale of land for levee taxes, putting in issue the correctness of the judgment of the inspector, and disputing the truth of his return, without stating a single fact to impeach the soundness of his judgment, or the integrity of’his assessment, are not sufficient to entitle the complainant to the interference of a court of chancery by injunction.
    [I would not sanclion an interpretation of the levee act that would make the judgment and return of the inspector final and conclusive in all eases; but reserve for future cases the expression of my views upon the question of the jurisdiction of chancery to enjoin the sale of lands upon illegal assessments, Per English, C. J.]

      Appeal from Desha Circuit Court in Chancery.

    Hon. John C. Murray, Circuit Judge.
    Weatherford, for the appellant.'
    It is submitted confidently that the complainant below cannot be heard in this tribunal.
    In Handle vs. Williams, 13 Ark. 380, it is held that a chancery proceeding to correct an excessive assessment would be wholly unwarranted and unauthorized, and that if the assessment and levy were excessive, the appropriate remedy was by appeal to the county court. And it does not appear, nor is it pretended that the appellee was deprived of the right of appeal without fault or negligence on his part. The cases as to assessment are precisely similar; see Roberts vs. Williams, 15 Ark.. 48; Osborn vs. Inhabitants of Danvers, 6’ Pick. 98; Gedney vs. Inhabitants of Tewksbury, 3 Mass. 309; 6 Mass. 44; 11 lb. 365.
    We can see no ground why the same should not be true as to the land assessed — the jurisdiction over both the land and amount of assessment is unquestioned. The land, as shown by the bill, was part of the swamp land — had been reported by the selecting agent — assessed by the inspector — passed upon by the county courty — and, indeed, every step taken to confirm the presumption that it was both subject to taxation and correctly assessed; If erroneous, the only remedy to exempt the land as well as to reduce the assessment, was by application to the county court. See authorities above.

      Bell & Carlton, for appellee. .
    The point we make is this: _ By the 2d section of the levee law it is expressly provided “ that no lands shall be embraced in said reports that are not subject to reclamation by a general system of levees in said district.” It is expressly alleged in the bill, that the lands described in the bill are not subject to reclamation by a general system of levees in said district. The demurrer admits the truth of the allegation.
   Mr. Justice Compton

delivered the opinion of the Court.

This was a bill in chancery, exhibited by Agnes Lafargue, to restrain the sheriff of Desha county from proceeding to advertise and sell a half section of land for taxes, imposed' under the act of the legislature, approved 16th February, 1859, entitled “ an act to provide for making and repairing levees in Desha and Phillips counties. Pamph. Acts 1858, p. 153.

By the provisions of the act, the county court is authorized to levy a tax on all lands subject to overflow, situate in Desha and Phillips counties, that would be benefited by levee work. The funds thus raised are to be expended in the construction of such levees as in the judgment of the levee inspectors would be necessary to protect the lands. The inspectors are to act under oath, and be the sole judge of what land will'be benefited by levee work,” and shall embrace in the'assessment such lands only as they may deem of that description or character. And it is made the duty of the county court to adjust the assessment and levy of the tax, by hearing and deciding all questions relating to the improper assessment and taxation of any lands, or the omission to assess and tax any, legally taxable under the provisions of the act, and make addition to, or deduction from the taxes charged; which correction and deduction may be made upon the affidavit of the person applying therefor, stating the grounds upon which it is claimed, or any other evidence satisfactory to the county court, “ whose decision skpll be final.” The bill,besides urgingseveral constitutional objections to the act, charges that the complainant’s land was not such as would be benefited by the construction of the contemplated levees. A-demurrer to the bill was overruled, and the defendant appealed.

