text:
    Jacks et al. vs. Adair et al.
    1. New TRIAL: Limitation on, for grounds newly discovered.

    The limitation of three years upon an application for a new trial, in cases appealed to the Supreme Court, runs from the date of the judgment of the Circuit Court.
    2. Same : Bill of review not superseded by

    The hill of review is not superseded by the statute which authorizes the Circuit Court to vacate or modify a judgment for grounds discovered after the term at which it was rendered. The statute extends to cases at law a new remedy, without taking away any which existed in equity, and as to the latter is cumulative.

      3. Judgments of Supreme Court: Review by inferior court; injunction against.

    A judgment or decree of the Supreme Court cannot be reviewed, altered or modified lw an inferior court for error upon the record; but for matters arising after the judgment or decree of the Appellate Court, and which would . render it inequitable to carry it into execution, it may be enjoined.

    4. Bill of Kevlew : After affirmance in Supreme Court; Prohibition against.

    A bill of review for new matter discovered after affirmance in the appellate court, is permissable; but leave to file it must first be obtained, if not from the Appellate Cowt, at least from the Chancellor. It rests in his sound discretion to grant or refuse it. But, if he should err or abuse his power in thisiegard, the remedy is not by prohibition fro m the Appellate Court.
    5. Same : limitation on.

    Against bills of review for newly di covered evidence, there is no positive statutory bar.
   EakiN, J.:

In accordance with the opinion of this court, delivered in the first case and reported in 31 Ark., p. 616, judgment was, on the 19th of May, 1877, entered here on the supersedeas bond, in favor of Martha Griffin, as administratrix, etc., against Eli T. Diamond and Thomas M. Jacks, and also against John P. Moore, as surety, for the sum of $4883.05, and interest thereon from the 26th day of March, 1874, and the further sum of $488.30, being 10 per cent, interest on the judgment, and execution was ordered.

On the 24th day of July, following, the defendants below, Diamond and Jacks, filed in the office of the Lee County Circuit Clerk a motion for a new trial, on the ground of newly discovered testimony, upon which said Clerk, by order of the Judge of the County Court, issued an intei-locutory injunction against the execution from this court.

On the 30th of October, following, Ira A. Webster, who seems to have been then recentty appointed in Ohio, as the administrator of Benj. P. Griffin’s estate, answered the petition, appending thereto a demurrer, assigning for cause, first, that the final decree was rendered more than three years before the petition was filed : and amongst others a fifth, that due diligence had not been shown in procuring the evidence. The answer, Avith a large mass of testimony, not necessary now to be noticed, is sent up Avith the transcript.

The demurrer was sustained on said first and fifth grounds, petition refused, and the interlocutory injunction dissolved, Avith damages assessed at $300, for which judgment was rendered in favor of said administrator against Jacks. Appeal granted and bond for supersedeas filed. The transcript of these proceedings Avas filed here on the 30th day of January, 1878.

Afterwards, the original appellee Martha Griffin, moved this court for an alias execution on the judgment rendered here in May, 1877, setting forth the facts as above stated. Appellants responded, relying upon the second appeal and supersedeas, and the filing of the transcript here, as effective to retain in force the interlocutory injunction issued below; filing at the same time their motion to reneAV the injunction here.

Before any action had been taken upon either of said motions, on the 22d of June, 1878, said Webster, as administrator, etc., appeared here and applied for a prohibition; suggesting and showing by proper exhibits, not only the foregoing proceeding, but also : That pending them, on the 9th of February, 1878, said Diamond and Jacks had filed a bill in equity in the Circuit Court, to revieAV the original judgment or decree of that court, and to enjoin the judgment of this court, and that an interlocutory injunction had been issued, as prayed. Further, that the cause below had been heard, upon demurrer to the bill, and motion to dissolve the injunction, on the 7th of May, 1878, Avhen the court had overruled the demurrer, continued the injunction and ordered the suit to progress.

An inspection of the Bill of Review exhibiied, discloses that it is based substantially upon the same grounds as the former petition for a new trial, to-wit; that long after the decree rendered below in the • original cause, the defendant, Jacks, discovered that James Adair was at the time of the compromise of the rights of the legatees of Dennis Griffin, himself the real owner, by purchase, of the whole interest of B. F. Griffin, deceased ; that he had concealed this fact when he pretended to act as said Griffin’s attorney, and during the progress of the suit; whereby the decree had been rendered .in favor of the administratrix of said Griffin, when, if the facts had been known, the decree should have been for Jacks and Diamond, The bill further alleges that the estate of said B. F. Griffin is wholly insolvent; that the administration is in Ohio ; that said Webster has no means nor assets of any kind in his hands; that his administration was taken for the sole purpose of defending this suit, as that of his predecessor Martha Griffin, had been for the purpose of prosecuting the original one, and that James Adair and his wife were also insolvent. These are the main features of the bill, wnich contains also allegations tending to show due diligence, and the usual formal requisites.

The Judge of the Circuit Court waives notice of the motion for prohibition, and these matters are all now submitted together, on argument and brief of counsel.

It is convenient to consider first the motion for a new trial and the proceedings thereon ; as their determination will affect the several motions for an alias execution, and to continue or renew the restraining order first issued by order of the Judge of the County Court. The motion for a prohibition must rest on different gounds wholly jurisdictional.

The application for a new trial was made shortly after the affirmance of the decree here, but more than three years after it had been rendered. The cause had not been remanded, but execution had been ordered from this court, returnable here.

The remedy sought was statutory, in derogation of the common law principle that the judgments of the Circuit Court at law, cannot be altered by the same court after the close of the term, except by bill in Chancery, in a direct attack for fraud. Section 3596, of Gantt’s Digest, authorizes the court in which a judgment or final order has been rendered or made, to va¿ate or modify it, after the term in certain cases specified; •one of them being by granting a new trial for the cause, and in the manner prescribed in section 4692. By section 3601, the party seeking thus to vacate or modify a judgment or order may obtain an injunction to suspend proceedings on the whole or a part thereof, to be granted by any officer authorized generally to grant injunctions, upon proper showing by affidavit or exhibition of the record. Section 4692, to which reference is above made, provides that when grounds for a new trial are discovered after the term at which the verdict or decision was rendered, the application may be made by petition, filed with the Clerk not later than the second term after the discovery, on which a summons shall issue as on other complaints, etc. It is furthei provided, that no such application shall be made more than three years after the final judgment was rendered.

In case of a decree appealed, and affirmed in this court, and retained here for execution, to what judgment or order does the statute refer? Not to the decree of affirmance in this court. The court below cannot certainly vacate or modify that. Waiving the question whether the court below can entertain such a petition at all during the pendency of the appeal here, and before the cause is remanded, when the record shows that the whole matter has been removed from the control of the inferior court; if that court can act at all, it must act on Its own judgment, or order, and not upon that rendered here. It seems obvious that the judgment or order rendered below, in case of affirmance, must give the point of time from which to-estimate the limitation for a motion for a new trial.

The Circuit Court, then, did not err in sustaining the demurrer to the petition on the ground that it had not been filed within three years. The statute makes no exceptions, and it is-not within any manifest equity of its provisions to make one in a case like this. The appellant had the option to dismiss the appeal, and rely upon his petition at any time within the-three years, upon the discovery of new evidence, and there is-no more reason for extending the statutory limit where an appeal has been taken, than exists when it has not. The-appeal is his own and creates the obstacle against filing the petition below, if any exists, pending the appeal. He ought not to be allowed to experiment with an appeal, and rely upon it, until its futility be shown by affirmance of the judgment; and then have a still further extension of three years to file a petition for a new trial. This would enable him, at least at his option, if not of his wrong, to make an indefinite extension of the limitation dependent upon the delays incident to this court.

This conclusion decides also the motion for a renewal of the injunction granted on the petition, and renders it unnecessary to rule in this case, whether an appeal with supersedeas should continue an injunction dissolved. The judgment of the court below upon this branch of the submitted matters must be affirmed. If' this were all before us it would follow, also, that an alias execution should go in the original case. It is proper, however, that the discretion of the court in ordering or refusing it, for the present, should be influenced by the matters brought to its notice by the application for a prohibition.'

The bill of review, against the prosecution of which the motion for a prohibition is directed, seeks to review a decree, after appeal and affirmance, and which has not been remanded. The first question presented in limine is, whether, since the code, bills of review are proper at all, in any case. Or does the statutory remedy to vacate and alter judgments and orders supersede the old practice in equity ?

Its language is certainly broad enough to apply to cases in equity as well as at law, although perhaps not the aptest to have been used if the Legislature had had both in view. It may be said of the code generally that it applies to both modes of proceeding whenever its provisions are of a positive and mandatory nature, exclusive of all other modes. Yet it does in the outset, (sec. 3,) recognize and adopt proceedings in equity as distinct from those at law; and for the rules governing proceedings in equity, we must look to the old chancery pleadings and practice, as they obtained when the code was adopted. These are proper yet, unless altered by the code as above indicated. Indeed, the general scope and purpose of the code of civil practice, recently enacted, seem rather directed to assimilating proceedings at law with those in equity, than to the alteration of the established chancery practice in any important degree.

Under provisions of law precisely like ours in this respect, these views have been held by the Supreme Court of Kentucky, and the old practice as to bills of review has been continued under the Code. This was announced in the case of Bush v. Madeira’s heirs, 14 B. Monroe, and has been since followed without question (see Mitchell v. Berry, 1 Met., 609; Baker v, Grundy’s heirs, 1 Dan., 282; Peak v. Percefull, 3 Bush., 218. The correct view of the statute in question seems to be this: that it extends to cases at law a new remedy, without taking away any which existed in equity, but, as to the latter being cumulative, where any difference might exist. It is noticeable that the word “decrees” is not used, which is the apt and ordinary designation of final orders in equity; and there are other indications -in the language and context of the provisions in question, that they were primarily intended for cases at law, and for new trials of facts found by a jury, or a court sitting as such.

