text:
    Thompson v. The State.
    Criminal law — Continuances—Continuances in criminal, as well as in civil cases, as a general proposition, are within the sound discretion of the court, and its refusal to grant a continuance is never ground for a new trial, unless it clearly appears to have been an abuse of such discretion, and manifestly operates as a denial of justice.

      Ybbdicts — When set aside — improper influences. — The provisions of the Criminal Code of Practice, to protect a jury from improper influence, are directory and cautionary, and the omission of the court, in the conduct of a trial, to comply with them, will not, of itself, vitiate a verdict or be cause for a new trial, without some evidence that some prejudice or injury has resulted to the defendant in consequence of the omission.
    Where evidence is adduced and shows that the jury were not in anywise in>-fluenced, biased or prejudiced by the exposure, the verdict will not be-disturbed.

      Should find degree. — In an indictment for.murder, if the jury find the accused guilty,' they should find, by their verdict, whether it be murder in the first or second degree; and if they fail so to find, by their verdict, the degree of guilt, it cannot be ascertained by reference to the indictment.
    Requisites of indictment — The Code of Criminal Practice, except in respect to particular words employed in the description of certain offenses, is not to be held as dispensing with the clearness and certainty, in charging the offense, recognized by the former practice and the common law..

      Appeal from Yell Circuit Court.

    IIon. William N. May, Circuit Judge.

      ■'Garland $• Nash, for appellant.
    In a case of felony, the defendant waives nothing that the record shows to he defective, unless there is an express waiver; and on error or appeal he has the benefit of all objections that he might have urged below. Sweeden’s case, 19 Ark., 205; Mriel’s case, 21 Ark., 212. The indictment is not in form and •charges no offense specifically. Code of Practice p 288, sec 122; . •Gould’s Digest, 327 et seq. for definition of murder; Edward’s ■ case, 25 Ark. 444- The jury was not drawn as required by "law, nor was there a waiver by the parties. Code p 302, secs. 123-4.. The jury were not sufficiently sworn. Code p 307-8, ■see 219; Gould’s Digest, p 467, (6 oath), b. in criminal cases, secs. .28 to 34. The verdict should have stated the degree of murder •or homicide the party was guilty of. See Gould’s Dig., 327-8-29, et seq. for murder, manslaughter, etc., and the following •cases: Sec. 7, 328, Gould’s Dig.; 19 California, 426; 23 N. Y. <(9 Smith) 293; 6 California, 548', 12 Md, 514; 6 Mich., 273; 7 Clark {Iowa) 236; 24 Texas, 410; 20 Mo. {5 Bennett) 319; 24 Penn. {12 Harris) 389-90; 6 Ind. 485; 3 ib. 488; 39 N. Y. 245. The testimony of Thompson’s daughter and Mrs. Julia Lee ■should have been admitted. Pitman v. State, 22 Ark. 354, and -cases cited; JRoscoe Or. Mo., p 23; 1 Phil. Mo. 234', 2 ib. Cowen and Hill’s Notes, pp. 588-9, etseq; 1 Greenl. Mv., sec 101. The motion for continuance should have been granted. Whar. •Crim. Law,p 832 {2 ed) {a); see 2 Head.,217 {Tenn.); 3 Steward Porter {Ala.) 308; 5 Georgia, 137; Cotton’s case, 31 Miss., 504; Meredith’s case, 18 B. Monroe {Ky) 49- Por the same reasons the record motion to continue should have been granted. The separation of the jury was good ground for new trial, and the offer to show these irregularities, should have been received. 12 Ark.. 810-13; ib. 317; 20 Ark. 53; Wharton Sup. 895; Gra~ .ham & Waterman, Nexo Trials, vol 2, 537 et seq; 1 Chitty Crim..

      L. Marg., pp 6-28-9; 7 New ITamp., 1387; 16 Penn. (2 Harris) Pfeifer v. Commonwealth, p 1/.68, et seg. The sixth and seventh, instructions were calculated to mislead the jury, and should not have been given. 6 Eng. {LI Ark.) 4.60; 2 Bishop Crim. L. 680. The offer to show, by Martin’s own affidavit, that he was not properly sworn, should have been received. See Code sec. 242, Crim. Pr.; as, also, the offer to show the jury was not. admonished. See Code, sec. 244, Grim. Practice.

      Montgomery, Attorney General, for appellee.
    A verdict of the jury, that the defendant is guilty, as charged in the indictment, is a good verdict of guilty of murder in the first degree, if the indictment is good, and charges, murder in the first degree.
    Is the indictment, in this case, good, and does it charge the* crime of murder in the first degree? It is good, and charges that crime. Friel v. The State, 81 Ark., 218; Brown v. The State, 10 Ark., 607; Bishop Crim. Pr., 822 to 834, and cases cited.
    As to the question of the jury being placed in charge of a sworn officer, see Gibbons v. 'The People, 83 111. 618; Sto w v. The State, 4 Humph. 87; Í Bishop Grim. Pro. 880 to 828, and eases there cited.
   Harrison, J.

The appellant was indicted in the Johnson circuit court, at the September term, 1870, for the murder of David 0. Stillwell.,

The indictment was as follows:

“Johnson Circuit Court.
“The State of Arkansas
against
“Joseph Thompson.
Murder.
“ The grand jury of the county of Johnson, in the name and.' by the authority of the State of Arkansas, accuse Joseph Thompson of the crime of murder, committed as follows, to-wit: The said Joseph Thompson, on the 14th day of May A. P. 1870, in the county of Johnson, in the State aforesaid, did premeditatedly, willfully and maliciously, with double-barreled shot-guu, loaded with gunpowder and leaden bullets, kill and murder one David C. Stillwell, against the peace and dignity ■of the State of Arkansas.
“T. M. Gibson, Prosecuting Atty. pro tern.”

The defendant applied for .a change of venue, and the case was removed to the county of Yell.

At the November term, 1870, of the circuit court of that •county, he was put upon his trial and the jury returned the following verdict:

“We, the jury, find the defendant guilty, as charged in the indictment.”

He moved for a new trial, hut his motion was overruled, and j udgment and sentence of death were pronounced against him.

Various'exceptions were reserved by the defendant, in the course of the proceedings, and assigned as grounds for a new trial; but, as it appears from his bill of exceptions, that much •of the evidence was not preserved, and that it contains only •such as was deemed most important, such of them as were predicated upon the evidence cannot he considered by us; for it would be impossible to determine, without having the whole of the evidence before us, whether they were well taken or not; but must presume that the decisions of the court were •correctly made, according to the maxim, omnium praesumuntur rite et solcmniter esse acta donee probetur in contrarium.

The first ground of the motion was the refusal of the court to allow a continuance of the case.

The defendant made two applications for a continuance. The first on the 15th day of November, on account of the absence ■of certain of his witnesses and counsel. The court, upon overruling this, set the case for trial on the 20th, in order, as the bill of exceptions states, to afford the defendant an opportunity to procure the attendance of his witnesses.

On the 23d of the same month, he'made the second application, on account of the absence of other witnesses, and two of the same. No other facts or circumstances of the case were stated, in liis motion than those he alleged ho expected to prove by the absent witnesses, which were, in substance, that the deceased was a violent, turbulent and dangerous man, who commonly went armed, and who boasted of having killed one or two men; that on several occasions, shortly before the killing, he made threats against the life of the defendant, and that he and his brother, Green Stillwell, and brother-in-law, P. IT. Morgan, had actually formed a conspiracy to kill him, which facts were well known to the defendant before the deceased was killed.

It would seem reasonable to presume that the defendant’s last motion for a continuance set forth all. the grounds for it that then existed. The exception taken to the refusal of his former application must, therefore, be considered as waived by the latter.

The granting of continuances in criminal, as well as in civil cases, is, as a general proposition, within the sound discretion of the court, and its refusal to allow a continuance, is, therefore, never ground for a new trial, unless it clearly appears to have been an abuse of such discretion, and manifestly operates as a denial of justice. The motion for the continuance, not setting forth the facts or circumstances tending to prove that the killing of the deceased was in necessary self-defense, or otherwise show the relevancy or materiality of the testimony of the absent witnesses to the defendant’s defense, no prejudice or injury appears to have resulted to him from the denial of the continuance.

The other grounds of the motion, that we are called upon to notice, and which may be considered together, are:

First. That the officer in charge of the jury was not sworn to keep them together, and to suffer no person to speak to or communicate with them on any subject connected with the trial, during the adjournment of the court.

Second. That the jury were not admonished by the court, at its adjournment, that it was their duty not to permit any one to speak to or communicate with them on anv subject con-neeted with the trial, and that they should not converse among themselves on any subject connected with the trial, or form, or express any opinion thereon, until the cause was finally submitted to them.

Third. That three of the jurors, each on a different occasion, separated themselves from the panel, and went from the jury room, in company with an officer who had not been sworn as required by the statute, the others, meanwhile, remaining without an officer in charge of them.

Courts certainly should be very careful to protect the jury from every improper influence; and the provisions of the Code, designed for that purpose, should never be disregarded. These provisions are, however, directory and cautionary only, and a-failure to comply with them will not absolutely, or without some evidence that some prejudice or injury has resulted to the defendant, in consequence of an omission to comply with them? vitiate the verdict, and be cause for a new trial.

The conclusion to be derived from the former decisions of this court, and which seems to be well supported by the authorities, as to the consequence of the misconduct of jur_y, in cases of mere exposure to improper influences, we understand to be this: Where evidence is adduced, and shows that the jury were not, in any way, influenced, biased or prejudiced by the exposure, the verdict will not be disturbed; but unless it is proven that it failed of an effect, the presumption will be against the purity of the trial, and the verdict will he set aside.

But it does not appear that there was any direct exposure. The jurors, who left the panel, were accompanied by the officer in charge of them, who, we must presume, did his duty and kept them out of the way of all improper influences; and there is no reason for supposing the others might have been exposed to any during his absence.

