text:
    Little Rock and Fort Smith Railway Company vs. Page.
    1. Trustees : Railroad directors: Their sales to themselves, how and by whom avoided.

    Directors of a railroad company stand in the relation of trustees to the stockholders and creditors of the road, and are not allowed, in chancery, to deal with it at all, for their individual benefit; but their contracts for the sale of any part of its property to one of their number, are not void at law; they are only voidable in equity at the instance of any one interested in the property of the road. Such sale can not be avoided at law by a new company (which, by purchase of its property and reorganization, has succeeded the old) obtaining possession of the property sold, and refusing to deliver it to the purchaser.
    2. Delivery: What constitutes.

    What constitutes delivery depends upon the situation and character of the property. Removal from the premises is not necessary. It is sufficient if the contract of sale has been definite and unconditional, and everything has been done in pursuance of it by the vendor, which is necessary to identify the property and separate it from other, so that it may be known what, specifically, has been sold.
    3. Sale. Delivery : Retaining possession by vendor: Fraud.

    The retention of possession of property by the vendor is not conclusive evidence, but only a badge, of fraud.
    4. Release: Of all demands, etc.: Construction of.

    When one who has sundry claims or demands against another, upon settlement, executes to him a release and discharge “ from all claims and demands of every name and nature” which he holds against him, such release will cover all articles of property known by the releasor at the time to be held and claimed by the releasee as his own.

      5. Mortgages: Of future acquisitions.

    Mortgages of future acquisitions of property by railroad companies, are upheld in equity and liberally construed. Equity treats a mortgage of' property to be afterwards acquired, as a contract binding in conscience,, to execute a mortgage upon it at the instant it comes into being, and will enforce specific performance. It does more. It considers it as already done if no specific performance be requested; and then binds everybody to respect the equitable lien who knows of it, or without. • knowing of it has got the property without valuable consideration.
    APPEAL from Pulaski Circuit Court.
    Lion. J. W. Martin, Circuit Judge.

      Clark Williams, for appellant.

      Kimball, contra.

   Eakin, J.

Page sued the railroad company for the conversion of “ thirty-five iron, French switches,” of which he was the owner, and entitled to the possession ; and which, he alleges, the defendant, on the fifteenth day of March, 1877, unlawfully took and converted.

The answer is in three paragraphs:

1. Denied the ownership of plaintiff.

2. The alleged taking and conversion.

3; Set up a release of plaintiff to defendant of all claims or demands on account of these switches, of the thirteenth of April, 1876.

Upon trial, a jury rendered a verdict .in plaintiff’s favor for $2,625. Defendant moved for a new trial, and that being denied, excepted and filed a bill of exceptions. An appeal was afterwards granted by the clerk of this court. The evidence is important, and must be set out with some degree of fullness, in order to understand the application of the law to the facts.

On the twenty-ninth of November, 1873, five directors, constituting a quorum of the Little Rock and Fort Smith Railroad company, plaintiff being one, met as a board, and accepted a proposition from plaintiff to purchase of the company one hundred Arkansas state aid bonds, then held by him, as collaterals, to secure a loan, to the company for the sum of $12,500; and, also, a like proposition to purchase, for the sum of $10,000, from the company, “ all new' rails, rail fastenings, frogs, switch rails, switch-stands,” then owned by the company in the state, and not then laid and in use by said company, “including track and material now laid for temporary use from the Memphis and Little Rock railroad depot, at Argenta, to the junction with the Cairo and Fulton railroad, and now used by trains.” The bonds were to be paid for by a credit to the company on an account for moneys advanced by Page in procuring a loan for the company ; and the other things, by a credit upon moneys advanced by Page, which had been approved by the board.

The resolution accepting the offer, directed the superintendent, Beaumont, to deliver the property, and a certified copy of .the resolution was directed to be given him for his authority. The whole five directors made a bare quorum, and Page himself, though present, did not vote on the resolution.

The iron switches were then lying on the company’s premises, near the bank of the river. Beaumont, being advised of the sale, upon Page’s request, had them taken from the river bank and placed near the company’s engine-house, also on the premises. Page also took possession of the road iron, and sold it to other parties. Iiis account against the company amounted to $42,596.20, and was advanced to enable the company to pay interest on the state aid bonds, and for other purposes. He was, at the time, state treasurer, and the payment of said interest was made to him as such. In his evidence he says he never saw the switches after Beaumont removed them, as his agent, and always supposed they remained where placed, until he demanded them of the superintendent of the present company. The old company was sold out under the mortgages, and the present company had come into possession of the road and all its property, in December, 1874. Page had ceased to be a director in May of that year, and a new superintendent, Hartman, had been appointed, who remained superintendent upon the new organization. Page did not inform him of his claim upon the switches, or demand them of him, until a short time before action brought.

The iron rails, mentioned, had been sold by Page to the Memphis and Little Rock Railroad company for $10,000, and four notes taken for the purchase money, of $2,500 each.

The mortgages spoken of had been afterwards foreclosed in the federal court, in which suits commissioners had been appointed to audit and allow claims against the old company. Page appeared before these commissioners and proposed to transfer to them the notes given for the iron, and make, a certain release. They accepted the proposition, paid Page the money for the notes, and took from him the following release — on the day of its date :

“ In consideration of one dollar, and other valuable considerations, to me paid by the Little Rock and Fort Smith Railway, I hereby forever release the Little Rock and Fort Smith Railway, and the Little Rock and Fort Smith Railway company, and them discharge, from all claims and demands, of every name and nature, which I hold against them, or either of them. Witness my hand and seal, this thirteenth day of April, 1876.

“ Henry Page. [Seal.]”

He says that, at the time of the execution of this instrument, he considered the switches his own, and supposed they were where Beaumont had placed them — having no knowledge that Hartman, or the defendant, had used them; and, further, that the debt or claim upon which the old company sold the switches to him, was not any part of the claim settled by the defendant. The new company had succeeded to the books of the old, which showed the whqle of the former transaction. His claim against the old company, he says, was only for the balance.

The switches were purchased by the old company in 1872, or early in 1873, with the intention of using them, but that intention had been abaudoned at the time of the sale to Page. They did not suit the size of the railroad iron. Afterwards, it had been found that they could be utilized for the purposes of the road. It also appears that when the sale was made the old company was much embarrassed, and that it was hiding other property to avoid attachment.

Hartman, for defendant, testified that he had served as superintendent for the old and new cqmpanies since May, 1874, succeeding Beaumont. He took possession of the switches, with the other property of the road, supposing they belonged to it, but did not disturb or use them whilst the old company existed. Bid not know of Page’s purchase. Took the switches and had them laid down in the road-track during the years 1875 and 1876. Fourteen of them were used before the thirteenth of April, 1876 (the date of the release), two by Beaumont and twelve by Hartman, and all, afterwards, save one, which was defective. Page, during that time, was frequently in Argenta (where the switches were), and often traveled over the road. He never objected to our taking and using the switches, nor set up any claim to them. The switches were worth from $120 to $130 each.

• It is admitted that at the time the release was executed to the defendants, they,, in pursuance of the contract, paid plaintiff $25,500.

This was the substance of the evidence admitted by the court.

The defendant offered, but was not allowed, to introduce as evidence, a deed of trust executed by the old company on the twenty-second of December, 1869, of its road, depots, houses, franchises, etc., rolling-stock, “and all personal property of every nature, kind and description whatsoever, now held or acquired by the said company, its successors or assignees, for use in connection with the railroads or branches of the party of the first part, or with any part thereof, or with the business of the same,” to secure the payment of the principal and interest of $3,500,-000 of coupon bonds to be issued. Said deed empowered the trustees therein named, upon default in payment of the principal or coupons of the bonds, to take possession of the road and run it, or, in certain contingencies, to sell and apply the proceeds to the payment of the bonds, or interest. There were various stipulations and minute provisions not affecting the issue here,but it was provided specially that the trustees, at the request of the company, should have power “to allow the said company, from time to time, to dispose,of, according to its discretion, such portions of the equipment, machinery and implements at any time held or acquired for the use of said railroad, as may have become unfit for such use,'replacing the same by new, and which shall be conveyed by the said company to the trustees, and made subject to the lien.” . Another clause gave the trustees themselves power, on the written request of the company, to convey or release “any lands or property which, in their judgment, shall not be necessary for ,use in connection with said railroad.” ■ The deed was duly executed, acknowledged and recorded in this county. The company covenanted from time to time to give such fur-’ ther assurances as might reasonably be deemed necessary,, and be requested by the trustees.

Defendant'also offered, but was not allowed, to introduce a decree of the federal circuit court for this district, rendered November 6, 1874, foreclosing the mortgage and decreeing a sale for the payment of the bonds, on the tenth of December following, of the road and other premises mentioned in the bill and exhibits, “and all other personal property of every nature now held or acquired by the said company for use in connection with the railroad or branches of said company, or with any part thereof, or with the business of the same,” * * * “as well as all other personal property of any and every name whatsoever, in said mortgage mentioned, all to be sold together in one parcel.” A special Master was appointed to carry the decree into effect.