The graver and more difficult question is, can a bill be brought in the court below to review a decree after appeal and affirmance, whether remanded for execution, or in process of execution here. For if it might be done after remanding, it is not to be presumed that such right was intended to be precluded by retaining it here for execution. And as incident to this jurisdiction, it devolves upon us to inquire whether the process of this court may be enjoined. The question presented by this motion for a prohibition, is, as remarked, purely one of jurisdiction. If the Circuit Court has power to entertain such a bill, the merits of the cause must be decided there. However erroneous the proceedings may be, however gross the mistake about to be committed, no considerations of hardship or convenience should induce this court to exercise the delicate and dangerous power of prohibition, for the prevention of that which may be corrected by appeal.

Under our system of judicature, this court has no original jurisdiction over the merits of cases, except in a very few special cases. But the channels to it from all inferior courts are kept open, and converge to it as a center. The necessity for its controling power by prohibition does not exist here, as it does in the King’s Bench in England. There it is used, principally, to restrain, within permissable bounds, those courts whose jurisdiction is, as it were, by sufferance and permission of the Common Law, such as the Ecclesiastical, the Maritime and other special courts, from which no appeal lay to the King’s Bench. It must often correct and restrain by prohibition, or not at all. It is the King’s prerogative writ, applicable indeed to his own inferior courts of Common Law, but principally useful to keep within bounds those peculiar courts not proceeding by the usual course of law. In America the writ is still proper and useful, but is more rarely called in requisition, inasmuch as the Supreme Courts have generally appellate powers only, but have them either mediately or immediately from all judicial tribunals whatever ; and may thus preserve uniformity of proceedings and check all encroachments. There may be undoubted and palpable cases of usurpation of jurisdiction, as if a Court of Chancery should presume to try an indictment, the County Court an action of ejectment, or the Circuit Court some matter exclusively committed to some other jurisdiction. These exceptional cases would afford proper occasions for the exercise of the power of prohibition, and the Constitution has armed this court with due powers for the purpose; but to go further and entertain motions for prohibition in cases of even doubtful jurisdiction, might be a dangerous and very embarassing interference with the powei’s, duties and wholesome efficiency of those superior courts of original jurisdiction, which are charged with the speedy and general administration of the laws, for the benefit and protection of the citizens.

■ It results from the nature and supremacy of this court that no inferior tribunal can review, alter, or modify its judgments or decrees, for any supposed error, or for any matter which might have been considered here. Hence there can be no review for error upon the record.

It has been well settled, however, that for matters arising after the judgment or decree of an Appellate Court, which would render it inequitable to carry the judgment or decree into execution, it may be enjoined. That detracts nothing from the dignity or supremacy of the superior tribunal. It presents new equities for original jurisdiction.

With regard to bills of review for new matter, discovered after affirmance of decree in the Court of Appeals, the first, and only English case is that'of Barbon v. Searle, 1 Vernon, 416. That was a bill filed in Chancery for newly discovered matter after an appeal and order in the House of Lords. It prayed an answer and discovery as to the matters alleged, in order that by the discovery the complainant might be capaci-tated to apply to the Lords for such relief as he might require : and expressly disclaimed any design to impeach the order of' the Lords. Upon demurrer and argument, the court ordered that, inasmuch as the Lords were not then sitting, whereby to have a direction touching said matter, and if they had been, that an answer could not be put in there, on oath ; and inasmuch as there ought to be a discovery, to put complainant in position to apply to the Lords for such relief as they might see fit to give, the defendant should answer ; but that no further proceeding8 be thereupon had, without the further order of the court.

Chancellor Walworth, in the case of Stafford v. Bryan, 2 Paige, 45, considered this as an autnority against the power of the Court of Chancery to entertain a bill of review, after the decree of the court for the correction of errors ; basing his opinion on the ground that it was 'a bill for discovery only; and that the court refused to allow complainant to go further after answer, without leave first to be granted. The case is nevertheless an authority directly in point, to show that the court did not consider any decree, of even the highest tribunal, a positive bar to the enforcement of a plain equity afterwards brought to light, and which could not be determined in the case, when adjudicated. The Court of Chancery did entertain jurisdiction to go as far as it could, and as far as was necessary towards that relief, upon the express grounds that the House of Lords could not entertain original jurisdiction to enforce an answer. Thus far it was obvious that the Court of Chancery must give relief, if it was to be had anywhere, to the extent of revealing the rights of the parties upon the facts to be disclosed by the answer, referring it to the Lords to grant relief when the matter might bo presented.

Under our system, this court has not the power to grant the relief upon any disclosure of new matter after the term, and the want of this power may create the necessity in our Courts of Chancery to proceed to the relief itself.

The most eminent text writers have accordingly considered this as an authority, that a bill of review is permissible after an affirmance by the Appellate Court. ( See Barbours Ch. Pr., vol. 2, p. 23; Story’s Equity Pleadings, 88; Daniel’s Ch. Pr., chap, 34, sec. 5), and the general current of American authority has been in the same direction.

In the case of Singleton v. Singleton et als., 8 B. Monroe, p. 367, the court say: “An affirmance does not fix unalterably the rights of the parties, but only renders the decree irreversible by the party against whom it is affirmed, for any errors which he assigned, or might have assigned, or for any error arising on facts known and which he might have introduced into the record. A judgment affirmed may be enjoined. After affirmance against one party, the opposite party has been allowed to reverse for errors assigned by him. After affirmance a bill of review may be brought upon facts newly discovered.” See also Hawkins v. Lambert, 18 B. Monroe, 670. The original court is the proper tribunal for this purpose (Beasely v. Mershon, 6 Bush., 424). The same principle has been several times asserted by the courts of Virginia and Ten nessee, always with the distinction between bills of review for error of law, and those for newly discovered matter.

Without multiplying citations it may be taken as the result of American authorities, that whilst all deny the power of the Court of Chancery, after the action of a Court of Appeals', to review its decrees for matters which might have been assigned as error, they either expressly announce, or with very few exceptions, concede this power for newly discovered facts ; and it mnst exist of necessity somewhere, or there would in many instances be a total failure of justice. This court cannot entertain jurisdiction of a bill of review of its own decrees. Such bills- are' not of an appellate character, but when founded upon newly discovéred facts, as this is, are of original nature.

Upon the appeal of a bill of review from the Circuit Court of the United States for the District of Kentucky, which bill had been filed after a decree upon the subject matter in the Supreme Court, Mr. Justice Nelson in his opinion said:

“ Nor will a bill of review lie in the case of newly discovered evidence after the publication or decree below, when a decision has taken place on appeal, unless the right is reserved in the decree of the Appellate Court, or permission is given on an application to that court directly for the purpose. This appears to be the practice of the Court of Chancery, and House of Lords in England, and we think it founded in principles essential to the proper administration of the law, and to a reasonable termination of litigation between parties i n Chancery suits.”

Southard, et als v. Russell, 16 Howard, 547.

And he cites in support of this view, the case in 1 Vernon, 416, and that in 2 Paige, 45, together with several other authorities, some of which however, are but little in point. It is to be observed that this was upon an appeal of the case, and a consideration of the merits and practice; and not upon a prohibition or question of the powers and jurisdiction of the Circuit Court. Whether or not it would be prudent, or in consonance with the constitutional powers and design of this court to establish this practice here, is a question not necessary now to decide.

If it were conceded that a bill of review ought not to be filed in the court below after an affirmance here, without the leave of this court reserved or afterwards granted, it would be error in the court below to allow it, just as it would be improper to allow a bill of review in ordinary case,® without leave of the court where filed. But it would not be such defect of jurisdiction as to evoke our interference by prohibition.

Under our constitution the Circuit Courts are the great reservoirs of all unappropriated jurisdictions. They are the general resort when rights are to be enforced, or wrongs prevented or redressed, and there is no other tribunal competent. Section 2, Article vii, of the Constitution, provides that “the Circuit Court shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which may not be vested in some other court provided for by this Constitution.” This court has no jurisdiction exclusive nor concurrent, to entertain bills of review of this nature.

In any case leave to file a bill of review for new matter is necessary, if not from this court, at least from the Chancellor.

It rests in his sound discretion, and it devolves upon him to be very careful that the decrees of the court be not trifled with, or brought into contempt by frivolous or vexatious applications for review, intended for oppression or delay. But if. he should err or abuse his power in this regard, the remedy cannot be by prohibition, without an abuse of power here which might lead to disastrous consequences. All things should be done in due order.

The points have been made by counsel, that this bill is barred by time, and the complainant’s have not obeyed the former decree. These too, are not jurisdictional questions, and we deem it proper, to refrain from their discussion. We may indicate in this opinion that for newly discovered evidence, there is no positive statutory bar. Whether the Chancery Courts should by analogy follow the limitation of three years, prescribed by the statute for motions for a new trial; or that of five years prescribed in Gould’s Digest, chapter 28, section 128, for bills of review iu cases of bills taken pro confesso against defendants not summoned; or whether they should in the exercise of their discretion, be governed by the equities of the particular case as affected by staleness or laches, are questions better left in the first instances to their discretion.

Bills of review of this nature are not matters of right, but depend upon sound discretion.

The motion for a prohibition must be refused at the cost of petitioners.

The decree of the Chancellor in the second case of Jacks v. Adair, dismissing the petition for a new trial, and rendering a judgment for damages on the injunction, must be affirmed.

In the case of Jacks v. Adair, in which judgment was rendered against him, in May, 1877, being the first of those named, and on which on the motion for an alias execution, the death of said Mary Ellen Adair was suggested, and Ira A. Webster, as adm’r, de bonis non of said Benjamin F. Griffin, appeared and was made a party, the clerk will issue execution for damages awarded on the appeal, and costs in the name of said Ira A. Webster, adm’r. de bonis non, and not for debt until further orders.


source: Caselaw Access Project

author: ENGLISH Ch. J.:

license: Public Domain

text:
    State of Arkansas vs. Johnson.
    Iítdictjieot : Endorsemnnt of the names of witnesses on.