The motion for a new trial, we think, was properly over-' ruled; but our attention is directed to the verdict and the in-dietment. The jury did not find, by their verdict, the degree of murder of which they found the defendant guilty.

By the statute, murder is classed according to the circumstances in which it is committed, into first and second degrees, the punishment of the first being death, and for the latter, imprisonment in the penitentiary; and, on the conviction of the accused of murder, the jury are required to find, by their verdict, whether it be murder in the first or second degree. These two degrees are not, however, distinct offenses, and no distinction as to degree is made in charging the offense; the same averments which are necessary to charge murder in the first degree, are also required to charge it in the second; and if, upon an indictment for murder, the jury find the deceased guilty hut fail, as they did in this case, to find, by their verdict, the degree of guilt, it cannot be ascertained by reference to the indictment. 2 Bishop on Criminal Proceedings, sec. 565.

In the case of The State v. Moran, 7 Iowa. 236, the Supreme Court of Iowa says: “ It is said, however, that the indictment charges the crime of murder in the first degree, and that when the jury, by their verdict, found the defendant “guilty as-charged in the indictment,” they did, in legal effect, ascertain that he was guilty in the degree charged. This argument,, however, leaves it to the court to deduce the intention of the jury from a verdict, general in its language, whereas the law requires that the juiy shall find specifically the fact, whether guilt is of the first or second degrees. When jurors find, by their verdict, that a prisoner is “guilty,” or “guilty as charged in the indictment,” it is not assuming too much to say that, as a general thing, they have simply found him guilty of a criminal homicide, without reference to the degree of his guilt. And to say that, upon such a verdict, the court might properly conclude that they intended the highest offense, would be to presume against, instead of in favor of, human life.”

And, in Alabama, where they have a statute similar to our own, in a case where the indictment charged the murder to-have been committed by poison, the Supreme Court of that State laelcl, that a j udgment could not be rendered upon a conviction upon it, without the degree of the crime being ascertained by the jury. Johnson v. The State, 11 Ala., 618; McCauley v. The United States, 1 Morris, 476; Kirby v. The State, 7 Yer., 259; Dick v. The State, 3 Ohio S., 89; The State v. Upton, 20 Mo., 397; Slaughter v. The State, 24 Texas, 410; Ford v. The State, 12 Md., 514; Commonwealth v. Gardner, 11 Gray, 438; Commonwealth v. Desmartean; Ib., 8; Green v. Commonwealth, 12 Allen, 170.

It is a well established rule, in criminal law, that an indictment must contain such a description of the facts and circumstances as constitute the offense charged; that the person accused may be informed of the specific charge which he is called upon to answer, and the'court and the jury the issue they are to try.

Russell, speaking of an indictment for murder, says: “The indictment should, in all respects, be adapted as closely to the truth as possible. It is essential to set forth particularly the manner of the death, and the moans by which it was effected.” 1 Russsll on Crime, 557.

Lord Hale says: “An iudictment is nothing else but a plain, brief and certain narrative of the offense committed by any person, and of those necessary circumstances that concur to ■ascertain the fact and its nature.” 2 Hale, 169.

■Lord EnLENBOROueii, in the case of The King v. Stevens and Agnew, 6 East., 239, said: “Every indictment or information ought to contain a complete description of such facts and circumstances as constitute the crime, without inconsistency or repugnancy.”

And, in the case of The King v. Horne, Cowp , 672, Lord Chief Justice DeQ-Ret observed: “ The charge must contain such a description of the offense that the defendant may know what crime it is with which he is called upon to answer, that the jury may appear to be warranted in their conclusion of .guilty or not guilty, upon the premises delivered to them, and that the'court may see such a definite crime that they may apply the punishment which the law prescribes. This I take to be what is meant by the different degrees of certainty, mentioned in the books; and it consists of two parts — the matter to be charged, and the manner of charging it. As to the matter to be charged, whatever circumstances are necessary to constitute the crime imputed must be set out, and all beyond are surplusage.”

The Supreme Court of Ohio, in the case of Lambertin v. The State, 11 Ohio, 282, says: “It is a rule of criminal law, based upon sound principles, that every indictment should contain a complete description of the offense charged; that it should set forth facts constituting the crime, so that the accused may have notice of what he is to meet, of the act done which it behooves him to contest, and so that the court, applying the law to the facts charged against him, ma}T see that a crime has been committed.”

And Chief Justice Ringo, in delivering the opinion of this court in Graham v. The State, says: “The object of that certainty required in an indictment is to notify the accused of the specific charge made against him, and to show the court that the offense charged is indictable. The phraseology should therefore be so explicit and unambiguous as to be intelligible to the accused and to the court, and prevent another prosecution for the same offense in the event of a conviction or acquittal on the writs.” Graham v. The State: 1 Ark., 171.

The indictment which, so far as it pertains to form, is in that prescribed by the Code, charges that the defendant did, premeditatedly, willfully and maliciously, with a double-barrel shot-gun, loaded with gun-powder and leaden bullets, kill and murder one David C. Stillwell, against the peace and dignity of the State of Arkansas.

"We do not conceive that the Code, except perhaps, in respect to the particular woi’ds of art employed in the description of certain offenses, dispenses with the clearness and certainty in charging the offense recognized by the former practice, and the common law. Section 121 says the indictment must contain “a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable-a person of common understanding to know what is intended.” And section 123 says: “The indictment must be direct and certain, as regards, first, the party charged; second, the offense charged; third, the county in which the offense was committed ; fourth, the particular circumstances of the offense charged, where' they are necessary to constitute a complete offense.”

In Kentucky, where the provisions of their Code, in relation to indictments are exactly similar to ours, the court of Appeals, in Mount v. Commonwealth, 1 Duv., 90, says: “The principle has been repeatedly recognized and acted on by this court, that an indictment must set forth the offense with such degree of certainty as will apprise the defendant of the nature of the particular accusation on which he is to be tried, and as-will enable him to plead the indictment and judgment thereon in bar of any subsequent prosecution for the same offense.” And in Taylor v. Commonwealth, ib., 160, it says: “The facts necessary to constitue the offense must be alleged, and that it is not sufficient that the essential facts may be inferred from those which are stated.” Com. Dig., Indictment, (G. 3).

In the indictment before us there is nothing but the general and indefinite charge that the defendant killed and murdered the deceased with a double-barrelled shot-gun, loaded with gunpowder and leaden bullets. The particular facts and circumstances of the killing, by which it might judicially appear that the offense had been committed, and the accused be-sufficiently informed of the true nature of the charge against him, so that he might be able to prepare for his defense, are not attempted to be set forth.

Eor the insufficiency of the indictment and the defect in the verdict, the judgment is reversed, and the cause will be remanded with instructions to arrest the judgment and to quash the indictment; and the defendant will be ordered to be detained in custody to answer a new indictment.


source: Caselaw Access Project

author: HaeRison, J.

license: Public Domain

text:
    Allen v. The State.

      Murder — Verdict must find degree — A verdict of conviction in a case of murder, -which does not find the degree of murder, is so fatally defective, that no judgment can he entered upon it.
    When objection waived — When a verdict is so defective that no judgment can he entered upon it, the defendant who might have had it perfected when rendered, is considered as consenting to it, and as waiving any objection to being put to answer before another jury.

      Appeal from Arkansas Circuit Court.

    Hon. Heney E. Mob.se, Circuit Judge.

      JR. A. Whitmore, for appellant.
    Montgomery, Att'y Geríl, for appellee.
   HaeRison, J.

The appellant was tried in the Arkansas circuit court, for the murder of Mark Hubbard.

The jury returned a verdict ©f “guilty, as charged in the indictment.”

The defendant moved in arrest of judgment, because the verdict did not find the degree of the crime; and for his discharge from custody, on the ground that, having been once put in jeopardy, he could not be tried again upon the same charge; but his motion was overruled, and he was sentenced to be hanged.

We have decided, at the present term, in the case of Thompson v. The State, ante, that a verdict of conviction, in a ease of murder, which does not find the degree of murder, is so fatally defective that no judgment can be entered upon it. Thompson v. The State, ante, and authorities there cited.

The court, however, very properly refused to discharge the defendant, for it is well established by the authorities that when a verdict is so defective that no judgment can he entered upon it, the defendant, who might have had it perfected when rendered, is considered as consenting to it, and as waiving any objections to being put to answer before another jury.

The judgment of the court below is reversed, and the cause remanded to it, with instructions to arrest the judgment and award a new trial.


author: Gbegs, J.

text:
    McKenzie v. The State.

      Murder — Time of intent immaterial. — Where the State proves beyond a reasonable doubt, that the accused perpetrated the murder, by lying in, ■wait, or by other kind of willful, deliberate, malicious and premeditated killing, it is murder in the first degree, and the time when the intent was formed to take life is not material, so it be shown the design thus-formed was before the act of killing.

      Sanity — Burden of proof. — The legal presumption is in favor of sanity, and the killing not being denied, but assumed to be excusable, the burden of proof is upon the accused, and if he fail, by sufficient evidence, to change the presumption raised against him by the killing, the- jury being the judges of the weight of the testimony, tile case would be legally adjudged against him.

      Recoud — Must show objections. — Where the record fails to show that the defendant objected to the instructions given by the court, or that the-court refused to give instructions asked by the defendant, the objection will not be heard here.
    Jeopardy. — When, after the jury has been selected and sworn, unauthorized separation and misconduct is satisfactorily shown, the court may quash the venire, discharge the selected jurors, and award a new venire j and the defendant will not be entitled to a discharge from sentence under the verdict found against him, by reason of being formerly put in jeopardy.

