text:
    Rau vs. The City of Little Rock.
    1 City Ordinances : Retrospective in part, void pro tanto.

    A city ordinance retrospective in part, is inoperative and void to that extent only, if otherwise unobjectionable.
    2. City Officer : Accepting salary under one ordinance, can not claim under another.

    "Where a salary, as fixed by an ordinance, and afterwards by a resolution of the city council, is paid monthly to an officer, and he, with full knowledge of the fact, accepts the same, without protest or objection, in full satisfaction and discharge of his demand, he can not afterward object that the ordinance and resolution were void, and demand a larger salary under a previous ordinance.
    3. Contracts: Extent of obligation.

    Parties to contracts are bound, only so far as they intend to be bound.
    APPEAL from Pulaski Circuit Court. '

    Hon. J. W. Martin, Circuit Judge. •

      Cohn, for appellant.
    Johnson, contra.

   Harrison, J.

The appellant, Louis Rau, sought, by his action, to recover from the city of Little Rock the sum of $1,560.83, which he claimed as a balance due him on salary as late city clerk.

The complaint alleged that he was appointed city clerk by the city council, on the twelfth day of April, 1875, at a salary of $200 per month, and he held the office and performed its duties from that date until the thirty-first day of December, 1876, and was entitled to receive, for the time he so served, the aggregate sum of $4,120, but had receivedv only $2,559.17.

The city, in its answer, denied that the salary had been $200 per month, but averred that from his appointment until the tenth day of April, 1876, it was only $185 per month, and from that date $100 per month; and that the same had been fully paid him.

The facts, and as to which there was no controversy, were these: The plaintiff was appointed city clerk by the city-council, on the twelfth day of April, 1875. The salary, which had been fixed by an ordinance on the first day of November, 1872, was, then, $2,400 a year, and payable monthly. On the twentieth day of May, 1875, the city council, by a general ordinance in relation to the salaries of city officers, fixed the city clerk’s at $135 per month, and the salaries established by it, the ordinance declared, should be such from the fifteenth day of April, 1875.

On the tenth day of April, 1876, the salaries of the city-officers were again fixed by the city council, by a resolution, and that of city clerk at $110 per month; and the plaintiff ■was the same day after the adoption of the resolution, again appointed, and he continued to hold the office until the thirty-first day of December’, 1876, when he resigned.

His salaxy, as fixed by the ordinance of May 20, 1875, and afterwards by the resolution of April 10, 1876, was paid monthly, axxd he had received the whole.

The coux’t, trying the case without a jury, found for the plaintiff the sum of $97.50, the difference between the salary as fixed by the ordinance of May 20,1875, and as established by the ordinance of 1872, from the twelfth of April, 1875, the date of his appointment, until the first day of June thereafter, the end of the current month at the adoption of the ordinance of May 20, 1875.

It is insisted that the ordinance of May 20, 1875, being retrospective as to the salaries which had already accrued between the fifteenth day of April, 1875, and its passage, was void, not only as to such provision, but entirely so.

If, except, so far as it was retrospective, the ordinance was unobjectionable, it was inoperative and void to that extent only; so far as it was prospective, it was in no way connected with or dependent on such void part.

But it is also objected, that the city council was prohibited by its charter from making any change in the salary, either hy diminishing or increasing it, during the term for which appellant was appointed; and it is further objected, that the salaries of officers could not be fixed or changed by the council in any other manner than by an ordinance read on three different days, unless two-thirds of the members of the council dispensed with the rule.

Section 86, of the charter, or act, entitled “ An act for the incorporation, organization and government of municipal corporations,” approved March 9, 1875, says : “The emoluments of no officer, whose election or appointment is required in this act, shall be increased or diminished during the term for which he shall have been elected or appointed ;” and the same section contains the following provision: “All by-laws and ordinances of a general or permanent nature shall be fully and distinctly read on three different days, unless two-thirds of the members composing the council shall dispense with the rule.”

But we do not propose to enter into a consideration of the questions raised by these objections; the salary as fixed by the ordinance, and afterwards by the resolution, was paid the appellant monthly, and he, with full knowledge of the facts, accepted the same, without, it would seem, any protest or objection, as in full satisfaction and discharge of his demand, and such was the operation and effect of the acceptance. 2 Par. on Con., 618; 2 Chit. on Con., 1101, 1127; Birt. on Con., sec. 417; King v. New Orleans, 14 Louis. An., 389; Emrie v. Gilbert & Co., Wright (Ohio), 764; Woodburn’s Adm’r v. Stout, 28 Lnd., 77; Kirby v. Taylor, 6 Johns. Ch., 242; Milliken v. Brown, 1 Rawle, 391; Riley v. Kershaw, 52 Misso., 224; Palmerton v. Huxford, 4 Denio, 166.

It does not matter whether the ordinance of May 20, 1875, was inoperative upon the appellant’s salary for that year, or not; nor whether the resolution was valid, or not; it evidently was the mutual understanding of the council and the appellant that he was to receive no more than the salary intended to be so established. It is not at all likely that the council would have reappointed him, if it had been suggested or intimated by him that he claimed, or would claim, a higher salary than was so provided. Parties to contracts are bound only so far as they intend to be bound.

The judgment is affirmed.


source: Caselaw Access Project

author: Eakin, J.

license: Public Domain

text:
    Allis vs. Jefferson County.
    1. Statute Construed: Appropriation of taxes by the county court.

    Section seven, of tlie act of March 18, 1879, limiting the appropriation of taxes by the county court, to “ ninety per cent, of the taxes for that year,” means, of the taxes levied upon the assessments of property and to be extended upon the tax-boolcs; and does not prevent the court from also appropriating the revenue accruing to the county from fines, fprfeitures and licenses.
    APPEAL from Jefferson County.
    Hon. X. J. Pindall, Judge.
    A. T. White, for appellant.

      Attorney General, contra.

   Eakin, J.

On the eighteenth of October, 1879, appellant, a citizen and taxpayer of Jefferson county, applied, by petition to the circuit court, and obtained a writ of certiorari to the county court to bring up the proceedings had in the levy of the taxes, and making appropriations for the county.

Upon the return of the writ, it appeared that the county court, composed of the judge and a quorum of the justices, convened on the sixth of October, 1879, the time prescribed by law.

A committee of its members, appointed for the purpose, reported to the court the assessed value of the real and personal property of the county, at $3,841,825, and that the county had, for the year ending in July, 1879, derived a revenue of $6,000 from fines,forfeitures and licenses, and the further sum of $858.54 from land redemptions; and that there was reason to expect that these items would be increased for the ensuing year. They further reported deficits of former allowances, on which no scrip had been issued, for want of appropriations, to the amount of $6,294.97, not estimating a bridge-tax deficit of $600, which had been provided for. The unadjusted claims against the county, including jurors’ and witnesses’ certificates, were reported at $13,945.17. This report was approved, and the committee discharged.

