text:
    Hodgkin vs. Holland, Collector.
    1. Collector of Revenue : Sis bond, measure of.

    The bond of a collector of taxes must be for double the aggregate amount of taxes on the tax books, exclusive of the probable liquor and. other licenses that may be issued by the county clerk.
    2. Same : Affidavit of sureties, requisites.

    The affidavit of the sureties on a collector’s bond need not give a description of their property, but only its amount and value. That the-affidavits of some of the sureties are not made until after the bond is approved by the county judge and filed in the clerk’s office, is no reason that the circuit court should not approve it.
    APPEAL from Chicot Circuit Court.
    Hon. T. E. Sorrells, Circuit Judge.

      Valentine, for appellant.

      Rose, contra.

   Harrison, J.

E. G-. Hodgkin, a citizen and taxpayer of Chicot county, at the January term of the circuit court of said county, filed objections to the sufficiency of the bond of Samuel H. Holland, as collector of taxes, offered for approval.

The bond, which had been approved by the county judge, was in the sum of $85,000 ; and the aggregate value of the property, real and personal, of the sureties, as sworn to by them, was $115,000.

The objections were:

Eirst — That the penalty of the bond was too small.

Second — That the affidavits of E. P. Osterhout, and sir other named sureties, did not sufficiently describe their-property.

Third — That the affidavit of James F. Robinson, another surety, was made by him after approval by tbe county judge; and the affidavits of three others, H. W. Graves, James Bi'own and W. E. Graves, after the bond had been filed.

Fourth — That L. H. Springer, Benjamin H. Smith and James Kelly were sureties in said Holland’s bond, as sheriff.

And there were also other objections, but which, as they only related to and called in question the amount and value of the property of certain sureties, need not be stated.

The objections were not sworn to.

The court, after hearing evidence, approved the bond.

Hodgkin took a bill of exceptions, and appealed.

The statute requires the bond of the collector to be in double the aggregate amount of all the taxes to be collected.

The proof showed the amount of all taxes on the tax book to be $40,273.

In this amount was not included peddlers’, retail liquor dealers’, ferry and other licenses, with which when issued, the collector would be charged.

It is insisted by the appellant that these should have been added.

It is made the duty of the county clerk, from time to time, to issue blank licenses and deliver them to the collector, aud to charge him with them; and the collector is required, to make settlement with the county court, at every term, concerning them, and is to be credited with all returned by him.

It is apparent that, at the time he gives the bond, the amount with which he shall be charged during the year can not be ascertained. It was proven that the amount received for licenses the preceding year was $7,140, and this, it is contended, should have been taken as an estimate for the current year. But the statute says nothing about an estimate — it speaks of a certain and definite amount readily ascertainable; and it is clear to our mind it is the aggregate amount of taxes on the tax book that is meant. Idem est non esse et non apparere. The penalty of the bond was therefore large enough.

The act of March 1, 1875, which devolves upon the circuit court the duty of approving the bonds of county and township officers, does not require a schedule of the property of the surety, or any more particular description of it in his affidavit, than a statement of the amount of his real estate and its value, and the amount of his personal property and its value.

The affidavits, to which exceptions were taken, were substantially alike. That of E. J. Osterhout was as follows :

“ State oe Arkansas, 1

County of Chicot, j

“ E. J. Osterhout says he is a resident of Chicot county, Arkansas; that he is worth $8,000 in persona! property, situate in said county, subject to execution, over and above all his debts, liabilities and exemptions under existing laws, and that said personal property consists of a stock of merchandise worth $3,000.

E. J. Osterhout.

“ Sworn to before me,' this twenty-ninth day of November, 1878.

“ Charles Carter, J. P.”

The affidavits were sufficient.

Nor does it matter that some of them were made after the approval of the bond by the county judge, or some after it was filed, which latter fact, however, was not proven. The approval by the county judge was provisional only, and the proceeding in the circuit court was without respect to it; and we can not conceive what probable, or possible, prejudice could be caused by the affidavits being made after the county judge’s approval, or the filing in the clerk’s office.

¥e said in Hyner v. Dickinson, 33 Ark., 776, that it was no ground for rejecting the bond, if otherwise shown to be sufficient, that the affidavits were not in accordance with the statute, but such as met its requirement should be directed to be filed; and, to avoid misapprehension, we remark, they should be made before the approval of the bond; and that unless affidavits as the law requires are made, the court acquires no jurisdiction of the matter. Sec. 6, Act of March 1, 1875.

The fact that some of the sureties were also sureties in Holland’s bond as sheriff, did not affect their competency, though tending to lessen the security, which was no doubt considered by the court.

There appears to have been no want of evidence to sustain the action of the court in approving the bond. Evidence aliunde the affidavits as to the sufficiency of the bond, as well as in support of the objections, was heard.

Affirmed.


source: Caselaw Access Project

author: Harrison, J.

license: Public Domain

text:
    Hodgkin vs. Holland, Sheriff.
    1. Sheriff’s Bone: Names of sureties in.

    It is not necessary that the names of the sureties appear in the body of a sheriff’s bond. It is sufficient in any contract, if the intent of the party to be bound clearly appears.

      APPEAL from Chicot Circuit Court.
    lion. T. E. Sorrells, Circuit Judge.
    Valentine, for appellant.

      Rose, contra.

   Harrison, J.

This appeal is from an order of the court below approving the bond of Samuel J. Holland as sheriff, against objections filed by appellant.

The only objection in this case, not made in the case of Hodgkin v. Holland, collector, etc., ante, was, that the names of the sureties were not inserted in the body of the bond.

It was not necessary to the validity of the bond that the names of the sureties should be mentioned in the body of it-

2 Par. on Con., 512; Dobson v. Keys, Cro. Jac., 261; Bruce v. Colgan, 2 Litt., 287; Blakey v. Blakey, 2 Dana, 464 ; Martin v. Dortch, 1 Stew., 479; Bartley v. Yates, 2 Hen. & M., 398; Beale v. Wilson, 4 Munf., 380.

It is sufficient in any contract, if the intent of the party to be bound clearly appears.

Affirmed.


author: Eakin, J.

text:
    Yarborough vs. Ward.
    1. Administrator: When personally liable on contract. Power of probate court to order contracts by.

    When an intestate has hired land by a contract, complete and binding at the time of his death, it is the duty of his administrator to take possession of the term as assets of his estate; and he will not be personally liable on the contract, whether the probate court orders him or not, to proceed with the cultivation of the land, and fulfillment of the contract. But if the contract be incomplete, and not binding at the intestate’s death, and bo completed by his administrator, either of his own will or by order of the probate court, the claim will be against the administrator personally, and not against the estate.
    An administrator has no power to rent land for the ben efit of an estate, nor the probate court the power to order it.
    2. Samb : In what character to sue and he sued. His power to contract. When claims and liabilities of an estate are fixed at the time of an intestate’s death, suits in regard to them must be brought by and against the personal representative, in his character as such. But as to contracts made by the personal representative in the course of administration, they are personal, though for the benefit of the estate, and he may sue and must he sued in his individual capacity, whether he has contracted as administrator or otherwise. If the fruit of the suit will be assets in the plaintiff’s hands, ho may sue in his individual or representative character at his option.
    If the representative binds himself by a contract concerning the estate, or for its benefit, he may be held personally liable, and must look to the probate court for indemnity in the way of allowances for expenses of administration. He can not, by contracting as administrator, etc., create new claims against the estate, not arising from some act, or founded on some liability of the deceased at the time of his death.
    3. Administrator. Probate Court : Their duty to pay for personal services for estate.

    Claims for necessary or useful personal services rendered to an estate at the instance of an administrator, and not with’n his personal duties, maybe presented to the probate court, not for allowance and classification, but for an order on the administrator to pay them as expenses of administration. It is the duty of the administrator to pay such claims, and if he does so, he will be allowed a credit on settlement. Should he refuse, the probate court has power to compel him. (The case of Turner v. Tapscott, 30' Ark., 312, explained.)
    APPEAL from Woodruff' Circuit Court.
    Hon. J. N. Cypbrt, Circuit Judge.
    Goody, for appellant.