      When Attaches. — Jeopardy cannot attach until the jury is duly impan-elled, and all the machinery of the court fully organized.
    Discretion of Courts. — In preliminary steps of a trial, a proper discretion may be exercised by any of the courts of original jurisdiction, which, if not grossly abused, will not bo considered here.
    Improper Influence — New Tría?. — When it is made to appear, to the satisfaction of the court, that what may have appeared tobe an improper influence upon the jury, was not so in fact, the court should overrule a motion for a new trial, based on that ground.

      Appeal from Sebastian Circuit Court.

    Hon. E. J. Suable, Special Judge.

      Du Val f King, for appellant.

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

At the April term, 1867, the appellant was indicted, in the Fort Smith district of Sebastian county, for the murder of Charles W. Brown. In June following, the defendant was. brought before the court, was served with a copy of the indictment, duly arraigned, a venire properly returned, and after more than half the requisite number of jurors had been selected and sworn, they were discharged for alleged misconduct on their part, the venire set aside and another venire ordered; the jury was therefrom selected and sworn, argument of counsel and'charge of the court heard, and a verdict of murder in the first degree was returned against the accused. He moved the court for a new trial, because, as he alleged, the finding ivas contrary to law, and the instructions of the court. Second, It was contrary to the evidence. Third, It was contrary to law and evidence. Fourth, The court erred in refusing to give the jury the first and second instructions asked by the appellant. Fifth, The court erred in discharging eight of the jurors who had been sworn, and three who had been selected and not sworn. Sixth. Because the court pronounced Jackson Coliman a good juror, and after ho had been selected by the State, discharged him before the appellant had accepted or rejected him. Seventh, Because one of the jurors, during the trial, received a note in writing from a bystander, without appellant knowing what was written on the paper.

The court overruled the motion for a new trial. Upon similar grounds the appellant moved in arrest of judgment, which motion was also overruled.

The appellant excepted, filed his bill of exceptions, setting out the evidence and instructions of the court, and prayed an appeal to this court. The court below stayed the proceedings •upon its judgment, and allowed a supersedeas to be entered, and forwarded a transcript to this court without granting the appeal.

After some delay the case was presented to this court, and when reached for determination a procedendo was awarded to the circuit court to grant the appellant an appeal to this court. At a regular term of that court, on the 21st of October, 1870, the defendant was brought before the court, and the prayer in his application for an appeal was granted, and a transcript Sled in this court, the 27th of December, 1870.

The first ground set up in the motion for a new trial was not sufficient, as will appear from a discussion of the other causes.

■ The second ground is, that the finding of the jury was not warranted by the evidence, the substance of which follows :

John Speet testified that he came to Noble’s brewery, in 'Fort Smith, and McKenzie, the appellant, and Brown, the deceased, were sitting near each other at the door of the brewery. Brown said to McKenzie, “let us go home; ” McKenzie called him a d-d son of a bitch, and told him to kiss (an indecent part of his person). Brown then said: “I do not wear any pistol.” McKenzie said: “You are not able to wear any such things.” McKenzie then put on his shoes and got up from his seat, inside the door, stepped back about two steps, raised his coat, drew a revolver from his side, and said: “You d — d son of a bitch, don’t bother me any more,” and shot Brown, who fell. Brown was then about three steps outside the door.

Mrs. Nobles testified that as soon as the pistol fired, she went into the brewery, and saw the man in the back room with a pistol in his hand, and saw the man lying dead out at the door.

Frank "Wesley testified that he was near the brewery; saw Brown standing, and saw him fall and die, about three steps out from the door; did not see McKenzie any more until an officer had arrested him.

. Mrs. Brown, testified that she saw the accused and her bus-hand, the deceased, on the 17th of June, 1867, near Eort Smith, on the Yan Burén road, and in about three hours thereafter she saw the body of the deceased lying near Noble’s brewery; that on the morning of the same day, she heard the accused tell deceased that he would kill him that day; that the accused then had no pistol, but about half an hour afterwards she saw him with a pistol and lead in his hand; that she and others came to town with accused and deceased, in a wagon, soon after dinner; she knew of no difficulty between the accused and deceased; they talked together on the road; the accused told deceased to shut his mouth, that he knew nothing, but she supposed they were joking.

Crawford testified that he knew the accused and deceased; saw them at Eishback’s farm, where they lived, in the forenoon; they were playing, slapping each other and running around, and he heard the accused say, “ I will kill him before night.” McKenzie seemed to be drunk; saw him with a pistol; they started to town soon after dinner; in the evening he heard that Brown had been killed.

Other witnesses testified as to the killing, the wound, etc.; ■ but the most material, for the prosecution,’ was the above alluded to.

All the witnesses showed that they knew of no previous quarrel between the parties.

The defendant introduced several witnesses. The first testified that the appellant was of singular habits or mind; another said he regarded him as very much broken down, physically and mentally; had not considered him in his right mind for ninety days, and not more responsible than a lunatic; that when drunk, he is different from other persons; never heard him say anything angry or vicious; he seemed prostrated; he went with one Taylor, and they were up much night and day.

The next witness testified that he was a graduate of Maryland University, and had practiced medicine twenty years; had for several months known the accused, and he had concluded he was simple-minded; and, if talking to medical men, he would call him insane — not in the full sense of that term; he was of opinion he was imbecile to such an extent as at times to render him unconscious of any act, and that this imbecility was increased by the excessive use of intoxicating drinks; he was of opinion the accused would generally know the difference between right and wrong, and would be responsible for his acts; but it is probable, in his case, that the use of intoxicating drinks to any great extent would render him totally insane.

The next witness said he had practiced medicine, etc., seventeen years, and had known the accused six months, and he was of opinion his mind was very much impaired from some bad habits, or the commission of some crime, that had preyed upon his mind so as to produce mental imbecility; and that that would be greatly increased by excessive use of strong drink.

The next testified that he had seen freaks in the accused that made him think that he was not a man. of sound mind; and again he had thought him a very intelligent man; he is a man of no sense when on a spree, no reason, or control of himself when under the influence of liquor; he saw him once when he was putting a band on a gutter, and told him he was not putting it on very straight; he made no reply, but picked it up and kissed it; and that witness went and told the foreman he was “a perfect luna.” This was in March, 1867; the accused said but little when sober, and at such times he considered that he would know right from wrong.

Jackson Brooks testified that he saw the accused at the brewery; he was about the bar pretty much all day, and he saw him drinking “right smart;” thinks he was sober in the morning, but about three o’clock he was pretty tight; this was the 17th of June, 1867.

The next witness said, he came to town with the accused, and he took a glass of beer at the “ Last Chance,” and again drank at the brewery, and was pretty drunk; this was the only time he ever saw him drunk.

The State then introduced a witness, who said he had for several months known the accused, and regarded him not very bright — hardly medium sense.

The next witness said he and the accused were both carpenters, and worked together in the government shop; had known him since December, 1866; was foreman over him, and could not say he ever thought he wanted sense; he was a good man and a good mechanic; that he knew the witness who said ha-told diim; as foreman, that the accused was “a perfect luna,”'' and did not remember of his ever having such talk to him.

The next witness said the accused had worked for him a month and a half, and he thought him an ordinarily sensible-man.

The next witness said he was a carpenter; had frequently seen the accused; worked in the shop with him, and never saw any thing in him that indicated insanity.

The next witness stated the same.

The next said he had been with the accused every day for two weeks next before the killing, and saw no evidence of insanity.

The widow of the deceased then testified that she had never seen any indications of the accused being insane, and that about a week before the killing she heard the accused say • if he were to commit murder he would claim to be insane,, and when he got out of it he would be as smart as any of them.

We have thus, at length referred to the substance of the evidence, because the principal question here presented is as to the sufficiency of this evidence to sustain the verdict of murder in the first degree. The rule is well understood that where-the State proves beyond a reasonable doubt that the accused perpetrated the murder by lying in wait, or by other kind of willful, deliberate, malicious and premeditated killing, it is murder in the first degree. The intention is manifested by the •circumstances connected with the act of killing. Express malice is that which is capable of proof, and malice is implied when no considerable provocation appears, or when all the circumstances of the killing manifest an abandoned and wicked disposition, and this court has decided that the length of time is not material so that the killing was the result of a willful, ■corrupt and malicious intent to take life. A design thus ■formed before the act of killing is sufficient. Bivens vs. State, 11 Ark., 460, sec 2; Va. Cases., 483, and 6, Randolph (Va.), 121.

There can be no question, leaving the insanity out of view,.but 'that the evidence here shows a willful, intentional killing, and ■not only a want of considerable provocation, but without the ■slightest provocation. Take the entire testimony and there is not the slightest word or act from the deceased towards him, in any way calculated to injure him or arouse his passions. On the other hand, there is some evidence going to show that he, before, and at the time of the killing, was harboring malice towards the deceased. ' A settled intent to commit the most ■diabolical crimes may, and often does, remain secret until an ■opportunity offers to carry the wicked purpose into effect, and by concealing the malice, and cause of ill-will that exists, a wicked one can better hope to accomplish his purpose and ■escape punishment; hence it is wise for the law to presume 'that every one intends the first and natural consequences of his ¡act.

In this case two witnesses testify to threats made on the morning before the killing. One of these same witnesses testified that, a week before, the accused declared what he would do in ease he should commit murder, and the fact of his preparing himself with a deadly weapon, immediatly after making the threats, his impolitic, if not insulting, words while going to Fort Smith, and the unprovoked attack and killing ■of the deceased, certainly well justified the jury in finding that ffhe killing was willful, malicious and premeditated. •

To refute this very violent presumption against him, the prisoner attempted to set up that he was then insane, and not conscious of the act he did. .

The legal presumption is in favor of sanity, and that the-party intended to do what was the natural consequence of his-act, and if he made no denial of the killing, but assumed that he was excusable, he thereby took the burden of proof; and if he failed to produce evidence sufficient to change the presumption raised against him by the proof of the killing, the penalty of the law would be legally adjudged against him, and the jury is the only proper tribunal to determine the weight of the evidence, and this verdict certainly was not a finding without evidence.