Defendant further offered in evidence two other decrees of the same court, of the nineteenth of December, 1869, rendered on the Master’s report of sales. One of these decrees would show that the property was purchased by three trustees, for the purpose of organizing a new company, which had been done, upon the terms that any bondholder, secured by the foreclosed mortgage, might transfer his bonds to the new company, relinquish his rights to the proceeds of the sale, and become entitled to a proportionate share in the new stock. It would further show that the court confirmed the sale on these conditions, and directed the Master to convey the property to the new company (which is defendant here), stipulating in the order as a part of its consideration, that said new company should compromise, or pay, such claims against the former company as three persons therein named might, within one year from that date, approve, upon'such terms and in such manner as they might prescribe. The other decree was of a similar nature, applicable, howTever, to other property. "We collect from the papers offered in evidence, though somewhat vaguely, that there were two suits progressing in the federal court pari passu, upon two mortgages to secure the same bonds, but of different property ; and the object of the evidence was to show that the same arrangement had been made in both cases, by which the property of the old company was to be transferred to a new company, consisting of the beneficiaries in the mortgages, upon certain conditions, to protect claimants against the old company, who might present them to commissioners to be audited, and which might be approved. These decrees were admitted only for the purpose of explaining and showing the meaning and purpose of the release executed by Page ; but the jury were instructed not to regard them for any general purpose of showing title in defendant to the property in question.

Defendant then introduced the report on the claim of Henry Page, made to the court by the commissioners appointed to audit claims against the old company, marked exhibit “E.” This report sets forth the nature and origin of the original debt, and the compromise offered by Page, with the recommendation that the company accept the notes offered to be transferred by Page, for which the railroad iron was sold to the Memphis and Little Rock company, and his re'ease of all claims and demands of any and every nature,” and that the new company pay Page the sum of $25,500. Nothing is said of the French switches, or the ownership of them.

The court then, for the plaintiff, and against the objections of defendant, instructed the jury, in effect: That if they believed that the old company had, in good faith, sold the switches to plaintiff; and that they were then lying on the river bank, and had not been used by the said company, and there was no intention to use.them then entertained by the company; and that they were delivered to plaintiff, and he gathered, them up and took possession, and was permitted to keep them on the vendor’s premises •; and defendant afterwards, without the knowledge or consent of plaintiff-, took and used them; and afterwards refused, on demand, to deliver them, they should find for the plaintiff and assess for damages the value of all so converted after the date of the release.

The defendant asked four instructions, which were all refused, in effect as follows : 1. The jury must find for defendant if they found that plaintiff was a director of the company at the time of the purchase. 2. That if they found that plaintiff- agreed with the old company for the purchase of the switches, for a credit to be allowed on a prior indebtedness, that it was to be held an executory contract not to take effect without delivery, and that a direction of the superintendent of the old company to remove the property from one part of the company’s premises to another was not a delivery sufficient to complete the sale, as against assignees in good faith of the company. 3. That if they found that plaintiff- bad submitted his claims against the old company to the commissioners appointed under the decree of the nineteenth of December, 1874, and acquiesced in the report and accepted the award, they must hold him bound by its provisions, as well as its legal purport; and if the defendant was then in the possession of said switches, as assignee of the old company, then the execution of the release, given in evidence, was a release of all claim to them. 4. That if they believed the switches were, when purchased and afterwards remained, in the possession of the old company, without other delivery than by moving them from one part of the premises to another; and that defendant took possession of them by virtue of the purchase of the railroad and all its property, and had used a portion of them before the release, such possession and claim was to be held established, as made the release effectual to bar the plaintiff’.

The court modified the third instruction, however, by instructing the j ury that if the defendant, represented by 'said commissioners, was, by its superintendent, in possession of .said switches as assignees of the old company, and had converted them at the time of release, then it would amount to a release of all claim to the same on the part of plaintiff’.

The court, of its own motion, then instructed the jury that the failure on the part of a vendor to deliver personal property sold is not conclusive evidence of fraud, but only a badge of it. The jury are to consider all the circumstances of the case, and the true test is good faith or pretense. The plaintiff must show title in himself, and conversion by defendant, and he converts who takes possession of property and exercises a control and disposition of the property adverse to and in exclusion of the owner; that plaintiff’ can not recover in this suit for switches converted before the release, but may for those converted afterwards.

The grounds for new trial, alleged in the motion, were:

1. The refusal to give defendant’s instructions, sever-

iteustees:

Railroad ?oethBomHowTand avoided,

2. The refusal to give and the modification of his third instruction.

3. The giving of instructions by the court, verbally, of its own motion, which were afterwards reduced to writing.

4. That the court withdrew from the jury the question whether the remaining switches, at the time of the release, were within the purview and operation of the release, and deciding as a matter of law that they were not.

5. That the court refused to allow the mortgage to be-used in evidence.

[The same as to the decree of the sixth of November, 1874, foreclosing it.]

6. The refusal to admit the two decrees of the nineteenth of December, 1874, for the purpose of proving title.

7. Because the jury found contrary to law and evidence.

The first question which demands attention is raised by defendant’s first instruction. "Was the sale to Page void because he was a director? That it was voidable in equity a£ the option of any one interested in the property of the railroad, is too well settled to admit further discussion.

The directors all stood in the relation of trustees to the stockholders and creditors of the road, and would not be allowed, in chancery, to deal with it at all for their individual benefit. But such contracts are not void at law. The interposition of a court of equity to set them aside is essential. Until that is done they remain valid, and can not be collaterally attacked, in a suit at law, by strangers or by parties. A corporation is a person distinct from the individuality of its directors. There are here two parties competent to make a contract — Page and the corporation — and there is no rule of law to prohibit them from doing so. The rule belongs to equity, which derives its jurisdiction to interfere from the fact that courts of law do not take cognizance of these trusts, and only moves at the instigation of those who have been or may have been injured. (Story’s Equity, 381-8-3.) Until so canceled, such contracts are good.

2 Dblivb

, slitutes-

Defendants contend that the possession by the new company, and refusal to deliver, amounted to a renunciation of the contract and avoided the sale. Assuming the sale to have been complete in the first place, it can not be thus avoided. That doctrine is confined to cases where there is a legal power of rescission, arising from actual fraud, or misrepresentation. The hand of the Chancellor was necessary in a case like this, which should have been invoked by cross-bill, and transfer of the case to the equity court. There the relief could he properly moulded upon equitable terms with regard to the consideration paid. The court committed no error in this regard.

The second instruction regards the completion of the contract of sale,-and taken in connection with the evidence, was so framed as to impress the jury with the idea that the circumstances proved did not amount to such a delivery as would transfer the property. We think it was erroneous, and properly refused. What constitutes delivery depends on the nature and situation of the property. Asportation from the premises is never necessary. It is always sufficient if the agreement be definite and unconditional, and everything has been done in pursuance of it, on the part of the vendor, which may be necessary to identify the property, and separate it from others, so as it may be known what, specifically, has been sold. In this case, Beaumout, the superintendent of the company, was advised by the board of the sale, and acting for it, and also for Page, separated the switches and piled them to themselves.

Delivery-'

Retaining j,raud!dor:

4. release:

mands,etc: Construetionof.

The sale, as against the old company, was clearly compíete, and vested in Page the legal title as fully as the company had it before. It held, afterwards, simply as a bailee without hire, being in no sense owner. It is a different question whether such leaving in possession would be a fraud upon subsequent purchasers or incumbrancers, whereby Page might have lost the benefit of his trade. But this aspect of the case was fully presented by the instruction given by the court on its own motion. They were properly advised that this is only a badge of fraud, but not conclusive evidence; that they should consider all the circumstances of the case, and that the true test was whether the purchase was made in good faith, or as a pretense. This is the modification of the doctrine in Twynt^e’s case, which now prevails in almost all the American states, and which has been rendered necessary by the vast increase of personal property, its ponderous or bulky nature, and the exigencies of business. It would be in the highest degree embarrassing if failure to remove property at once should be held conclusive evidence of fraud or secret trust.

The third instruction regarded the effect of the release, The court refused to instruct the iury in effect that if the . . J J defendant was m possession of the switches as assignee of tbe old company when the release was executed, it amounted to a relinquishment of his property in favor of the new company; that if he acquiesced in the report of the commissioners and accepted the award for which the release was partly executed, he was bound by its provisions and legal purport.

Such an instruction presupposes the provisions and legal purport of the award to have been that, as a condition to the payment to Page of the money specified, he should, on his part, release to the company all his right to these switches then in its possession.

The report of the commissioners making the award was admitted in evidence, and a fuller notice of its purport may be, in this connection, advisable. The claim presented to them by Page was for a balance due on a note of the old company for $31,000, dated September 2, 1871, and due at fifteen days. It was given for money which he had raised and advanced to the state to pay interest coupons on $900,000 state aid bonds, as to the validity of which no question was then raised by any of the parties. The old company was liable to sequestration if the interest had not been paid, and had no available means. Page did not then have any security, but was assured by some of the largest bondholders, before the foreclosure, that after the reorganization his claims would be settled on an equitable basis. In March, 1873, he received on this claim $100,000 of state aid bonds, which he sold at $12.50 per hundred and credited on the note. This was all that had ’been paid on this debt, and the balance, with interest, at the time of the report, amounted to near $30,000.

They reported, further, that Page represented to them that, being authorized thereto by the old company,he had, in February, 1874, sold to the Memphis and Little Rock Railroad company a lot of iron, for four notes of $2,229.97 each. But it had been contended that the old company did not have the right to sell this iron without the assent of the trustees in the mortgage, and notice had been given the Memphis company not to pay, and Page had brought suit, which was then pending. And, in conclusion, that Page had offered to transfer to the new company his interest in these suits, and execute a release of all demands or claims of every nature against both companies, in consideration of the sum of $25,500, which they recommended should be accepted.