      B. D. Turner, contra.

   Eakin, J.

This case was begun before a justice of the peace, without formal pleadings, by Yarborough against "Ward upon an account for the rent .of land; in which he recovered $217 and costs. "Ward appealed to the circuit court, where, upon a trial de novo, there was a verdict and judgment for Ward. Yarborough appealed to this court.

The evidence, brought up by the bill of exceptions, discloses : that Yarborough held some lands as administrator of his brother, which he had agreed to rent, for the year 1875, to one Deberry. He says that the contract was not completed, but that the terms of it had been understood between them, to-wit: that Deberry was to pay $217, and make some clearing, not less than ten nor more than fifteen acres, and to fence the same, for which he wras to be allowed ten dollars an acre. Deberry was then on the place, and his children had already done part of the clearing. He shortly afterwards died, and, as plaintiff says, Ward, as his administrator, made the contract on the same terms, and went on to cany it out for the benefit of the estate. The crops made on the lands^were sold for the benefit of the estate, and Ward cleared fifteen acres which were fenced, although not in exact accordance with the agreement. Ward, in his testimony, disclaimed any contract on his part, personally, to rent, but contends that he took possession of the ground and adopted the lease as part of the assets of the estate, and worked it, as administrator only, by order of the probate court; Yarborough, on his part, contending that the contract of renting was a new one by Ward, and that he was personally liable in this action.

If the contract of letting had been complete and binding on Deberry in his lifetime, it would properly be a claim against his estate; and his administrator would be charged with the duty of taking possession of the term as a part of the assets. He would not be personally liable on the intestate’s agreement, whether he had been ordered by the probate court, or not, to proceed with the cultivation of the land and the fulfillment of the contract. He would be personally liable for all new contracts for labor, or otherwise incurred in his management of the property. The effect of the order would be only to entitle him to credits therefor in settlement, as expenses of administration.

Upon the other hand, if the contract with the intestate had been only in contemplation, and never completed; and would have no binding efficacy as it existed at the time of his death; and if it had been completed by the administrator, whether of his own will, and on his own judgment, or by order of the probate court, it would not have been a claim against the estate, but against the administrator, personally. The administrator had no power to rent land for the benefit of the estate, nor had the probate court the power to order it. The question turned upon a matter of fact, as to the time of the contract, and the parties between whom it was made, which matter it was the province of the jury to determine.

The court refused to instruct the jury as follows:

“If the jury find that plaintiff made a contract with defendant to rent land to him, and put defendant in possession, and that he enjoyed the use of the same, then they must find for the plaintiff, the amount stipu'ated to be given, and it is immaterial * * * the contract was made with plaintiff as administrator.”

Eor the defendant, the court instructed, on this point, as follows: “Before the jury can find for the plaintiff they must find, from a preponderance of the evidence, that Ward personally rented the land, on his own individual liability, and not as an administrator.”

Also, as to the character in which plaintiff should sue, as follows: “If tlie juryfind that Yarborough rented the land, as administrator of his brother’s estate, then he can not recover in this action in his own name, personally, and they will find for the defendant.”

The plaintiff saved exceptions to this refusal and instructions.

The true rule governing these points is obvious. The claims and liabilities of an estate are fixed at the time of the death. With regard to these, suits must be brought by and against the personal representatives in their character as such. It is only as they represent the deceased and the interest of his estate that they, in such cases, have any connection with the suits. With regard to contracts made by the personal representatives themselves, in the course of administration, they are personal, although for the benefit of the estate. The representative becomes the contracting party. He may sue, and must be sued in his individual capacity, whether he has contracted as administrator, or otherwise. If the fruit of the suit, will be assets in the plaintiff’s hands, he may sue as administrator or executor, or, at his option, in his individual capacity. If the representative has bound himself by a contract, concerning the estate, or for its benefit, he may be held personally liable, and must look to the probate court for indemnity, in the wfay of allowances for expenses of administration. He can not, by contracting as administrator, etc., create newr claims against the estate, not arising from some act, or founded on some liability of the deceased at the time of his death.

Although the jury may* have found that the plaintiff held the land as administrator of his brother, and, as such, let it to Ward, he could nevertheless recover rents in his own name ; and if they had in fact found that the effective contract of renting was made with Ward, and not with the intestate whilst alive, Ward would he liable in this action.

These principles result from our line of decisions upon the statutes regulating administrations. (Underwood v. Milligan, administrator, 10 Ark., 254; Bomford v. Grimes, administrator, 17 Ark., 567; Tiner, administrator, v. Christian, administrator, 27 Ark., 306).

The case of Bomford v. Grimes (supra) was an application by a physician for allowance against an estate, for medical services rendered the family and slaves of deceased after his death. Chief Justice English remarked, in delivering the opinion, that: “It is manifest that our statute of administration provides for the allowance and classification of no claims or demands against the estate of a deceased person (other than funeral expenses) but such as arise upon contract or liabilities, made or incurred by him, in some way during his lifetime.” He further said that whilst it would be the duty of the probate court to allow the administrator, in his settlements, for payments for such services as were dictated by humanity and a due regard to the preservation of the property; yet as between administrator and physician it would be a personal contract. An administrator has no right to make a contract for a dead man.

This doctrine received some apparent modification, but real extension and further development, in the case of Turner v. Tapscott, 30 Ark., 312, which was an action by an administrator de bonis non against an attorney, for money collected by him on notes belonging to the estate. It was held that he should be allowed, as a set-off, proper attorney’s fees for services rendered the estate. This might seem to put the claims for services upon the footing of claims against the estate, but that position was not necessary to sustain the decision, and the court, in that case, cited the former cases (supra) as harmonizing with the view then taken. Evidently the contract for attorney’s services had been made with the administrator, and the contract for compensation being supposed simultaneous, the right of set-off was more in the nature of a counter claim arising out of the same transactions, and might well be allowed whether the contract for collection had been made with the administrator or the intestate. It wa3 not necessary to put the claim for services on the footing of claims against the estate, or to hold that the attorney might have sued the estate, through the legal representative, in the same manner as if the contract had been made with the intestate in his lifetime.

The court in that case, nevertheless, prescribed a wholesome rule, and recognized an equitable practice for the government of administrators' and executors, and the protection of those who deal with them. Mr. Justice Walker, delivering the opinion, distinguished between services which should be charged against an estate as costs of administration and such as render an administrator liable. The former are such as are necessary or useful to the estate, but which do not come within the ordinary scope of the administrator’s personal duties — the latter, such as the administrator should do in person, or which are unauthorized and unnecessary. With regard to the former, the court sanctions by implication, the practice of presenting the claim to the probate court, not for allowance and classification, but for the purpose of obtaining an order on the administrator to pay the same as expenses of administration, leaving only the surplus of assets to go to the claims properly allowed against the estate. It is certainly the duty of the administrator to pay such claims, and if he does so he will be allowed a credit on settlement. Should he refuse, it is certainly within the scope of the general powers of the probate court, in its control over the conduct of the administrator, to order him to do so upon proper application in the case, and to enforce its order. But it does not follow, nor in the face of the former authorities, which he approves, can we suppose the learned justice meant to say that the administrator could not be sued at law, on his legal obligation resulting from his power to contract. The remedy of the party may, in this case as in many others, be cumulative; and when, regarding the latter class of cases, he speaks of them as such as render the administrator liable, he must be understood to mean simply without recourse upon the assets for indemnity, and not that the administrator may not be sued upon a personal contract made by express or implied authority from the probate court.

Harmonizing this opinion with the former expressions of this court, we have developed, a plain, intelligible and rational system. Except for funeral expenses, no debts can be created against an estate after death. They must be then existing, or arise out of obligations incurred by the deceased whilst alive. Only such can be presented for allowance, classification, and payment, in statutory order, out of the assets found in the hands of the representative after settlement.