It was by the physicians, and some others, testified that the accused was imbecile — a man of weak mind, and liable to be-much affected from excessive use of strong drink; hut while-this may have been probable, even if it had been most likely,, it is by no means conclusively shown that such result as an excusable insanity would follow from the free use of intoxicating liquors; and in tjiat conflict of evidence the jury alone could determine.

If it had been shown that drunkenness would necessarily produce insanity in the accused, the proof is by no means conclusive that at the time of the killing he had been laboring-under the influence of ardent spirits long enough, or to an extent sufficient, to produce that insanity.

One witness spoke of his drinking some the day before the-killing, another supposed he was drinking in the morning before the killing in the afternoon; but one who had been with him for two weeks, except the previous day, said he was sober for that whole time. Different other witnesses testified that he was sober in the forenoon of that day, and when he-came to town. Brooks testified that he, at the time of the-killing, was drunk, or, as he termed it, “ pretty tightthat he had seen him about the brewery nearly all day, and had seen him drink. This statement is not well sustained by other witnesses. It was shown by a number of them that he did not come to town until after noon, and that the killing was about three o’clock, and this made it quite clear that he was not there nearly all day, and that Erooks did not fairly ■state the facts. Except a glass of beer, no one else testified that he had been drinking after coming to town.

To place no stress upon the evidence tending to show he was ■sane, and, if not at the time, up to near the time of killing, and we do not see how the jury on either point — being drunk, ■or being insane, if drunk — could well have- found in the accused’s favor; and would it not endanger the rights of •society beyond what the law will allow, to hold that any one who voluntarily beclouds his mind with intoxicating drinks may thereby be excused in taking the life of an innocent man? See Bishop on Criminal Law, vol 1, secs. 494 and 499, and note 1.

The third ground for a new trial is disposed of in the consideration of the second and fourth.

Upon the fourth ground, the law, as was given in charge by the court, is set out, and the record fails to show that the ••accused excepted to any of the instructions given by the court, ■or that the court did not give all the instructions asked by the defendant there, and the finding seems to be altogether consistent with the instructions.

The fifth cause for a new trial, if good, is one that was more •applicable in arrest of judgment. After eight of the jurors of the original panel had been selected and sworn, unauthorized •separation and misconduct was shown to the satisfaction of the court; (it was shown, a witness in the case had talked to some of the jurors, etc.) whereupon the venire was quashed, and the selected jurors discharged, and a new venire awarded. The law scrupulously guards the rights of an accused in such ■cases, but in preliminary steps, a proper discretion may be exercised by any of the courts of original jurisdiction, which, if mot grossly abused will not be considered here; and if in this case the misconduct of the jurors was such as would have ¡required the court to set aside their verdict, had they remained ••and returned one, it was judicious to discharge them without ¡the labor and expense of a long trial; and, without evidence to the contrary, we will always presume such was the case — that a proper discretion was exercised. The defendant was not entitled to a discharge from sentence, under the verdict found against him, by reason of being formerly put in jeopardy of life, as held in the case of Doctor T. Lee, v. the State, decided at the present term. Such jeopardy cannot attach until the .jury is cl uly impaneled and all the machinery of the court fully ■organized for trial and judgment. Commonwealth v. Cook, 6 Story, 586; State v. Melville, 2 Georgia, 24; People v. McGowan, 17 Wend., 386; Cooly on Con. Lim., 326 and 327, and other cases there cited.

The sixth objection was, that the court discharged a juror for cause, after the State’s counsel had accepted him, and before the defendant had passed upon him. This was clearly within the discretion of the court. There can be no question as to the right of the court, if a juror is found to be incompetent, to discharge him at any time before he is accepted and sworn to try the case.

The last ground assigned for a new trial was, that a bystander, during the trial, handed one of the jurors a slip of paper with writing on it.

In cases of this magnitude it is highly improper to allow any communication made to jurors, not known and assented to by the defendant, except matters of vital interest to the jurors, and such onl}' as are entirely disconnected with the case before them, and such communications should be by express permission of the judge, and in his presence, or that of a sworn officer.

It was held by this court, in the case of Collier v. State, 80 Ark., 36, that where it is made to appear to the satisfaction of the court, that what may have appeared to be an improper influence upon the jury, was not so in fact, the court should overrule a motion fora new trial. The record here shows that the court being fully advised of the matters and things in the motion, upon hearing the motion, found that the causes assigned were not sufficient to grant a, new trial, and the..record shows a want of proof that an improper influence was had ■ on the juror.

Upon the whole case, the appellant has failed to show that he was prejudiced by any ruling of the court.

The testimony shows a most wanton and unnecessary killing of a fellow man, and while his attempt to prove his own insanity at the time of the killing, was such as may have afforded him a hope of acquittal, yet it was strongly rebutted j so much so, as to remove any doubt that might have been raised as to his criminal'intent and responsibility, and the jury having so decided, the judgment and sentence of the court below must be, and the same is, in all things affirmed.


author: GREgo, J.

text:
    Rhea, Administrator, et al v. Puryear, et al.

      Administrators — Parties to Suits. — When there is no allegation of indebtedness against a deceased person’s estate, or that the administration had not been closed, and the record discloses no interest favorable or adverse of any of the defendants in the assets of the estate; and no grounds upon which they might be liable in another suit, it is not necessary that the administrator be made a party.

      Agent — ffl-audulent acts of. — It is fraud on the part of an agent entrusted with money for a specific purpose, to attempt to control such means for his own benefit, and in his own name, and any profit or advantage resulting therefrom, reverts in equity to the principal.
    A party purchasing lands with his own money, under an agreement that such purchase should bo made, will not be permitted to hold them against the beneficiary.

      Mistakes — Corrected after cause submitted. — Discovery of mistake in the number of lands after a cause is submitted for final hearing, may be corrected.

      Appeal from Randolph Circuit Court.

    Hoh. L. B. Mack, Circuit Judge.

      Byers $ Cox, for appellant.
    We submit that the court erred in permitting the bill to be amended after the cause was submitted, so as to make the allegations correspond with the proof. Shields v. Barron, 17 Mow. U. S. R. llj.li.. Batter son v. Fowler, Fx’r., 28 Ark. IflO. No facts are in issue unless charged in the bill, and no proof can be offered or relief granted for facts not charged in the bill. Story’s Fqt. It. see. 257; Crocket v. Lee, 7 Wheaton 522; Jackson v. Ashton, 11 Peters 229; James v. McKendre, 6 John. 564.; 1 Daniel P. C. Pr. P. 877 and note 2. The only prayer in the bill is for specific relief, in such case no other relief can be granted. 1 Dan’l P. C. f pr. p. 876; notes 1, 2, 8 and 4 and authorities there .referred to.
    The complainant’s part of the agreement, set up in the bill, has not been performed and cannot be secured, and hence, there is a want of mutuality. Adam’s Fqt. p. 287 and note 2, and authorities there referred to; Shields v. Irammel, 19 Ark. 51; McNeil v. Janes, 21 Ark. 277. The contract was in parol and there was no such part performance as would take the case out of the statute by frauds. Adam’s Fqt. p. 247, 86, note 1; Baker v. Maiddbraugh 15 Ark. 822; Keats v. Rector, 1 Ark. 189; Un-derhill v. Allen 18 Ark. 466; Johnson v. Craig, 21 Ark. 588.

   GREgo, J.

On the 18th of April, 1859, the appellees filed their bill, in chancery, in the Randolph circuit court, in which they alleged that Seymour Puryear, in the fall of 1852, furnished John Rhea with $102, and employed him to gato the United States land office at Batesville, Arkansas, and enter for him the south half of the south-east quarter of section 28, township 19, north of range 1 west; that he went, but instead of entering said eighty acres in the name of Puryear, he purchased a land warrant, and entered the whole of said quarter section in his own name, and represented to Puryear that the quarter section had not been divided, and he was compelled to enter the whole, but if be wanted it, upon the payment of the balance of the purchase money, he would deed the whole to him, which sum Puryear proposed to pay as soon as he became able to do so.

It is further alleged that Seymour Puryear was in possession of said lands, and so continued up to his death, and that his Administrator and heirs remained in possession for about one year thereafter, and that said Ehea promised that he would make title to complainant, but when the remainder of the purchase money was tendered, he refused, and that in the month of January, 1857, he died, leaving the defendants his heirs.

Complainants pray that the defendants be required to make them title to said land; that they specifically perform said oontract, and for general relief.

At the May term, 1859, complainants obtained leave to amend their bill, as to the names of some of the defendants; a guardian ad litem, was appointed, and an answer filed for a minor, and the cause continued. At the next November term the •other defendants filed their joint answers, to which answers replications were entered, and the cause set for hearing, with leave to take depositions generally.

At the May term, 1860, depositions were published, a suggestion made of the loss of the defendant’s answer, a rule made upon the clerk to produce it, and an order made that a substitute be filed, in case the same is not produced by the next term; at which time the administrator filed a substitute answer, and the cause, by consent, was continued.

At the November term, 1865, the parties, by solicitors, appeared, and the cause was continued; and at the May term, 1866, it was suggested that the minor had arrived at full age ; her answer was put in and replied to, other necessary changes in parties made, and another order to continue and take depositions. At the next term a similar order was made. At the May term, 1867, depositions were published, and again continued, with leave to take depositions generally.

The defendants answer that they are the representatives and ■heirs of John Ehea, and that the complainants are the heirs of Seymour Puryear ; that Rhea entered the lands described in the bill at the time therein stated, and that the parties died about the times stated ; but they deny that any part of the lands wore entered with Puryear’s money, or for his use, and insist the same were entered with Rhea’s own money, and for his own use ; and they deny that the same was ever in the possession of said Puryear, or his heirs — the complainants.