Such of the objections as relate to the constitutionality of the act are the same as those raised in McGeehee vs. Mathis, 21 Ark. 40, and decided by this court, in that case, not to have been well taken. It is insisted, however, that conceding the law to, be constitutional, the complainant’s land was erroneously assessed; because it was not such as would be benefited by the levees provided for by the act — while for the defendant it is contended that, admitting the error complained of, the authority of a court of equity cannot be exerted to restrain, by injunction, the collection of the taxes assessed.-

Chancery jurisdiction in cases like this seems never to have been exercised in England; and though there is some contrariety of judicial opinion in the American courts, the best considered cases explicitly and emphatically deny such jurisdiction. Thus, in Levy vs. Corporation of New York, 4 Johns. Ch. 354, the bill was filed for relief against an assessment made to defray the expenses of a common sewer in the city of New York, and for an injunction to restrain the defendants from collecting the taxes. The assessment was made pursuant to an act of the legislature, which provided that it should be lawful for the corporation to cause, among other improvements, common sewers to be made in any part of the city, and to cause estimates of the expense to be made, and a just and equitable assessment thereof, among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion, as near as might be, to the advantage which each should be deemed to acquire, and to appoint skilful and competent persons — who were to act under oath- — to make out and certify to the common council, for ratification, such estimate and assessment, which, if ratified, should be binding and conclusive upon the owners and occupants of the lots assessed. It was contended that the assessment did not embrace a ‘sufficiently extensive district of the city, to include- all the owners and occupiers of lots who were intended to be, and were benefited by the sewer, and ought to have been made to bear a ratable proportion of the expense; and it was held that the court had no power to interfere with or set aside the assessment, on the ground merely of a mistake in judgment of the commissioners of estimate and assessment, as above indicated — there being no allegation, of bad faith or partiality, in the commissioners in making the assessment; and that the assessment being final and conclusive, when ratified by the common council, the only remedy, if any, for. the party aggrieved, was in a court of law by certiorari. Chancellor Kent said: “ I cannot find that the court interferes in

cases of this kind, where the act complained of was done fairly and impartially, according to the best judgment and discretion of the assessors; and a precedent once set, would become very embarrassing and extensive in its consequences. If the power under this statute had been exercised in bad faith and against conscience, I might have attempted to control it; but a mere mistake of judgment in a case depending so much upon sound discretion, cannot properly be brought into review, under the ordinary powers of this court. There must have been a thousand occasions and opportunities for the exercise of such a jurisdiction in the history of. the jurisprudence and practice of the English Court of Chancery, if such a jurisdiction existed, and yet we find no precedents to direct us. A mistake of judgment in the assessors upon a matter of fact, what portion or district of the city was intended to be, and actually was benefited by the common sewer, can hardly be brought within the reach of that head of equity jurisdiction which relates to breaches of trust. Here is not, strictly speaking, a violation of duty. No bad faith or partiality in the assessors is pretended! The aid of this court might as well be asked to review every assessment of a land tax or.,a poor rate. I apprehend it would require a special provision by statute to authorize chancery to interfere with these assessments. Instances are numerous in the English law, in w'hich jurisdiction is given to the chancellor, under local or private acts; and the cases imply that a slatute was requisite to give the jurisdiction.” Te same question was again raised in Movers vs. Smedley, 6 John Ch. 28; and a like conclusion was reached; the same high authority holding that the review and correction of all errors, mistakes and abuses in the exercise of the powers of subordinate public jurisdictions, and in the official acts of public officers, belonged exclusively to the common law. courts. In Livingston vs. Halenbeck, 4 Barb. (S. C.) 9, which was a bill to restrain the sheriff from selling certain lands of the complainant, under warrants issued for the collection of taxes imposed under an act of the legislature, entitled “ an act to equalize taxation,” it was decided that a court of equity had no power to restrain, by. injunction, the collection of taxes irregularly or erroneously assessed. The same principle was decided in Van Doven vs. Mayor etc. of New York, 9 Paige, 388, and in the Mayor etc., of Brooklyn vs. Mesevale, 26 Wend. 130. Where, however, matter of equitable cognizance is connected with the execution of the proceedings in the subordinate tribunal, or the official acts of public officers, the court will exercise jurisdiction; as where their execution would lead to the commission of irreparable injury or to a multiplicity of suits; because these are well-defined heads of equity jurisdiction, which would necessarily involve an examination, incidentally, into the legálity of the proceedings, and would be exceptions to the general doctrine. No such ground of jurisdiction is pretended in this case.