    The omission to endorse the names of witnesses examined before the Grand Jury, on an indictment at the time it is found, is no cause for quashing the indictment.

      APPEAL from Jefferson Circuit Court.
    Hon. J. A. WilliaMS, Circuit Judge.

      Henderson, Attorney General, Met. L. Jones and Thos. B. Martin, for appellant.
   ENGLISH Ch. J.:

Anthony Johnson was indicted in the Circuit Court of Jefferson County for a misdemeanor (extortion) in the office of Constable. He moved to set aside the indictment because the names of the witnesses who were examined before the Grand Jury were not written at the foot of, or on the indictment, as required by the Statute. The Court sustained the motion, and the State appealed.

The practice in England was to endorse the names of the witnesses intended to be examined before the Grand Jury, upon the .bill when it was prepared, aud the witnesses so endorsed were sworn in open court, and the bill, with the names of the witnesses upon it, was sent to the Grand Jury, and the witnesses were called before them, and examined. 1 Arch. Cr. Pr. and PL, 98.

Here, the foreman is empowered to administer oaths j¡p witnesses appearing before the Grand Jury (Gantt’s Digest, Sec. 1758) and when the indictment is found, the names of all witnesses who were examined must be written at the foot of, or on the indictment. Ib., Sec. 1778.

In our practice the putting of the names of the witnesses who were examined before the Grand Jury on the indictment, serves several useful purposes : It furnishes information to the Clerk in issuing subpoenas for the State ; to the Prosecuting Attorney in calling witnesses at the trial, and it advises the accused of the names of the witnesses upon whose testimony the indictment was found, which may be important to him in preparing for trial.

The statute should not, therefore, be disregarded, but should be complied with.

But the names of the witnesses are not part of the indictment, and it has been held in Iowa that they are not part of the record, and need not be transcribed in making out a transcript of the record for the Supreme Court on writ of error. Harriman v. The State, 2 Green, 284.

Mr. Wharton says: ‘ ‘ The practice is for the Attorney General (in Penn.) or, in Englrnd, the Clerk of the Assizes, to mark on the back of each bill the witnesses belonging to it; though it has been held that the omission is not fatal. 1 Wharton, American, Cr. L., Sec. 478.

Our opinion is, that the failure to put the names of the witnesses examined before the Grand Jury upon the indictment at the time it is found, is not cause for setting aside or quashing the indictment. But as it may be important for defendant, in preparing for trial, to know the names of the witnesses on whose testimony the indictment was found, the court should, on his application, require a list of the witnesses to be furnished him.

Sea Commonwealth v. Knapp, 9 Pickering, 497.

The judgment is reversed, and the cause remanded with instructions to the court below, to require the appellee to plead to the indictment, etc.


author: English, Ch. J.:

text:
    State of Arkansas vs. Brewer.
    ImHCTMENT: Affray and Assault and Battery cannot he joined.

    A count for an affray and one for assault and battery, cannot be joined in the same indictment under the criminal code practice. But if the count for an. affray is so drawn as to include a charge of assault and battery, as it may be, the parties, one or both, may be convictod of the latter offense, if warranted by the evidence.

      APPEAL from Baxter Circuit Court.
    Hon. Ejranklin Dos well, Special Judge.

      Henderson, Attorney General, for tlie State.
   English, Ch. J.:

The indictment in this case is as follows :

“The Grand Jury of Baxter County, etc., etc., accuse A. J. Brewer and G. C. Albritton of the crime of an affray, committed as follows, to-wit: The said A. J, Brewer and the said G. C. Albritton, on the 10th day of July, A. D. 1877, in the county, etc., aforesaid, mutually, by agreement, and unlawfully did fight to, with and against each other to the terror of citizens of the State of Arkansas then and there being, against the peace, etc.

“And the Grand Jury, etc., etc., accuse A. J. Brewer of the crime of an assault and battery committed as follows, to-wit: The said A. J. Brewer on the 10th day of July, A. D. 1877, in the county, etc., aforesaid, in and upon one G. C. Albritton then and there being, unlawfully did make an assault, and him, the said Albritton, then and there unlawfully did strike, beat, bruise, wound and ill treat, against the peace, etc.

“And the Grand Jury, etc., etc., accuse G.C. Albritton of the crime of an assault and battery, committed as follows, to-wit; The said G. C. Albritton on the 10th day of July, A.D. 1877, in count}’-, etc., aforesaid, in and upon one A. J. Brewer, then and there being, unlawfully did make an assault, and him, the said A. J. Brewer, then and there unlawfully did strike, beat, bruise, wound and ill treat; against the peace, ” etc., etc.

Brewer demurred to the indictment for misjoinder of offenses, the court sustained the demurrer, and the Prosecuting Attorney declined to elect on which count of the indictment he would prosecute. Brewer was discharged, the cause dismissed, and the State appealed.

Tbe first count in the- indictment was no doubt drafted under the act of 23d July, 1868, Gantt’s Digest, Sec. 1508, which provides that: “If two or more persons shall, by agreement, fight, to the terror of any citizen of this State, the person or persons so offending shall be deemed guilty of an affray, and shall be fined in any sum not less than $10 nor more than $100, or be imprisoned in the county jail not less than one nor more three months, or both.”

The common law definition of an affray is ‘ ‘ the fighting of two or more persons in some public place, to the terror of the King’s subjects ,• for if the fighting be in private, it is not an affray, but an assault,” etc.

In the above statute, as well as in the first count of the indictment, the woi’ds “public place” are omitted, and hence we conclude that the count was drawn under the statute.

The second count charges Brewer with an assault and battery upon Albritton; and the third count charges Albritton with an assault and battery upon Brewer.

Though, by the common law, several defendants may be included in an indictment for several distinct misdemeanors of the same kind, if severally charged, yet it is within the discretion of the court to quash such indictment. State vs Nail et. al., 19 Ark., 563.

Two persons may commit an assault and battery, each upon the other, at the same time, but each would be guilty of a distinct and several offense, and if severally charged, may, by common law, be joined in the same indictment, but the court has the discretion to quash the indictment. State v. Lemon et. al., 19 Ark., 577.

But now by Section 1783 of Gantt’s Digest: “An indictment, except in cases mentioned in the next section, must charge but one offense, but if it may have been committed in different modes, and by different means the indictment may allege the modes and means in the alternative.”

The next section does not provide, among the exceptions mentioned, that an affray and an assault and battery may be charged in the same indictment.

In Childs et. al. v. The State, 15 Ark., 204, the parties were indicted as for an affray at common law, and each of them convicted of an assault and battery, and this court held that the allegations of the indictment were not such as to warrant the conviction, because it was alleged that they fought in a public place, but not that they fought each other.

Chief Justice Watkins, who delivered the opinion of the court, said; “There can be no doubt that if counts for an assault be added in an indictment for an affray, one or all may be convicted of the assault, if the evidence falls short of 1)roving an affray.”

But the trouble now is, since the passage of the above statute, that if in an indictment for an affray, counts be added charging the parties with an assault and battery upon each other, as in this case, more than one offense is charged in the same indictment, which is not permissible.

In this case the parties are charged in the' first count with fighting together by agreement, etc.,.and no doubt under such count, if the State fails to prove all the material elements of an affray as defined by the statute, the parties may be convicted of an assault and battery, if the proof warrants it, and this is clearly indicated in the above opinion of Chief Justice Watkins.

In the definition of an affray, assault and battery are included. * But the indictment (for common law affray) does not necessarily charge the affray in such terms as to include also an adequate technical allegation of an assault and battery. It may evidently be so drawn as to do this ; and, on principle, if it does, there may be a conviction for assault and battery, or for simple assault, on the indictment for affray. But if the indictment is otherwise drawn (as in Childs et. al. v. State, sup.) there cannot be such conviction. 2 Bishop on Cr. Pro., Sec. 46; State v. Allen, 4 Hawks, 356; State v. Stanley, 4 Jones, N. C., 290-2.

In this case the parties were charged with a statute affray committed by fighting together by agreement, and under such charge, if the State fails to prove the material elements which constitute the offense, one or both of the parties may no doubt be convicted of an assault and battery, if warranted by the evidence. It was therefore unnecessary to add the counts for assault and battery.

When the Prosecuting Attorney intends to charge in an indictment but one offense, but finds it necessary to allege the offense in different forms or modes by adding counts, which he may well do in some cases, to meet contingencies in the evidence, and the indictment thus drawn seems upon its face to charge several offenses which may not be joined, and is demurred to on that account for misjoinder, he may avoid the demurrer in the manner indicated ' by this court in State v. Jourdan, 32 Ark., 203.

Affirmed.


author: ENGLISH, Ch. J.:

text:
    Robinson vs. State of Arkansas.
    1. Ckiminal Practice : Filing indictment.

    Where the record slows that an indictment was returned into court by a Grand Jury through its foreman, the Supreme Court will not reverse a conviction under it, because the entry fails to show that it was returned by the foreman “ in the presence of ” the Grand Jury. It will presume that the Circuit Court would not have permitted it to be returned in their absence.

      2. Same : Excusing jurors accepted by the parties.

    Where a juror discloses his incompetency after he is accepted by the parties it is not error in the court to then excuse him.
    3. Same : Admitting incompetent evidence by consent.

    A prisoner has no cause to complain of an admission of testimony, which he as well as the State reads in evidence.
    4. Juries : Slow judges of the law.

    In criminal cases the jury must take the law from the court, but where the issue involves a mixed question of law and testimony, they are necessarily the judges of the law and testimony, in order to determine the criminal intent, etc.
    ERROR to Pulaski Circuit Court.
    Hon. J. W. MartiN, Circuit Judge.

      Parr and Newton, for plaintiff in error.