Save with regard to funeral expenses, no provision is made for the classification and settlement of demands arising in the course of administration. Those who render services, or furnish material useful to the estate, stand upon the common law regulating contracts, and may sue the person with whom the contract is made; and must sue him, if at all, in liis individual capacity. There could be no execution de bonis testatoris, nor could the judgment be classified in the probate court, as in case of judgments in suits pending against the intestate at his death, or brought against the administrator for causes of action accruing, or originating, in his lifetime. Whether the administrator may pay voluntarily or be coerced by suit, the probate court may allow him the payment out of the assets, or not, as the contracts have been authorized or necessary, or otherwise. There is no hardship in this. The administrator knows what the assets are, and owes it to himself, as well as strangers to the estate, not to incur liabilities beyond its means. If, upon the other hand, there be assets, and the administrator be insolvent, or the collection of the debt out of him be ^difficult, this court has recognized the power, and sanctioned the practice, of the probate court, in ordering the administrator to pay out of the assets, such expenses of administration as it may, on proper application, approve.

The instructions were upon a wrong theory. The plaintiff is entitled to have his case-tried by a jury upon right principles, and we can not anticipate the verdict.

Reverse and remand for a new trial.


text:
    Miller vs. Gibbons, Adm’r.
    1. Swamp Lands : Pre-emption claimant without right, can not question defendant’s entry.

    Unless the plaintiff for pre-emption shows a superior right in himself to make the pre-emption, it does not concern him whether the patent to the defendant was rightfully issued or not.

      2. Same : Pre-emption claimants. Contests between. Decisions of land agents token conclusive.

    The decisions of the. state bind agents in contests for rights of entry, are conclusive upon the .courts, save in cases of fraud or mistake.
    3. Supreme Court : Finding of chancellor not conclusive in.

    In all equity cases which are heard upon written documents, and which come as fully before the supreme court as before the chancellor, the supreme court will inquire into the correctness of his finding of the facts.
    4. Swamp Lands : Widow’s right on husband’s improvements on.

    A widow in possession of improvements of her husband on swamp lands, subject to pre-emption, mayperfect his inchoate title, but, subject to her dower, she will be. held in equity as trustee of the fee. for the benefit of his estate.
    APPEAL from Garland Circuit Court in Chancery.
    Hon. J. M. Smith, Circuit Judge.
    Harrell, and Henderson Caruth, for appellant.
    McCalhem, contra.

   Eakin, J.

This suit involves a contest between claimants to pre-empt certain swamp and overflowed lauds of the state.

About the year 1845, John Blakely owned a tract of land in Montgomery county (now Garland), just south of, and adjoining, the tract in question, which was vacant land of the United States. His residence was very near the north line of his tract, and for his convenience he extended his improvements over the line, taking in three or four acres of the vacant land, upon which he built a stable, crib, etc., and used the land for cultivation. He had no intention to pre-empt, having already as much land as he cared to pay taxes upon. He died in 1854. His estate seems to have been solvent. Letters of administration were granted on the eleventh of April of that year. On the seventh day of January, 1860, the final settlement and account current of the administrator was approved by the probate court, and he was ordered to turn over the assets in his hands to the guardian of the minor heirs of Blakely. This he did; filed his receipt, and was discharged.

Upon the death of John Blakely, dower was allotted, or assigned, to his widow, Olarinda. No order of court, or instrument of writing, is shown to indicate the extent of her dower, but it appears from the pleadings, and from depositions, that it consisted of about forty acres, including the residence and a portion of the lands, if not all that was arable.

The inference, from the vague and unsatisfactory testimony of witnesses on this point, is, that she took whatever interest her husband had in those vacant lands as a part of her dpw-er. This was the natural result, indeed, of assigning to her the residence, from which all things necessary to-its enjoyment would be implied. The stables, crib and opening were household conveniences. The administrator and heirs of Blakely never set up any claim to the improvements on the vacant land.. As to them, it was abandoned.

From the death of her husband, in 1854, until her own death, in 1861, there is no evidence that she increased the improvements, or did any -work to keep them up or add to their value. It seems that on several occasions she endeavored, through friends, to enter the vacant land under the pre-emption laws of the state, relying on the old extension of her husband’s impi-ovements over the line, and her possession of the lands contiguous under her dower. She was unable to do so, because the lands were unconfirmed. In 1861 she died also.

Defendant Gibbons, was appointed her administrator, and assumed control of the lands which she had occupied {dower. He did nothing whatever upon the vacant land. It was apparently abandoned, and up to the year 1865 had been allowed to go to wreck. The buildings rotted away, and the clearing grew up in weeds and bushes. At this time one Golden went upon the vacant tract, consisting of three forty-acre subdivisions, and commenced an improvement. Complainant Miller, during the same year, bought from him the improvements which he had begun, took possession, and continued enlarging them from year to year, with the declared intention of making a pre-emption under the swamp land acts of the state, as soon as he might be able to do so. He continued in possession until the commencement of this suit. His improvements had reached the extent of a very pretty farm, variously estimated at from thirty-five to seventy-five acres. During all this time, until his attempted purchase from the state, Gibbons stood aloof, and made no attempt to stop him; or to warn him against interference. Whilst Miller was in possession of, and cultivating his improvement, he rented the Blakely farm, also, from Gibbons, for the year 1867, and perhaps continued to hold it longer, as lessee. The evidence on this point is not clear. •

The lands were duly confirmed to the state in 1872.

Within sixty days afterwards, on the twenty-eighth day of July, 1872, Miller filed in the office of commissioner of state lands, his declaratory statement, under oath, to the effect that he had, on or about the first day of March, 1866, commenced an improvement on the lands in question, describing them as the northwest of southeast quarter, and the north half of southwest quarter, and the southeast quarter of southeast quarter of section thirty-four, in town-one south, of range twelve west — that he had filed his application to pre-empt the same, in said office, on the thirteenth day of August, 1869 — that the improvements on said land consisted of a barn and corn-crib, and between fifty and seventy-five acres under fence and in cultivationT and that he made this application for the purpose of availing himself of the benefit of the pre-emption laws of the state, and to procure a deed to the land; and that he had not theretofore availed himself of the benefit of said preemption laws. This application was supported by the affidavits of P. Thornton and John D. Thornton, “citizens of said county, to me well known to be men of credibility,”' as recited in the affidavit, who swore that they knew the-facts, as set forth in the foregoing affidavit of Miller, of their.own personal knowledge to be true. The certificates of these affidavits were signed only by the words “Deputy Commissioner of State Lands,” with a blank above for file-name; but it is well proved that the oaths were actually taken before the deputy commissioner, and that, by mistake and inadvertence, he neglected to write bis name in the blank left for that purpose. The lands were paid for by bonds $120, and fees $5.50. Having filed these papers,. Miller left town, expecting to return in October, and find his patent ready.

On the second day of August, 1872, defendant Robert ”W. Gibbons, describing himself as “ administrator of C. Blakely’s estate,” made an affidavit before the clerk of' the circuit coui’t of Montgomery county, to the effect: that about the first day of January, 1850, he commenced an improvement on the north half of southwest quarter and northwest quarter of southeast quarter of section thirty-four, in township one south, range twenty-one west, and that, on the eleventh day of January, 1870, he had filed in the commissioner’s office his application for pre eruption;. that the improvements on said land consisted of about thirty acres under fence and in cultivation, and a good corn-crib and stables — worth $800; that he made the affidavit for the purpose of availing himself of the benefit of the pre emption laws of the state, and to procure a deed; and that he had not availed himself, theretofore, of the benefit of the pre-emption laws. This affidavit was supported by what purports to be the affidavits of II. S. Lamb aud Shelton Eulton, credible citizens, to the effect that they knew the facts set forth in the foregoing affidavit to be true of their own personal knowledge. With regard to this affidavit, Shelton Eulton swears positively, in his deposition, that he never made it, before the clerk of the Montgomery circuit court, or anyone else; that he was not in Montgomery county, or a citizen of it, in 1850, and did not, at that time, know R. W. Gibbons, the defendant, nor the land in controversy.