Afterwards, the court, upon the recommendation of a committee on appropriations, levied a tax of five mills on the dollar, on the assessed value of property in the county, estimated to produce the sum of $19,209.13; ninety per cent, of which, to-wit: the sum of $17,288.22, was, by order of the court, divided into separate sums, and appropriated to various heads of expenditure for the county, exhausting the whole. Concerning these appropriations, no question is made, nor is there any of other levies and appropriations for special purposes made at the same time.

At a subsequent day of the term, a quorum of justices being still in attendance, it was ordered that out of the fund estimated to accrue from fines, forfeitures, licenses and penalties, certain appropriations be made; which appear to be for deficits in the several offices of the circuit and county clerks, the sheriff and assessor; deficits for printing; and the payment of special county judges; also, appropriations for payment of justices of the peace in'criminal cases; for bridges; refunding money erroneously paid into the county treasury; payment of the coroner, associate justices, jurors’ and witnesses’ certificates — in all, $6,400.07.

These last appropriations, the petitioner sought to quash, on the ground that the county court had exhausted its power of making appropriations, with the use of the ninety per cent, on the product of the five mills tax. The circuit court dismissed the petition, and the case is brought here on appeal. Meanwhile, upon bond being here given and approved, this court, as ancillary to its appellate and supervising power, has granted a temporary supersedeas of the order of the county court, to prevent the issuance of any warrants under the last appropriations, until the matter may be determined.

The constitution of 1874, Art. VII, sec. 28, provides that: The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, * * * the disbursement of money for county purposes, and in any other case that may be necessary to the internal improvement and local concerns of the respective counties.” This is a very broad, general and unrestricted jurisdiction, within the scope and purview of the subject matters indicated. It was not intended to leave it so. To guard against abuse, it was provided by section 30 that: “The justices of the peace of each county shall sit with and assist the county judge in levying the county taxes, making appropriations for the expenses oí the county in the manner to be prescribed by laxo.” A majority of the justices of the county were made necessary to a quorum, and the general assembly was required to regulate by law the manner of compelling their attendance. By this section, it is plain that the extraordinary court, organized for the special purpose of levying taxes and making appropriations, was subject to the control of the general assembly, as to the manner of levying taxes and making appropriations whenever the law-making power should see fit to exercise it, and to that extent. Acts authorizing the raising of county revenue, are essential to give any validity to said thirtieth section ; but, the revenue being authorized, it would seem to follow that there would be in the court a general power of appropriating it to any county purpose, unless restrained or otherwise specially directed by law. This power must necessarily be implied, otherwise enormous revenues might accumulate from year to year in the county treasuries, while the counties themselves would remain impotent to discharge their proper functions in sustaining the general government of the state.

After several imperfect acts, which it is not important to notice, the legislature, by act of March 18, 1879, endeavored to make a system for the guidance of the county court in levying taxes and making appropriations.

Sec. 7 provides: “The court shall specify the amount of appropriation, for each purpose, in dollars and cents; and the total amount of appropriation for all county or district purposes, for any one year, shall not exceed ninety per cent, of the taxes levied for that year.” Further on, in section 10, it is provided that: “The taxes levied for county purposes, hereinbefore named and specified, shall be extended upon the tax-books under the general head of county expenses,” etc., thus plainly indicating the intention of the legislature to use the terms “taxes levied” in the strict sense of those made upon assessments of property and entered in the tax-books. Forfeitures, fines and penalties are in no true sense taxes levied, and licenses are only so in a general sense, being rather the result of police regulations made ancillary to purposes of revenue.

The policy of the act seems to be to check extravagance in appropriations with reference to contracts, .rather than to encourage the accumulation of funds in the county treasuries. The particular limitation of ninety per cent, was, obviously, to provide that the taxes collected might meet the appropriations, by allowing for ten per cent, for loss or delinquency. It was not to retain ten per cent, of each year’s levy in the treasury as a sinking fund. Such a thing might incidentally result, and make other legislation necessary. What is meant here is, that the act does not seem to have been framed with that object.

Nor does it seem that the legislature had in view, in this section, the revenue to arise from fines, forfeitures, penalties or licenses. These have no connection with, nor relation to, the amounts levied on property. They are wholly independent. They belong to the county for county purposes, and it would be absurd in the legislature to prevent the counties from using them, because the whole amount to be used would exceed ninety per cent, of the levied taxes. There is no tie between the subject matters, nor any conceivable policy making one control the other.

The statute, on this point, means simply to say, that, of the taxes levied and to be extended on the tax-books fo.r county purposes, not more than ninety per cent, shall be appropriated for that year. A veiy wholesome provision, inasmuch as perchance, and very probably, not more than that might be collected. This does not prevent the county from using revenues undoubtedly her own, upon a proper appropriation by a full court.

There was no error in the judgment of the circuit court, dismissing the petition upon certiorari. Let the same be affirmed, and the supersedeas from this court be discharged.


text:
    Coldcleugh vs. Johnson, Administrator, et al.
    1. Vendob and YEHDEEj Mutuality of contract; want of, when no defense. One who receives property from a married woman, under a contract of
    purchase, whether valid or invalid, and enters upon it and enjoys it for years, will not be heard in a court of equity to plead that the contract is not binding upon her, or to refuse payment upon tender of a sufficient deed. The defense of want of mutuality has no place, except where the defendant has never received the benefit of the contract on his part, and never had the right to enforce it.
    2. Same : Enforcing lien of married woman’s title bond. Parties. Pleading. Where husband and wife have executed bond for title to the pnrchaser of
    the wife’s land, and transferred the purchase note, the assignee of the note should, in a suit instituted in 1872, to enforce the lien upon the land for the purchase money, have made the husband and wife parties, so that their legal title might be divested, and vested in the purchaser; or should have tendered a sufficient deed, executed by the husband and wife, or by her alone if the husband had died.
    3. Statute of Limitations : Lien of mortgagee or vendor, when barred. The bar of a debt due to a ihortgagee, or to a vendor of land by title
    bond, does not necessarily preclude a proceeding in rem in a court of equity, to enforce the specific lien upon the land itself. Only adverse possession for the statutory period necessary to bar ejectment, can bar such a proceeding.
    4. Advbbse Possession : As against mortgagee, or owner by title bond. The possession of a mortgagor, or Vendee by title bond, is not adverse,
    and the statute will not commence running to protect him, until there is an open and notorious denial on his part, of the mortgagee’s or vandor’s title. ■■
    APPEAL from Arkansas Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.

      Bell, McCain, Halliburton, for appellants.

      Dooly, contra.

   Eakin, J.

Sarah Willis (now Coldeleugh) filed this bill in the Arkansas circuit court, on the second day of August, 1872, against the administrator and heirs of Lorenzo D. Hewitt, deceased, setting forth, in substance:

That, on the third day of November, 1859, James L. and Raralee Totten sold to said Hewitt a certain tract of land in said county, of which said Paralee was, at the time, seized in fee, as her sole and separate property, -with the right to sell and convej^ the same. Hewitt was then put in possession, and so remained until his death; and his administrator and heirs have had possession since.