At the November term, 1867, the cause was submitted to the court for final determination; and after the same was so submitted, it appeared there was a variance in the description of the land, between the allegations in the bill and the proofs submitted; and the solicitors for the complainants moved the court to allow them to amend their bill, by changing the numbers of the lands in the bill to correspond with the numbers in the depositions, to which the defendants objected; but the court overruled their objections, allowed such amendments to be made in the bill; and ordered that the defendants amend their answers; that new issues be formed, and that the cause be again set down for final hearing at the next term, and that leave be granted to the parties to take depositions generally; and that the complainants pay all costs accrued subsequent to the May term, 1860. To all of which the defendants excepted. The numbers of the lands in the bill were slightly changed, and at the May term, 1868, the cause was submitted on the original issues.

And, notwithstanding the great number of continuances, and rules to take depositions, the only ones brought before the court were those of Davis, Hoffstetler and Carter.

Davis testifies that he was at Rhea’s; Puryear came there, and he heard him say to Rhea: “ I have understood you are not going to make me title to my land,” (referring to the land where he resided.) Rhea assured him that he would whenever he paid the purchase money and interest; said he would give bond for title, and if he died, his family would make title, and if he lived, he would make title to-morrow, next day, or any time thereafter, when the money and interest were presented.

Hoffstetler testifies that he was with Rhea when he entered the south half of the southeast quarter of section twenty-eight, township nineteen, north of range one west, for Pur-year; he thinks Puryear put $102 into Rhea’s hands for that purpose; Rhea said he could “not save it without taking the whole quarter;” said he did not know how Puryear would like it, but he was going to save it in his own name, to keep himself safe for his eighty-acre warrant that he had bought. When the parties met, Rhea told Puryear how he had done, and inquired if he wanted the whole quarter; he responded he did; Rhea told him that as soon as he would pay him back the money he had had to pay out for the land warrant, and interest on his money, he would make him title; Puryear agreed to repay the money as soon as he could. Rhea, at the time, said Puryear had employed him to go and save the land for him; Rhea always appeared willing to make the title when repaid; Puryear had part of the lands inclosed and in cultivation, and Rhea permitted him to retain possession as long as he lived.

Carter testifies that he knew the parties deceased in life; that in 1852 or 1853, Puryear employed Rhea to go to Bates-ville to enter the south half of the southeast quarter of section twenty-eight, in township nineteen, north of range one west, and that he gave him the money to make the entry with; that himself and one Harvey loaned Puryear $1G2 in money, with which to have the entry made, and it was agreed Rhea should so expend that money; afterwards, at Batesville, Rhea said he could not enter that eighty acres without entering.the whole quarter, and’ that he had given Wash. Hunter his note for an eighty-dollar land warrant, and with that and Puryear’s money, he had entered the whole quarter; that he had entered in his own name, and did not know how Puryear would like it; that the land was worth the money, and if Pur-year did not like it, he would pay him back his money and keep the land, but if he wanted it, he could have it by paying him the money he was out; that he would make title whenever Puryoar paid him the eighty dollars and interest; Pur-year had some of the land in cultivation; Rhea permitted him to remain in possession of it up to his death, and his heirs held it for some time thereafter; Rhea died about three years after Puryear; does not know that Puryear ever tendered Rhea the eighty dollars.

Upon the proof, the court found in favor of the complainant, as to the south half of the southeast quarter of section twenty-eight, township nineteen north, range one west, and that Rhea was the agent of Puryear in entering said land; that the same was entered with Puryear’s money, and of right belonged to him; that the north half of said quarter was entered by Rhea, and of right belonged to him, and the court decreed that no relief be granted as to said north half of said quarter section, and that said defendants be divested of all right and title to the south half of said quarter section; that the same pass to and vest in said complainants, and that the defendants pay all costs not before decreed; from which decree the defendants appealed.

It is here urged that the court below erred in not finding in favor of the demurrer clause in the answer, because the administrator of Puryear was not a party.

It was also urged as grounds of demurrer that the bill was brought for a specific performance of a contract resting in parol; that no part was performed; that the complainants did not gain possession under it; did not pay the purchase money; did not make valuable improvements, and that the contract was within the statute of frauds, and the court should have so found; that the court should have found that there was no equity in the bill.

It is also urged that the court erred in declaring a resulting trust ■when the bill does not claim such relief, and that likewise the court erred in allowing complainants to amend their bill after tbe cause had been submitted to the court for final determination.

Should the court have found against the complainants, upon the demurrer clause in the defendants’ answer alleging that Carter, as administrator, was not made a party complainant? "We think not. We see no possible ground upon which the defendants in this suit could have been prejudiced for want of such party to the bill. There is no allegation of indebtedness against Puryear’s estate, or that the administration had not been closed. The record discloses no interests, favorable- or adverse, of any of the defendants in the assets of that estate, and no grounds upon which they might be liable in another suit. And, upon a careful examination of the bill, we find no admission that Carter or any one else was an administrator of Puryear’s estate at or after the bringing of this suit. The bill states that during the year next after the death of Pur-year, John Carter, as administrator, and the heirs of Puryear possessed the lands.

Puryear died in 1852; the statute law required the administration to close within two years, unless for good cause, the court of probate should extend the time for final settlement; then, if he was administrator in 1858, it was his duty to have closed that administration in 1855, and the presumption would certainly be rash and against law to suppose such administration continued until the 18th of April, 1859, nearly seven years, at which time this suit was commenced. Then it is assumed that there was an administrator, (with no allegations to that effect), and so far as we can see, no necessity for the appointment of one.

We can not see the force of the next and principal ground urged against the complainants’ recovery. This was not a sale and proposed transfer of lands, as contemplated by the statute,, to prevent frauds, etc., which requires real estate contracts to be in writing, or the payment made or certain performance done before relief can be had.

The ground here assumed, and I may say established, is that Rhea was the agent of Puryear, employed to invest Puryear’s money in specific property, and for Puryear’s use, being thus intrusted it was a fraud on his part to attempt to control such means for his own benefit or in his own name, and all profit or advantage resulting therefrom would certainly in equity inure to Puryear; and these facts appearing in the bill and prooís. were sufficient to sustain a decree without any express words declaring that a resulting trust existed in favor of Puryear’s heirs. Some courts go further and declare that acts fraudulent in themselves are overridden by the statute. •

In Miller et al. v. Colton et al., the Supreme Court of Georgia say: “We fully recognize the doctrine that a court of equity will not permit the statute of frauds to be set up as a defense, by a party infected with fraud, and that parol trusts in real estate may be established in direct contradiction to the-statute on the ground of fraud.” 5 Ga., 346.

In many cases, even where parties purchased real estate with their own money, the courts have holden that it would be a fraud to allow them to hold the lands against those beneficially interested, and for whom it had been agreed such purchases should be made. Jones v. Hubbard, 6 Munford, 263; Davis et al. v. Hopkins, 15 Ill., 522; Miller v. Thomas, 14. Ill.; Trapnall v. Brown, 19 Ark., 39; Pyatt v. Oliver et al., 2 McLean, C. C. R. 267; Furguson et al. v. Williams et al., 20 Ark., 272; Cain v. Leslie, 15 Ark., 312.

In the last case, by agreement, Leslie, with his own money, entered lands, including Cain’s improvements, and afterwards refused to convey to Cain, but conveyed one-half to others, who it was alleged connived with Leslie to obtain the lands. Chief Justice WatkiNS said: “It seems to be clearly a case where, unless the agreement be performed, an unconscionable fraud and deceit will have been practiced upon the complainant.”

Finally, we are asked to reverse this decree because the complainants wei’e permitted to amend their bill upon a discovery of a mistake in the numbers of the land, after the cause was submitted for final hearing. An objection like that ought not to be tolerated on the law side of a court, and in equity, where an enlarged discretion should always be exercised to meet the ends of substantial justice, such exceptions become frivolous.

The Chancellor below gave the defendants until the next term to amend their answers, ordered the issues to be formed anew, again set the case down for hearing, and granted the parties further leave to take depositions; and then taxed complainants, because of their oversight, with the costs of five terms of the court. To have granted the appellants more would have outraged justice upon a pretense of doing equity.

Upon the record we find no error prejudicial to the appellants.

The decree is affirmed.


author: HarrisoN, J.

text:
    Hanauer & Co. v. Casey, Admr.

      Attachment — Priority.—A sale of lands under a junior attachment does not release the lien of a prior attachment, and the money arising from such sale is not to he applied in payment of the prior attachment.
    If lands be sold at the same time under both executions, and the levy of the prior attachment thereby discharged, then the money arising therefrom, or so much thereof, should be applied in payment of the judgment under the prior attachment.
    ^Execution sales — Proceeds, how applied. — Personal property is bound from the time the execution came into the hands of the sheriff, and where there are several executions, coming to hand at different times, and a sale under the last, the proceeds should be ajiplied in satisfaction of the others in their order.

      Appeal from Randolph Circuit Court.

    IIoN. Elisha Baxter, Circuit Judge.

      Byers £ Cox, for appellants.

      We submit: In the first place, according to the rule laid down by the Supreme Court of this State, in the case of Trap-nail et al v. Jordan et al, 7 Ark., JfiO, the court had no jurisdiction of the subject matter of Casey’s petition, and we suppose the circuit court should be bound by the same. See sec. 7, ch. 96 Gould’s Big.,p. 68-Jh

    In the second place, the sheriff was not made a party, was not served with a notice, and the order, as to him, would be coram non judice, and void. Slate Bank v. Noland, IS Ark., 899; Newton v. State Bank, 14 Ark., IS; same v. same, 88 Ark., 87; Adamson v. Cummins, 10 Ark. 54-1.

    In the third place, the decision is directly in the face of the clear and palpably plain language of the statute, and in effect nullifies the statute, (see sec. 6, chap. 96, Gould’s Big., p. 68//), and we submit should be reversed.