These papers were presented to the commissioner of state lands, who arrested the issuance of the patent to complainant, and declared a contest for pre-emption, which was set for hearing on the eighteenth day of November, following. Of this Miller had verbal but no formal notice. He did not attend on the eighteenth, being, as he says, sick; and on that day, it seems from some imperfect notes of proceedings, the commissioner decided in favor of Gibbons, who obtained the patent.

Miller then filed this bill, seeking to have the title vested in himself, and that Gibbons be declared a trustee, and for other relief which it is not necessary to notice. The matters in behalf of Gibbons were set up in response, and the case made by the pleadings and evidence was, substantially, as above recited.

Upon the hearing, the chancellor was of the opinion that the proof in the case was not sufficient to warrant him in reversing the decision of the commissioner, and holding Gibbons as trustee of the land for Miller. And it appearing from the proceedings in the case, that, pending the suit, Miller had begun an action of forcible entry and detainer against some tenants of Gibbons’, who had obtained possession,, and that Gibbons had filed a cross bill to enjoin the action and recover possession, the chancellor decreed that the complaint of Miller should be dismissed for want of equity; that the title óf Gibbons be quieted; that he recover possession from complainant, and by a certain day have a writ for the purpose, if necessary; that the prosecution of the action at law be enjoined, and that Gibbons recover not only all his costs in this suit, but in the suit at law also. Miller appealed.

The first inquiry which arises, is: Does the complainant show any superior right in himself to make this pre-emption? Eor otherwise it can not concern him whether the patent was rightly issued to defendant or not.

The swamp-land act of January 12, 1853, after granting a right of pre emption to any settler on the confirmed lands, .provided in section 11, that, to obtain it, the settlers should, within thirty days after the settlement, “file their declaration in writing, setting forth the fact that they claim said tract of land,” to be described in the declaration “as a pre-emption right,” with the land agent of the district. And by section 37, it was provided, that “ after the pre-emptor has filed his declaration, he shall make proof before the swamp-land agent of the proper district, or before some justice of the peace, by two disinterested witnesses, that he or she is an actual and honafide settler,” etc.

Afterwards, by act of January 16, 1855, this right of pre-emption was given to any free white citizen of the state “ who has an improvement on any of the swamp and overflowed lands, who shall within sixty days after such lands are advertised by the land agent of the proper district * * * file his or her declaration in writing, setting forth the fact that he or she claims said tract of land, to be described in such declaration, as a pre-emption right under the provisions of this act, with the land agent of the district.” No separate provision was made for proof of the facts, but under the land* system of the state, with regard to the swamp-land grant, the same proof was required as in the cases of claims for preemption.

In the year 1868, all the duties and powers of the land agents were transferred to the state land commissioner.

The improvement of complainant was not only a bona fide one, sufficient to maintain a claim for pre-emption, but it was a very valuable one. It was made with a view to pre-emption, and was of such a nature and extent as to preclude the idea that it was meant to be merely colorable. It was such as accorded with the policy of the pre-emption laws, which was directed to encourage industrious men to open and cultivate these vacant lands as soon as possible, that the resources of the state might be early developed. There is nothing to indicate that he made the improvements for defendant, or any one else save himself. He was on the land before he became the tenant of the adjoining Blakely farm under Gibbons, and the renting of that farm did not make him a tenant nor lay him under any obligations of trust with regard to the vacant swamp land which he had before occupied and was improving. If, indeed, Gibbons had considered him an intruder upon any rights of his, as administrator or otherwise, when he began his improvements in 1865, he ought to have given him warning — and, especially when he rented the Blakely farm for 1867, there should have been some understanding that the labor and improvements done on the-vacant land should inure to Gibbons’ benefit. It is very evident that there was no such understanding. We can not think Miller would have taken the lease on any such terms. The improvements made by him were his own, and as he filed his declaration arid proof in apt time, he was entitled to a pre-emption, unless the defendant had a better right.

The chancellor seems to have taken the proper viewr of the 2>i'indples which should govern the court in dealing with the patent to Gibbons.

It has been held in numerous cases, under the laws of the United States, that the decisions of the register and receiver, with regard to contested claims for rights of entry, are conclusive upon the courts, save in cases of fraud or mistake; and the same doctrine has been adopted and applied under our state system, to the decisions of the state land agents in like contests. In the case of Patty v. Harrell, 24 Ark., 40, Justice Eairchild said: “ This court has often held in this class of cases, generally upon the official acts of swamp-land agents and officers, that it can exercise no jurisdiction in their review. But if a person makes use of an official act to perpetrate a fraud upon another person, he shall be deprived of any benefit that has accrued thereby to himself, to another’s prejudice.” The patent obtained by the defendant, upon the' decision of the state commissioner, must be respected by the courts, unless the circumstances of the case show that it was obtained by fraud, imposition or mistake. The question is one of fact. Did the chancellor err in his estimate of the force of the proof? This we may inquire into in all equity cases which are heard upon written documents, and which come as fully before this court as they were before the chancellor. Such cases stand upon grounds different from verdicts, or the findings of a court sitting as a jury. '

In considering the facts, and their bearing upon the question of fraud, or imposition, it will be useful to trace the rights resulting from the old improvements made by John Blakely. As for himself, he never claimed any. With the freedom of the pioneer in a new country, where laud and timber are abundant, he simply used the land of the government in the vicinity of his home, and thought no" harm of it. When the land passed to the state by the swampland grant of 1850, it became subject to state legislation. In 1858 the state gave a right of pre-emption ‘to any one whose improvements may extend from his own lands to a portion of the swamp and overflowed lands. This right was his when he died, or rather an inchoate right, to be exercised or abandoned, as he might cboose, when the adjoining land should be confirmed.

When dower was assigned to his widow, this right, by understanding of all parties interested, was passed to her, to be exercised by virtue of her possession of the dower lands. If she had exercised the right, and acquired title, it would have vested in her as dowager in the same manner, and to the same extent, as she held the houses and lands to which it was, in a manner, appurtenant. There is nothing to indicate an intention on the part of the administrator of John Blakely to assign to her a separate, absolute, interest in the old improvements, distinct from her dower in the realty. That he had no right to do, and if he bad designed any such thing it would have been to the prejudice of the heirs, and void. She had possession of the lands as dower, and might, oh such possession, have turned the inchoate into a perfect legal title, if the lands had been confirmed in her lifetime. Rut in doing so, she would have been held as a trustee for John Blakely’s estate, subject to her life-interest in the lands as a part of her dower. A court of equity would not have allowed her to make use of her possession as doweress to acquire a fee simple in her own right. But the right was not perfected by her, nor could it be. "When she died, she left nothing, either in the improvements, or the lands, which could pass to her administrator. Pie had no vestige of right to the control of the dower lands. The widow’s interest in them was gone with her death. She never made the improvements, nor did Gibbons, after her. They were confessedly abandoned, actually, from the time of her death until Golden entered upon them for improvement, in 1865, a period of four years. The heirs set up no claim. Neither did the administrator of Blakely. Golden intruded upon no one, and plaintiff took his position. The defendant, Gibbons, had absolutely no interest whatever in the vacant lands. Nothing came to him as administrator, for Clarinda Blakely’s rights did not reach beyond her death. As for himself, individually, he neither made nor claims to have made any improvements whatever. Manifestly, the right of Miller to pre-empt, if not the only one in existence, was certainly superior to that of defendant.