The effect of the third instruction, if given, would have been to take from the jury the consideration of the question whether or not the circumstances existing at the time of the release, showed that Page, by it, intended to aban.don bis claim or right of ownership to the switches in question. That was a matter of fact proper for the jury. It belonged to the court to explain to the jury the legal effect of the instrument, and the meaning of the words “claims or demands;” but it was the province of the jury to apply that effect to the facts, and ascertain- from them whether the right of ownership in the switches now asserted by Page, was then understood by him to be so clouded with an adverse claim on the part of the new company as to fall within the definition of a claim or demand as given by the court.

Ordinarily it is obvious that the mere friendly custody of another’s property does not constitute such a claim or demand on the other side as would transfer the property, or estop the owner upon his execution of a general release of claims and demands. It is just as obvious, however, that such a release would have that effect, if the owner knew, that the other did not concede to him the title and right of possession, but claimed it as his own. The application of the instrument would depend upon facts. The court did not err in refusing defendant’s third instruction as asked. The modification of it, however, although strictly correct-, was likely to mislead the jury. It should have gone further and advised them that not only a conversion of the switches by use, but a claim to own them, known to Page, would bring them within the scope of the release. It may be remarked here that the title by which Page claimed the switches was precisely that by which he had claimed the right to the iron which he had sold to the Memphis and Little Rock company; that he knew his claim to this iron was resisted by the trustees in the mortgage, and the purchasers under it; that he had given up the proceeds of the iron with the release, and accepted $25,500 as a compromise. The jury might and should have been allowed to find, from the circumstances, whether or not Page knew that the company had claimed •or would claim the switches adversely; and they should have been instructed that if they found that he did know it, then his release would cover it, and bind hini as to this property also.

The fourth instruction asked was obviously erroneous. The sale was complete, as we have said, without removal of the property from the premises, and tlie conversion of part of the property, without Page’s knowledge, could not advise him of adverse claim to the rest.

In short, we are of the opinion, that the court did not err in refusing the third and-fourth instructions asked by the defendant, in the form proposed; but we think, in modifying the third, and in giving the additional instruction on its own motion, the. court did not present to the jury the true issue of fact upon which the effect of the release turned. It was admitted in all parts that the old company had the actual possession of the switches which had passed to the new company also. It was not contended that the plaintiff could recover for any which had been actually used before the release. The court properly defined what would amount to a conversion, and instructed that the plaintiff' could not recover for any which had been so converted before the release, but it left the jury to believe that they must render a verdict for all which had not,\>qqvl so converted — in other words, that conversion by one at the time was necessary to bring the switches under the operation of the release. So far, it was erroneous. Reason, good faith, and justice, require that Page should be held bound by his compromise, with regard to the switches also, and that his claim thereto should be included in the release, if the jury should find that he knew that his claim to the same would be resisted when made, as the claim for the iron had been;, although the commissioners w.ho made the compromise, and the defendant itself, may not at the time have known of the claim, nor have done any act amounting to a conversion. The release was intended to be a complete quietus, and was framed in broad and sweeping terms for the purpose. Whilst it would make it a snare.to Page to make it divest him of any of his property upon defendant’s premises, which he had no right to apprehend would be contested, it would be equally illusory to the defendant, to hold it not applicable to such property in its possession as it claimed as its own, and to which Page knew, or had plain reason to know, his claim would be resisted when made. It was just such latent claims that the release was intended to quiet — and by its legal construction it should quiet not only everything in the nature of a chose in action, upon which a suit might then have been maintained (as, for instance, the switches already used), but, also, everything concerning property in defendant’s possession, concerning which Page might believe there would be contention, on the attempt to assert his right. There being no question of the release, nor of defendant’s possession, the question of its scope and effect was not one of conversion, wholly. It certainly covered what had been converted, and so the court instructed. For the rest, the question of fact for the jury was Page’s actual knowledge, or reasonable grounds of apprehension, that his claim would be resisted. If he had that, it would be a fraud upon the company to give him the full benefit of the compromise, and the money paid upon the release, and then allow him to inflict upon the company the evil of litigations, they seem to have been seeking, in a just and honorable manner, to avoid, with the object in view of proceeding to operate the new company without embarrassment.

5. m«rt-

tions“1 s 1_

The refusal of the court to admit, in evidence, the original deed of trust, and subsequent decree of foreclosure in the federal court, seems to have been'based upon the idea that they were res inter alios acta. We do not think this a case to which that doctrine applies. Nothing done between others can divest a right, or impose a duty, or create an estoppel, as to one nota party to, or in some way represented in, the transaction. But, in making out a chain of title, it is of more frequent occurrence than otherwise, that deeds, judgments and decrees must be used to show transmission of rights. They are admissible for the purpose, and their effect is to be determined by the court and jury. It is proper, now, to consider the effect of the excluded instruments, to see if defendant was injured by their exclusion.

No question is made in this case of the power of the “Little Rock and Fort Smith Railway company” to execute the deed of trust in 1869. It was duly recorded, and at the time of plaintiff’s purchase he was a director in the company, and chargeable with actual, as well as constructive, notice of its existence and provisions.

It is now too well settled for discussion that mortgages of future acquisition of property, by railroad companies, are upheld in equity, and liberally enforced. The necessity for these improvements for the convenience of traffic, and the development of the wealth of the country, is everywhere •acknowledged. The enterprising men who plan and build them are dependent upon capitalists for the advancement of means; and public policy demands that they should be able to give securities upon the results of that capital when put into the business of the road, and changed to road-bed, equipments, buildings, fixtures, rolling-stock, and other property. The capital required is so vast that, otherwise, few roads could be built.

In this, as in many other respects, the progress of the useful arts, and the requirements of an advancing civilization, with the improved methods of commerce, have gradually brought the courts to a relaxation of strict legal doctrines, and a closer adaptation of them to the more liberal and flexible doctrines of equity. The conservatism of the law judges has ever-been, in England and America, more rational than stubborn. The influence of the civil law in commercial affairs especially, operating primarily upon the courts of equity, and fixing the rights of vast numbers of men, in vast property interests, has been, from time to time, recognized by the courts of law, which have lent their aid to protect the rights which courts of equity have established.

Whilst it still remains true at law, as formerly, that one can not sell nor mortgage that which he hath not, and the attempt to do so is void, yet courts of law can not, nor are they disposed to ignore the fact that courts of equity hold differently; and they should give full effect to (he decree in equity based upon the equity doctrine. ■ To refuse to do so would produce interminable confusion. It would be reasoning too nicely for courts of law to say that a decree in equity, opei’ating in rem upon property, shall not be regarded in a collateral proceeding at law, .as fixing or transferring any right, unless that right be one which a court of law would have recognized also, and enforced by such methods as it could. There does not seem any safe ground for courts of law, acting in co-ordination with courts of equity, and as complements of each other, but to hold the foreclosure of an equitable lien, when made, as effective, for all purposes, and against all persons, as the foreclosure of a legal lien would have been.

— ^ in

Equity treats a mortgage of property to be acquired as a contract, binding in conscience to execute a mortgage upon it at the very instant it comes into being, and will enforce specific performance. It does more: It considers it as already done if no specific performance be requested; and then, by virtue of the equitable doctrine of notice, binds everybody to respect the equitable lien who knows of it; or, without knowing of it, has got the property without valuable consideration. In this case there was not only the equitable duty to execute a mortgage or deed of trust, on these switches, but an express contract to do so, in terms as explicit as could be drawn. The lien attached as soon as they were brought. Page knew of it, and took them not for any new consideration, but a pre-existing debt, and that, too, in the face of an express provision in the de.ed of trust that they could not be sold, save'by the trustees themselves or the mortgagors with the.'trustees’assent. He stands in the position of a subsequent purchaser with full notice of the prior equities of the bondholders, and cau not complain if he is held to the same consequences of a foreclosure of those equitable rights which would have attached to a foreclosure of a deed of trust strictly legal.

The general rule is that the foreclosure of a first mortgage gives title and right of possession against a subsequent mortgagee or purchaser not made a party, and not in possession. This would not, of course, divest any right of possession the second mortgagee might have been able to assert against the mortgagor and first mortgagee, if any such exists. But in this case there was none. After default, the right of the trustees to possession became absolute, and that possession, transferred to the purchaser on foreclosure, became absolute in him. All the right Page ever had was a right of redemption, and a right of possession at the will of the trustees after default. None of those rights were affected by the decree to which he was not a party. He does not wish to redeem. The deed of trust and the decree would have shown that the right of property was not in the company when Page bought, but equitably in the trustees, as a security for a debt; that the possession of the company depended on the will of the trustees after default; and that the will had been determined by the foreclosure, sale and actual possession by the purchasers. They would, in short, have shown that he had only a right of redemption, and as he had not offered to redeem, that he could not be injured by a conversion. The court erred in excluding the deed of trust and the decree as evidence of title in defendant. For this, as well as for the error in instructions above indicated, and in refusing a new trial, reverse the judgment, and remand the cause for a new trial, and other proceedings consistent with this opinion.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    The State vs. Emerick.
    Cbiminal Pleading : Indictment for selling liquor to minors.

    An. indictment charging the selling of intoxicating spirits to a minor, without his parents' consent, in writing, and not negativing the consent of his guardian, is bad, on demurrer.

      APPEAL from Lonoke Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Henderson, Attorney General, for appellant.

      Hcdlam, contra.

   English, C. J.

John Emeriek was indicted in the circuit court of Lonoke county for selling intoxicating spirits to a minor. There were two counts in the indictment, in substance as follows:

The first count charges that John Emeriek, on, etc., at, etc., “ did then and there unlawfully sell intoxicating spirits to Ab. Clements, he, the said Ah. Clements, being then and there under the age of twenty-one years, and the said sale having been then and there made without the consent, in writing, of the parents of the said minor, against the peace,” etc.