      Watkins Bose, for appellee.
    This case is governed by section 52, chap. 17 Gould’s Digest, by which the proceeds of the sale go to the extinguishment of the oldest lien, no matter how the property may be sold; and this seems to be the universal rule where thei’e is no statutory provision to the contrary. State v. Salyers, 19 lnd., 438; Stra-ley’s appeal, Penn. S. B., 89; Thompson v. Cardel. 87 Cfa., 878; 1 Tenn. B, 789; Bussell v. Gibbs, 5 Carr., 890; Boioe v. Bich-ardson. 5 Barb., 385; Lynch v. Hanahan, 9 Bich., {Law. S. C.) 186; Gilmer v. Warren, 17 Ga., 486; 1 Paige Chy., 181, 558; Neill v. Laneks, 6 Barb., 1/70; Bagley v. Beeves, 80 Ala., Jfi7; Brown v. Hamlin 83 Miss., 898; Peck v. Tiffany, 8 Comst., 451; Steele v Hanna, 8 Blackf., 386; Newton v. Nunnelly,4 Ga., 856.

    The question as to the sheriff being made a party, cannot arise here, as he is not making any contest. Binggold v. Stone, 80 Ark., 586; and, being an officer of the court, he is presumed to have notice. Brants appeal, 80 Tenn., 8 (Harris) 864•

      “ Where the parties, interested in the distribution of money-in the sheriff's hands, appear, and state an agreed case, the court may determine the right, although the sheriff’ has not made the application.” Turner v. Lawrence, 11 Ala., 1$6. The court will not disturb the verdict below for any error which could not injure the appellants. Clark v. Barnett, 24 Ark., SO; Blackwell v. Batían, 7 Cranch., 1¡!71; Campbell v. Pratt, % Pet., 354; Greenleaf v. Brith, 5 III., 132; Boardman v. Peed, 6 Id., 328; Phillips v. Preston, 5 How., 278; McMicken v. Webb, 6 Id., 292; Randon v. loby, 11 Id., 403; Thomas v. Lawson, 21 Id., 343; Chandler v. Van Boeder, 24 Id., 225; Thompson v. Robei'ts, Id., 233.

   HarrisoN, J.

James M Casey, as administrator of Andrew J. White, deceased, brought suit, by attachment, in the Randolph circuit court, against Hiram A. Kelsey. The writ was, on the 19th day of March, 1869, levied on certain lands, and judgment for his debt was recovered on the 9th of May, 1868. On the 20th day of March, 1867, the same lands were again attached, at the suit of Louis Hanauer and Jacob Hanauer, before a justice of the peace, and judgment was recovered by them. Executions on both judgments were delivered to the sheriff at the same time, and the lands were sold by him under each, on the first day of the March tei’m, 1869. They were offered first under Louis and Jacob Hanauer’s execution, and purchased for seventy-five dollars, by John P. Brimmage, jr., and then under Casey’s, and purchased for eight dollars, by Ewing Y. Mitchell.

Casey, upon the return of the executions, moved that the sheriff be ordered to pay the money arising from the sale, under Louis and Jacob Hanauer’s execution, to him, upon the ground that his attachment was prior to theirs. Louis and Jacob Hanauer appeared and resisted the motion, but the same was sustained by the court, and the money was ordered to be paid to Casey, and they appealed from the decision.

The provision of section 52, chapter 17, Digest, that whei’e there are more attachments than one upon the same property, they shall be paid according to the priority of their levies, was intended to secure the liens of the prior against the junior attachments, and it is very clear that it does not mean that where there shall be a sale of the property under a junior attachment, which does not have the effect to discharge the prior liens, the money arising from it shall be applied to the payment of the prior attachments. It is true, where several executions come to the hands of the sheriff, at different times, and he sells personal property under the last, the others are to be first paid; but this is because the property levied on is bound, by the executions, from the time of the delivery of them to him; and upon a sale thereof, he must, to be entitled to receive the price, deliver the same to the purchaser, which, as a matter of course, releases the liens, and an absolute title passes to the purchaser. Russell v. Gibbs, 5 Cow, 390; Peck v. Tiffany, 2 Comst., 451.

A different rule, however, prevails as to the application of the proceeds of a sale of real estate.

Section 6, chap. 96, Digest, says: “A sale of lands under a junior judgment shall pass the titles of the defendant, subject to the lien of all prior judgments and decrees then in force;” and section 7, that “the money arising from such sale shall be applied to the payment of the judgment under which it may have been made.” The reason of this provision of the statute is too apparent to require any remark, and the rule established by it is equally applicable to sales of real estate in attachment-proceedings.

Had the lands been sold at the same time, under both executions, and the levy of Casey’s attachment thereby discharged, there can be no question that he would have been entitled to the money, or to the amount of his judgment out of it, if it had brought so much. But the sale of them under Louis and Jacob llanauer’s execution, neither discharging or impairing the lien of his attachment, we are unable to see how he can set up any just claim to tbe proceeds of it. Sandford v. Roosa, 12 John. 162.

We are, therefore, of the opinion that the court below erred, in making the order appealed from, and its decision is reversed, and the cause remanded to it- with instruction to overrule the appellee’s motion.


author: Bennett, J.

text:
    Laird v. Hodges.

      UsuRY — Lex-loci—While the law of the place of the contract interprets and construes it — the law of the place where it is put in suit, determines all questions as to the manner in which the same may he enforced.
    How Pleaded — Usury should be specifically pleaded; it is not sufficient to aver that a note was made, signed, sealed and delivered at a particular place; facts, sufficient to show the intention of the parties, should be averred.
    Hequisites oe Plea. — A corrupt agreement and the intention to take or reserve more than the legal rate of interest, are essential ingredients in-all usurious contracts, and must be averred in a plea of usury.

      Appeal from. Crittenden Circuit Court.

    IIoN. James M. Hanks, Circuit Judge.

      C. P. Lyles, for appellant.

      B. G. Brown, for appellee.
   Bennett, J.

This suit was instituted in the circuit court of Crittenden county, at the November term, 1866, by Laird against Hodges, on a promissory note, of which the following is a copy:

“$666 66. Delta, Miss., June 7,1860.
Forty-three months after date, I promise to pay to the order of Emile Gassit six hundred and sixty-six dollars, with ten per cent, interest from January 1, 1866. Value received.
(Signed.) ' • A. HODGES.”
Indorsed: “Pickett, Hodges & Ward,’’ with a blank indorsement as follows: “I waive demand and notice.
E. GASSIT.”

The defendant files a plea of general issue, and a special plea. “And for a further plea in this behalf the defendant says '■actio non / because he says that the supposed promissory note, in the said petition described, was not executed and delivered by this defendant to the said Emile Gassit, at Delta, in the State of Mississippi, as in and by said petition is supposed, but that the same was executed and delivered by this defendant to the said Emile Gassit, at Memphis, in the State of Tennessee, to wit: on the first day of June, 1860. And the said defendant further avers that, by the law of the said State of Tennessee, any promissory note or other instrument wherein is reserved any greater rate of interest than the rate of six per centum per annum, is wholly void. So the defendant says “that the said supposed promissory note was and is wholly void.”

Plaintiff replies : “That, at the date of the execution of the-note, said Gassit, the payee, was a resident of the State of Mississippi, and that although said note was executed in the State of Tennessee, it was then and there agreed and understood by and between said Emile Gassit and the said defendant, that the said contract should be performed and payment of said note made in the'State of Mississippi.”

To this replication a demurrer was sustained. Plaintiff resting, judgment for costs was rendered against him.

This was a proceeding by petition and summons, in the usual form of the statute.

The first question that arises is, whether the defendant has pleaded a good plea in bar? for if he has not, the plaintiff must have judgment, notwithstanding his replication may be bad, according to the well settled rule that judgment must be against the party who, in pleading, commits the first fault.

The -plea, no doubt, was intended as a plea of usury, as it was seeking to avoid, the payment of the note upon the ground of illegal interest.

Whatever view we may entertain in regard to the question of the lex loci', and while the law of the place of the contract interprets and construes it — the law of the place where it is put in suit — lex loci — determines all questions as to the manner in which ' the same may be enforced. The pleadings in form and substance must, of course, conform to the practice, in such cases, in our courts.

To avoid the payment of money demanded, upon the ground of usury, it must be specifically pleaded. The plea filed in this cause is fatally defective in several particulars.

The defendant fails to allege such facts as will show that it was intended by the parties that the contract was to be made payable in Tennessee, the law of which it was said to have violated. It is not enough to aver the mere fact that the note was written, signed and delivered in Tennessee.

The parties may have resided in Delta, Mississippi, and were only temporarily in Memphis, Tennessee, for the transaction of this or any other business. Or, one party may have been a resident of Mississippi, and the other of Tennessee. The note being payable generally, it is necessary to fully allege the intention of the parties as to the place of payment, as that is very material, as by it is to be determined the law of the contract. And enough must be alleged to show that the note was payable in Tennessee, if the defendant desires to place the contract under the law of that State. If the note had been payable at a particular place, parol evidence would not be admissible to show it payable elsewhere, or payable generally. By it being made payable generally, the parties may be presumed to have intended that the law of the place where it was made should govern. But this note Avas dated at Delta, Mississippi, and that may be said to be prima fade the place of payment, or, at least, to show the place where made. Neither of these facts, in themselves, can be said to be conclusive of the intention of the parties as to where the note was to be paid. The contrary has been adjudged. See Anderson v. Drake, 14, Johns. Rep., 114.

A party to a contract, general as to its payment, who seeks to show that it has a particular place for its payment, must aver that such a place was the intention of the parties where it should be paid.

Another fatal defect in the plea is its failure to allege a corrupt agreement, to take more interest than the law allows. This is a material averment. “ The corrupt agreement is the essence' of a usurious contract, which is nothing more than taking more interest than is allowed by law. It must be averred and proved to support the defense.” McFarland et al v. State Bank, 4 Ark., 55.