The purchase money was all then, and since, paid, save the balance of a note for $1,000, due January 1, 1860, given by Hewitt to the vendors, upon which $500 was paid on the last day of December, 1859. At the time of the sale, the vendors gave Hewitt a bond for title, to be made ou full payment.

The note was indorsed by the Tottens to William Willis, who, for valuable consideration, transferred and delivered it to H. B. Tombs, who, on the twenty-sixth day of September, 1866, brought suit to foreclose the lien. This suit was dismissed, on demurrer, at the November term, 1868. Tombs afterwards, for valuable consideration, transferred and delivered the note to complainant, who is now the owner. Meanwhile, said Lorenzo died, in the spring of 1867, and Johnson, in the following September, was appointed administrator of his estate.

On the twentieth of March, 1869, complainant, together with James H. Willis, who ha* since died, leaving no issue, brought another suit, to obtain a decree upon said note. This suit also was dismissed by the court below upon demurrer. Complainant appealed to this court, where, as the bill states, the decree was modified; and it was directed that the bill be dismissed without prejudice. The mandate, as the bill goes on to show, was filed in the court below at the March term, 1872, “ with leave of said court to file a new or amended complaint in this behalf.”

It is further alleged that said Paralee “has duly signed, sealed and acknowledged, in due form of law, a deed with general warranty to said lands, to the heirs and legal representatives of said Lorenzo D. Hewitt, and that said deed has been duly tendered to the said heirs and legal representatives,” with demand of payment of the residue of the purchase money; and complainant tenders by her bill, and offers to file in open court, said deed, which she refers to as marked exhibit “B.” The deed,’however, does hot appear in the transcript.

The prayer is for judgment for the amount due on the note, and for general relief.

The administrator demurred, assigning for causes:

I. Want of equity in the bill.

II. Bar of the statute of limitations.

III. The same bar, before the beginning of the suit of the twentieth of March, 1869.

IV. Want of mutuality in the contract of sale, the land being separate property of the wife, against whom he could not have enforced specific performance.

It may be remarked in passing, that the Code does not authorize this style pf pleading. All the causes assigned are included in the first, which is the fifth cause for which a demurrer may be taken under section Jfi)6Jp of Gantt’s Digest, to-'wit: “That tbe complaint does not state facts sufficient to constitute a cause of action.” All that follows, simply serves to call the attention of the court to the reasons why the demurrer for want of equity should be sustained. They do not vitiate, but tend to render demurrers argumentative.

The fourth cause of demurrer is a speaking one. The bill nowhere alleges that Paralee Totten was a married woman ; nor is there any expression in it from which the court would be authorized to presume such fact. She may have been the sister, or cousin, of James L. Totten. Having the same patronymic, does not establish the marital relation between a male and female, although she may have property for her sole and separate use. As the bill stands, no question can arise of the mutuality of the contract, or the validity of the deed tendered; and' the demurrer, on those grounds, could not be sustained.

Nevertheless, it is doubtless true, in fact, although we can not know it as a court, that Paralee Totten was the wife of James L. at the time of the sale. The court and attorneys, perhaps, knew the parties, and did not observe the omission of such an allegation. "We deem it advisable to meet the points which would be raised upon proper allegations of coverture. There has been, in the United States, a conffict of authority as to the power of a married woman, under such laws as obtained here in 1859, to bind herself by a title-bond. The point has never been directly presented to this court in such manner as to have required an authoritative decision, but expressions have been used to indicate a leaning to the line of authority which holds her incompetent, generally, to enter by any mode, into an executory contract binding her lands.

Conceding this to be estáblished here, to the extent at least of its application to lands of which she was seized, generally, and with regard to which she remained under the common law disabilities, it is unnecessary now to inquire how far it would apply to that peculiar separate estate for her sole and separate use, concerning which she has, for more than a hundred years, been considered competent in equity to contract, independently of statute. Suffice it to say, that one who receives property from, a married woman, under such a contract, whether valid or invalid, and enters upon it, and enjoys it for years, will not be heard in a court of equity to plead that it has not been binding upon her; or to refuse payment, upon her tender of a sufficient deed. It would be in effect a fraud upon the vendor. The claim is really to enforce the collection of a debt, through the security of the land. The objection amounts to want of consideration, which the defendant would not be allowed to plead without giving up the land, and accounting for l'ents and profits. The demurrer could not be sustained on the ground of want of mutuality. If a good deed had been tendered, the defendant would have then already had all which a right of action could have given him against one undoubtedly bound, and the contract would, on the part of the vendor, have been fully performed. The equitable defense of want of mutuality has no place, except where the defendant has never received the benefit of the contract on his part, and never had the right to enforce it. If he has received them, his measure is full. If he has had the right to enforce them, there has been mutuality of obligation.

But it was essential to complainant’s cause of action upon the supposition which we now entertain of the vendor’s coverture, that she should either have made the vendors, Totten and wife, parties, so that the legal title might, on payment, be divested from them, and vested in defendants, or have shown that Paralee had become discovert before the execution of the deed tendered, or have tendered a deed executed by herself and her husband. If she were not dis-covert, the deed executed by herself alone would not, under our statute, give defendants the complete legal estate to which they were entitled. If the coverture had been allegecl, the want of a sufficient deed, together with the want of parties, would have been fatal to the equity of the bill, and the demurrer on this point would be good.

The note was due on the first day of January, 1860. At the time suit was brought by complainant and James H. Willis, on the twentieth of March, 1869, neither the debt, nor the right to subject the land to its payment, in equity, had been barred by statute of limitations. The period of four years, ten months and twenty-seven days, must be excluded from the calculation, that being the period during the war when the statute was suspended.

The bill alleges, in effect, and the demurrer admits, that said suit was dismissed in the court below, brought here on appeal, and remanded, with instructions to. dismiss without prejudice-r-that the mandate was filed in the court below, “ with leave of said court,” which we understand to have been granted at the time of filing the mandate, “to file a new or amended bill in this behalf.” This court will not, upon demurrer, look into its own records in another case. Taking the allegations, in this regard, as admitted by the demurrer, it follows: that the circuit court, having, by the mandate, again acquired jurisdiction, and having given the leave, the order to that effect must stand until reversed. If erroneous, it should have been corrected by another appeal. It can not be collaterally attacked. Decisions of inferior courts, made within the scope of their jurisdiction, must, however erroneous, be respected, not only by litigants and all other persons, but by all other tribunals, as res judicaice, until reversed, otherwise they would fall into contempt, and nothing could be put at rest. Unless the inferior courts transcend their jurisdiction, or unless their decisions be reversed, this court will, itself, set the example and require all other tribunals and persons, also, to respect tlieir authority. This bill was filed, within a few months of said leave being given, and no statute bar can be interposed in disregard of the permission.