Reverting to the declarations made in Gibbons’ application, it will be seen at once by the light of the pleadings and evidence, that they were untrue, in fact, and calculated to mislead and impose upon the commissioner. In what sense could it be true that he, as administrator of Clarinda Blakely, commenced an improvement on the lands in question in 1850 ? Her husband was then living, and she herself survived him from 1854 to 1861. How could he say ingenuously, in support of his own claim, that the improvements on said land consisted of about thirty acres under fence and in cultivation, when neither he nor his intestate had ever made improvements to the value of a dollar, and all that had ever been made, save the old abandoned improvement of John Blakely, were made by Miller, whose claim he was seeking to annul ? He might have intended in his mind, and perhaps did, that as he claimed under the widow, and she under her husband, that their acts were his acts by a kind of relation; but even in this view, the state, ment involved a falsity, and was designed to, and doubtless did, mislead the commissioner. There does not seem to have been any other proof of his claim than his own oath, and the supporting affidavit of two witnesses; and over this affidavit the gravest suspicions are cast, by the direct and positive disavowal of Shplton Fulton.

There are in the evidence other indications of the disingenuous nature of defendant’s claim, which, taken all together, have led this court to a conclusion, on the facts, different from that taken by the chancellor below. We think the decision of the commissioner, and the patent upon it, were obtained by misrepresentation and imposition, and that the defendant should be held a trustee of the legal title for the complainant, in the lands claimed, to-wit: The north half of the southwest quarter, and the northwest quarter of the southeast quarter of section thirty-four, in township one south, range twenty-one west. There is no contest concerning the southeast quarter of the southeast quarter of the same section, also included in complainant’s application for a pre-emption.

DIRECTIONS EOR A DECREE.

Reverse the decree of tlie court below, and let a decree be entered here, divesting out of the appellee, Robert W. Gibbons, all right and title which, in his own right, or as administrator of the estate of Clarinda Blakely, deceased, he has in, and to, said lands in controversy, by virtue of his said patent from the state, and vesting the same in appellant, Phillip R. Miller, in fee simple. Let the costs of this case, in this court and the court below, be paid by the appellee, Gibbons, and let the appellant be free to prosecute his action at law against James Custer et al., begun by forcible entry and detainer in the Garland county circuit court, being the same ordered by the chancellor below, to be dismissed; to the end that the costs of said action at law may be properly adjudged in said action between the parties thereto.


text:
    Bittle vs. Stuart, Judge.

      1. Judicial hfoTicjs: United States surveys. County boundaries, etc. Courts take judicial notice of the United States system of land surveys;
    with the base lines, meridians, townships and ranges thereby established, and the iclative positions of the sections in the townships; also of the division of the state into counties, and the boundaries of the counties as described in public acts ; and also of the principal geographical features of the state, including the navigable rivers.
    2. Counties: Area.

    An act of the legislature reducing the area of a county below 600 square miles, is unconstitutional.
    3. Statute: Indivisible, void in part, void in whole: Clark county. Act abolishing, void.

    The act of the legislature of April 3, 1819, distributing portions of the territory of Clark county to other counties, is an indivisible act, and can not take effect in part and not in whole. It is also void because it can not be ascertained from its terms, with any reasonable certainty, what territory is assigned to Dallas county.
    4. Samjí :
    An act of the legislature conflicting with the constitutional provision that until a designated time a certain county shall be a representative district with two representatives, and, with certain other counties, shall compose a senatorial district, is void.
    Petition for Mandamus.

      Hice Sp Whipple, for petitioner.
   Eakin, J.

Tlie petitioner, W. A. Bittle, is a suitor in a cause pending in the Clark county circuit court, before the Hon. H. B Stuart, judge. He shows that on the third day of June, 1879, the cause was ready for trial and judgment, and that, the court being in session, he moved to proceed with the same. The court refused to do so, on the ground that it no longer had jurisdiction of the case pending, because of the act of the general assembly, which went into force on that day, entitled “An act to attach the territory ■of Clark county to the counties of Dallas and Nevada, and for other purposes.”

Prayer for an alternative writ of mandamus, and that on the hearing he may be commanded to hear and decide said cause and render j udgment. A transcript of the record of the proceedings in said cause, filed with the petition, sustains its allegations.

The response of the judge sets up the act, and disclaims jurisdiction; to which the relator demurs. The validity of the act is the sole question presented.

This act is found printed in the pamphlet Acts of 1879, p. 182, entitled as above. It did not receive the approval of the governor, but, if valid, went into operation by Ms failure to file the same, with his objections, in the office of the secretary of state; and to give notice thereof, by public proclamation, within twenty days after the adjournment of the legislature. (Const, of 1874, sec. 15, of Art. 6.)

Section 1 of the act provides : “ That all that portion of the county of Clark, included in the following boundaries, shall be, and the same is hereby, declared attached to the county of Dallas, viz: Beginning at the mouth of the Missouri river, thence úp said river to the mouth of Terre Noir creek; thence up said creek to the place where the township line between townships seven and eight crosses .said creek; thence west with said township line to Antoine river; thence up said river to the county line between Pike and Clark counties; thence easterly with said county line to Hot Spring county ; thence southerly with said line to the place of beginning.”

Section 2 enacts, “ that all that part of Clark county lying west of the Terre Noir creek, and south of township line between townships seven and eight south, be, and the same is hereby, attached to the county of Nevada.”

Section 8 transfers all the records of Clark county to the custody of the clerk of Dallas county, and makes them records of the latter county.

Section 4 provides that all civil and criminal actions pending in the Clark circuit court shaffi be proceeded with in the circuit court of Dallas county, with leave to parties all resident in the portion assigned to Nevada, to have the cases transferred there from Dallas.

The 6th section provides for the removal of the criminal cases to Nevada, if the defendant resides in the territory assigned to that county.

By section 6, pending administrations and guardianshipsare made transferable to Nevada county, when the administrator or guardian may reside in that portion.

Other sections are directed to the regulation of details, with regard to change of officers, collection of taxes, the-burdens of the old debt, etc., as if the effect of the act, in contemplation of the legislature, was to merge the county of Clark into the county of Dallas, save a portion to be transferred to Nevada.

Nowhere is it expressly said that the county of Clark is abolished — nor that the transfers of territory exhausted all the old territory of Clark county.

The courts take judicial notice of the United States system of land surveys; with the baselines, meridians, townships and ranges thereby established, and the relative positions of the sections in the townships; also of the division of the state into counties, and the boundaries of those counties as described in public acts; and also of the principal geographical features of the state, including the navigable rivers.

The Little Missouri river constitutes the whole southern boundary of the county of Clark, extending from its confluence with the Ouachita up the channel, westwardly to the mouth of the Antoine, which comes in from the north. Thence the western line of Clark county proceeds up the channel of the Antoine, between Pike and Clark counties, to and beyond its intersection with the township line be-' tween seven and eight. Whatever may be the position of the Terre Noir within the county, it is apparent that the portion of Clark assigned to Nevada is definite, or may be made so by a surveyor tracing Terre Noir creek from its mouth to said township line. This is a clean cut of territory, and if the object of the act had been merely to change the boundary between Clark and Nevada counties, it might suffice. But this portion of the act is so inseparably interwoven with the others, by special provisions, and. evident common purpose, that it can not stand alone, ás a mere transfer of territory.

Turning to the portion assigned to Dallas, we arrive at the same point, the intersection of the Antoine with said township line between seven and eight. We are already at “ the county line between Pike and Clark counties,” and need not, as the act directs, go up the river to reach it. Ascending, however, the Antoine continues to form the county line between Pike and Clark counties until it crosses the range line between ranges twenty-three and tweuty-fou'r west, iri township six south; thence, leaving the Antoine, said county line runs due north with said range line to the northwest quarter of township six south, twenty-three west; thence east on the township line two sections; thence north to the northwest quarter of section four, in township five south, range twenty-three west, where it abuts upon the county line of Montgomery county, without touching Hot Spring county at all; and having extended about nine miles, almost due north 1rom the point where it left the Antoine (Acts of 1878, p. 186); thence the county line of Clark, no longer the line between Pike and Clark, runs east, along the southern boundary of Montgomery, to a corner of Hot Spring; thence east and south in a zigzag course, across the Ouachita to the northwest comer of Dallas county; thence south about twelve miles; thence west again to the Ouachita; thence southwardly with said last named river to the mouth of the Missouri, the point of beginning.