In Moody v. Hawkins, 25 Ark., 191, this court say: “The intention to take or reserve more than the legal rate of interest is an essential ingredient in all usurious contracts, and must always be averred in a plea of usury.”

For these failures in the plea, it is bad, and should not have been entertained by the court below. The replication would have been a good one if the plea had been perfect.

Judgment reversed, cause remanded, to be proceeded with in accordance with law.


text:
    Ford v. Ward.
    New tiuam. — This court will not reverse the decision of the circuit court refusing a new trial, when the only ground presented is the weight of evidence.
    Contract— When implied,. — Where a party accepts the beneficial results of another’s services, the law implies a previous request and a subsequent promise.
    Amendments. — Under the Code of Practice, the court may permit “amendments at any time in furtherance of justice,” and in the exercise of that discretion, this court will not interfere, on appeal, unless it has been grossly abused.

      Appeal from St. Francis Circuit Court.
    Hon. James M. Hanks, Circuit Judge.

      Garland $ Nash, for appellant.
    The plea 'of limitation was a meritorious defense, and it was error for the court below to refuse to receive it before the cause- - was submitted. Code of Practice, p. 61, secs. 156-56.

      ■ The court erred in not giving the second instruction asked by Ford, that is, “a past "consideration will not support a promise.” See 1 Parsons on Contracts, p. 81J5, et seq.; Williams v. Perkins, 21 Ark., 18.

    The damages are excessive, and the verdict must be set aside. 88 Ark., 215; 9 lb., 895; 19 lb., 284; 15 lb., 845; Opinion of Fairchild, Judge, in Patterson v. Thompson, 24 Ark., 53, et seq.

      Watkins § Rose, for appellee.
    Out of Ford’s assent to Ward continuing his services, and Ford’s accepting and retaining the beneficial results-of Ward’s services, the law implies a previous request and subsequent promise. 1 Parsons on Con., 892. The verdict is not contrary to the evidence, and if it was, on the testimony shown, the-court would not grant a new trial. See Rose’s Dig., p. 555?

      secs. 38 and 45, and Id. p. 49, secs. 41 a^d 16 Ark., 237-, 19 Id* 671; 13 Id., 895. As to excessive damages, see 83 Ark., 816. If they were, there may be a remittitur here. 9 Ark., 395.

   Bennett, J.

This was an action of assumpsit, commenced by attachment,, brought by the appellee against appellant, in the St. Francis circuit court. Declaration in the common counts, for services rendered as superintendent of plantation and attention to business of Ford, by Ward, and for money paid, goods furnished* etc.

Ford answered, denying the performance of services, the purchase of goods, etc., and averring that plaintiff took control of plantation without consent of defendant, and averring that plaintiff is indebted to defendant in a large sum, for rent and damages.

Bpon the trial of the cause, appellee obtained verdict, and a judgment for the sum of $3,308-^-, and for costs. Appellant filed motion for new trial, because the verdict was contrary to the law and the evidence; because the damages assessed by the jury are excessive; because the court erred in refusing to permit defendant to interpose the plea of the statute of limitations of three years; because the court erred in allowing the letter of William G. Ford to be read, without proof of handwriting; because the court erred in refusing to give the second and fourth instructions asked for by the defendant; which motion the court overruled, and the appellants appealed to this court.

In 1863 William Q-. Ford, then absent, was the owner of a plantation in St. Francis county, which was superintended by Rice, his agent, living on the place. Rice being pressed into the Confederate service, employed Weatherly to act in his place until Rice could return. Rice being killed shortly after this, and Weatherly being unable and unwilling, from its dangerous character, to continue in this matter, employed "Ward, the appellee in this case, to take charge of the plantation and property, to manage it for Ford, which he did from say April, in 1863, till the first of January, 1865, at which time the plantation was turned over to Woodward, a duly authorized agent of Ford.

The first ground of objection, that the verdict was contrary to the evidence, we deem not well taken. Without recapitulating the evidence, it may suffice to say that the above statement of facts is well supported by the evidence; and also that on account of Ford’s absence, and the difficulty of communicating with him, (he being within the Federal lines), he was not consulted with, though efforts were made to that end, about Ward’s taking charge of his plantation; but Ford was aware of it some time afterwards, and did not dissent from it; but, on the ' contrary, suffered it to continue until he finally sent another person. In fact, upon an examination of the whole testimony, we are not even prepared to say that the. weight of the evidence was not with the appellee ; but of this we need express no opinion; it was for the jury to say. In the exercise of their discretion they have said, and we will not disturb their verdict.

This court has repeatedly held that it will not reverse the decision of the circuit court refusing a new trial, when the only ground presented is the mere weight of evidence. When there is a conflict of evidence, the jury being the exclusive judges of the facts, their verdict will not be disturbed. Drennen v. Brown, 10 Ark., 138; Sparks v. Beaver, 11 id., 630; State Bank v. McGuire, 14 id., 530; Brooks v. Berry, 23 id., 32.

It is next contended that the motion for a new trial should have been sustained, because the verdict was contrary to law. While reviewing this part of the case, we may as well consider the objection made to the refusal of the court to give to the jury certain instructions asked for by Ford.

The second instruction, which was refused, is as follows: “A past consideration will not support a promise.”

The defense of Ford rests solely upon the ground that he never procured or consented to Ward’s taking charge and control of the plantation.

It is true that every contract is founded upon mutual agreements of the parties, and that agreement may either he formally stated in words or committed to writing, or it may be a legal inference, drawn from the circumstances of the case, in •order to explain the situation, conduct and relations of the parties. This being an implied contract, the law will only supply that which, although not stated, must be presumed to have been the agreement intended by the parties.

Judge StoRY, in his work on Contracts, page 5, section 12, says: “ The law presumes such agreements to have been made as justice and reason would dictate, and assists the parties to any transaction in an honest explanation of it. But a promise, will not be implied, contravening the express declarations of the party charged, made at the time of the supposed agreement, unless such declarations be at variance with some legal duty, and then the law will imply a promise to perform that duty. Whenever a party avails himself of the benefit of services done for him, although without his express authority or request, the law supplies the formal words of contract, and presumes him to have promised an adequate compensation.”

Thus it will be seen that previous consent is not necessary to make all contracts obligatory. Assent, under certain circumstances, is sufficient. Did Ford ever assent to Ward’s ■taking charge and control of his plantation?

It fully appears that when a knowledge of what had been done by W ard came to Ford, he did not- repudiate him, but allowed him to continue, thereby assenting to his controlling and managing his property, until such a time as suited his convenience to make other arrangements.

Ford also wrote Ward, November 14, 1864, in which he says: “A long time has elapsed since I had a line from you, but trust you are managing to the best advantage for my interest.” In the same letter Ford says: “To Mr. Woodward I have given full power of attorney,” and “ you will do me the favor to cooperate with him in such measures as he may find it desirable-to adopt.”

Furthermore, he (Ford,) by his agent (Woodward,) accepted and retained, the beneficial results of Ward’s services; and in such cases the law implies both a previous request and a subsequent promise.

In this view it is therefore immaterial whether Ford, after suit brought, promised to pay Ward for his services or not. The case was sufficient without it, and if he did promise, there was a sufficient consideration implied. The instruction if good law was abstract, and had no relation to the case.

The fourth instruction asked for and refused was: “If the-jury believe that after Ward had taken charge of Ford’s property, etc., that Ford promised to pay him for doing so, such promise will not be sufficient to support this action unless supported by some other competent testimony.”

The object of the instruction is very vague and indefinite. If it was designed that the court should instruct the jury that more than one witness is necessary in order to find a given fact, it was properly refused. The testimony of one witness, though opposed by a score of others who are considered by the jury incredible, is sufficient and binding on the jury, and their verdict must accord with it. The credibility of testimony is a matter within the cognizance of the jury. It is for them to believe or disbelieve a witness, or to believe or disbelieve a part or any portion of his evidence. This necessarily results from their right and duty to weigh the testimony. It is hot necessary that a witness be impeached to be disbelieved. The jury may think that he is mistaken, or they may doubt his statement, though his general character for truth and veracity be not attacked. “In general, jurors are the unfettered, illimitable and final judges, whenever a question of credibility arises-in respect to one or more witnesses, whether the latter be concurring or conflicting.” Winchell v. Latham. 6 Cowan, 682; Ackley v. Kellogg, 8 Cowan, 223; Fowler v. The Ætna Fire Insurance Company of New York, 7 Wend. 270.

The third ground for a new trial is, that the damages assessed by the jury are excessive.

Great difficulty has always existed in determining to what degree the damages must he deemed excessive, in order to call for the exercise of the correcting power of a court. This is a question not susceptible of any fixed and definite rule. U nless the verdict is so extravagant as to excite a suspicion that the jury have been controlled by improper influences, the court will not be justified in interfering. On page 1136, 3 Graham & Waterman, on New Trials, we find the following words: “ It -should be borne in mind that, although when the plaintiff complains of no injury to his person or his feelings; when no malice is shown; when no right is involved beyond a mere question of property; when there is a clear standard for the measure of damages, and no difficulty in applying it, the measure of damages is a question of law, and is necessarily under the control of the court; yet that, in those actions in which ■damages can be gauged by no fixed standard, but necessarily vest in the sound discretion of the jury, the court interferes with the verdict on the mere ground of excessive damages with reluctance, and never, except in a clear case.”

If the verdict does substantial justice a new trial will not be granted.

In McClintock et al. v. Lary et al., 23 Ark. 215, it was held: “When the question of damages is fairly left to the jury this court will not set aside the verdict for excessive damages unless there be good ground shown.”