      Henderson, Attorney General, contra.

   ENGLISH, Ch. J.:

John Lindsay, Smith Kellum and Peyton Robinson were jointly indicted in the Pulaski Circuit Court, for murdering Andrew Taylor by shooting him with pistols. They were charged with murder in the first degree. On arraignment, the prisoners pleaded not guilty; Robinson elected to sever, was tried, the jury found him guilty of murder in the second degree, and fixed his punishment at imprisonment in the Penitentiary five years. He filed a motion for a new trial, which the court overruled, and he took a bill of exceptions; final judgment was rendered against him, and he brought error, and obtained from this court an order for stay of execution until the errors complaint of could be heard.

I. The record entry showing the presentment of the indictment to the court, as copied in the transcript is as follows ;

“Proceedings, April 23d, 1878.

‘ ‘This day the Grand Jury, through their foreman, return into court a true bill of indictment against John Lindsey, Smith Kellum and Peyton Robinson for murder, first degree, which is filed by order of the court and numbered 130 on the present docket.”

Here follows the indictment, and then:

“Filed in open court this 23d April, 1878.”

It is insisted by counsel for plaintiff in error, that the above, entry shows that the indictment was returned into court by the foreman of the Grand Jury .alone, unaccompanied by his fellows. Such may be the literal construction of the entry, but we do not believe that the Circuit Judge would have permitted the indictment so to be returned.

The statute in force to the time of the adoption of the Criminal Code of procedure declared that “All indictments found, and presentments made by a Grand Jury, shall be presented to the court by the foreman, in the presence of such jury, and shall be there filed and remain as records.” Gould’s. Digest, chap. 52, sec. 87.

This statute introduced no new rule, but was declaratory of the Common Law practice. Green v. State, 19 Ark., 185.

The Kentucky Criminal Code provides that: ‘ ‘ The indictment must be presented by the foreman, in the presence of the Grand Jury, to the court, and filed with the Clerk, and remain in his office as a public record.” Sec. 120.

Section 120 of our Code, which was taken from the Kentucky Code, is in these words : “ The indictment must be presented by the foreman of the Grand Jury, to the court, and filed with the Clerk, andremainin his office as a public record.” Gantt’s Digest, sec. 1779.

Our Code makers have omitted, by inadvertance, we suppose, the words “in the presence'''’ between the word “foreman ’ ’ and the word “ of”, where they occur in the Kentucky section from which they copied.

The pi’actice has been the same since the adoption of the Code, as before — for the Grand Jury to go into court in a body, and for the foreman to present the indictment to the eonrt in the presence of his fellows.

As well permit the foreman of a Petit Jury to return a verdict into court in the absence of the other jurors, as to allow the foreman of a Grand Jury to present an indictment in court in the absence of his fellows. See 1 Wharton Cr. L., sec. 500.

We have no idea that the Circuit Judge permitted the foreman of the Grand Jury, in the absence of his fellows, to present the indictment in this case in court, though the Clerk by an unskillful and unusual entry, has left room for such an inference. Had the attention of the court below been directed to the form of entry, by a motion to set aside or quash the indictment, or by motion in arrest of judgment, no doubt the court would have ordered the informality to be cured by a nunc pro tunc entry. Green v. State, 19 Ark., 178.

II. The third and fourth grounds of the motion for a new trial are stated in the motion as follows :

“Third — Because the court, of its own motion, excused Isaac Prairie, who had been found competent to servo as a juror in said cause, and who had been accepted by the parties, because the said juror stated that upon reflection he did not think that he could And a party guilty of a crime, the punish-*ment of which would be death.

“Fourth — Because the court of its own motion, and against the objection of defendant’s attorneys, excused one-Bod-deker, who had been found competent to serve as a juror by the court, and had been accepted by both the State and defendant, because said juror stated to the court that he, after reflection, had come to the conclusion that he was biased, because defendant had been trading with him.”

These are mere statements in the motion for a new trial. The bill of exceptions fails to show that the persons above named were accepted as jurors, and afterwards excused by the court; nor does the record entry of the empanneling of the jury, show the facts stated in the motion, or that the rulings complained of were made by the court.

We may remark, however, that Prairie was an incompetent juror, under the statute (Gantt’sDigest, sec. 1911, 7th clause), and properly excused by the court. Boddeher was not legally incompetent, but as he stated that he was actually biased, the court had the discretion to excuse him. Ib., sec. 1910; Benton v. State, 30 Ark., 343; Lavender v. Hudgins, 32 Ib., 766.

III. In an amendment to the motion for a new trial, a further cause is stated, thus : “Because upon the trial of this cause the testimony of E. C. Andrews, taken before John H. Howe, a Justice of the Peace for Pulaski County, in the case of the State of Arkansas against Smith Kellum, was, by consent of parties, read as testimony by both the plaintiff and defendant.”

The testimony of E. O. Andrews is set out in the bill of exceptions, and at the end of it is the following statement in parenthesis:

“ This evidence taken before Esquire Howe read by consent also evidence before coroner.”

We deem it unnecessary to express any opinion as to whether the court should have permitted the prisoner on a trial involving his life and liberty, to waive the important constitutional right to be confronted with a witness against him, as it seems from the above amendment to the motion for a new trial, that the testimony of Andrews, taken before the committing magistrate in Kellum’s case, was, by consent, read in evidence by both the State and the prisoner. Surely the prisoner has no cause to complain here that the testimony was admitted, when he as well as the State, read it in evidence.

IV. The prisoner asked the court to instruct the jury as follows : ‘ ‘ This being a criminal case, you the jury, are the exclusive judges of tbe law as well as the evidence. But you are not to make the law, but to determine the law applicable to this case.”

The court refused to give this instruction, and its refusal is made the fifth ground of the motion for a new trial.

The court properly refused to give the instruction in the language in which it was drawn.

The sense in which the jury are the judges of the law in ■criminal cases was well expressed by Chief Justice Watkins, in Pleasant v. State, 13 Ark., 360—372.

The jury must receive the law from the court, but in cases where the issue involves a mixed question of law and testimony, they are necessarily the judges of the law and testimony in order to determine the criminal intent, etc.

V. The second ground of the motion for a new trial, as stated in the motion is, that after the cause was submitted to the jury, and while they were considering of their verdict, Henry G. Clay, one of the bailiffs in charge of the jury, at the request of L. D. Cassinelli, one of the jurors, procured for him a half pint of whiskey, which he drank in the jury room, while the jury were deliberating and considering their verdict, etc.

In support of this ground for a new trial, the affidavit of Henry G. Clay was read, who states in substance, that on the night of the 5th of June, 1878, while in charge of the jury, and while they were consulting of their verdict, he at the request of L. D. Cassinelli, one of the jurors, procured for him at the store of Garibaldi, one half pint bottle of whiskey, and delivered it to him, and he, claiming to be sick, drank the whiskey, or part of it in his presence, in the jury room, and while the jury were deliberating of their verdict, etc.

The State read a counter affidavit made by three of the jurors who state in substance, that on the second night that the jury were out in the cáse, about one or two o’clock, after the jury had lain down on benches, tables and floor, and were generálly asleep, Cassinelli, one of the jury, appeared to be very sick, was groaning, vomiting and purging, and manifested much distress, and by his groans and other noises awoke most of the jurymen. He called for whiskey several times, stating that if he could get some it would relieve him. After several efforts some was obtained at Garibaldi’s, which seemed to relieve him. He did not appear to be intoxicated. The jury had previously agreed upon their verdict as far as Cassinelli was concerned.

No doubt Cassinelli was very much in want of whiskey, and the bailiff seems to have furnished him with a liberal dose, but it appears that nothing grew out of it to the prejudice of' the prisoner. This court has frequently condemned the furnishing of ardent spirits to jurors, or the permitting of them to obtain it, pending a trial. See Pelham v. Page, 6 Ark., 536; Palmer v. State, 29 Ib., 255.

The better practice in case of necessity, would be to furnish it under the direction of the presiding judge.

YI. The sixth ground of the motion for a new trial is thus stated in the motion:

“Because that since the trial he has discovered .and learned that he can impeach the testimony of Wesley East, a witness on the part of the State, who testified on the trial that the defendant (Robinson) handed a pistol to John Lindsey, who killed Andrew Taylor. That he can show by Major Hunley Sevier and Thomas Steel, that the said Wesley East is a man of very bad moral character, and wholly unworthy of belief.”

This statement is verified by the oath of the prisoner.

An application for a new trial on the ground of newly discovered evidence, should be corroborated by the affidavits of other persons than the accused, and if possible those of the newly discovered witnesses themselves. Pleasant v. State, 13 Ark., 362; White v. State, 17 Ib., 404; McPherson v. State, 22 Ib., 228.

No excuse is sliown for not procuring the affidavits of Sevier and Steel.

Whether in any case a new trial should be granted on the ground of newly discovered testimony to impeach a witness examined on the trial, it is not necessary to decide in this case.

VII. The Seventh ground of a motion for a new trial is that the verdict was contrary to law and the evidence.

We deem it unnecessary to say much about the evidence.

There was testimony conducing to prove that Andrew Taylor, an old negro man, was shot with pistols by Kellum and Lindsay, at McAlmont’s station, on the St. Louis, Iron Mountain and Southern Railway, about seven miles from Little Rock, in the afternoon of the first day of April, 1878. At the time he was killed he seems to have been unarmed, and making no hostile demonstrations.

It appears that at some previous time, he and Kellum had had some difficulty, and that he had shot at Kellum. He came to the store of Peyton Robinson on the' morning of the day that he was killed, where Kellum and Lindsay were, and one or both of them whipped him. It was not proven that Robinson took any part in the whipping. He went with Kellum and Lindsay to the station house, near which Taylor was killed. It is not shown that he had any malice against Taylor or any motive to aid in killing him. He was intoxicated and in bad company. There is some evidence that immediately before or after the killing, he handed Lindsay ' a pistol. Upon the whole we cannot say that there was no evidence to sustain the verdict.