But, aside from that permission, it is well, whilst the case is here, although not strictly necessary, to inquire whether this suit would appear to be barred, irrespective of all intervening suits. With l’espect to all the issues upon the statute, the defendants holding under a title bond to their intestate, and ancestor, stand as if he had given a mortgage upon the land to secure the debt, and remained in its possession and enjoyment.

The debt itself would appear to be barred in 1872, and no action could be brought at law. But the bar of the debt, does not necessarily preclude a mortgagee, or vendor, retaining the legal title, from proceeding, in rem, in a court of equity to enforce his specific lien upon the land itself. He has an interest in the land to the extent of his lien ; a grasp upon it, which nothing but the bar of adverse possession for the statutory period, can relax. He may neglect the debt at law, and rely upon the lien. He need not make probate of it in case of the mortgagor’s death. lie ceases, in such case, to claim a debt, but claims instead thereof, that he has a right to hold and enforce his legal title, unless a certain sum of money be paid. Unless the defendant can show that the lien has been in som® way discharged and extinguished, or lost upon some equitable principles, such as estoppel, he can only interpose the bar of adverse possession of the land, for such time as would bar the action at law for its recovery. When does adverse possession begin ? The rule as laid down in Mr. Washbourne’s work on Real Property (vol. %, p. 158), is, that “ between the mortgagor and mortgagee, as long as the latter does not treat the former as a trespasser, the possession of the mortgagor is not hostile to, or inconsistent with, the mortgagee’s right. The possession of the mortgagor is, to this extent, the possession of the mortgagee.” The result of the cases at law, in England, with regard to adverse possession, in such case, is announced in a note to the case of Patridge v. Bere, 5 Barnwell & Alderson, 604, where the cases are collected. It is there said, that where the mortgagor remains the actual occupant, with the consent of the mortgagee, he is strictly tenant at will. If the tenancy “ be determined by the death of the mortgagor, and his heirs or devisees enter and hold without any recognition of the mortgagee’s title, by payment of interest, or other act, an adverse possession may be considered to take place.” In the case before us, adverse possession, under this rule, could not have commenced before the spring of 1867, which was less than seven years before the beginning of this suit. That is the time when the purchaser (or, in effect, the mortgagor) died. An action of ejectment for the legal title would not have been barred.

Mr. Story, in his work on Equity Jurisprudence (section 1028 b.), after stating that an equity of redemption, in equity, could not be enforced against the mortgagee in possession, after twenty years, says : “ If the mortgagee has suffered the mortgagor to remain in possession for twenty years after the breach of the condition, without any payment of interest, or admission of the debt, or other duty, the right to file a bill for foreclosure will, generally, be deemed to be barred or extinguished.” Tie remarks, however, that the bar is not positive, but open to be rebutted by circumstances.

The cases cited by the learned commentator do not go to the extent of fixing the time of default as the date from which the statute of limitation would commence running to protect the mortgagor in possession, but proceed rather upon the ground of staleness of the demand, and upon such peculiar circumstances in each case, as raised a presumption, either that the original debt was invalid, or had been settled. In other words, equity will not, in any doubtful matter, aid a mortgagee who has slept upon his rights for the long period of twenty years, although no point can be fixed at which the possession of the mortgagor may be said to have become adverse.

The result of the English cases at law and equity, taken together, is, that the statute of limitations will not commence running to protect a mortgagor in possession, after default; or rather that his possession is not to be deemed adverse until he makes some claim, or does some open and notorious act adverse to the rights of the mortgagee; or until he dies, and there be an entry and possession by the heirs, without some positive act, like payment of rent, recognizing the mortgagee’s debt, and showing the acquiescence of the heirs therein. But if the mortgagee should allow his claim to lie dormant for twenty years, without any recognition of it by the mortgagor in possession, it will be considered a stale demand; and the neglect will raise the presumption (which, however, will not be conclusive), that the debt could not originally have been enforced, or has been paid. See cases of Trash v. White, 3 Bro. Ch. Rep., 289, and the remarks of Sir Thomas Plumer, master of rolls in Christopher v. Sparkes, Jacob & Walker, 223. To like effect, see, also, the New Jersey case of Barned v. Barned, 6 C. E. Green, 245, in which the presumption of payment after twenty years is conceded; but it is further intimated, not to be conclusive (as is case of a statute bar), but liable to be rebutted by circumstances explaining the delay. And so, also, by this court,'to the case of Bernie et al. v. Maine, 29 Ark., 591, it was held that the possession of the mortgagor was that of the mortgagee, and there must be open and notorious denial of the latter’s title to constitute an adverse holding, and set the statute of limitations to running.

The principle is a wholesome one for both parties, as it enables the mortgagee (or vendor by title bond) to rest securely on his legal title, and indulge the mortgagor, or purchaser; whilst the latter can easily, upon payment, procure the legal title, or have satisfaction of the mortgage entered of record under the statute; and even if he should neglect this, a court of chancery would not entertain a stale demand for foreclosure after many years, without clear proof rebutting the presumption of payment; or, if the mortgagor should die, and the heirs should enter without recognition of the mortgagee’s rights, the statute of limitations would commence running as in case of adverse possession.

In no aspect of this case, does it appear from the bill, that the right to enforce the lien is barred by the statute.

The court erred in sustaining the demurrer. Reverse the decree, and remand the cause, with leave to complainant, if so advised, to amend her bill, and for further proceedings consistent with this opinion.


author: English, C. J.

text:
    State vs. Hunn.
    1. Indictment: Venue.

    ■When the name of the county appears in the caption, and is referred to in the body of an indictment in laying the venue, it is sufficient.

      APPEAL from Jefferson Circuit Court.
    Hon. X. J. Pindall; Judge.

      Attorney General, for appellant.
   English, C. J.

At the May term of the circuit court of Jefferson county, 1879, H. H. Hunn was indicted, for gaming, as follows:

“State or Arkansas,

vs.

Indictment.

H. H- Hunn.

“Jefferson County Circuit Court,!

Spring Term, A. D. 1879. J

“The grand jury of Gaming county, in the name and by the authority of the state of Arkansas, accuse H. H. Hunn of the crime of gaming, committed as follows, to-wit: The said PI. H. Hunn, in the county and state aforesaid, on, etc., did, then and there, unlawfully bet ten cents in money on a check, or chip, of 'the estimated, or representative, value of ten cents in money, on a certain unlawful game at cards then and there being played with cards, as aforesaid, which said game so played, as aforesaid, is commonly called whist, contrary to the statute,” etc., etc.

The defendant demurred to the indictment, on the ground that the offense cb ai’ged was a misdemeanor, and not within the jurisdiction of the court.

The court overruled the demurrer.