The second count charged that defendant, on, etc., at, etc., “ did then and there unlawfully sell spirituous liquors to a minor, without the consent, in writing, of the parents of said minor, against the peace,” etc.

The court sustained a demurrer to the indictment and the state appealed.

The statute under which the indictment was drawn follows:

“If any person shall sell to or buy for any minor intoxicating spirits of any kind, without the consent or order, in writing, of the parent - or guardian of such minor, he shall, upon conviction thereof, be fined in any sum not less than twenty-five nor more than one hundred dollars.” Gantt’s Digest, sec. 1609.

Omey v. The State, 28 Ark., 281, is, on principle, like this case. That was an indictment under a statute which provided that no person should sell, or cause to he sold, to a slave, ardent spirits, without the permission of the master, mistress, overseer, or person having charge of the slave.

The second count of the indictment charged that defendant sold ardent spirits to a slave without permission of his master, hut did not negative the permission of the mistress, overseer, etc. The court held the count bad. The Chief Justice, who delivered the opinion of the court, said; “It does not make out the offense under the statute to charge that the ardent spirits were sold to the slave without permission of the master, for the permission may be given by the mistress, overseer, or person having charge of the negro; and it is more consistent with the rules of criminal pleading for the indictment to negative the permission of all persons who are designated in the statute as authorized to give it.”

In this case neither count negatives the consent or oi’der, in writing, of the guardian of the minor, nor does it allege that the minor had a parent and no guardian.

All that is alleged in the indictment may be true, and yet the accused may have been guilty of no offense against the statute. It is better pleading to negativethe consent or order, in writing, of parent or guardian,- in the language of the statute.

In The State v. Shoemaker, 4 Indiana, 100, which was an indictment under a similar statute, the sale was alleged to have been made to the minor “without the consent óf his parent,” the language of the statute, omitting the words of our statute, “or guardian.”

The court said: “It is possible that one, or both, of the minor’s parents are dead — possible that he had a guardian. But the presumption in favor of the parent being alive and competent to discharge the duties which that position imposes, may be fairly indulged. It is not necessary .that’ the indictment should negative every conceivable fact which might change the character of the offense,” etc., and the.indictment was held good.

With all due respect to the supreme court of Indiana,, we think it safer not to indulge in presumptions, unless-they he based upon well-established legal rules, to uphold indictments. Every person is presumed to be innocent of crime, until the contrary is alleged and proven. And if the indictment is so framed that all its allegations may be true and yet the accused guilty of no offense, it is safer to hold it bad, on demurrer.

It is simple and easy for prosecuting attorneys, in drafting indictments for misdemeanors under the statutes, to follow their language and negative the existence of any fact mentioned in the enacting clause which would make the act innocent charged to be criminal.

Affirmed.


author: Enslish, C. J.

text:
    Thomm et al. vs. The State.
    1. Criminal Proceedings : On forfeited bail-bond.

    In proceedings against bail in criminal cases, on forfeited bail-bonds, no pleadings are required from the state, but it is the duty of the clerk to issue a summons requiring the bail to appear, etc.
    2. Misdemeanors: Justices of the peace must try.

    A justice of the peace has no authority to decline to try a misdemeanor, and bind the accused over to the circuit court for trial; an'd a bail-bond taken by him in such case is void.
    APPEAL from White Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.
    House, for appellant.
    Henderson, Attorney General, contra.

   Enslish, C. J.

Jacob Thomm, J.'W. Williams and W. T. Wallis, were summoned to appear at the January term, 1879, of the circuit court of White county, to answer a forfeiture taken at the preceding term of the court, upon the following bail-bond:

“Walter D. Childress, being in custody, charged with an assault and battery upon the person of one A. N. Foster, and being admitted to bail in the sum of five hundred dollars, we, Jacob Thomm, J. W. Williams and W. T. Wallis, hereby undertake that the above named Walter D. Childress shall appear in the circuit court, on the first day of the term in July, 1878, to answer said charge, and at all times shall render himself amenable to the orders and proceedings of said court in the prosecution of said charge, and if convicted shall render himself in execution thereof, and if he fails to perform either of these conditions, then we will pay to the state of Ar’kansas five hundred dollars.

“Jacob Ti-iomm, [Seal.]

“J. W. Williams, [Seal.]

“W. T. Wallis, [Seal.]”

The summons recited that, on the tenth of April, 1878, Walter D. Childress was arrested on a warrant issued by Thomas Owen, á justice of the peace of White county, charged with an assault and battery upon the person of one A. N. Foster, and, upon a hearing before the justice, was required to give bail for his appearance before the circuit court of White county, at its next term, etc., to answer said charge; then recites the execution of the above bail-bond, the failure of Childress to appear, etc., the forfeiture of the bond, etc. , '

The defendants filed an answer, setting up various objections to the validity of the bond, and made their answer a demurrer, which the court overruled, and they declined to plead further.

a1Noplead_ Jntsastey ohn balfbonds!

2. Misde-MBANORS:

j.p.must baiuonci°rcuit court.

The case was submitted to the eourt by consent, and the court, after examining the justice of the peace who took the bond, permitted him to add his approval of it, which he stated he omitted to do at the time it was taken, thus:

“Approved, this the twelfth day of April, 1878.

“ Thomas Owen,

“ Justice Peace, Red River township, White county.”

The court gave judgment against the defendants for the penalty of the bond, overruled a motion for a new trial, and they took a bill of exceptions, and appealed.

I. In proceedings against bail, in a criminal case, on forfeited bail-bond, no pleadings are required on the part of the state, but it is made the duty of the clerk to issue a summons, requiring the bail to appear, etc., to show cause why judgment should not be rendered against them, etc. Gantt's Digest, secs. 1739, 1743.

Under a like statute in Kentucky it has been decided that, as the bail-bond; or recognizance, itself, is the basis of the action, it must, in connection with the order of forfeiture, present a perfect cause of action. Roberts v. Commonwealth, 7 Bush, 430; Commonwealth v. Fisher, 2 Duvall, 376.

II. One of the objections taken to the validity of the bail-bond in the answer, is, that Childress, being charged with an assault and battery, which is „a misdemeanor, and within the jurisdiction of the justice of the peace, on whose warraut he was arrested, it was his duty to try the case, and he had no authority to take a bail bond for the appearance of the accused before the circuit court, to answer the charge there.

The statute provides that: “ When the arrest is made in the county in which the offense is charged to have been committed, the magistrate before whom the defendant is carried shall forthwith proceed to an examination of the charge; and, if the offense charged be a felony, shall commit, hold to bail, or discharge, as the case may be, or, if he have jurisdiction to hear and finally try the charge, shall proceed to final determination and judgment.” Gantt’s Digest, sec. 1688.

Justices of the peace have jurisdiction to try and punish misdemeanors. Constitution of 1874, art. 7, sec. 40. The circuit courts have also concurrent jurisdiction. The State v. Devers, 34 Ark., 188.

There seems to be no statute authorizing a justice of the peace, who has jurisdiction to try a misdemeanor, to decline to try it, and bind the accused over to the circuit court-for indictment and trial there. It is his duty to try it himself.

An assault and battery is a misdemeanor.

A bail-bond in a criminal case, taken by an officer not authorized by law to take it, is void. Cooper et al. v. State, 28 Ark., 278.

It is needless to pass on other objections made to the bond.

Reversed arid remanded, with instructions to discharge the appellants.


author: English, C. J. Justice Hinman,

text:
    Peel vs. January et al.
    1. Jurisdiction: Obtained by fraud.

    J, a citizen of St. Louis, sued P, a citizen of "Washington county, Ark., in the circuit court of that county, and in order to get jurisdiction of his person and sue him in St. Louis, had him served in Arkansas with notice to take deposition in St. Louis for evidence in the pending suit in Arkansas, and thereby induced him to St. Louis and instituted suit, and got personal service of summons on him there. P made no appearance to that suit, and J recovered judgment aaainst him by default, and then sued him on that judgment in Arkansas. To this suit P pleaded the foregoing facts in defense at law. Held, upon demurrer: That the inducing P to St. Louis in' the manner and for the purpose stated, and serving him with process there, were a fraud upon the jurisdiction of the court there, for which, upon a proper application in apt time, the court there would have quashed the service or set aside the judgment; or for which a court of equity, either in Missouri or Arkansas, would have enjoined the judgment if he had, without fault or negligence on his part, been deprived of applying to the court which rendered the judgment, to set it aside; but that the fraud was no defense at law to an action on the judgment.
    2. Laws oe Other States: Not proved, presumed to be common law.

    In the absence of evidence to the contrary, the common law is presumed to be in force in another state.
    3. Judgments: Foreign, when conclusive.

    In a suit brought in a court of one state upon a judgment of a court of another state, which had jurisdiction of the subject-matter and of the person of the defendant, the judgment is conclusive as to all other matters.
    4. Fraud : Pleadable under the Code, against judgment.

    Fraud or. imposition in the recovery of a judgment may, under the Civil Code, be set up as an equitable defense to defeat a recovery upon it; but the answer must show sufficient reasons for not applying to the court that rendered it, to set it aside; and must be framed like a bill for relief, and the cause transferred to the equity docket.
    5. Appearance: Motion to quash fraudulent service is not.

    Neither by the common law nor by our practice .would an application to a court to set aside a service unfairly obtained be regarded as an appearance to the suit.