Yin. The First ground of the motion for a new trial, is stated as follows in the motion:

Because’defendant says that since the trial of this cause he has discovered the testimony of Frank Walker, by whom he could have proven, and now expects to prove, that he, the said witness, on the fii-st day of April, 1878, the day the murder of Andrew Taylor is said to have occurred, was at the grocery store of Peyton Robinson, in Pulaski County, and saw the defendants, Lindsay and Kellum, whip the said Andrew Taylor, and the said defendant, Peyton Robinson, tried to prevent the said Kellum and Lindsay from whipping or injuring the said Andrew Taylor. That this occnrred on the first day of April, 1878, between the hours of ten and twelve o’clock a. m., of said day. That he could have proven, and now expects to prove by said Frank Walker, that he, the said witness, after leaving, the said grocery store of Peyton Robinson, went to Pattison’s Mill, and then came back and went down the railroad in the direction of St. Louis, and when he had gone about ninety feet north of the signal or whistling post, on said railroad, he saw three white men and one colored man; that one of the white men was Peyton Robinson, and that the colored man was Andrew Taylor. That witnesses stopped near said railroad, a little north of a large log, near the road, and about thirty feet from said parties. That said Robinson came and sat on the log near where witness was. That Lindsay and Kellum spoke of killing or shooting the colored man, and that witness heard the defendant, Peyton Robinson, entreat the said Lindsay and Kellum, not to shoot or kill the colored man, and that witness heard Lindsay and Kellum say to the defendant, Robinson, that it was none of his business. That witness then saw the said Robinson, get on his horse and leave, but returned in a few minutes and ask Lindsay for the keys of his grocery store, and that Lindsay about this time commenced shooting Andrew Taylor. That this occurred about two or three o’clock p. m., of the first of April, 1878, all of which will appear by the affidavit of said Frank Walker, herewith filed, marked A, and made part hereof. That the defendant and his attorneys used due diligence in preparing his case for trial; and that the above mentioned testimony, newly discovered, has come to his knowledge since his trial, and that he verily believes that if said testimony had been adduced on his said trial, it would have been competent to prove the issue in his favor, and would have changed the verdict.”

This statement is verified by the oath of the prisoner.

The supporting affidavit of Frank Walker follows:

“I, Frank Walker, do solemnly swear that on the first day of April 1878,1 passed the grocery store of Peyton Robinson, and called or stopped at said store to get a drink. While I was near the store, and after I left it, a colored man came up to the store ; Kellum and Lindsay commenced whipping him. I did not see Lindsay whip him, but he urged Kellum and encouraged him to whip him. I know Peyton Robinson and also Kellum and Lindsay. Peyton Robinson tried to prevent Kel-lum and Lindsay from whipping or injuring the.colored man, telling them not to hurt or kill the colored man, but Lindsay and Kellum told Robinson to mind his own business. This happened some time between ten and twelve o’clock, at Robinson’s store, near the St. Louis, Iron Mountain and Southern Railroad, about three-quarters of a mile from McAlmont’s Station, etc. When I left the store, I went to Pattison’s mill, and then came back and went down the railroad towards St. Louis, north of Lasker’s store, and about ninety feet north of the signal or Whistling post; I saw three white men and a colored man; Peyton Robinson was one of the men. I stopped near the railroad, a little north of a log, near said railroad. I was about thirty or forty feet from said parties. Peyton Robinson came and sat on the log near where I was. The other two men spoke of killing or shooting the colored man. I heard Peyton Robins'on tell the other men not to kill or' hurt the colored man; he told them the colored man had done nothing to them, and that they ought not to hurt him. They told Peyton Robinson to mind his own business, and leave them. Robinson got on his horse and left, but returned in á few minutes and asked John Lindsay for his grocery keys. Lindsay refused to give them to him, but commenced- shooting the negro. I should have sworn to the above facts if I had been examined as a witness. I did not tell any one that I knew anything about- this case until after I heard Peyton Robinson was convicted. On last Saturday, the 8th day of June 1878, I saw C. P. M. Robinson, and informed him of what I knew about the case. He is the first man I mentioned to as to my being present at the killing. He is the only person I ever told that I knew anything about the case. I am a. daily laborer on a farm. I reside in Pulaski County, seven miles north of Little Rock. I was up the railroad when the trial commenced.”

The-affidavit of C. F. M. Robinson, the father of the prisoner, was also produced and read. He states, in substance, that he had no knowledge of the witness, Frank Walker, until Saturday, June 8, 1878, after the trial of his son, when the said Frank Walker made known to him the facts as stated in Walker’s affidavit; nor did he know until the said 8th day of June that there was such a man as Frank Walker, when Walker informed him that he was a witness of the occurrence at the store of the defendant on the first of April, 1878, and that he was present and saw all that was done, and heard all that was said by defendant, north of Lasker’s store, at the time of the killing of Andrew Taylor, etc. All of which evidence was newly discovered to affiant and the attorneys of defendant.

IVe are satisfied from comparing the statement of Walker, with the testimony introduced at the trial, as set out in the bill of exceptions, that the alleged newly discovered evidence is not cumulative.

The general statement in the motion, that the prisoner and his attorneys used due diligence in preparing his case for trial, would not be sufficient without stating or showing facts constituting such diligence.

It appears, however, that the defendant was arrested and lodged in jail shortly after Taylor was killed, and continued in prison until the time of the trial, and had to depend very much upon his father for the preparation of his defense so far as procuring witnesses was concerned.

We are under the impression that if Walker had been present at the trial, and testified what ho states in his affidavit, and the jury had believed him to be worthy of credit, their verdict might possibly have been more favorable to the prisoner than it was.

The State filed no counter affidavit to impeach the credibility of Walker, or the father of the prisoner.

On this ground the judgment must be reversed, and the cause remanded for a new trial, and plaintiff in error will be tried anew as if upon a charge of murder in the second degree he having, in effect, been acquitted by the verdict of the jury of the charge of murder in the first degree.


author: HarrisoN, J.:

text:
    Russell et al. vs. Jacoway, Judge, etc.
    1. PROHIBITION, Writ or: Office of and when granted.

    The office of the writ of prohibition is to restrain an inferior tribunal from proceeding; in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done by such usurpation.

      2. Removal of County Seat; Jurisdiction over.

    The removal of the Oounty Seat is a matter of local concern, over which the County Court has exclusive original jurisdiction; the Circuit Court has no authority to determine the result of an election for removal in the first instance, and before the County Court has acted in the premises, and where it assumes to do so, a writ of prohibition will lie from this court.
    Petition for writ of Prohibition.

      Rose for the Petitioners.

      Mansfield, contra.

   HarrisoN, J.:

This is an application by Thomas J. Russell and Jacob L. Shinn, for a Writ of Prohibition to the Circuit Court of Pope County, to restrain proceedings on a writ of certiorari sued out of it by William B. Young, and others, to the County Court of said county.

The facts upon which the application is made, as stated in the relator’s petition and admitted, are the following:

At the July term, 1878, of the County Court of said county, a petition, signed by one-third of the electors of the county, was presented for the removal of the county seat from Dover to Russellville, or Atkins, and an order was thereupon made for the submission of the question of removal, and, as to which of the places proposed, to the electors at the general election on the second day of September following. As shown by the abstract of the returns of the election, 1240 persons, a majority, as appeared by the polls returned by the assessor, of the whole number of electors of the county, voted for the removal, 707 against it, and 1104 for Russellville, but who were not such majority, and 687 for Atkins. On the 18th day of October thereafter, before the County Court had proceeded further in the matter, William B. Young, David West and ten other electors aud tax payers of the county, applied to the judge of the Circuit Court, in vacation, for and obtained a writ of certiorari to the County Court, to bring before the Circuit Court the order of the County Court, the poll books with the returns of the election from the townships of Clark, Griffin, and Independence, and the clerk’s abstracts of the votes, that said returns and abstracts might be quashed, and the result of the election declared by it; representing and setting forth in their petition, that although the abstract showed 1240 votes in favor of removal, only 1057 persons, and not a majority of the electors of the county, in fact, voted for it. That the clerk of the County Court, upon a suggestion that the returns from the townships of Clark, Griffin, and Independence, did not show the true result of the election in those townships, before proceeding to compare the same, notified the judges and clerks of the election in said townships to appear and amend them; and that in accordance with such notification they came before him and the justices of the peace he had called to his assistance, and made such changes and alterations in the same, as to make it appear by the abstract of returns, that a majority of the electors of the county had voted for the removal, and that 202 of the votes in favor of removal were cast by persons who did not reside in the townships in which .they voted.

The relators appeared before the Circuit Judge, and opposed the application, for want of jurisdiction over the subject matter ; which fact was recited in the order granting the writ.

A supersedeas to stay the proceedings of the County Court was also asked for, and granted.

The office of the writ of prohibition, is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction ; but it is never granted, unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Bac. Abr. Title Prohibition ; Williams ex parte, 4 Ark. 537; Blackburn, ex parte, 5 Ark. 27; Ex parte Smith, 23 Ala. 94; Arnold et al. v. Shield et al. 5 Dana, 18.

The Constitution gives to the Circuit Court a superintending control, and appellate jurisdiction, over the County Court, Art* vii., sec. 14 ; but to the latter “exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastards, vagrants, the apprenticeships of minors, the disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns,’’ of the county. Art. vii, sec. 28.

The removal of the county seat is manifestly a local concern of the county, over which the County Court has exclusive original jurisdiction; and its authority to determine for itself, whether the conditions exist upon which the removal is required, is unquestionable. Blackburn ex parte, supra.