Afterwards, on another day of the same term, by leave of the court, the defendant entered a demurrer in short to the indictment, which the coui’t sustained, and discharged the defendant, and the state appealed.

If the court, in sustaining the second demurrer to the indictment, meant to reverse its judgment in overruling the first demurrer, and to hold that it had no jurisdiction of the offense, it was an error. State v. Devers, ante.

The word “Gaming” in place of Jefferson, preceding the word “county,” in the commencement of the indictment, is so plainly a clerical misprision in drafting the indictment, that we can hardly think his honor, the circuit judge, held the indictment bad on that account.

The name of the county — Jefferson—in the caption, and the reference to it in the body of the indictment, in laying the venue, was sufficient. Thetstone v. State, 32 Ark., 179.

Reversed and remanded for further proceedings.


text:
    Jones et al. vs. Jarman.
    1. Stockholders in Corporation : Their liability at common law.

    By the common law, stockholders of a corporation are not personally liable for its debts. They are liable to an action at law by the corporation for unpaid stock, but a creditor of the corporation can not, by the common law, sue them in a court of law for unpaid stock. His remedy is in chancery.
    2. Same : Liability under constitution of 1868.
    The clause of sec. 48, Art. Y, of the constitution of 1868, which provides that “in all cases each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum at least equal in amount to such stock,” entered into and formed a part of-the act of April 12, 1869 (Secs. 3333-3334, Gantts Dig.), for the organization of private corporations, and parties becoming stockholders in a corporation under that act, during the operation of that constitution, assumed the liability imposed by the foregoing provision of it, and in the absence of any statutory remedy at law, the corporation creditor may enforce such liability in equity.

      APPEAL from Phillips Circuit Court.
    lion. J. N. Cypert, Circuit Judge.

      Tappan §■ Horner, for appellants.

      Trieber, for appellee.
   English, C. J.

This was an action at law, brought in the circuit court of Phillips county by W. H. Jarman, against John T. Jones and others, stockholders in the Phillips County Agricultural and Mechanical Association, upon a note executed by the corporation to A. G. Jarman, one of the defendant stockholders, and by him assigned to the plaintiff.

The complaint alleges, in substance, that on the first of January, 1870, the defendants, and other persons named but not sued, together with a large number of other parties, some of whom were dead, organized an incorporated company under the laws of this state, under the name of the Phillips County Agricultural and Mechanical Association; the defendants subscribing for stock in said incorporated company for various sums; all of which would more fully appear by a certified transcript of the articles of incorporation from the records of the department of state, filed with and made part of the complaint.

That after the organization of said company, on the twenty-fifth of August, 1870, said corporation, by John J. Hornor, its treasurer, duly empowered, etc., executed and delivered to defendant, A. G. Jarman, its promissory note for $954, payable at four months, and bearing interest at one and a half per cent, per month from' maturity; which note was given for money loaned to the corporation to improve its fair grounds, etc. That the corporation had paid to A. G. Jarman, upon the note, before he assigned it to the plaintiff, at various times, sums amounting in the aggregate to $1,115.35, leaving due to plaintiff, to whom the note had been assigned, of principal and interest $1,009.30.

The note, with credits indorsed, is made an exhibit.

That the corporation has no property, either real or personal out of which plaintiff’s claim can he collected, and was and is dissolved in fact.

That by virtue of the laws of the state under which said corporation was organized, each of said stockholders, defendants herein, is liable over and above the stock by him owned, and any amount unpaid thereon, to a further sum equal in amount to said stock; and that each of the defendants is the owner of the following stock in said corporation, etc.: Here the number of shares of stock owned by each defendant and the amount thereof, is stated, etc. Transcript of stock subscriptions exhibited.

Prayer for judgment against each of the defendants, for a sum equal to the amount of stock so owned by him, as aforesaid, sufficient to pay plaintiff’s claim with interest.

A demurrer to the complaint was filed, on'grounds stated below, which the court overruled.

Whereupon answer was filed, admitting the formation of the corporation, as alleged in the complaint; that defendants were stockholders, as stated therein; that Hornor, as treasurer, executed the note sued on; and alleging that said corporation is the legal owner of a tract of land containing about forty-six acres, on which its fair grounds are situated, which has been improved, etc., and on which it has paid $1,350 ; and that there is a lien on said property for balance of purchase money, amounting to about $5,500. That the legal title to the land is still in the corporation, and it is in possession thereof, etc. Denies the authority of Hornor to execute the note sued on for the corporation, etc.

The case was submitted to the court sitting as a jury, and the court found the following facts:

“That the corporation, by John J. Hornor, its agent, executed the note sued on, for money loaned by A. G-. Jarman to the corporation, for the purpose of improving its grounds; that the money was so used by said corporation ; that the payments indorsed on the note were made by order of the board of directors; that the land described in the answer was sold to the state in the year 1876, for the taxes of 1873-4-5, and that the taxes thereon for the year 1876 have not been, paid, which said taxes amount to $385. That at the present term of the court a decree was entered against said land for the balance of purchase money, amounting to $5,530 and costs. That the land would not yield on execution sale as much as the balance of purchase money due thereon, under said decree. That said corporation has no other property whatever; and that defendants herein named are owners of the amounts of stock set opposite their names, as exhibited in said complaint;'and that the note sued on is held by the plaintiff for value, and is his property.

"Whereupon the court rendered the following judgment:

“It is considered by the court that plaintiff have and recover of the defendants the sum of $1,096.72 for his debt and damages, and all the costs by him in this suit expended ; and it is further considered by the court that the said defendants pay the following sums each, toward the satisfaction of said judgment, as their pro rata shares, to-wit:

John T. Jones.......$121 87 J. T. Ramsey...........$121 87

J. E. Bennett......... 121 87 P. E. Anderson........ 121 87

J. W. Clopton........ 121 87 • Higgatt Clopton...... 121 87

A. G-. Jarman........ 121 87 Leon Berton............ 24 38

C. R. Coolidge...... 48 75 J. P. Olopton.......... 48 75

Tappan & Hornor... 48 75 E. B. Pillow..:......... '24 38

P. O. Thweat......... 24 38 W. E. & 0. L. Moore 24 38

And. interest thereon at the rate of six per cent, from the rendition of this judgment until paid, and that each of said defendants pay a pro rata share of the costs of this suit, according to the amount of judgment rendered against them respectively, and for which execution may issue.”

A motion for a new trial was overruled, and bill of exceptions taken.

The defendants, John T. Jones, Joseph T. Ramsey and Paul E. Anderson were granted an appeal by the clerk of this court.

The propositions taken on the demurrer to the com- • plaint, requiring notice, may be formulated thus:

1. There is no law of this state making stockholders individually liable for the debts of a corporation.

2. The complaint does not show a legal cause of action.

.3. The complaint shows no joint liability of defendants.

4. The complaint does not allege that the debt sued on had been adjudged to be due from the corporation, or that any attempt had been made to make the property of the corporation liable for the debt.