      APPEAL from Washington Circuit Court.
    Hon. R. W. Ellis, Special Judge of the Circuit Court.

      J. D. Walker, for appellant.

      Gregg, contra.

   English, C. J.

This action was brought in the circuit ■court of Washington county by Dederick A. January and Jesse L. January, successors to the mercantile firm of D. A. January & Co., of St. Louis, against Samuel W. Peel, upon a judgment recovered by plaintiffs against defendant in the circuit court of St. Louis, Mo.

The transcript of the judgment, etc., wliich is the foundation of the action, exhibited with and made part of the complaint, shows that on the twenty-second of January, 1878, the plaintiffs commenced suit in the circuit court of St. Louis against defendant on an open account for goods, wares, and merchandise, etc.; that the writ issued, on the filing of complaint and bill of particulars, was made returnable on the first Monday of April, 1878, and that on the day of its issuance (the twenty-second of January, 1878,) it was served on the defendant personally, by the sheriff, in the city of St. Louis. At the return term defendant made default, and judgment was rendered against him for $329.38 —amount of the account sued on — and for costs.

To the present action on the Missouri judgment, the defendant filed an answer, in substance, as follows:

That at the time of the commencement of the suit in the circuit court of St. Louis, and at the time of the rendering of the judgment therein, defendant was a citizen and resident of this state, and not a citizen or resident, or domiciled in the state of Missouri; nor had he any property therein liable to seizure on execution, attachment or other process ; that he did. not appear to said action in person or by attorney, and was not served with process, and had no notice of the pendency of the suit, other than the service on the twenty-second of January, 1878, of a summons issued out of the office of the clerk of the circuit court of St. Louis on that day.

That before the commencement of the suit in St. Louis, plaintiffs had sued defendant on the same cause of action in the circuit court of Washington county, in this state, which was pending when the St. Louis suit was commenced, and when the judgment was rendered therein. ,

That defendant was not indebted to plaintiffs in the whole amount sued for and recovered by the St. Louis judgment, and that $120 of said account, for which the judgment was rendered, was incorrect and unjust.

That while said action was pending in the circuit court of Washington county, and defendant was resisting the same, and preparing his defense thereto, plaintiffs notified him that they would take the depositions of witnesses in the city of St. Louis on the twenty-second day of January, 1878, to be read as evidence on their part on the trial of said cause, and to then and there appear and cross-examine such witnesses.

Induced by this notice, defendant left his residence in Arkansas, and started to St. Louis on the nineteenth,' reached there on the twenty-first, and was present in said city on the twenty-second of January, 1878, for the purpose of personally cross-examining such witnesses as plaintiffs might produce against him under said notice.

That after he was thus .induced to go within the jurisdiction of the circuit court of St. Louis, plaintiffs, on the twenty-second of January, 1878, instituted their action against him in said court, upon the same demand on which -fclie judgment sued on in this action was recovered, and upon which their suit in the circuit court of Washington county, in this state, was then pending, and caused him to be served with process, etc.

And so defendant says that plaintiffs,fraudulently intending to obtain jurisdiction of his person before, and to prosecute the action aforesaid, on which said supposed judgment was obtained,in the said circuit court of the city of St. Louis, fraudulently caused by the giving of the notice to take the depositions aforesaid, the personal presence of defendant within the jurisdiction of the said circuit court, on the twenty-second day of January, 1878, and at the time of the service of the said process in said suit upon him; and that thereby the jurisdiction of the person of this defendant, by the service of said process, issued and served on said twenty-second of January, 1878, in said action in which said supposed judgment was rendered in said circuit court of the city of St. Louis, by the acts and doings of said plaintiffs, as aforesaid, was fraudulently obtained, and that •such judgment should be held null and void; wherefore ■defendant prays judgment.

The plaintiffs demurred to the answer on the following grounds:

“1. Because the answer attempts to set up fraud in procuring jurisdiction of defendant’s person, and the facts by him stated show that he went voluntarily within the jurisdiction of said circuit court of St. Louis.

“ 2. Because said answer does not deny that said plaintiff's have a just and legal cause of action against said defendant.

“ 8.' Because said answer admits the validity and justness of more than half of plaintiffs’ claim, and attempts to defeat the whole action by alleging that only $120 of their claim is unjust.

1.Jurisdic-tion:

Obtained by fraud.

“4 Because said, answer is otherwise insufficient in law.”

The court sustained, the demurrer, and defendant resting, judgment was rendered against him in favor of plaintiffs for the amount of the judgment sued on, and defendant appealed.

I. Taking the allegations of the answer to be true, as admitted by the demurrer, the personal presence of appellant within the jurisdiction of the circuit-court of St. Louis, and the service of process on him there, were obtained, by a fraudulent contrivance of appellees.

True, he went there voluntarily, but if induced to go there by a false notice — a notice intended to bring him there for the purpose of serving him with process, and not designed in good faith to afford him an opportunity to cross-examine witnesses, it was a fraud upon the jurisdiction of the St. Louis circuit court.

In Carpenter v. Spooner, 2 Sandford, 717, defendant went voluntarily into the city of New York, where he was induced to go by means of a false letter which plaintiff' caused to be written to him, for the purpose of inducing him to go there, that he might procure service of a writ upon him.

An application was made to set aside the service, and the court said: “ This court will not sanction any attempt to bring a party within its jurisdiction by fraud and misrep-' resentation. And where, by a false statement or fraudulent pretense, a party is brought within the jurisdiction and there served with process, the service will be set aside. Ye recollect a case where a party, was entrapped' into .the state out of another state, and then served with process, and there the service was set aside.”

2. Laws States:

Common law.

In Goupil v. Simonson, 3 Abb. Prac. R., 474, the sheriff induced Simonson to come within his bailiwick by a false statement that his son was imprisoned, there, and. then served an order of arrest upon him, and he was, on motion, discharged. The court said: “ It is but too apparent that he was enticed within the bailiwick of the sheriff of Kings county that- he might be arrested. It is manifest that the whole proceeding was a trick for the purpose of giving the sheriff of Kings county an opportunity to arrest the defendant” — and the court approved the ruling in Carpenter v. Spooner, sup.

In Luttin v. Benin, 11 Mod., 50, Lord Holt, after stating that if a man is wrongfully brought into a jurisdiction and thereby lawfully arrested, he ought to be discharged, adds, “for no lawful thing founded upon a wrongful act, can be supported.”

And Chief Justice Shaw, in Ilsley v. Nichols, 12 Pick., 276, said: “These cases [reviewed by him] seem to establish the general principle, that a valid and lawful act can not be accomplished by any unlawful means; and whenever such unlawful means are resorted to, the law will interpose and afford some suitable remedy, according to the means of the case, to restore the party injured by these unlawful means to his rights.”

In that case, it was held that where an officer unlawfully broke open the outer-door of a dwelling, he could not make a lawful attachment of goods therein.

No doubt, upon the showing made by appellant’s answer, the circuit court of St. Louis would have set aside the service of the summons made upon him, had he made application for that purpose before judgment.

Nor, by the common law, which we presume to be in force in the state of Missouri, in the absence of evideuce to the contrary, would the making of such'a motion have been an appearance to the action. Ferguson v. Ross, 5 Ark, 517.

3. jCD(J. o'Vh b‘a States. when con-

IT. The purpose of the answer was to defeat the whole action upon the judgment on the ground that it was recovered on service of the writ procured by fraud of the appellees.

This suit is upon a judgment of a court of record of the state of Missouri, rendered upon a cause of action within its jurisdiction,.and upon actual personal service of the writ on appellant; and the suit was brought upon the law side of the circuit court of Washington county, in this state.

Sec. 1, Art. IV, of the Constitution of the United States provides that, “ full faith and credit shall be given in each state to the public ¿cts, records and judicial proceedings of every other state. And the congress may, by.general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”

The act of congress of May 20, 1790, provides the manner of authenticating the records and judicial proceedings of the states, and declares that “the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given them, in every court within the United States as they have, by law or usage, in the courts of 'the state from whence the said records are and shall be taken.” Gantt’s Dig., p. 136.

Where a suit is brought in a court of one state upon a judgment recovered in a court of another, and jurisdiction jy .j . . _ . ot the subject-matter and ox the person is made to appear, the judgment is conclusive as to other matters. Thompson v. Whitman, 18 Wallace, 457; Barkman v. Hopkins et al., 11 Ark., 157; Buford v. Kirkpatrick, 13 ib., 33; Kimball et al. v. Merrick, 20 ib., 12.

ITraud in •obtaini n g, notpleada>ble at law.

If, to a suit upon the judgment in Missouri, where it was rendered, appellant could avail himself of the defense that it was recovered by fraud, the same defense is allowable to a suit on the judgment in a court of this state.

As above remarked, in the absence of evidence to the contrary, the common law is presumed to be in force in* Missouri.

Domestic judgments, under the rules of the common law, could not be collaterally impeached or called in question if rendered in a court of competent jurisdiction.

It could only be done directly by writ of error, petition for new trial, or by bill in chancery. Third persons only, says Saunders, could set up the defense of fraud or collusion, and not the parties to the record, whose only relief was in equity, etc. Common law rules placed foreign judgments upon a different footing, etc.

Subject to the qualification that they are open to inquiry as to the jurisdiction of the court which gave them, and as to notice to the defendant, the judgment of a state court, not reversed by a superior court having jurisdiction, nor set aside by a direct proceeding in chancery, is conclusive in the courts of all the other states where the subject-matter of the controversy is the same. To a suit in a court of one state upon a judgment of a court of another state, a plea that the judgment was obtained by fraud, is not allowed. The only remedy is by bill in chancery.