But it is said the Legislature has made no provision for a contest of the election before the County Court. To this we reply, without expressing any opinion as to the conclusiveness of the returns : so, neither, has there been any made for a contest before the Circuit Court. For the Circuit Court to assume to determine^, in the first instance, and before the County Court has acted in the premises, whether a majority ol the electors have, or not, voted for the removal, is to withdraw the matter entirely from its jurisdiction. The statute has made it the duty of the County Court, if a majority of the electors of the county were in favor of the removal, at its next regular term, to order another election to determine which of the places — Rus sellville or Atkins — the removal should be ; but by the Circuit Court’s assumption of jurisdiction in the case, all f urther proceedings of the County Court have been prevented, and stayed, and the question as to such removal, the speedy settlement of which is of great importance to the people of the county, left undetermined, and the matter continued in doubt and uncertainty, until the final decision of the certiorari; for which wrong an appeal, or writ of error, could not afford a remedy, or correction.

The writ of prohibition asked for, will be issued, and the ■supersedeas ordered by the Circuit Judge, vacated.


author: Eakin, J.:

text:
    Waggener et. al. vs. McLaughlin et al.
    1 Tax Title: Purchase by tenant; claim for penalties and improvements.

    Where land becomes forfeited to the State for non-payment of taxes by neglect of the owner, his tenant may terminate the tenancy by delivery of the possession, or protect himself from eviction by a future purchaser from the ¡State, by advancing the taxes and holding a lien for re-imbursement, or if the lands are sold for taxes at public sale, during the tenancy, without his fault, he may purchase and set up his title thus acquired, against that of his landlord. But he cannot use his possession which he holds as a tenant, as a basis to acquire title as an actual settler, and thereupon found a claim hostile to his landlord. Equity will regard him and all persons holding under him, except purchasers without notice, as trustees for the benefit of the landlord, and will not permit them to speculate on such a purchase, but will allow them only the actual amount paid in money to the auditor or the cost of scrips used, in the purchase. No per centum beyond the legal rate of six per cent, should be allowed him, nor any penalties or costs upon subsequent taxes paid by him. Beneficial improvements made by such purchaser may be allowed.

      2. PRACTICE in Equity: Limitation.

    Where such purchaser is the tenant of a receiver in court, it is proper to bring him in by rule, to compel him to surrender possession to the receiver, and the statute of limitations as to actions does not apply.
    APPEAL from Crittenden Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Randolph, for appellant.

      Adams, contra.

   Eakin, J.:

This is a branch and continuation of the case of Waggener et al. v. Lyles et al., in which an opinion was delivered here on the 5th December, 1874 ; and an order made remanding it, with instructions.

Pending the former appeal, a portion of the property in controversy, was on the 20th of February, 1871, forfeited to the .State for non-payment of the taxes of 1869, to-wit: Part of Spanish Grant No. 2290, and also the southeast and the southwest quarter of section 27, in township 7 north, of range-9 east.

Meanwhile, the Receiver, Berry, seems to have continued, nominally, to be recognized as such, although he did nothing-more than to transfer the custody and control of the property to George W. Cheek as a tenant. He collected no rents from Cheek; but the rents, whatever they were, were disposed of by agreement amongst the parties interested. All matters in litigation seem to have been compromised amongst the original litigants, before the decision of the case here; and perhaps for that reason no action has since been taken, in the court below, in accordance with the mandate of this court on said 5th, December 1874.

George W. Cheek, holding nominally under the said receiver, had, pending the appeal, sub let to John McLaughlin the Mound City property, described as ‘ ‘ part of Spanish Grant, No. 2290 — 108.00,” and to D. C. Robinson the two' quarter sections above described in section 27 ; who were holding, as tenants of Cheek, when the time for redemption expired in 1873.

On the 14th of April, 1873, each applied to the Auditor of State to purchase the respective portions of land, held by them under sec. 172 and 173, chap. 148, of Gould’s Digest, by which citizens or heads of families and actual settlers upon lands forfeited to the State for taxes, were authorized to purchase the same of the Auditor, upon payment of the amount of taxes due thereon, with penalty and costs. They made the necessary affidavits to this end, and received deeds from the Auditor, McLaughlin paying for his portion the sum of $2892.90, and Robinson, the sum of $123.68; which sums included the taxes of 1869-70-71 and 72.

About the same time Robinson conveyed all his interest to McLaughlin.

There have been intermediate conveyances since then, of shares of these lands from McLaughlin to others, and recon-veyances back to him and to his wife, which it is unnecessary to notice, as all the interests, under these purchasers from the State, became united again in McLaughlin’s estate after his ■death. It is in proof that, before purchasing from the State, McLaughlin advised Cheek, his landlord, that the time for redemption was about to run out, and that others were looking after the land with a view to its purchase ; to which Cheek responded that McLaughlin did not know what he was talking about.

After his purchase from the auditor, McLaughlin repudiated the tenancy and claimed the property as his own, refusing to pay rents. A contest then began for possession, through orders of the court below, regarding the property; based upon the idea that it was still in the custody of the law,, from having been ordered into the hands of Berry, as receiver. On the 9th of December, 1873, Robert B. Burton, was by the Crittenden Circuit Court appointed receiver to fill the vacancy occasioned by the death of Berry, and in January following, by agreement of attorneys, the appointment was confirmed here, where the appeal was still pending. It was ordered that said Burton be x’ecognized as such receiver, as well in this court as in the court below.

Thereupon the parties to the original suit, making common cause against McLaughlin, began proceedings in the court below to remove him from possession, and to compel restitution to the Receiver Burton. Application was made by petition to the Hon. John W. Fox, Circuit Judge, for the purpose, who for some reason did not act. On the 13th of May, 1874, the petition was granted by the Hon. John E. Bennett,, then an associate justice of this court, who afterwards, by writ of assistance, put the property in the hands of Burton.

McLaughlin and. his co-tenants, afterwards applied to his. honor, Judge Hutton of the Circuit Court, who sitting in Chambers on the 29th of July, 1874, ruled that the injunction had been improvidently awarded by a judge having no jurisdiction, dissolved it, and ordered- Burton to restore possession to McLaughlin and his co-tenants.

Afterwards it seems from an order in the transcript without date or file mark, that the Circuit Court ordered Burton to bring an action of forcible entry and detainer for the lands, against James McLaughlin, as guardian, and Mary McLaughlin, as executrix ; John McLaughlin, having died in possession leaving a son, and devisee of these lands, Francis P. A. McLaughlin. When the action was brought does not appear in the transcript, (which throughout is wonderfully careless, and regardless of the rules of this court) but we might infer from a paper, bound up with the transcript, that it was pending on the 25th of October 1876 ; and dismissed on the 3d of November of the same year; at the cost of the plaintiff.

Resort was again had to the chancery proceedings ; and after several attempts, all the parties interested were brought in on a rule to show cause why the lands should not be surrendered to the receiver ; and those holding it punished for contempt.

Respondents to the petition, in showing cause, set up the purchases from the State ; and amount of taxes paid, with pen-penalties and costs ; and also claims for valuable improvements ; for all which no one had paid or offered to pay them.

They also relied upon two years’ possession as a bar under the statute of limitations.

Upon the hearing, the court appointed a special master to report “ the amount paid the State as taxes for said lands by John McLaughlin, and by D. A. Robinson, with one-hundred per centum per annum thereon, and the amount of taxes since paid thereon by John McLaughlin and his successors, witn twenty-five centum per annum thereon from the date of payment, and the value of all improvements thereon,” made since the payment.

The receiver reported on the first of November, 1876, as follows:

Amount paid by McLaughlin to Auditor for taxes, $2,892 50

Amount paid Ivy Robinson to Auditor for taxes. . . 138 06

100 per cent, on both sums. 3,025 36

Taxes for 1874. 234 09

Penalt} for 1874 and 1875. ' 117 04

Taxes for 1875. 133 86

Penaltv. 33 46

$6,570 37

The improvements of a permanent character were reported, with valuations swelling the amount to... $7,148 37

To this report, the parties moving for the rule, consisting of those interested in the fund in court as represented by the receiver excepted ; objecting only to such parts as allowed any interest or penalty on the amount of taxes paid, and as to all or any sutn for improvements.

The court overruled the exceptions, and ordered that upon payment to the said Mary A. McLaughlin, and Francis P. A. McLaughliu, of the said sum of $7,149.37, the receivership of said Burton, should be extended over the property in controversy, and the deed from the auditor cancelled.

From this order the original parties to this suit'excepted and appealed.

The report of the master is in accordance with directions. The question is upon the correctness of the Chancellor’s views in making the reference. He evidently supposed that the act of January'10th, 1857, (See Gantt’s Digest, Sec. 2267), applied to this form of proceeding; and to the circumstances attending the supposed acquisition of the titles from the State. If so the directions were proper.

The Receiver, Berry, appointed in the original cause, was not discharged by the former appeal, nor was the control of the property taken from him during its pendency. He remained reeeiver until his death. The proper course would have been then, to have applied here for the appointment of a successor. That was not done, but the appointment of Burton made below, was ratified here in such a manner as to settle it, in this case, beyond further question, that all the property in the original suit, must be considered to have remained in the custody and under the control of its Receiver. That little use was made of him until the contest for possession arose, does not affect his status.

John McLaughlin and Robinson were tenants of property thus in custody of the court, paying rent to one of the parties to the suit, by agreement and consent of the receiver, and of all others interested. Formally they were sub-lessees of Geo. W. Cheek, who was lessee of the receiver; but substantially, and for all practical purposes, they had possession under the court, of property in its custody for the benefit of litigants.

When the property became forfeited to the State for nonpayment of taxes, by neglect of the receiver, they might have terminated the tenancy by re-delivery of the possession, or protected themselves from eviction by a future purchaser from the State, by advancing the taxes and holding a lien for reimbursement, or, as has been held in this court in Ferguson v. Etter, 21 Ark., 160, if the lands had been sold for taxes at public sale dui-ing their tenancy, without their fault, they might have bid, and set up title thus acquired against that of the Receiver. The fact that the property was in the custody of the coux-t did not, of itself, prevent the collection of revenué and could not retard it.