And here it may be proper to refer to the cases that have fallen under our observation, in which bills to restrain the collection' of taxes have been maintained. Anderson vs. The State, 23 Miss. 549, was a contest between the tax collector and the assignees of the Commercial and Railroad Bank of Vicksburg The object of the bill was to enjoin the collector from selling certain securities of the bank for taxes, which the bank had transferred to the assignees after the assessment of its capitol stock. The validity of the assessment was not before the court, and the question was whether the state had, under the statutes of Mississippi, alien for the taxes, which should prevail over the title of the assignees. Here was matter of equitable' cognizance, and brings this case within the exception above indicated. So, the jurisdiction of the court in Osborn vs. U. S. Bank, 9 Whea. 736, was not placed upon the ground of merely preventing the sale of property* for taxes illegally assessed; but stands upon distinct grounds of equitable interposition, growing out of the peculiar circumstances of that case. In Vanover vs. Justices of Inf. Court, 27 Geo. 351, the bill was clearly maintainable to prevent a multiplicity of suits; and in the cases of Brown vs. Marsh, 1 Foster 81; Levey vs. Smith, 4 Flor. 154. and Williams vs. Cammack, 27 Miss., 209, the question of jurisdiction was not raised. But in Barnett vs. Corporation of Cincinnali, 3 Ohio, 73, it was decided that equity would interfere by injunction to stay the sale of city lots for taxes illegally assessed. And Mr. Chief Justice Collier in Dyer vs. Br. Bank at Mobile, 14 Ala. 625, expresses an opinion to the same effect.

Whether the land in the case before us was such as would be benefited by the contemplated levees, was matter of fact to be determined by the county court, whose decision was declared to be final; and if it erred in judgment, the remedy of the complainant, if she had any, was strictly at law, by certiorari, and not in equity. The courts of common law afford ample remedy to the party aggrieved by an irregular or erroneous assessment. The jurisdiction contended for would not only burden the Court of Chancery with an immense mass of litigation foreign to its ancient jurisdiction, but would sanction the review in that court, of every assessment made for raising the public revenue, which in view of the preventive process of the court and the great delay which, all know, attends its proceedings, might, in some instances, lead to results seriously affecting the public interest.

The decree must be reversed and the cause remanded to the court below with directions to sustain the demurrer.

Mr. Chief Justice English:

I concur in the conclusion that the court below erred in overruling the demurrer to the bill, and that the decree should be reversed, but deem it proper to state the grounds on which I place my concurrence in the reversal.

The act of 16th February, 1859, providing for the construction and repair of levees in the counties of Desha and Phillips, makes it the duty of the County Court of each of the counties named, to divide the overflowed lands therein into not less than four nor more than seven districts, (sec. 1.)

For each district the court is to appoint three resident freeholders, who are required to make out and report to the clerk of the County Court, and to be filed and kept in his office, a list of all lands in the district, subject to overflow, but no lands are to be embraced in the report which are not subject to reclamation by a general system of levees in the districts, (sec. 2.) These officers are called selecting agents, (sec. 8.)

The court is also to appoint for each district one levee inspector whose duty it is to lay off such levees as will in his judgment be needed for the protection, from overflow, of his district, to be built at a suitable distance from the river (sec. 7) and to cause to be constructed, and kept in repair, such levees, etc., (sec. 9-12.)

For the purpose of raising means to construct and repair the levees, etc., an annual tax is to be levied and collected upon the lands, in such district, that will be benefited from overflow by levees, (sec. 13,) and the County Courtis to fix the rate of tax, etc.