Such is the decision of the supreme court of the United States (whose peculiar and superior province it-is to construe the constitution and laws of the United States) in Chrismas v. Russell, 5 Wallace, 290.

This ruling is also sustained by decisions of the state courts. Benton v. Burgot, 10 Sergeant & Rawle, 240; Granger v. Clark, 22 Maine, 128; Anderson v. Anderson, 8 Ohio, 188; McRae v. Mattoon, 13 Pick, 53; Sanford v. Sanford, 28 Conn., 6.

Pearce v. Olney, 20 Conn., 544, illustrates the rule and the practice under the common law. A judgment was obtained in New York, and an action was brought upon it in Connecticut; defendant filed a bill in chancery to enjoin the prosecution of the action on the ground that the judgment had been obtained by fraud — that he owed the plaintiff in the judgment nothing, and though served with process in New York, he was prevented from making defense to the suit by the fraudulent conduct of the plaintiff. TJpon the facts of the case, the plaintiff was enjoined from fuither prosecuting his action of debt on the judgment recovered in New York.

Justice Hinman,

who delivered the opinion of the supreme court of Conneticut, in the ease, said: “ The object of injunctions to stay proceedings at law, is, to prevent injustice by an unfair use of the process of the court. They are granted on the ground of the existence of facts, not amounting to a defense to the proceeding enjoined against, but of which courts of equity have jurisdiction, and which renders it against conscience that the party enjoined should be permitted to proceed in the cause. It is well settled that this jurisdiction will be exercised, whenever a party, having a good defense to an action at law, has had no opportunity to make it, or has been prevented by the fraud or improper management of the other party, from making it, and by reason thereof a judgment has been obtained which it is against conscience to enforce. Indeed, this falls directly within, and is but an illustration of, the general rule that equity will interfere to restrain the use of an advantage gained in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice, in all cases where such advantage has been gained by the fraud, accident, or mistake, of the opposite party.”

Further on, in the opinion, after stating that complainant in the bill had been sued in New York on a contract with which, personally, he had nothing to do, and upon which he was not personally liable, and judgment had been obtained against him, on service of process, and without defense, Justice Hinman further said : “If this was all, complainant would have no remedy, however unjust it might be to compel him to pay that judgment. Still, as he was duly served with process in that suit, it was his duty to make defense in it; and an injunction ought not to be granted to relieve him from the consequences of his own neglect. It is found, however, that he not only had a good defense, but it was his intention to make it, and he would have made it, had he not been led, by the conduct of the attorney for the plaintiff in that suit, to suppose the suit was abandoned,” etc.

Rogers v. Gwinn, 21 Iowa, 58, was a similar case.

Rogers sued Gwinn, who was a resident of Iowa, in air action for slander, in Kentucky; obtained personal service of proce&s, and Gwinn entered the plea of not guilty. It was positively agreed between him and plaintiff, Rogers, that plaintiff had no cause of action, and that the action should be dismissed, and, on this assurance, Gwinn returned to Iowa. Afterwards, in his absence, and without notice, Rogers proceeded ex parte with the suit, and obtained a judgment against him for $700 in damages, and thereafter brought an action against him on the judgment in Iowa. He filed an equitable answer, setting up the above facts to show that the judgment was obtained against ’him by fraud; the cause was tried by the court, and finding and judgment in his favor, and Rogers appealed.

Justice Dillon, who delivered the opinion of the supreme court, said: ,

“ Our statute allows equitable defenses to be pleaded to an action at law. (Rev., secs. 2617, 2880). Under the answer filed in this case, the defendant is entitled to the same relief which the same facts would, under the former practice, have authorized, if he had made them the ground of a bill in chancery, directly assailing the judgment. The circuitous practice of a bill in chancery to enjoin the law action and for relief, is, under the revision, no longer necessary, if, indeed, it be any longer, strictly speaking, proper.”

In Dobson v. Pearce, 12 New York (2 Kernan), 56, cited by Justice Dillon to support the views of the supreme court of Iowa, the suit was upon a judgment, and the answer was, that it was obtained by fraud. The court of appeals of New York, by Justice Allan, said: “It is unquestionable that a court of chancery has power to grant relief against judgments when obtained by fraud. Any fact which clearly proves it to be against conscience .to execute a judgment, and of which the injured party could not avail himself at law, but was prevented by fraud, or accident, unmixed with any fault or negligence in himself or his agents, will justify an interference by a court of equity.”

Under our present judiciary system, the functions of the courts of common law and chancery are united in the same court, and the distinction between actions at law and suits in equity, and the forms of all such actions and suits, are abolished, and the defendant may set forth, by answer, as many defenses as he may have, whether they be such as have heretofore been denominated legal or equitable, or both. (Secs. 69, 150). The Code also authorizes affirmative relief to be given to defendant in an action by the judgment. Sec. 274-

4. rhauiV:

MeP1under «5glinst0<la judgment,

The intent of the legislature is very clear, that all controversies respecting the subject-matter of the litigation should he determined in one action, and the provisions are adapted to give eJffict to that intent.

Whether, therefore, fraud or imposition in the recovery a judgment, could heretofore have been alleged against it collaterally at law, or not, it may now be set up as an defense to defeat a recovery upon it.

Under the head of equitable defenses are included all matters which would before have authorized an application to the court of chancery for relief against a legaL liability but which, at law, could not have been pleaded in bar. The fact alleged by way of defence in this action, would have been good cause for relief against the judgment in a court of chancery, and under our present system are, therefore, proper matters of defense; and there was no necessry or propriety for a resort to a separate action to vacate the judgment. In Connecticut, although. law and equity are administered by the same judges, still the distinction between these systems is preserved, and justice is administered under the head of common law, and chancery jurisdiction by distinct and appropriate forms of foreclosure, and hence, asit'was at least doubtful whether at law, the fraud alleged would bar a recovery upon the judgment, a resort to the chancery powers of the court of that state was proper, if not necessary.

As in Connecticut, under our present constitution (Art. VII, secs. 11, IV) the circuit courts are vested with both common law and chancery jurisdiction, until the general assembly shall deem it expedient to establish separate courts of chancery.

If a party has a legal cause of action, he brings his suit on the law side of the court, and if an equitable cause of action, it is brought on the chancery side.

Under the Civil Code, if a defendant to .an action at law has a defense cognizable only in equity, he is not obliged as under the former practice, to suffer judgment at law, and file a bill for injunction, but he may make his answer serve the purpose of a bill, and have the cause transferred from the law to the equity side of the court. Gantt’s Dig., sec. 4465.

Hére the action was at law, not upon an open demand, but upon a judgment recovered in another state, which appellees sought to enforce in this state. The answer was in the form of a plea in bar, with a prayer for judgment.

It should have been framed like a bill in equity for an injunction against the enforcement of the judgment, ing the facts, and praying relief. As a plea in bar, appellants had no right to reply. If it had been properly framed as a bill for relief, the case should have been transferred to the chancery side of the court, and appellants allowed to reply to its allegations, or demur. This is the proper Code practice under our judicial system.

Rut passing over the form of the answer, it failed to allege that appellant made any application to the court in St. Louis to set aside the service of the writ complained of, and gives no excuse for not doing so, not even that it was inconvenient for him to have made the application.

The service was not void, but voidable, and if acquiesced in by appellant, valid.

Dunlap & Co. v. Cody, 33 Iowa, 260, relied on by counsel for appellant, differs in some of its features from this case.

5. Appearance:

Application to vacate fraudulent service is not,

Dunlap & Co., of Illinois, held a note on Cody, of Iowa, which was barred by the statute of limitations-of the latter state. To avoid the bar, they induced him, by a falsehood, to go into Illinois, a thousand miles from his home, where, having prepared a suit upon the note, they caused the sheriff to serve process upon him immediately on his arrival in the cars. They afterwards obtained judgment against him without defense, and thereafter sued him in Iowa upon the judgment. By equitable answer (as in Rogers v. Gwinn, sup.,) he pleaded that the judgment was obtained by fraud.

The learned Judge who delivered the opinion of the court, cites a number of adjudications to show that a service of process so obtained is not to be countenanced by the courts, but in cases cited it appears that the service was set aside by the courts out of which the process issued.

Cody was excused for not making application to the Illinois court to set aside the service, on the ground that it was so far from his home, and on the further ground that such an application might have been treated by the Illinois court as an appearance to the action; that it would be so treated in Iowa.

In the absence of evidence, we do not know what the statutes of Missouri are,, but neither by the common law ; nor by our practice, would an application to a court to set ‘ aside a service unfairly obtained be treated as an appearance to the action.

In the answer of appellant, he gives no excuse whatever for his failure to apply to the St. Louis court to set aside the service, nor does he claim to have had any defense except to a smaller portion of the debt.

Upon the whole, appellant has neither followed the former chancery nor the Code practice in making his defense, and we can not, upon principle, reverse the judgment for the purpose -of allowing him to make a better case.

Affirmed.


author: Harrison, J.

text:
    Chappell vs. The State.
    Malicious Mischief : Malice towards owner of animal essential.

    The malice which is an essential ingredient in the offense of malicious mischief, or wounding of animals, must he against the owner of the animal, and not against the animal itself. And although such malice will be presumed where there are no circumstances to repel such presumption, yet, if there be such circumstances, as if the injury be done whilst the animal is trespassing in the field and destroying the crop of the accused, express malice must be proved; and this, though the fence around the field be not such as the statute requires.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Tappan £ Hornor, for appellant.'