But they availed themselves of a possession which they held as tenants, as a basis to acquire title as actual settlers, which no one else under the circumstances could have acquired against them. They had no right to make use of a possession thus acquired, to found upon it a claim hostile to the landlord. If they had intended that, they should have restored possession, that the landlord might be free to contest the validity of the forfeiture to the State, and have the advantage of possession.

When they purchased from the State, under these circumstances, they became constructive trustees for the benefit of the owners of the property in court, and subject to the control of the court with regard to said property, as fully as when they held under it as tenants. This trust remained, throughout-, attached to John McLaughlin, and falls upon his widow, heirs, devisees, or any holding under him in privity of blood, or otherwise ; save purchasers for valuable consideration, without notice. The proceedings, by rule to show canse, were apt for the purposes intended, and the statutes of limitations as to actions do not apply.

The validity of the forfeiture, and the sale from the Auditor is not important, and should not therefore be cancelled. The deed may stand good to divest the property from the State, if she had any by the forfeiture ; and to vest it in the devisee of McLaughlin, and his widow, who claims legal title to a poi’tion ; all to hold as trustees for the puiposes of this suit.

The Chancellor erred in directing an allowance for penalties on subsequent taxes, and 100 per cent, on the amount paid the Auditor.

Considering McLaughlin and Robinson throughout as trustees, they cannot derive any benefit to themselves from their purchases, or in any manner speculate upon the property. They should be allowed the actual amount paid, in money, to the Auditor when the lands were bought, or if scrips were used, the cost of the scrips in money, or if that cannot be ascertained, the average costs of such scrips at the time.

No per centum beyond the legal l’ato of 6 per cent, should be allowed upon the amount paid the Auditor, nor upon any subsequent taxes paid by McLaughlin, or for him. Nor should he be allowed penalties or costs, allowed to accrue upon subsequently paid taxes, although actually advanced. He had repudiated his tenancy; had the pernancy of the rents and profits ; and should have kept the taxes down out of them. That duty results, moreover, from the constructive trust.

Improvements, under the circumstances, are not allowable of right. Such as are reported seem to have been prudently made, and beneficial to the property. If the Chancellor should think it equitable under the circumstances to allow them to the extent of the rents and profits, it will not be held erroneous.

Reverse the order from which the appeal is taken, as well as the order directing the account; and let the cause be remanded to proceed under its original style, and as one cause with that of Waggener et al. v. Lyles et al., decided here upon appeal in December, 1874, save in so far as changes of parties may have become necessary; and' with directions that an account be retaken, charging said Jas. K. McLaughlin as guardian, and Mary McLaughlin as executrix, with the full value of the rents and profits of said Mound City property, and said two quarter sections in section twenty-seven, from the time said John McLaughlin ceased to pay rent, with interest at the rate of 6 per cent, from the time thej' were due ; with such allowances out of said rents as the Chancellor below may see fit to direct for improvements ; and crediting them with the money or value of other funds paid to the Auditor upon the purchase of the lands, as may be shown by proof, and with all taxes subsequently ¡laid without penalties or costs, and at the real value in money, with interest on all sums paid at the rate of 6 per cent, from the time of pajnnent; and upon a balance being struck, and upon payment by the Receiver of said amount to said McLaughlins, so in possession, or their agents, they be ordered to deliver possession of all said property to the Receiver appointed in this cause, or to be appointed in his place. And with further instructions to the court below, to proceed in said cause in all respects in accordance with law ; and not inconsistent with the opinion heretofore rendered therein, or this opinion.


author: ENGLISH, C. J.:

text:
    Fry vs. Martin, et al.
    Mortgage. Unrecorded, void.

      A. mortgage or deed of trust not filed for record, is void, as against subsequent purchasers from the mortgagor.
    APPEAL from Chicot Circuit Court in Chancery.
    Hon. T. E. Sorrells, Circuit Judge.

      Reynolds for Appellant.

      Garland, Contra.

   ENGLISH, C. J.:

On the 20th September, 1876, Reuben M. Fry filed a bill for injunction, on the chancery side of the Circuit Court of Chicot County, against James R. Martin, trustee, etc., and William B. Street, alleging, in substance, as follows :

That Plaintiff, Fry, on the 24th of June 1873, purchased of John M. Woodward certain lots and an adjoining acre of land, which are described, situated in Lake Village, for the price of $5000.00, of which he paid $3000.00 at the time, and assumed the payment of two notes for $1000.00 each, executed by said Woodward to defendant, William B. Street, dated May 10th, 1873, and payable 1st of April, 1874, and 1st of April, 1875, with interest thereon at ten per cent, from 15th April, 1873, at the counting room of Martin & Hillsman, Memphis, and secured by a lien on the property so purchased, being notes made by said Woodward in part payment for said property in his purchase of it from Street on the 10th of May, 1873. (A copy of the deed from Street to Woodward, and a copy of the deed from Woodward to plaintiff, Fry, are made exhibits.)

That at the time plaintiff purchased the property, he found filed for record the deed from Street to Woodward, in which it was recited that said two notes were secured by lien on the property, and plaintiff being advised that the purchase money was a lien on the property, presumed that it was to this lien that reference was made, as no deed of trust or mortgage was found of record or filed for record from Woodward to Street, or to any one else to secure said notes ; and being desirous of buying said property, and willing to secure the payment*of said notes as part of the purchase money, and to risk providing for their payment before foreclosure could be made to enforce the lien in the event he might not be able to meet them at maturity, he made the purchase stated. That owing to the financial condition of the country he would not have made the purchase if he had known of the existence of the deed of trust to secure the payment of said two notes — he would not have run the risk of losing what he had paid by a sale on twenty days’ notice, upon the men failing to meet the notes at maturity.

That Street had in fact, as plaintiff after his purchase ascertained, received from Woodward a deed of trust, wherein defendant, James E. Martin, is made trustee, said deed made to secure the said two notes from Woodward to Street, and assumed by plaintiff as aforesaid. That this deed of trust was in the hands of said trustee before the sale to plaintiff, and it was by the wish, and direction of Street to Martin, as plaintiff is informed and believes, withheld from record, and in order that the knowledge- of its existence might not interfere with any sale Woodward might attempt to make to plaintiff of said property. That at one o’clock p. m. of June 24, 1873, the day plaintiff received and filed for record his deed from Woodward, and after the deed of plaintiff had been filed in the forenoon of said day, said deed of trust was filed for record, and, as the record states, recorded 3d day of July 1873, the deed of plaintiff being recorded on the 24th day of June 1873, the day on which it was executed and filed for record.

That plaintiff had paid on said notes the sum of $500, on the-day of-and that the remainder of said notes is still unpaid. That plaintiff is not at this time able to pay the balance due on said notes. That he regards the property worth fully the price agreed upon, and vastly more than the balance now due, and that at the time a sale would be to him a great sacrifice. That an attempt to enforce the payment of said notes by means of said deed of trust, by any parties who aided, advised or directed its being withheld from record, to enable the said Woodward to sell to plaintiff, would be a fraud upon his rights, and be the means of depriving him of property that he might otherwise be able to save to himself and family.

That the said trustee has, by written notice advertised that he will, on the 2d day of October, 1876, sell at public auction for cash in hand the said property, and that all equity of redemption is waived. (A copy of the notice made an exhibit.) That by this sale defendants not only, seek to sell the property on terms not agreed upon by plaintiff, but also to deprive him of the right to redeem the same ; which right of redemption he is advised would remain to him if sold under a decree to enforce the vendor’s lien, which defendant, Street, might obtain by suit, of which plaintiff is advised he could have no just cause to complain.

Prayer for order restraining Martin from selling the property as advertised, and that on the final hearing he be perpetually enjoined from selling under the trust deed.

A temporary injunction was granted.

The defendants demurred to the bill, on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and plaintiff declining to plead further, the temporary injunction was dissolved, the bill dismissed for want of equity, and defendant’s damages assessed at $128.73, and plaintiff appealed.

The deed from Street to Woodward reserved a lieu on the property to secure the payment of the two notes described in the bill.

In the deed from Woodward to Fry, which was signed by both parties, Fry 'assumed and bound himself to pay these two notes as- part of the consideration of his purchase of the property from Woodward.

The deed of trust from Woodward to Martin, is not exhibited, but it is alleged by the bill and admitted by the demurrer, that it was not put upon record, nor filed for registration in the Recorder’s office, until after Woodward had conveyed the property to Fry, and that it was withheld from registration by direction of Street, for the purpose of enabling Woodward to sell the property to Ery.

Upon these facts Ery took the property under the conveyance from Woodward discharged of and unencumbered by the deed of trust from Woodward to Martin as trustee for the benefit of Street. Neal v. Speigle, adm’r., MS. and cases cited. Martin as such trustee had no legal right or power, as against Ery, to advertise and sell the property under the provisions of the trust deed.

It is true that Street had alien upon the property to secure the payment of the two notes, which lien was expressed in the face of, and reserved by his deed to Woodward, and in the deed from Woodward to Ery, the latter had assumed and bound himself to pay these notes at maturity, and it is true that he had failed to do so, and the notes were overdue when Martin advertised the property for sale under the deed of trust; but Street had no remedy as against Fry under the trust deed, either by causing the trustee to sell the property, or by bill in equity to foreclose the trust deed. He should have filed a bill in equity to foreclose and enforce the lien reserved in his deed to Woodward, and might have made Woodward as well as Ery, who had puichased the property and assumed the payment of the notes, a defendant. Or in this case, instead of demurring to the bill, he might have answered, and by cross bill, claimed a foreclosure of his lien.

The decree must be reversed, and the cause remanded to the court below for further proceedings, etc.


author: English, Ch. J. :

text:
    Phipps vs. Martin.
    1. "Witnesses. Husband and wife.