5. The complaint does not show what, if any other, debts of the corporation are outstanding or owing.

I. It appears from exhibits made part of the complaint that the capital stock of the corporation was $7,000, divided into shares of $25 each, and that appellants, Jones, Ramsey and Anderson subscribed each for ten shares, $250. How much of their stock they had paid in is not shown by the complaint.

The plaintiff, in his complaint, assumed that each of the defendants was .liable to him in this action in a sum equal to the amount of stock owned by him, and in an additional sum equal to the amount of stock not paid in by him, to pay the debt of the corporation described in the complaint and prayed an apportionment of the debt betysmen the defendants according to their sevei’al liabilities.

By the common law the stockholders of a corporation are not personally liable for its debts.

A stockholder is liable to an action at law, by the cor"poration, for unpaid stock subscribed by him; but a creditor of the corporation can not, by the common law, sue him in a court of law for unpaid stock. Creditors may, however, by bill in equity, compel delinquent stockholders to pay in stock subscriptions due from them, on a pi’oper case made by the bill. ■.

But by the common law, when a stockholder has paid in the amount of stock subscribed by him, he has discharged all personal liability to the corporation, or to its creditors, on his own subscription for stock.

These are familiar elementary principles. Thompson on Liability of Stockholders, secs. 4, 9, 14, 15, etc.

At the time the corporation in question was organized, and when the debt described in the complaint was contracted, the constitution of 1888 was in force, and it is insisted for appellee that by one of its sections the liability of stockholders is greater than it was by the common law.

The section is as follows :

Section 48 (Art. 5). The general assembly shall pass no special act conferring corporate powers. Corporations may be formed under general laws; but all such laws may, from time to time, be altered or repealed. Dues from corporations shall be secured by such individual liability of the. stockholders, and other means, as may be prescribed by law; but, in all cases, each stockholder shall be liable over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock. The property of corporations, now existing, or hereafter created, shall forever be subject to taxation, the same as the property of individuals. No right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made in money, or first secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation ; which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law.”

Under this section of the constitution, the general assembly passed a number of general acts providing for the organization of private corporations for various purposes, and among them the Act of April 12, 1869, Grantfs Digest, p. 626,sections 3333 to 3364, caption, Incorporations, sub-title, II — Incorporations, for Manufacturing and other Lawful Business, under which the corporation in question was doubtless organized.

There is no provision in this act, or any other, declaring to what extent stockholders of a corporation organized under it shall be liable for dues from such corporation, nor does the act provide any remedy by which creditors may enforce the double liability of stockholders prescribed by a clause of the section of the constitution, above copied.

The clause read in connection with the one which immediately precedes it, declares, in effect, that, “ in all cases each stockholder shall be liable” (for dues from the corporation of which he is a stockholder) “ over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.”

If this clause was not self-enforcing, to the extent of the minimum liability prescribed by it, in connection with acts passed, providing for the organization of private corporations, it remained a dead letter during the existence of the constitution of which it formed a part. If it required express legislation to give it life and force, it was utterly neglected in the acts providing for the organization of private corporations, and it might become a grave question whether such acts were not in violation of a mandate of the constitution, and void.

asA constitutional provision (says Mr. Cooley) may be said to be self-executing if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules, by means of which those principles may be given the force of law. Thus, a constitution may very clearly require county and town government; but if it fails to indicate its range, and to provide proper machinery, it is not, in this particular, self-executing, and legislation is essential. Rights, in such a case, may be dormant until statutes shall provide for them, though in so far as any distinct provision is made, which, by itself, is capable of enforcement, it is law, and all supplemental legislation must be in harmony with it.” Cooley’s Con. Lim., (4th Ed.), p. 101.

Some of the clauses of the section of the constitution, above cited, were manifestly self-executing — that is, they went into force immediately upon the adoption of the constitution. Others, as evidently required legislation to execute them.

Eor examples: The first clause, that “the general assembly shall pass no special act conferring corporate powers,” operated as a limitation upon the power of the legislature to pass such special acts (as had been the previous habit), from the moment of the adoption of the constitution.

The next clause contemplated the passage of general laws, under which corporations might be formed, subject to the power of the legislature to alter or repeal them.

The clause that “ the property of corporations, now existing, or hereafter created, shall forever be subject to taxation, the same as the property of individuals,” was self-enforcing as a law of taxation, with the limitation that it could not affect exemptions made by previously granted charters, in the nature of contracts between the state and the corporations.

In Cairo and Fulton Railroad Co. v. Trout, 32 Ark., 25, we held that the last clause of the section relating to the ascertainment of compensation for the right of way, by 'jury trial, required legislation to enforce it, as indicated by its language. See, also, Cairo and Fulton Railroad Co. v. Turner, 31 Ark., 494.

The fourth article of the constitution of California contains the following sections : »

“ Sec. 32. Dues from corporations shall be secured by such individual liability of the corporators, and other means, as may be prescribed by law.

“ See. 36. Each stockholder of a corporation, or joint stock association, shall be individually and personally liable for his proportion of all its debts and liabilities.”

The first of the above sections is like the third clause of the section of our constitution of 1868, under consideration. In French v. Teschemaker et al., 24 Cal., 539, the chief justice delivering the opinion of the court, commenting upon the above sections, said : “The first is a positive injunction requiring the legislative department of the government to provide security for corporate dues, by laws imposing, in connection with other means, some degree of individual liability upon members of the corporation, but leaving the extent of that liability to the wisdom and sound discretion of that department. But the latter section, by itself considered, seems to fix, upon first impression, the precise degree of liability, leaving no room for the exercise of legislative judgment.”

The court then proceeds to comment at large upon the word “proportion,” used in the latter section, and to decide that legislation was necessary to give practical effect to the section, and without the aid of legislation it was inoperative.

This section of the California constitution, it will be observed, materially differs in its terms from the fourth clause of the section of our constitution, under discussion, which declares that, “in all cases each stockholder shall be liable over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.”

The learned chief justice, in the California case above cited, in the course of the opinion, said: “ An act of the legislature authorizing the formation of corporations without attaching to the corporators an individual liability would be as obnoxious to the constitution as would be the creation of a corporation by special act; and the courts would be bound to hold that persons organized under such an act had acquired none of the rights of a corporation.” ■

As to the personal liability of stockholders under the constitutional and statutory provisions in California, see also Larrabee v. Baldwin, 35 Cal., 155.

Section 6, article 8, of the constitution of Missouri, of 1865, was similar in its language to the third and fourth clauses of the section of our constitution of 1868, which we are considering, and statutes were passed to enforce the double liability of stockholders and providing remedies by which creditors could enforce such liability in the courts of law. See Schricker et al. v. Ridings, 65 Mo., 208; Gausen v. Buck et al., 68 Mo., 545; McClaren et al. v. Franciscus, 43 Mo., 452; Lewis, pub. ad., v. St. Charles County, 5 Mo., Appeal Rep. 225.