This wall appear more plainly by the annexed diagram. (See diagram “A.”)

It is evident at a glance, that the description of the territory assigned by the act to Dallas county will not plat without violence to the language. A line can not possibly run eastwardly from any point of the county line between like and Clark counties on the Antoine river, with said line, since that line, on leaving the river, runs directly north. There is nothing in the language of the act by which to correct the error or reconcile the discrepancy. The act itself does not profess, in terms, to dispose of all of the county of Clark, nor to abolish it. although it does assume to destroy its organization. A line run eastwardly from the point where “ said ” county line leaves the Antoine to Hot Spring county, would leave still in the old county of Clark a considerable territory, but far short of six hundred square miles. .In this view, the act would be unconstitutional. (Sec. 1, Art. XIII.)

There is nothing to warrant a construction of the act which would discard the words, “ eastwardly with said county line to Hot Spring county,” and to read, instead, “ thence with the present line of Clark county to Hot Spring county, and on southerly with said line to the beginning.” Such a description would be too vague and general, and not in such terms as the legislature would be apt to use. It would wholly omit the notice of the contiguous counties of Montgomery and Dallas, which form as important parts of the boundary as does Hot Spring. We can not make language for the law-making power, when the means of construing the language used, in any other than its literal and grammatical sense, is not furnished by the act itself, or unmistakably indicated by the circumstances. If we discard the reading “ eastwardly,” the act becomes too vague and uncertain to be effective, and is void on that account. As already indicated, the sections are so interwoven, in object and.purpose, that all must stand or fall together.

If, however, we might adopt the construction of the act, which would dispose of the whole territory north and east of the Terre Noir to Dallas, it would be a complete annihilation of the county of Clark; and very grave considerations would arise thereupon.

Counties are political agencies essential to the existence of all American free governments. No state can dispense with the system of government by counties, nor deprive any portion of its territory of ail county organization. Where no constitutional inhibitions exist, the counties are under the control of the sovereign power, which may, at pleasure, alter their boundaries, change their names, burden them with obligations, 'or even, it is said, abolish any particular one or more; furnishing, however, another county organization for all parts of the territory. We have no disposition to question these general principles, and will, therefore, look only to the inhibitions of the constitution of 1874.

Clark is an old county, and was in existence at the time ' of the adoption of the constitution. It is recognized in that instrument by name. It is not necessary now to construe Art. XIII, sec. 1, which provides that no county now established shall be reduced to an area of less than six hundred square miles, nor to less than five thousand inhabitants. Nor that clause of sec. 1, Art. VIII, which provides that each county now organized shall always be entitled to one representative in the house of representatives. Whether these clauses prohibit the legislature for all time from destroying the identity of an original county, or only go to secure to them area, inhabitants and representation whilst they exist, is a grand question to be decided when it arises. There are positive restrictions, more direct in their language, and limited in time.

Our whole political machinery rests upon representation through counties. The constitution ^provides for apportionments of representation, to be made at stated times in the future; but, meanwhile, makes a provisional arrangement, for the'present, to continue unchanged until after the federal enumeration, to be made in 1880. Until that time it is imperative that “ the county of Clark shall elect two representatives ” This takes the matter temporarily out of the sphere of legislation, and if this act stands, it would sweep two representatives out of the hall of the house of representatives. If that might be done for one county, it might be for many, and the provisional apportionment wholly disarranged.

Again, the same provisional arrangement is made for the same period in regard to the senate. It is provided that •“the counties of Clark, Pike and Montgomery shall compose the Thirtieth district, and elect one senator.” {Art. VIII, sec. 192.) Nevada, with Hempstead, forms the Twentieth district; Dallas, with Lincoln and Dorsey, the Sixteenth. Certainly the legislature has no power to say that Clark county shall be transferred to, and form part of, either the Twentieth or Sixteenth districts. How, then, can it be possible that the whole territory of Clark shall be partitioned out to other districts, leaving the Thirtieth to ■consist of Pike and Montgomery alone ?

The constitution of 1868 made a similar provisional apportionment of representation amongst the counties. Whilst it was in force, the question arose of the power of the legislature to change the boundary lines between the counties of Prairie and Monroe. (Howard et al. v. McDiarmid, 26 Ark., 100.) The court held that whilst the integrity of the counties should be preserved, with their legitimate area and population, it was no violation of the constitution to change the county boundaries^ within the constitutional restrictions. The constitution itself recognizes the right to change boundaries, and whilst the same counties are left organized to fulfill the conditions of the senatorial and representativeapportionments, as counties, the boundaries might still be subject to alteration ; and thus all the parts of the constitution might find room for harmonious operation. The principles of this decision do not support, but plainly militate against, the idea that the legislature may strike a county out of a district altogether.

The conclusion of the court is, that the said supposed act of April 3, 1879. is an indivisible act, and can not take effect in part and not in whole; that it is void, because it can not be ascertained from its terms, with any reasonable certainty, what territory is assigned to Dallas county; that one possible construction of it would render it unconstitutional, as reducing the area of Clark county below the proper limits; and that another possible construction would conflict with the constitutional provisions, which provide that until after the federal enumeration of 1880, Clark county shall be a representative district, with two representatives; and, with the counties of Pike and Montgomery, shall compose the Thirtieth senatorial district.

Let the peremptorj' mandamus issue, as prayed.


author: English, C. J.

text:
    Brown vs. State.
    1. Criminal Law: Practice in supreme court, punishment reduced.

    Whore, in a prosecution for manslaughter, the court instructs the jury that if they find that the defendant killed the deceased, as charged in the indictment, they will fix his punishment at imprisonment in the-penitentiary for a term^not less than two, nor more than seven, years; and the jury return a verdict for manslaughter, without saying whether voluntary or involuntary, and fix the punishment at two years’ imprisonment ; and it does not appear from the bill of exceptions that the jury were informed what punishment the statute prescribes for ¿«voluntary manslaughter, and there is a doubt whether the jury were informed or knew that they might find the defendant guilty of manslaughter and fix his imprisonment at one year or less; and it also appears that the evidence would warrant a verdict for ¿«voluntary manslaughter, the supreme court will not reverse the judgment where there was no objection to the instruction, nor motion for a new trial on account of it, but will give the defendant the benefit of the doubt, and reduce his imprisonment to one year.

      APPEAL from Desha Circuit Court.
    Hon. J. M. Pinnell, Special Judge.

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

Isaac Brown was indicted in the circuit court of Lesha county for murder; the indictment charging him with killing Joseph Brooks, Jr., by shooting him with a double-barreled shot-gun.

He was tried on the plea of not guilty, and the jury returned a verdict of guilty of manslaughter,- and fixed his punishment at imprisonment in the penitentiary for four years, and on his motion the court granted him a new trial.

He was again put on trial for manslaughter, and the jury found him guilty of manslaughter, failing to state whether voluntary or involuntary, but fixed his punishment at imprisonment for two years in the penitentiary.

The court refused him a new trial, sentenced him in accordance with the verdict; he took a bill of exceptions, and was allowed an appeal by one of' the judges of this court.

On the trial, Daniel Deboid, a witness for the state, testified in substance that he was at*the house of Daniel Debose, on Capt. Pat Henry’s plantation, in Desha county, in July, 1875, where and when Joseph Brooks, Jr., was shot. He and Brooks, after eating dinner in the house of Debose, came out on the gallery. The house had two rooms, separated by a partition wall without a door. There was a gallery in front of both rooms, with a picket division about the middle, separating one room from the other. There was a small yard, fenced in front of the house, and a picket fence running from about the middle of the house to the front of the yard, dividing the lot into two parts, with a gate in front of each room. When witness and Brooks came out from dinner, on the gallery, Isaac Brown was standing on his gallery, and threw a cup of water across the division in the gallery on Brooks, and Brooks threw a cup of water back at him. Brown then went into his room ; Brooks went out at the front gate of the yard of Debose,' entered Brown’s yard, went up to the house, and as he stepped into the door of Brown’s house, witness heard some one say, “Take care, take care; I will shoot you.” And immediately a gun fired, and Brooks said, “Uncle Isaac, you have shot me, and I would not have done a dog that way.” In a few minutes witness went into Brown’s room, and found Brooks shot near the groin with small shot. There was no one in the room at the time of the shooting, except Brown and Brooks. Witness assisted Brooks to his brother’s'house.