    Husband and wife are not competent witnesses for or against each other.

      2. LIMITATIONS. Exceptions, Replevin.

    Three years is the limitation in the action of replevin; but the statute makes an exception in favor of infants.
    3. Paktos Sequitur Ventrem.
    The brood of an animal belongs to the owner of the dam.
    4. Title, Evidence of. Declaration of Owner.

    Declarations of the owner of property as to the title to it, are competent, evidence of the title, but not conclusive.
    APPEAL from Marion Circuit Court.
    Hon.-Circuit Judge.
   English, Ch. J. :

On the 25th of January, 1875, William J. Martin, an infant, by his next friend, Mary E. Martin, brought an action of replevin before a justice of the peace of Marion County, against John P. Phipps, for a bay mare with a star in her forehead, a bay Alley with a white hind foot, and a dark bay mule colt. The Alley and mule colt were offspring of the mare.

There was a jury trial before the justice, and the jury could not agree upon a verdict. When the case was called for trial again, it was dismissed for want of jurisdiction, on motion of the defendant, and plaintiff appealed to the Circuit Court.

The case was tried in the Circuit Court by a jury, the defendant relying for defense on the three years statute of limitations, and a general denial of plaintiff’s cause of action the verdict was for plaintiff, motion for a new trial overruled, Anal judgment on the verdict, bill of exceptions, and appeal by defendant.

The grounds of the motion for a new trial were :

First — Verdict contrary to-law, evidence and the instructions of the court.

Second — Court erred in refusing to permit Nancy Phipps, wife of defendant, to testify in his behalf.

Third — Court erred in giving the 3rd, 4th and 6th instructions moved for plaintiff.

Fourth — Court erred in refusing 7th and 8th instructions asked for defendant.

Fifth — Judgment contrary to law, etc.

1. The form of the verdict was: “We the jury find for the plaintiff in all the material issues, and we find the bay mare worth $60, the filley $50, and the mule $25.”

The judgment was for the property, or if not delivered, its value as found by the jury.

The verdict and judgment were substantially in good form.

On the trial, Ann Jones, the widow of William Jones, and the mother of Mary E. Martin, plaintiffs next friend, and the grand mother of plaintiff, and also the mother of Nancy Phipps, wife of defendant, testified in substance, that plaintiff William J. Martin, wa,s fourteen years of age in March, 1875. That William Jones, her husband and grand father of plaintiff died about the last day of May, 1871, and on the last Saturday before his death, he gave the bay mare in controversy, to the plaintiff. That her husband had owned and raised the mare from her folding, and had never sold or given her away before he gave her to plaintiff. That he deeded her to plaintiff, and at the same time pointed out the mare where she was standing near the yard, and when he was lying in bed.

That her daughter Nancy, who married defendant Phipps, never owned the mare, but defendant obtained possession of the mare, after he married Nancy, and after the death of William Jones, and claimed her ever afterwards. That the filley and mule colt were the offspring of the mare after she went into possession of defendant.

The testimony of Ann Jones, was corroborated by that of Mary E. Martin.

The plaintiff also introduced a deed of gift for the mare executed to him by his grandfather, William Jones, dated' 26th May, 1870, duly acknowledged and recorded.

The defendant proved declarations of William Jones, conducing to show that the mare belonged to his daughter Nancy, while she lived .with her father, and before she married defendant.

The evidence as to the title of the mare was conflicting, but the question of ownership was fairly submitted to the jury, under the instructions of the court, and their verdict was not without evidence to sustain it.

2. The defendant offered to introduce his wife, Nancy, as a witness in his behalf, and to prove by her that the mare in controversy belonged to her while she lived with her father, and when she married defendant, but the court excluded her as an incompetent witness for her husband.

This ruling was in accordance with the decision of this court, in Collins v. Mack, 31 Ark., 684, where the subject was fully discussed.

3. The 3rd, 4th and 6th instructions, given by the court on behalf of plaintiff, against the objection of defendant are as follows:

“(3). You are instructed that the statute of limitations does not run against the plaintiff in this suit, if you find from the evidence that he was a minor under the age of twenty-one years at the commencement of the suit.

“(4). You are instructed that the Alley and mule in controversy, are the property of the legal owner of the bay mare in question, if you find from the evidence that the said mare is the mother of said Alley and mule.

“(6). - A mere declaration that property belongs to another made by the owner, does not confer the title, though it may be some evidence of it.”

Three years is the limitation to the action of replevin. (Gantt’s Digest, Sec. 4120; Ford v. Ford, 22 Ark., 135) but Sec. 4130, Gantt’s Digest, makes an exception in favor of infants, and it was proven that plaintiff was an infant when the suit was commenced, hence the court did not err in giving the third instruction moved for plaintiff.

The fourth instruction was also properly given. The filley and-the mule being the offspring, or increase of the bay mare in controversy, followed her condition as to ownership. Partus Sequitur Ventrera. The brood of an animal belongs to the •owner of the dam. Burrill’s Law Die.

The sixth instruction was doubtless given in relation i o the declarations of William Jones, introduced in evidence by defendant, that the mare belonged to his daughter Nancy. These declarations appear to have been made before the execution, by William Jones, of the deed of gift to plaintiff, and were competent evidence, but not conclusive.

4. The seventh and ninth instructions moved for defendant and refused by the court, follow ;

“(7). If the jury find from the evidence that plaintiff neglected or failed to commence his suit for over three years from the time his right of action accrued, they must find for defendant.

“(9). If the jury find that the bay filley and mule colt have been bred and raised by the defendant, while the dam was in his lawful possession, the plaintiff cannot recover for them.”

Both of these instructions were properly refused by the court, as above shown.

Affirmed.


text:
    Varner et al. vs. Simmons et al.
    1. County Seat: Removal, eta.

    Where an act providing for the removal of county seats is repealed, a provision of the act that there shall not be a second removal for ten years becomes-inoperative.
    2.-: Same,

    A provision of an act for the removal of county seats that whenever an election has been held in pursuance of this ad, and the county seat changed in compliance therewith, it shall not be lawful to change the couunty seat again under ten years, does not apply to a removal had under the provisions of A prior act.
    APPEAL from Lincoln Circuit Court,
    Hon. T. F. Sorrells, Circuit Judge.

      L. A. & X. Y. JPindall, for Appellants.
    Cunningham, contra.

   English, Ch. J. :

It appears from the transcript in this case, that the Commissioners appointed by the Governor to locate the county seat of Lincoln County, under the act of March 28th, 1871, creating-the county, located the county seat at Mason’s place, and the location was approved by the County Court at its July term 1871.

That in February 1872, the county seat was removed to and permanently located at Star City, under the provisions of the act of March 15th, 1869. (Gantt’s Dig., chap. 34.

That on the 6th of October 1876, W. F. Varner presented to the County Court a petition purporting to be signed by 873 persons, styling themselves citizens of the county, for the removal of the county seat from Star City to Varner’s Station, on the Little Rock, Pine Bluff and New Orleans Railroad, and praying the. court to make an order for an election to ascertain if a majority of the voters of the county favored the proposed removal, etc.

The petition was accompanied by an abstract of title to the particular quarter section of land to which it was proposed to remove the county seat; and an offer of Varner to donate to the county a sufficient quantity thereof, not exceeding ten acres, as a site for court house, jail, etc.

At the time the petition was presented to the County Court, John G. Simmons and three other persons were permitted to file a plea setting up the former removal of the county seat as a bar to the proposed removal.

The court sustained the plea and dismissed the petition, and Varner appealed to the Circuit Court, where on a trial anew a like judgment was rendered and Varner appealed to this court.

The application for the removal in question was made under the provisions of the act of March 2d, 1875, (Acts of 1874-5, p. 201,) by which act, chapter 34, Gantt’s Digest, title ■“County Seats,” was expressly and without reservation, repealed.

The repealed statute contained this provision : “Whenever an election has been held, and the county seat may have been removed in compliance therewith, it shall not be lawful to remove the county seat again under ten years,” etc. Gantt’s Dig., sec. 973.

At the time the present petition for removal was presented to, and heard by the County Court, ten years had not trans-. pired from the time of the removal of the county seat from Mason’s place to Star City, but the provision of the repealed statute above copied was no bar to the proposed removal.

The appellees do not show in their plea that they had any special private interests which would be affected by the removal of the county seat from Star City, but whatever may have “been their personal interests in that location, the public policy was paramount, and they could not avail themselves of a repealed statute (and a statute which the Legislature had the constitutional power to repeal) to defeat the proposed removal, or rather to prevent the County Court from making the order prayed by appellant to submit the question of removal to the electors of the county. Moses et al. v. Kearney, 31 Ark., 261.

There is, however, the following provision in the act of March 2, 1875 : *

“SectioN 9. Whenever an election has been held in pursuance of this act and the county seat changed in compliance therewith, it shall not be lawful to change the county seat, again under ten years.”

The election by virtue of which the county seat was removed from Mason’s place to Star City, was not held “in pursuance of this act,” but was held, and the removal made under the provisions of the act of 16th of March 1869 (Gantt’s Dig., chap. 34). which this act expressly, and without reservation, repealed.

The court below erred in sustaining the plea in bar interposed by the appellees, and its judgment must be reversed and the cause remanded for further proceedings.

It does not appear in the transcript before us that the 873 persons whose names were subscribed to the petition for removal were qualified voters of Lincoln County, as required by sec. 3 of the act of March 2, 1875, and this must be the subject of inquiry in the court below on a rehearing of the petition.

The court below does not appear to have passed on the sufficiency of the petition, on the accompanying abstract of title and proposed donation, but merely to have held the plea in bar sufficient, and for its error in holding the plea good its judgment is reversed as above indicated, and the case remanded for a rehearing on the petition and accompanying documents, etc., with liberty to the appellees to interpose any other appropriate objection to the prayer of the petition which they may have. (See section 1 of the removal act).