Hence the supreme court of Missouri has had no case before it in which it was necessary to decide whether the "clause of the sixth section of article eight, of the constitution of 1865, relating to the double liability of stockholders, wras self-executing or not. We are assured by the chief justice of that court that the court has in no case decided that the clause was not self-enforcing.

Section 27, article 12, of the constitution of Missouri, of 1875, declares that “ it shall be a crime, the nature and punishment of which shall be prescribed by law, for any president, director, manager, cashier or other officer of any banking institution, to assent to the reception of deposits or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent or in failing circumstances; and any such officer, agent or manager shall be individually responsible for such deposits so received, and all such debts so created with his assent.

Before the passage of any statute to enforce this section, the president, directors, cashier and teller of a bank were sued for the amount of deposits made by plaintiffs while the bank was in an insolvent condition and failing circumstances, etc. The circuit court gave judgment against plaintiffs, the St. Louis court of appeals reversed the judgment, and the supreme court overruled the court of appeals and affirmed the judgment of the circuit court— holding that the expressions of the section relating to civil liability were so connected with the expressions relating to criminal liability that the whole section required legislation to enforce it. Fusz v. Spaunhorst, et al., 67 Mo., 256.

Section 48, article 5, of our constitution of 1868, above copied, is a literal copy of sections 1, 2, 3, 4 and 5, article 13, of the constitution of Ohio, of 1851; section 3 corresponding with what we have designated above as the third and fourth, clauses of our section.

In the Citizens’ Bank of Steubenville v. Wright, auditor, 6 Ohio State R., 330, the supreme court of Ohio expresses the opinion, after deciding the principal question presented in the case, that the clause of the third section : “ but in all cases each stockholder shall be liable over and above the amount by him or her owned, and any amount unpaid thereon, to a further sum at least equal in amount to such stock” — was self-executing to the extent of the minimum liability prescribed by it.

In State of Ohio, on the relation of the Attorney General, v. Sherman et al., 22 Ohio State R., 430, Chief Justice Welsh, who delivered the opinion of the court, in the course of the opinion said;

“But the trouble in the defendants’ case arises when we attempt to reconcile their claim that they are an Ohio corporation, under the act of 1863, with the third named limitation in the constitution — the limitation in regard to individual liability. Under the present constitution the legislature is powerless to grant a charter to any such corporation, unless the grant is made in a form that will secure the individual liability of its stockholders for the debts of the corporation, at least to the amount of their stock over and above their subscription. This liability may be secured by an express provision in the act of incorporation. Where it is to exceed the amount of the stock, it must be secured in that form. In the absence of any such provision in the act of incorporation, I presume this provision of the constitution would enter into and form part of the act of incorporation, and to that extent execute itself. In either case, however, the act of incorporation, the grant of the charter, must be in some such form as will secure this liability. It must require of the individuals availing themselves of its provisions some acts as such, under and in pursuance of it as will subject them individually to its provisions, or to this provision of the constitution in regard to liability. If it fails to do this, it is simply unconstitutional and void.”

After a thoughtful consideration of the question, and a careful examination of such adjudications as we have been able to find bearing on it, we have come to the conclusion that the clause of section 48, article 5, of the constitution of 1868 — “but, in all eases, each stockholder shall be liable over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum at least equal in amount to such stock” — entered into and formed part of the act under which the corporation in question was organized; and that appellants, by becoming stockholders of the corporation, assumed the liability imposed by this provision of the constitution ; and that though the act fails to prescribe remedies for creditors of corporations formed under it, the liability of stockholders may be enforced by the proper judicial tribunals in accordance with settled principles of law. A different conclusion would force us to the necessity of declaring the act unconstitutional and void, and that associations organized under it are not corporations.

II. And this brings us to the consideration of the second proposition taken on demurrer to the complaint — that it does not show a legal cause of action — in other words, that the remedy, if any the creditor has, is by bill in equity, and not by an action in a court of law.

By the seventh section of a statute of New York, it was provided, “ that for all debts due and owing by the company at the time of its dissolution, the persons then composing it shall be individually responsible to the extent of their respective shares of stock.”

In The Bank of Poughkeepsie v. Abbotson, 24 Wendell, 472, the plaintiff having obtained judgment against a corporation, and taken out execution, which was returned nulla bona, brought an action at law against a single stockholder of the company, to charge him with the debt.

The court held, in effect, that a single stockholder might be sued at law, but if the creditor desired to proceed against more than one stockholder, the remedy was in equity. The court said: “ There can be no doubt that the liability of the stockholders is several, and not joint. The measure of it may be wholly different in each case, depending upon the shares held. A joint suit would be impracticable, as there could be no joint judgment. * * Each is severally responsible to the amount of his own stock.”

In Spence v. Shapard, 57 Ala., 598, which was a suit in chancery by a creditor of a corporation against stockholders, under a statute of Alabama, similar to the statute of New York, above copied, the court said: “Under this statute many rulings were had in the several courts of New York, and the following, among other principles, were laid down, and have ever since been steadily adhered to: That when the corporation is dissolved, the liability of the stockholders to the creditors becomes primary and absolute; that it is not necessary first to sue the corporation, or to aver or prove its insolvency; that when the creditor sues a single stockholder, he can maintain an action of assumpsit or debt, and that when he proceeds against two or more stockholders, he can maintain a bill in equity.” (Here the New York cases are cited.) Then the court proceeds to say further: “ Section 1478 of the Code of 1852 (of Alabama), relating to the same subject, is a copy, less some unnecessary words, of the provision of the New York statute. Its language is: ‘ The stockholders of any such corporation are liable for all debts due by it at the time of its dissolution, to the extent of tbeir stock.’ We think the present bill can be maintained, without averring the insolvency of the corporation, and without previous suit against it. We have declined to follow the New York rulings, so far as they hold that an action at law may be maintained by creditors against individual stockholders, in Smith v. Huckalee, 53 Ala., 191.

Hnder the double liability clause of the constitution of Ohio, a statute was passed declaring that stockholders, etc., should be deemed and held liable to an amount equal to their stock, in addition to said stock, for the purpose of securing the creditors of such company, etc.

The statute adopted the minimum liability allowed by the constitution, and was intended to make the constitutional provision effective.

In Wright et al. v. McCormack et al., 17 Ohio S. Rep., 94, ■which was an equitable action, instituted by the plaintiffs, not for themselves alone, but for the equal benefit of all the creditors of an insolvent corporation, its object being to effect an equitable distribution of the assets of the corporation, and to subject to the payment of the creditors the statutory liability of all the stockholders, the court said: “ The statute under which the liability arises, contains no provision in regard to the manner in which the liability is to be enforced. It is a provision inuring to the benefit of the creditors of the corporation; but in what way, and upon what principles of equity, as between creditors, and as between stockholders, it is to be made available, and under what circumstances resort may be had to it, are matters left for judicial determination,” etc.