      Henderson, Attorney General, contra.

   Harrison, J.

Henry Chappell was tried upon an indictment for maliciously wounding a bull, the property of W. B. Brooks, and was found guilty and fined twenty dollars.

He moved for a new trial, upon the grounds that the court refused to give the jury proper instructions asked by him, and that the verdict- was not sustained by the evidence ; and his motion being overruled, he excepted and appealed.

The evidence, which was all in behalf-of the state, was as follows:.

Thomas Upshaw testified: That he lived near the defendant, and had,-in 1879, in his possession, or under his charge, a bull belonging to W. B. Brooks, which ranged in the neighborhood, and about the defendant’s premises, in Phillips county; and that the bull was shot by some one, but by whom he did not know, in the summer of that year. He saw where the shot entered, but he was not at all injured. He did not know whether the bull was breachy or not, but had heard he had once-been in the defendant’s cotton and corn field, the fence of which he said was not a lawful one. The defendant, so far as he knew, had no malice against Brooks, the owner of the bull, or himself.

And William MeGrew testified that the defendant and George Fante, in 1879, raised a crop of cotton and corn together, and that in a conversation with the defendant, a short time after the bull was shot, he told the witness that he and Fante shot him in their field whilst destroying their crop.

The defendant asked the court to give the jury the following instructions, which it refused to do:

“1. In a prosecution for a malicious injury to an animal, it is necessary for the state to prove that the act was done through malice against the owner, and not against the animal.

“2. If the jury find from the evidence that the bull was shot whilst in the defendant’s field destroying his crop, malice must be proven, and not merely implied, or the defendant must be acquitted.”

The malice, which is an essential ingredient in the offense of malicious mischief or injury to animals, must be against the owner of the animal, and not against the animal itself. Thomas v. The State, 30 Ark., 433; 2 Bish. Cr. Law, sec. 996; 1 Bish. Cr. Law; 2 East., 1072.

Malicious Mischief:

Malice towards the owner of animal essential.

Although malice against the owner will be presumed when there are no circumstances in the case to repel such presumption, if there be such circumstances, as if the killing, maiming, or wounding, was by the accused whilst the animal was trespassing in his .field and destroying his crop, express malice must be proven. Bish. Stat. Crimes, sec. 437.

The instructions were therefore proper, and should have been given.

Since the case of Thomas v. The State, supra, was decided, section 3181, Gantt’s Digest, has been, by an act passed March 17, 1879, amended; and persons who kill, maim, or wound animals trespassing in their inclosures, are not now, as before, absolutely exempted from its penalties, unless the fence of the iuclosure is such as is required by the statute.

To show thatthefence is of the required height, and otherwise sufficient, devolves, of course, upon the defendant. We would, however, remark, that the statement of the witness, Upshaw, that the defendant’s fence was not a lawful one, was not competent evidence. He should have stated the facts as to its condition, and not the legal conclusion he may have supposed to be drawn from them.

The amendment affected no other change in the law, and though the fence of the inclosure be not such as the statute requires, it is still necessary to prove malice agaiust the owner.

There was, in this case, no evidence of malice aga’nst the owner, or in fact of any damage to him.

The judgment is reversed, and the cause remanded that there may be a new trial.


text:
    Crowell, Ad., vs. Packard, Sp. Ad.
    1. Ymboe ill Vendk: Avoiding payment of purchase-money.

    A vendee who takes a deed for land without covenants of warranty, can not avoid the payment of the purchase-money, unless fraud has been practiced upon him.
    2. Same : Covenants against incumbrances cover taxes.

    Taxes on land, due at the time of the sale, are a lien upon it, and covered by the vendor’s covenant against incumbrances suffered by him.
    APPEAL from Jefferson Circuit Court.
    Hou. J. A. Williams, Circuit Judge.

      jBell, for appellant.
   Harrison, J.

This action was brought by William M. Brown, against Buckley L. Crowell, on a promissory note for $250, dated January 29, 1874, and payable.December 1, 1874, with 10 per cent, interest from date until paid.'

The defendant pleaded that the consideration of the note had failed. He averred that it was given in the purchase of a tract of land — consisting of the east half of the northeast quarter of section five, and the northwest fractional quarter, and the west part of the northeast quarter of section four, in township seven south, of range seven west, and containing 260 acres. That to induce him to purchase the land, the plaintiff falsely and fraudulently represented to him that it had been sold for taxes in 1868; that the title of the purchaser at the tax sale had been conveyed to him, and that, except as to the right of minor heirs of the former owner, if there were any, to redeem, he had a valid title to it. That confiding in the plaintiff’s representations, he purchased the land from him at. the price of $1,500, and paid him $1,250 in cash, and gave him the note for the remainder ; and the defendant made him a deed, covenanting therein against incumbrances done or suffered by himself, but not against the claims of others. That 120 acres of the land — the south half of the said northwest fractional quarter of section four, and the southeast quarter of the said' northeast quarter of section five — -which was wild and unimproved, and of which the plaintiff had no actual possession, was, at the time of the purchase, the property of William E. Woodruff, who had paid the taxes on the same regularly, and it was not sold for taxes in 1868, and the plaintiff had no color of title thereto.

That, having no knowledge of Woodruff’s title, he entered into possession of the said 120 acres and made valuable improvements thereon; that that portion of the land was worth $362, and he had since purchased the same from Woodruff at that price. That another part of the tract— the northeast quarter of the said northeast quarter of section five — had been, in 1873, forfeited for taxes — and he-had, since his purchase, been compelled to pay $53.25 to-redeem it.

That the plaintiff, when he sold defendant the land, agreed and promised to pay the taxes of 1873, and that he had failed to do so, and he, the defendant, to save that part, of the land he obtained title to, from sale or forfeiture, was compelled to pay the taxes on it — which amounted to-$17.64.

Both the plaintiff and the defendant died, before the trial,, and the cause was revived in the name of W. L. Packard,, as special administrator of the plaintiff, and against Mary J. Crowell, as administratrix of the defendant.

The cause was tried by the cou-rt, which found as conclusions of fact: That the note was given in the purchase of the land mentioned in the answer; that the northeast ■quarter of the northeast quarter of section five was forfeited for taxes in 1873, and the defendant’s intestate, after he purchased, paid $53.25 to redeem the same; and that the south half of the northwest fractional quarter of section four, and the southeast quarter of the northeast quarter of section five, were owned by William E. Woodruff', and he had since purchased those parcels from him, and paid for-the same $362; and it declared as conclusions of law:

1. That the failure of the title as to the land Woodruff -owned, was not a failure of the consideration of the note; and,

2. That there was a failure of consideration to the amount paid to redeem that forfeited for “taxes; and, thereupon, found for the plaintiff:' the sum of $275.43.

The defendant moved for a new trial; her motion was overruled, and she appealed.

The grounds assigned in the motion for a new trial were, that the court erred in its conclusions of law, and that its findings were contrary to the evidence.

There was no finding by the court as to the alleged fraudulent representations. <

The Woodruff land, it was proven, had not been sold'for taxes, and it had been conveyed to the defendant’s intestate along with the other by a quit claim deed from Mark Noble; and there was no evidence that when the plaintiff’s intestate sold that, he was aware that it had not been sold for taxes.

Though it was proven, as alleged, that Brown asserted that the tax-title was good and valid, his deed contained no warranty of title, and he in express words- covenanted against himself only; and it is to the deed that we are to look for the contract between the parties.

x, vendee:

SJoney aso

2--: Covenants against incumbrance cover taxes

A vendee who takes a deed for land without covenants of warranty can not avoid the payments of the purchase-money unless fraud has been practiced upon him. McDaniel v. Grace, 15 Ark., 465.

But if there had been a warranty of title, the proof showed that Crowell entered into possession and made improvements on the part to which he acquired no title, before he purchased it from Woodruff or knew that his grantor had ho title, and there had been no eviction. There was not, their, a total failure of title. It has been repeatedly held by this court that a partial 'failure in title to real estate, where there was no fraud, is no defense to an action on a note given in the purchase of it. Wheat v. Dotson, 12 Ark., 699; Walker v. Johnson, 13 Ark., 522; McDaniel v. Grace, supra; Barnes v. Anderson, 21 Ark., 125.

The evidence showed that Crowell, in addition to the money to redeem the forfeited land,’ paid $17.64 taxes ot ° 7 £ 1873 on the land to which he got title. The taxes were a lien on the land — an incumbrance suffered by Brown,which he, in his deed, covenanted against. Sec. 5153, Gantt’s Digest.

There was, then, a further failure of the consideration of the note to the extent of the sum paid to remove this incumbrance, but the court did not so find, and in this there was error.

The judgment of the court below will, therefore, be reversed, and the cause remanded to it for further proceedings, unless the appellee shall consent to enter a remittitur for the sum of $17.64 and pay the costs of the appeal.


author: PIarrison, J.

text:
    McKibbin vs. Fort Smith.
    1. Town Council: May abate nuisance without judicial proceedings.

    By sec. 13 of the act of March 9, 18*75, for the incorporation and government of municipal corporations, a town council has power to prohibit the. erection of wooden buildings in certain districts of the town as a precaution against fire; and if such building be erected in violation of an ordinance inhibiting it, the council may promptly remove it, without any prosecution or judicial proceedings of any kind against the owner of the building.
    2. Injunction. Damages: Against city for wrongful removal of building.