Sandrord Brooks, second witness for the state, testified that he also dined with Di-bose, came out on to the gallery with Deboid and Brooks, saw Brown throw a cup of water on Brooks, and Brooks throw a cup of water back at him, walked a short distance behind Brooks when he went into Brown’s yard, and as Brooks stepped up into Brown’s door, witness heard some one in the house say, “ Give me my gun ;” and immediately heard the report of the gun; went into the house and saw Brown with a shotgun in his hand, with smoke coming out of the muzzle, and Brown set the gun down in a corner. As soon as the gun fired, witness heard his brother say, “Uncle Isaac, you have shot me, and I would not have done a dog that way.” There was no one in the house at the time of the shooting, except Brown and Brooks. Brooks was removed to the house of his brother, Peyton Brooks, where he remained the following night; next day he was taken on a bed, in a wagon, to the house of his father, about seven miles off, and died on the following morning about daylight.

Joseph Brooks, the father of the deceased, testified that he asked his son how all this happened, and he stated that Brown took the gun and shot him, when he ought not to have done it. This he repeated several times, and the last time he told him this, the contents of his bowels were running out behind, and he died in five minutes.

J. G. Warfield, for defense, testified that he acted as attorney for the prisoner before the »examining court. That Peyton Brooks, who had since died, was sworn and examined by the magistrate, and testified that Joseph Brooks, Jr., had made dying declarations to him, and stated that Brown shot him, but. they were .playing, and Brown was not to blame.

Alex. Pittman, was at Brown’s room a few moments after Brooks ^as shot, arid heard him say that Brown had shot him, but did not intend to do it, and was not to blame.Brown seemed sorry about the affair, and sent for the doctor, and helped, or was along, when.Brooks was removed to his brother’s house.

. Daniel Dbbose, on hearing the gun fire, went into Brown’s room, where he found Brown, Brooks and others. Brooks had been shot; was standing up ; when asked how he was shot, he said that Brown had shot him, but that they were playing, and that Brown did not mean to do it, and was not to blame. Brown sent lor the doctor', and seemed to be very sorry about the shooting, etc.

On behalf of the state, the court gave to the jury seven instructions, the defendant objecting only to the second, third, fourth and fifth.

On motion of the defendant, the court gave the jury five instructions.

Taking the four instructions given for the state, to which the defendant objected, and the five given for him, together, and they, in effect, announced to the jury the statutory definitions of voluntary and involuntary manslaughter, and excusable homicide. Gantt’s Digest, secs. 1264-5-6,1292.

The defendant having been, in legal effect, acquitted of murder in the first and second degrees by the first verdict, was on trial for manslaughter only, and this the court gave the jury to understand by the first instruction given for the state, as well as the first given for defendant.

But in the first instruction given for the state, and to which the defendant did not object, the court said to the jury, in effect, that if they believed from the evidence that defendant shot and killed Brooks, as charged in the indictment, they would find him guilty of manslaughter, and assess his punishment in the penitentiary for a period of not less than two nor more than seven years.

This is the punishment prescribed by the statute for voluntary manslaughter. Gantt’s Digest, sec. 1277.

The punishment for involuntary manslaughter is imprisonment in the penitentiary tor.a period not exceeding twelve months, Ib., sec. 1278.

The jury returned a verdict for manslaughter, but did not indicate whether voluntary or involuntary, otherwise than by fixing the imprisonment for a longer period than is allowed by the statute for involuntary manslaughter.

It does not appear from the bill of exceptions ihat the court informed the jury, or was asked by the state or the defendant, to instruct them what punishment the statute prescribed for involuntary manslaughter. Ye can hardly believe that the court omitted to do so, in a case like this, when the verdict might have been for the one or the other offense upon the evidence, and when the court in the instructions which appear, by the bill of exceptions, to have been given, thought proper to define the two species of manslaughter.

In McPherson v. State, 29 Ark., 225, 238, the verdict of the jury was for manslaughter, without indicating •whether voluntary or involuntary, but it fixed the imprisonment of the accused at three years in the penitentiary, and the court held that the amount of punishment inflicted fixed the degree of the offense, under section 1962, Gantt's Digest. In that case, however, it was manifest from the evidence that the accused was guilty of murder or voluntary manslaughter; and it was sufficiently indicated by the period of imprisonment fixed by the verdict, that the jury intended to find him guilty of voluntary manslaughter. A verdict of involuntary manslaughter would have been inappropriate to and unwarranted by the evidence.

In Winkler v. State, 32 Ark., 552, the court instiucted the jury that if they found the defendant guilty of manslaughter, they should assess his punishment by imprisonment in the penitentiary for any period not less than two nor more than seven years, the court failing to discriminate between the two grades of manslaughter.

There was a verdict for manslaughter, and the punishment of defendant fixed at imprisonment in the penitentiary for two years.

The defendant objected to the giving of the above instruction, and made the overruling of the objection ground of his motion for a new trial.

Mr. Justice Turner, who delivered the opinion of the court, said: “The jury, we have no doubt, intended to find the defendant guilty of voluntary manslaughter, witlh out so declaring in words, for the penalty clearly indicated this purpose, and we should have no hesitation in treating the verdict as for voluntaiy manslaughter, were we clearly of the opinion that the evidence authorized such a finding, but as we are not satisfied on that point, and as the finding might have been different, had the court declared and explained to the jury the distinction and difference of penalty, in the two grades of manslaughter, the judgment must be reversed,” etc.

In the case’now before us, the prisoner did not object to the first instruction moved for the state, nor make the giving of it ground of the motion for a new trial, and, in this respect, this case differs from Winkler’s case.

Possibly, however, the jury may not have known, or been informed, that they might find the prisoner guilty of manslaughter, and fix his punishment at imprisonment in the penitentiary for one year or less, and whilst we are not willing to reverse the judgment and remand the case for a new trial, we will give him the benefit of a doubt, and modify tlie judgment of the court below so as to reduce Ms imprisonment to one year from the date of his conviction, under section 1103, of Gantt’s Digest.

The appellant was sentenced to the penitentiary for two years from the tenth of March, 1879. A judgment will be entered here, and certified by the clerk of this court to the keeper of the state prison, modifying the judgment of the court, below’ so as to reduce the period of his imprisonment to one year from the tenth of March, 1879.


text:
    Read, in re, Approval of Treasurer’s Bond.
    1. The tiling of a treasurer’s bond for $65,000 is a sufficient compliance with an order for one of S60,000.
    APPEAL from Chicot Circuit Court.
    Hon. T. E. Sorrells, Circuit Judge.

      Reynolds, for appellant.

      Rose, contra.

   Harrison, J.

The appeal in this case is from an order of the Chicot circuit court, approving the bond of Samuel E. "Wbithorne, as county treasurer, against objections filed thereto by appellant.

The only point in this case, not decided in the case of Hodgkin vs. Holland, collector, etc., ante, is this: the bond first offered having been rejected, and the treasurer required to give a good and sufficient one in the penal sum of $60,000, the bond in question, presented under the order, was in the sum of $65,000.

"We are unable to see how the validity of the bond could be affected by the penalty being larger than that required. If not a literal, it was a substantial and strict, compliance with the order.

Affirmed.


text:
    Phillips County vs. Lee County
    1. Lun County: Indebtedness to Phillips county. Appeal from county, to circuit court.