The case at bar was based upon an account current, calling for a balance of $4,217 30. The evidence clearly sustained the bill in most of its items. The verdict was for $3,308 40. If the damages have been assessed neither at the highest nor the lowest estimate of the witnesses, and there is nothing to indicate that the jury acted under the influence of passion or bias, ■a new trial will not be granted. Graham & Waterman, vol. 3, 1161.

In the case at bar we see no error in overruling the motion for a new trial, on the ground of excessive damages.

Another reason assigned why a new trial should be granted is, that the court below refused to allow appellant to amend his answer by inserting the defense of the statute of limitation of three years. As shown by the bill of exceptions, this defense was only sought to be interposed after the jury had been impaneled, to try the cause, and some evidence introduced. As a question of practice we think it was entirely within the discretion of the court, and we will not be warranted in saying that this discretion has been abused, unless a right has been invaded.

Section 155, page 61, Code of Practice, says: “ The court may at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceedings to the facts proved. The court may likewise, in its discretion, allow an answer or reply to be made after the time limited by this Code, or by an order to enlarge such time.”

The section above quoted is in wording the same as section 161, of the Kentucky Code, and it was held by the Supreme Court of that State in the case of Barbour v. Moss, adm’r., M. S. opinion, July, 1857: “When the defendant must have known the facts contained in an amended answer, which he proposes to file, at the time of the filing of his original answer, it is no abuse of discretion to refuse leave to file it.” . In the lawful exercise of that discretion the circuit court acted judicially in refusing to allow the pleadings to be filed; and that discretion can not be controlled by this court on appeal, unless it has been grossly abused, which it has not been in this case.

The bill of exceptions does not show that there was any objection made to the introduction of the Ford letter upon the trial, for want of authentication. This objection should have been made when it was offered in evidence, and if the objection was overruled, exceptions saved at the time. This not having been done, it is to be presumed that whatever objection, there may have been to the letter, as evidence, was waived..

Having disposed of all the causes assigned in the motion for a uew trial, there remains but one other point in the case. Our attention is called to it in the briefs of the attorneys for the appellants. By the bill of exceptions it is shown that in passing upon the motion for a new trial, the judge, who presided below, referring to the proposition made in the motion that the verdict was contrary to the testimony, remarked that “he did not know whether it was or not, that he could not hear the testimony.”

It is unquestionably the duty of a judge, sitting at nisiprius, to hear and carefully note all the proceedings of his court, while in session; yet in this case there could be no very great harm done, as the remark only related to the hearing of the testimony.

The bill of exceptions contains all of the evidence given in the cause, as it expressly states, and this court having that evidence before us, and seeing that it fully sustains the verdict, it will not be disturbed merely because some point of it did not reach the ear of the judge. The remark was extrajudicial, to say the least.

The judgment must be affirmed.


author: Gebgs, J.

text:
    Kirby v. Vantrece, et al.
    Dower — Dueler the former territorial statute, to sustain tlie right of dower, the husband must have had a strict legal title — but under the late statute, it is only necessary that he be seized of an estate of inheritance.

      To what estate attaehes. — A valid purchase and continuous possession by a party, for the space of eleven years or more, without deed, will be deemed quite sufficient to perfect his legal title; and though his legal title be not perfected by prescription or limitation, yet if he have so perfect an equity as to entitle him to a legal title in fee, whenever demanded, he would, in the language of the statute, be “seized of an estate of inheritance,” to which the right of dower would attach upon his death.

      Appeal from Ilot Spring Circuit Court.

    Hon. John Whytock, Circuit Judge.

      Watkins Rose, for appellant.
    Appellant was entitled to dower — her husband bought the land in 1857, and died in possession of same. The proceeds which he used to pay for the lands belonged to him. Walker's A. M. Law, 838; 8 Erie f J. 81; 1 Har. £ G. 876; 1 Comst. 473; 8 Page 137; 3 Barb. Chy. 169; 15 Ark. 180. Kirby had an “equitable fee,” and in such a widow is endowable. Sec. 8 chap. 11, New Dig.; Adams’ Eq. llfi; 1 Jones N. C. 430.

      Gallagher, Newton f Hempstead, for appellee.
    A widow is not entitled to dower in the equitable estate of her' husband in lands. Blakely v. Furgeson, 30 Ark. 553-53, and cases there cited. Thorn v. Ingram, 35 Ark. 53. The purchase by William P. Kirby, created a resulting trust in favor of Abernatha Kirby. Hill on Trustees, p. 91; 4 Kent Com.p. 305; Tiffany But’s Trusts $ Trustees, p. 30, et seq.; Ferguson v. Williamson, 80_ Ark. 393. And such trust is not within the statute of frauds. McGuire v. Ramsey, 9 Ark. 518. There was not such a reduction to possession of the wife’s interest, in the Stribling estate, as to give Kirby a right thereto. Moss v. Ashbrook, SO Ark. 1S8.

   Gebgs, J.

This suit, commenced by an application, on the part of the appellant, to the probate court of Hot Spring county, for dower in three hundred and seventy and 7-100 acres of land, of which she alleged her late husband, William P. Kirby, died seized and possessed.

Some of the defendants disputed her right of dower in the HE. HE. of section 3, township 5, south of range 18 west, containing 44 55-100 acres, part of the lands claimed by her.

It appears that William P. Kirby first married Abernatha, the daughter of Robert Stribling, by whom he had one child, the defendant, James R. Kirby; that said Stribling died, seized and possessed of real estate and slave property worth over $12,000, of which, the last named 44 55-100 acres was a part; that at a sale of the property of said Stribling, made under a decree of court, January 1,1857, William P. Kirby bid off this piece of land at $100, and in payment thereof gave a receipt for that amount, of what was due his wife, Abernatha, as an heir. He received no deed for the land, but then took it into possession and held it up to May 22, 1869, the date of his death. After he went into possession of this land Abernatha died, and he married, the appellant, by whom he had other children, and with whom he cohabited up to his death.

There was some evidence tending to show that William P. Kirby, in his lifetime, intended this piece of land for the sole use of James R.; on the other hand, there was evidence tending to show that he wanted his widow to reside on this land, and there raise his children. This, however is not material.

This cause, by consent, was transferred to and heard in the chancery court of that county, and the appellant’s bill, as -to the said 44^^ acres of land, was dismissed, and a decree rendered against her for costs, from which she appealed to this court.

In the case of Blakeney et al v. Furguson et al, 20 Ark., 553, this court held that Mrs. Furguson was not entitled to dower in certain lands, of which her husband died possessed, which lands had been purchased at tax sale, and no deed ever made to him. But this ruling, and some other cases, was under territorial statute, which provided that a widow should be endowed where her “husband was seized and possessed of lands during coverture, either by virtue of a deed, patent, entry, warrant or survey, and to which she has not relinquished her right,” etc., while the statute, in force during the transaction now under consideration, provides that “the widow shall be endowed of the third part of all the lands whereof the husband was seized of an estate of inheritance at any time during the marriage,”, etc.

Under the former statute, to sustain the right of dower, the husband must have had a strict legal title; under the latter statute, it is only necessary that he be seized of an estate of inheritance — a distinction that the chancellor, in the haste of circuit practice, seems to have overlooked.

It can readily be seen, by reference to Vol. 1 Scribner on Dower, 402, that, in a large proportion of the States, a widow is entitled to dower in equitable estates. Rowton v. Rowton, 1 Henning & Munford, 91; Thompson v. Thompson; 1 Jones, N. C. 430.

But to assume that a perfect equity, alone, is not sufficient to pass a right of dower, would not be sufficient to defeat this appellant. Her husband, as appears by the record, went into possession under a valid purchase, and held continuous possession for over eleven years, which we deem quite sufficient to perfect his legal title, and her right to dower certainly could not be made to depend upon the manner in which her husband acquired legal title. 2 Scribner on Dower, 61-2.

Had this suit sprung up before Kirby’s right, by prescription or limitation, ripened into a full legal title, he had so perfect an equity as entitled him to a legal title in fee, whenever demanded; and thus, being for years the actual owner, and possessed of these lands, certainly, in the language of the statute, he was “seized of an estate of inheritance,” to which the right of dower attached.

We are, therefore, of opinion that the chancery court below erred in dismissing the appellant’s petition and decreeing costs against her; and, for this error, the decree of that court is reversed, and this cause remanded, with directions to, sustain said petition, and to proceed to have dower assigned said appellant, according to law and not inconsistent with this opinion.


author: HARRISON, J.

text:
    Sawin & Sickles v. Izard Bros. & Prewitt.

      Practice — When finding reversed. — The finding of the courtJ>elow will not be disturbed, unless it is so obviously against the weight of evidence aa to be palpably unjust.

      Appeal from St. Francis Circuit Court.

    Hon. ¥m. Story, Circuit Judge.

      Brown Sp Lyles, for appellant.

      Watkins Bose, for appellees.
   HARRISON, J.

Izard Bros. & Prewitt brought five suits, on due bills, against Sawin & Sickles, and recovered judgment on each. The defendants appealed to the circuit court, where the suits were consolidated, and the plaintiffs again recovered judgment. The defendants then appealed to this court. Ho questions of law were reserved at the trial, and the execution of the due bills was the only point in controversy. It is unnecessary to set out the evidence; to our mind it is conclusive, and if less satisfactory, or even doubtful, the finding of the court would not ■be disturbed, unless it was so obviously against the weight of ■evidence as to be palpably unjust.

The defendants further claimed a new trial, because the ■court, whilst sitting as a jury, after the plaintiffs’ witnesses had been examined, and the defendant, Sawin, had testified for defendants, but before Mitchell, another .of their witnesses, sworn at the same time with Sawin, was called, remarked that the court was satisfied that the due bills were executed by the 'defendants.

It does not appear that the remark was excepted to at the time it was made, and the witness was not introduced or ■offered. But we are unable to conceive how such a remark ■could have prejudiced the defendants, or to regard the objection otherwise than frivolous.

The judgment is affirmed.