It is made the duty of the levee inspector for each district to assess the lands therein, which are subject to taxation for levee purposes; and to make out a correct list of his assessment, certified under oath, and return it to the clerk of the County Court; and the act declares that the “ levee inspector shall be the sole judge of what lands will be benefited by levee work, and he shall embrace in his assessment all such lands as he may deem of that description or character." (sec. 13.)

The tax so assessed is to be collected by the sheriff, and the lands are subject to sale therefor. . .

The bill alleges that the complainant is the owner of a half section of land, situated in Desha county, and embraced in the levee district numbered six; that the county court had fixed the rate of tax at two per cent, upon the value of the land, etc., and that the levee inspector had assessed complainant’s land at $20 per acre.

“ Complainant charges that her land will not be benefited or reclaimed by a general system of levees in Desha county, and especially by a system of levees in the very district in which her land is located, but if reclaimed or benefited at all by the building of levees, the drains must be built in the county of Arkansas, and not in tho county of Desha.”

Again she charges that her land will not be reclaimed by a general system of levees in the levee district in which it is located; and that the report of the selecting agent, appointed by the county court, under the second section of the act, was improper and wrong, and in violation of the clear meaning and intention of the section.

That the sheriff was proceeding to sell her land for the tax charged upon it, and she prays for an injunction, etc.

The allegations of the bill are entirely too general to entitle the complainant to the interference of a court of chancery by injunction.

The levee inspector, acting under bond, and a solemn oath to discharge his duties faithfully, residing in the district, acquainted, it must be supposed, with its topography, the sources and extent of the overflows, and capable of forming a correct judgment as to the location and magnitude of the levees necessary to protect the lands of his district from inundation, assessed and returned the complainant’s tract as land that would be benefited by the levees provided for by the statute.

The complainant, by general allegations, puts in issue the correctness of the judgment of the inspector, and disputes the truth of his return, without stating a single fact upon which she based her impeachment of the soundness of his judgment or the integrity of his assessment.

The inspector, acting in discharge of official duty, and supposed to be impartial, has said upon oath that the complainant’s land will be benefited by tbe levees contemplated by the statute; and the complainant, who is personally interested, has alleged, in general terms, that her land will not be benefited or protected by the levees, etc.; and upon the issue, thus made, she asks for an injunction.

Surely, if she is in the right, and the inspector in the wrong, she could have stated some facts to persuade the chancellor of the truth of her averment, and the error of the return of the inspector.

How did the complainant ascertain that her land would not be benefited or protected from overflow by the levees? Had the levees been laid off by the inspector, and left her land exposed to the river; or had the levees been constructed, and proven, by actual experience, ineffectual to protect her land? The allegations of the bill'do not answer.

The 13th section of the act declares, that the levee inspector shall be the sole judge of wha.t lands will be benefited by levee work, etc.

I would not sustain an interpretation of the act that would make his judgment and return final and conclusive in all cases, so as to shut out all application for relief to the courts, (McGehee vs. Mathis, 21 Ark. 51), but in view of his superior advantages to form a correct judgment, and of the confidence and discretion reposed in him by the act, I think a court of chancery should not interfere by injunction to enquire into the legality of an assessment made by him, and to restrain a sale of the land, except upon allegations of facts showing a clear and palpable mistake, or such gross abuse of his judgment and discretion as to amount to fraud in the assessment.

Believing the allegations of the bill in this case to be insufficient to warrant the interposition of a court of equity, I do not deem it necessary to go further into the question of the jurisdiction of chancéry to enjoin the sale of lands upon illegal assessments, but reserve the expression of my views op the subject for future cases.

Mr. Justice Fairchild.

I agree with both of my brother judges. While I fully assent to the reasoning of the Chief Justice, and agree with him that the demuiTer to the bill ought to have been sustained, if for no other reason than the generality and insufficiency of the allegations of the bill, I also concur with Judge Compton in holding that the facts of this case do not bring it within the jurisdiction of a court of equity, and' I approve of the argument and legal deductions of his opinion.