    "Where a building has been removed, or is about to be removed, by a police officer under an order of the town council, when, in fact, the owner has not, in its erection, violated any ordinance of the town inhibiting it, he may recover damages against the town for the removal, or have an injunction against the threatened removal, as the case may be.
    APPEAL from Sebastian Circuit Court.
    Hon. J. A. Rogers, Circuit Judge.

      Du Val Cravens, for appellant.

      Brizzolari, contra.

   PIarrison, J.

This was a complaint in equity by P)avid A. McKibbin against the town of Fort Smith to restrain or enjoin the removal, by the chief of police, of a wooden or frame building from within the fire limits of the town.

The complaint alleged that the building was erected previous to the passage of the ordinance establishing the fire limits, but that the plaintiff having, since its passage, made additions to it, though not over ten feet high nor in violation of the ordinance, the town council had ordered its removal out of the limits, and directed the chief of police if not removed by tbe plaintiff in ten days after tlie sixth day of August, 1878, to remove it at his expense.

The defendant, in her answer, denied that the building was erected previous to the passage of the ordinance; but averred that it was erected by the plaintiff since, under pretense of repairing and making additions to an old building, that was taken down to give place to it.

The facts of the case disclosed by the pleadings and evidence were these : The ordinance establishing the fire limits of the town was passed on the thirteenth day of March, 1876, and prohibits the erection within the limits of any building, or any addition to a building, more than ten feet high, unless the outer walls thereof be made of brick and mortar, of iron, or of stone and mortar; and it declares any building, or addition to a building, erected in violation of the ordinance a nuisance, and it is made the duty of the chief of police to remove, or abate, the same in such manner as the council may direct, at the expense of the owner.

At the time of the passage of the ordinance there was, on lot No. 2, block No. 25, on Garrison avenue, within the limits designated by it, a wooden or frame building, thirteen feet wide, twenty-six feet long and thirteen feet high, and the roof of which was covered with clapboards. This building was, in the month of July, 1878, taken down by MeKibbin, the owner, all except a side wall, and he constructed upon the lot, with new material and such of the old as answered the purpose, a wooden or frame building nineteen or twenty leet wide and fifty-two feet long. The wall left standing formed part of one of the side walls, and the fence on the alley, to which the building was extended, which was cased with the plank of the old walls taken down, was made to serve as tbe other — that part of the new roof over the site of the original building was covered with shingles, and was twelve feet high from the ground. The height of the extensions was only ten feet. The sills and sleepers, and the flooring, with the exception of five or six planks in width, extending from one end to the other of the building, were of new material: The old rafters were used on the side the wall left standing was on, and were spliced to make them the necessary length ; and the old door and door frame were used in the rear end, and the old sleepers for collar beams. With the exception of three or four planks to replace decayed ones, the wall left standing remained as it was. The front was entirely new, and a wooden shed, or awning, fifteen feet wide, and at the highest part twelve feet, in front, oyer ihe street, extended the width of the building.

1. Town Council:

Mny abate nui «anee witboutjudicial proceedings.

The court dismissed the complaint and the plaintiff appealed.

It can not be correctly said that the old building was repaired. The only integral portion of it remaining is the wall left standing, but which forms a portion only of the wall of the present building. As' a' structure it was completely destroyed, and that now on the lot is manifestly a new and another building. Bishop on Stat. Crimes, sec. 208.

It is insisted by the appellant that the action of the town council in ordering the removal of the building without a trial to determine whether it had been erected in violation of the ordinance, and opportunity afforded him to be heard, was without the sanction or authority of law, and in violation of that provision of the Bill of Rights which declares'that no person shall “ be deprived of his life, liberty or property, except by the judgment of his peers, or the law of the land.”

• Section 13, of the act of March 9, 1875, for the incorporation and government of municipal corporations, is as follows: “ Sec. 13. They (the city and town council) shall have power to regulate the building of houses; to make regulations for the purpose of guarding against accidents by fire, and to prohibit the erection of any building, or any addition to any building, more than ten feet high, unless the outer walls thereof be made of brick and mortar, or of iron, or of stone and mortar; and to provide for the removal of any building or additions erected, contrary to such prohibition.”

Chief Justice Shaw,in Commonwealth v. Alger, 7 Cush., 84, says: “ We think it is a settled principle growing out of the nature of -well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied, liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth * * * is derived directly or indirectly from the government and held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature under the governing and controlling'power vested in them by the constitution may think necessary and expedient. ■ This is very different from the right of government to take and appropriate private property to public use, whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power — the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.” And he further remarks that “ it is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise. There are many cases in which such a power is exercised by all well-ordered governments and where its fitness is so obvious that all regulated minds will regard it as reasonable. Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways; to restrain the height to which wooden buildings may be erected in populous neighborhoods and require them to be covered with slate or other incombustible material; to prohibit buildings from being used for hospitals for contagious diseases, or for carrying on of obnoxious or offensive trades; to prohibit the raising of a dam and causing stagnant water to spread over meadows near inhabited villages, thereby raising obnoxious exhalations injurious to health and dangerous to life.”

Judge Story says: “ All the property and vested rights of individuals are subject to such regulations of police as. the legislature may establish with a view to protect the community and its several members against such use or employment thereof as would be injurious to society or unjust toward other individuals.” 2 Sto. on Constitution, sec, 1954.

Judge Dillon says : “ Many of the powers most generally exercised by municipalities are derived from what is known as the police power of the state, and are delegated to them to be exercised for the public good. Of this nature is the authority to suppress nuisances, preserve health, prevent fires, to regulate the use and storing of dangerous articles, to establish and control' markets and the like. * * * It may be observed that every citizen holds his property subject to the proper exercise of this power, either by the state, legislature directly, or by public corporations to which the legislature- may delegate it.” Dill. Munic. Corporations, sec. 93.

And the supreme court of New York, in the case of Vanderbilt v. Adams. 7 Cow., 349, say: “ The sovereign power in the community therefore, may and ought to prescribe the manner of exercising individual rights over property. It is for the better protection and enjoyment of that absolute domain, which the individual claims. The power rests in the implied right and duty of the supreme power to protect all by statutory regulations, so that, on the whole, the benefit of all is promoted. Every public regulation in a city may and does, in some sense, limit and restrict the right that existed previously. But this is not considered an injury. So far from it, the individual, as well as others, is supposed to be benefited. It may then be said that such a power is incident to every well regulated society, and without which, it could not well exist. Is there a doubt that the legislature have a right to authorize a road through- the wild lands of A without his consent? This right has been assumed and acted upon without a question, ever since we became an independent government. No compensation is "allo'wed in such eases to the owner. Can he defeat the operation of the law, by saying that private right is invaded? The doctrine has not yet been advanced. Such a law, I apprehend, is constitutional and obligatory; because in many cases, necessary for the public benefit, and not deemed injurious to the individual whose land is taken.” Baker v. Boston, 12 Pick., 184; Commonwealth v. Tewkesbury, 11 Met., 55; Wadleigh v. Gilman, 12 Maine, 403.

In the case of Harvey v. Dewoody et al., 18 Ark., 252, the mayor, councilmen and constable of the town of Des Arc, being sued, individually, for pulling down the plaintiff’s house, justified under an ordinance of the town, declaring the house — which had long been unoccupied except by transient persons, and in such a manner as to endanger the town by fire, and also to make it offensive to the citizens of the town — a nuisance; and providing that if the plaintiff did not, within a specified time, after notice, abate the nuisance, the constable should proceed to do so — and their defense was held good. The court say : '“It is clear, we think, from the plea, that the mayor and councilmen had the right to have the nuisance complained of, removed or 'abated, in some one of the modes provided by law, even though, in doing so, it should be found necessary to destroy the house, or tenement — as was the case in the instance at hand. The measure was regarded and esteemed by the corporate authorities as rather of a mixed character, partly sanitary, and partly economical, to preserve other adjacent property in the town ; and, as such, we hold that every citizen enjoys his property, subject to such regulations. Police regulations to direct the use of private property, so as to prevent its proving pernicious, to the citizens at large, are not void, although they may7, in some measure, interfere with private rights without providing for compensation.”

Summary proceedings, without the usual forms of a regular judicial trial, have often been held valid as falling within the police powers of the government. Blair Hutchinson and Smith v. Forehand, 100 Mass., 136; City of Salem v. Eastern Railroad Company, 98 Mass., 431; The American Print Works v. Lawrence, 1 Zab. (N. J.), 248; Underwood v. Green, 3 Robt., 86; Harvey v. Dewoody et al., supra.

InjbnoAGES:

city for wrongful of

If the legislature may, as it has clone, delegate to the town council authority to prohibit the erection of wooden buildings in certain districts of the town', as a precaution against fires, it may, as it has also expressly done, clothe it with the power necessary to accomplish or effect the end in view.

’ The only effective remedy for the evil done by a violation of the ordinance, is to promptly remove the building. A few days’ delay might be attended with most disastrous consequences to the community ; whilst waiting a judicial determination the town might be destroyed.

In a case where there has, in fact, been no violation tue ordinance, yet the building has been removed by the chief of police under an order by the council, or he is unA . . 5 der such an order threatening to remove it, the owrer would he entitled to recover damages from the town for the trespass, or to an injunction to prevent the threatened wTaste, as the case may be.

We are, therefore, of the opinion that no prosecution or judicial proceedings of any kind against the owner of the building was necessary or proper before the council could order its removal.

It is also objected that the ordinance directs removal of the buildings, if not removed by them, at the expense of the owners.

It is the duty of the appellant himself to remove the building, and perhaps he will prefer to do it. It will be time enough to consider that question when such expense has been incurred.

The decree is affirmed.