    Under the act oí April 11, 1373, creating the county of Lee, the county of Phillips ascertained and reported to the county court of Leo county the amount of the latter’s portion of the debt of Phillips county to be paid by Lee county, ’as provided by the act. Said county court, upon its own examination, allowed by order on its record a much smaller amount, and Phillips county appealed to the circuit court. There Lee county demurred to the “action or complaint” as insufficient inlaw, etc., etc., and the circuit court sustained the demurrer and dismissed the appeal. Held: That the proceedings were not in the nature of a suit to enforce an obligation resting on contract, but were in pursuance of legislative directions to adjust the fiscal arrangements between the old and new counties; that the action of Lee county court was subject to appeal, and by it the whole cause was transferred to the circuit court to bo tried de novo, and final judgment rendered, just as if brought there in the first instance.
    APPEAL from Lee Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.
    Sanders-Brown, for appellant.
   Eakin, J.

By act of April 11, 1873, the general assembly created the county of Lee, out of territory taken from the county of Phillips and other counties.

By section 6, of the act, it was made the duty of the hoard of supervisors of the several counties out of which the county of Lee was taken, “ to ascertain the exact amount of the indebtedness of each county at the date of the passage of this act, and to ascertain what portion of ■said debt would fall to the inhabitants of each county, now included in the county of Lee, making said estimates from the assessment lists filed by the assessors of and for the year 1872; which amount and apportionment of indebtedness, with a copy of all records and proceedings therein, shall be transmitted by the clerk of said board to the clerk of the board of supervisors of Lee county, who shall lay the same before the board of supervisors of said county at its next session thereafter, and, if found, correct by said board, the same shall be entered of record in the record and proceedings of the board of supervisors of said county; and the same shall thenceforward become and be the debt of Lee county, to be paid by the inhabitants thereof and owners of property therein, in such manner and, at such times as the said board of supervisors may determine.”

On the fifteenth of September, 1873, the board of Phillips county, acting upon the report of its clerk, who had been appointed to ascertain the facts, declared the indebtedness of the county, on the seventeenth of April, 1873, to be as follows:

On railroad bonds issued to the Arkansas Central

Railway Co..................................................$100,000

Iron Mountain and Helena Railway Co............... 100,000

Unpaid interest to that date.............................. 6,000

Total railroad debt........................................$206,000

Bloating or scrip debt........................................... 33,758

Old bonded scrip, due and unpaid....................... 15,000

In all..........................................................$254,758

It ascertained further, that the valuation of real and personal property, taken off by the formation of Lee, was 23-f per cent, of the whole valuation of the county, which per centage of the indebtedness above found would make:

Of railroad debt...........................................$48,753 32

Floating or scrip debt....................................... 11,559 38

Total.........'................................................$60,312 70

All of which estimates were made on the assessment lists filed by the assessor of and for the year 1872; and it was further ordered that the clerk should make a certified copy of the order, and transmit it to the clerk of the board of Lee county. This was done.

Upon receiving it, the board of Lee county suspended action for investigation, and appointed its own agent to that end. On the thirteenth of October, 1873, he reported, as the result of his examination, that the per centage assigned to Lee county was, by a very trifling amount, too large; but that the county of Lee had gained in other respects, in matters which had been left out of the estimate, more, by a very considerable amount, than would compensate her for the overcharge by way of per centage. As to the railroad debt, he says he did not examine it, but sets forth the claim of Phillips county with regard thereto, as stated above.

Upon this report the board of Lee county, in June, 1874, ordered and adjudged “that the actual amount of said indebtedness is the sum of $12,959.39, arising from the old scrip debt, and interest on railroad bonds, which said amount of debt is ordered to be made a part of the records of this board.”

It is apparent that the board adopted the per centage of 23-f per cent, as its share of the scrip and floating debt of Phillips, augmented by the interest accrued on the railroad bonds, but meant to decline assuming any responsibility or burden with regard to the principal of said bonds.

The county of Phillips appealed to the circuit court.

There, Lee county appeared and demurred, because the case, as presented, showed no right of action, or claim, on the part of Phillips county, nor liability on the part of Lee, either separately, or jointly, with Phillips county, which it has not discharged, and because, generally, the “action, or complaint,” was wholly insufficient in law.

The circuit judge sustained the demurrer, and dismissed the appeal — from which judgment, the county cf Phillips appealed to this court. All the proceedings until the submission of the cause on the demurrer, were had under the constitution of 1868. The final judgment was not entered, however, until after the adoption of the constitution of 1874.

The proceedings are not of the nature of a suit or action by Phillips against Lee county to enforce an obligation resting on contract. They were had in pursuance of legislative directions, for the purpose of so adjusting the fiscal arrangements of the new, and several old counties, as to save the rights of citizens and creditors, and make the change in the political organization of the territory concerned, harmonize with them, as far as might he possible. The legislature had full power to make this adjustment of the burdens, and to impose on the new county of Lee all it attempted, with or without its consent. This power of the legislature over its subordinate political corporations, and governmental agencies, has been heretofore discussed and fully recognized by this court.

The action of the Lee county board was subject to appeal, and the appeal was properly taken by the county of Phillips (Qanit’s Digest, 705-6,1191). The whole cause was thereby transferred to the circuit court, to be heard de novo, and it became the duty of the latter court to retain it for final judgment, just as if brought there in the first instance. lb., sec. 1195. There was nothing -wrong in the appeal itself, and the court erred in dismissing it. If no cause of action had been sustained upon the papers brought up, nor made out by the evidence before the circuit court, it should simply have declared that there was no indebtedness on the part of Phillips county, which should become the debt of Lee, to be paid by the inhabitants, and property owners, and should have adjudged the costs against Phillips, but not dismiss the appeal.

The demurrer should have been overruled. The appeal brought up the whole case, as well what had been allowed by the board of supervisors, as what had been denied. The statement of the Phillips county debt was prepared and presented to the Lee county board, properly and in accordance with the directions of the statute. The floating-debt was not denied, nor the accrued interest on railroad bonds. There was certainly something wdiich justified, and sustained the application — something which Lee county should enter of record as its own debt. The contest was simply one of amount, and the 'whole case was brought up. Even if it were conceded that Phillips county had got all that she ought to have by the action of the Lee county board, and was entitled to no more, and should take nothing by the appeal, there would be no ground of demurrer. The court should still have retained the cause and rendered the proper judgment — fixing the amount of the indebtedness, to be certified to the board of Lee county, to be entered of record, and this course must still be pursued.

The question really in controversy will arise again on remanding tire canse. It results from what we have said above, that the amount of the burden to be assumed by Lee, and its nature, depends entirely upon the act creating the county, without any regard to' contract, or of privity between the new county and the old creditors. The act, in terms, includes all the indebtedness of the old counties. Outstanding bonds not yet matured are debts, and the courts can make no exceptions. It is imperative on Lee county to admit so much of the bonded debt of Phillips, and in such proportion, as it may find to bo correct; to enter it of record in its proceedings, to be and become the debt of Lee. It does not follow that it must be immediately paid or provided for. That may not be necessary, nor prudent. It is sufficient at present that it be ascertained and entered of record, to be paid “ at such times ” as the county court (which has succeeded the board) may determine.

The legislature doubtless intended this, and thought it equitable. The railroad debt was contracted with a view to enhance the property, and subserve the convenience of all the citizens of the county, and in the just expectation that such enhanced property would supply the means of paying the debt. The advantages, whatever they may be, remain attached to the same property and inhabitants after it has been transferred to Lee, and it is just that the new county, which enjoys the advantages, and has fro tanto deprived the county of Phillips of its resources, should bear its proportion of the burden. What becomes of the stock for which the subscriptions were made, it is not our province to inquire. If it is all retained by Phillips county, and has any marketable value, it would seem unjust to compel Lee county to pay her proportion of the debt without acquiring a portion of the stock. If any injustice results from this, it comes from legitimate legislative action, and is only remediable by tbe same authority.

Eor error in sustaining the demurrer, and dismissing the appeal, let the judgment be reversed, and the cause remanded to the circuit court of Lee county for further proceedings, consistent with this opinion.