The court, after quoting the provisions of the constitution and the statute, further said: “ The liability thus imposed on stockholders, is not a primary resource or- fund for the payment of the debts of the corporation. It is collateral, and conditional to the principal obligation which rests on the corporation, and is to be resorted to by the creditors only in case of the insolvency of the coi’porat-io'n, or where payment can not be enforced against it by the ordinary process. It is a security provided by law for the exclusive benefit of the creditors, over which the corporate authorities can have no control. The liability on the part of the stockholders is several in its nature, but the right arising out of this liability would seem to be intended for the common and equal benefit of all the creditors. But however this may be, we are unanimous in the opinion that,-where proceedings are instituted by part of the creditors of an insolvent corporation against the stockholders, to enforce such liability for the benefit of all the creditors, no creditor can acquire priority, or institute a separate suit for the enforcement of such liability in his own behalf.”

In Umsted v. Buskirk et al., 17 Ohio S. Rep. 118, which case .was in the nature of a bill in equity, by a creditor of an insolvent corporation, to obtain satisfaction of his judgment by the enforcement of the statutory liability of the several stockholders, etc., the court said: “ The liability on the part of the stockholders is several in its nature, but the right arising out of this liability is intended for the common and equal benefit of all the creditors. The suit of a creditor, under the statute, should, in our opinion, be for the benefit of all the creditors; and the stockholders, whose liability is sought to be enforced, have the right to insist on their co-stockholders being made parties for the purposes of a general account, and to enforce from them contribution in proportion to their shares of stock. The right of contribution grows out of the organic relation existing among the stockholders. As between them and the creditors, each stockholder is severally liable to all the creditors; as between themselves, each stockholder is bound to pay in proportion to his stock. The corporation ought to have been made a party,” etc.

In the absence of a statute giving the creditor of a corporation a right of action in a court of law to enforce the liability of stockholders under the constitution of 1868, the remedy, we think, is in a court of equity, where the corporation (if in existence), all the creditors and stockholders may be made parties, the dues from the corporation and its assets ascertained, and the debts in excess of assets, charged upon the solvent stockholders in proportion to their several liabilities as such. Thus a multiplicity of suits by creditors, and by stockholders between themselves for contribution, may be avoided. In addition to the authorities above cited, see Pollard v. Bailey, 20 Wallace, 520; 2 Otto, 161; Coleman v. White, 14 Wiscon., 700-705, note.

The remaining propositions, taken on demurrer to the complaint, are sufficiently answered above, at least so far as'hve are disposed to settle them on this appeal. Further questions of practice in equity may be better settled when they are presented in suits in equity.

The court below erred in overruling the demurrer to the complaint, and, for this error, the judgment, as to the three defendants who have appealed, must be reversed, and the cause remanded to the court below, with leave to appellee to amend his complaint, and transfer the case to the equity side of the court, if he desires further to prosecute it.


author: Harrison, J.

text:
    The State vs. Martin.
    1. Criminal Pleading: Indictment for Selling Liquor. Alcohol is not liquor.

    An indictment for selling liquor without paying the special tax prescribed by secs. 5052 or 5054, Gantts Digest, must charge that the defendant was ¡i liquor dealer, and must state the particular tax, whether state or county, that had not been paid.
    2. Alcohol is neither ardent or vinous spirits, or liquor of any kind; and its sale is not in any manner restricted or attempted to be regulated.
    APPEAL from Independence Circuit Court.
    Hon. R. H. Powell, Circuit Judge.

      Henderson, Attorney General, for the State.
   Harrison, J.

The appellee was indicted in the Independence circuit court for selling liquor by wholesale, without having paid the special state and county taxes required of him as a liquor dealer.

The charge in the indictment tvas as follows: “ The said Edward Martin, on the twentieth day of October, A. D. 1878, in the county and state aforesaid, did unlawfully sell to one Gilbert Malone one quart of alcohol without paying the special tax by law levied.”

The defendant demurred to the indictment upon the ground that the facts charged did not constitute a public offense. The court sustained the demurrer, and dismissed the indictment.

It was not charged that the defendant was a liquor dealer, and such special taxes were required only of liquor dealers, by the statute in force when the indictment was found.

Alcohol is not either ardent or vinous spirits, ©r liquor of any kind, and its sale is not in any manner restricted or attempted to be regulated.

The indictment was defective, also, in not stating the particular special tax, whether the state or county, that had not been paid.

The demurrer was properly sustained.

Judgment affirmed.


text:
    Wood vs. The State.
    1. Larceny : Drunkenness, when a defense.

    If one, at the time of taking property, is so under the influence of intoxicating liquor that a felonious intent can not be formed in his mind, he is not guilty of larceny.

      2. Criminal Practice: New trial for improper conduct of jury.

    When evidence is adduced, and shows that a juiy, in a criminal case, exposed to improper influences, were not in any way influenced, biased or prejudiced by the exposure, the verdict will not be disturbed; but unless it is proven that it failed of an effect, the verdict will be set aside.
    APPEAL from Johnson Circuit Court.
    Hon. W. L. Jacoway, Circuit Judge.

      Henderson¡ Attorney Q-enerctl, for the State.
   Harrison, J.

The appellant was tried and convicted of the crime of grand larceny in stealing a pistol, the property of one Cheek.

The pistol, which was of the value of f 8, was taken from the room of the owner, at a hotel, and out of a coat pocket, on the night of the fifth of August, 1879; and was, on the fifteenth of the same month, found in the defendant’s possession.

The defendant, a lawyer, had been for three or four years very intemperate, and for several weeks before he was found with the pistol in his possession, almost continuously drunk. On the night of the fifteenth of August, he was very drunk — according to one of the witnesses, crazy drunk — and the constable, learning that he had a pistol, to prevent his doing harm, took it from him, when it was found to be the pistol that had been taken from Cheek’s room. When it was taken from the defendant, he said it had been given, him by one Hamp. Lane, who had than, as was proven at the trial, left the county. Several witnesses testified that the defendant’s conduct during his spree, or drunkenness, was strange and unnatural — quite different from such as is the effect of ordinary drunkenness — and that he appeared demented to some degree. One of them, a physician, who had known him two or three years, said that there were times during his spree when he thought he did not know what he was about, and he believed his mind, by long and excessive indulgence in ardent spirits, had become impaired; and another physician, who was called to see him on the seventeenth of August, the day after his arrest, said he found him suffering with symptoms of mania a potu, and that the functions of the brain were partially paralyzed.

It was proven that the defendant had previously borne a good character for honesty and integrity.

The court was asked to instruct the jury for the defendant that, if they believed, from the evidence, the defendant took the pistol, but that at the time he was so under the influence of intoxicating liquor, a felonious intent could not have been formed in his mind, they should find him not guilty; which instruction the .court refused to give.

As a general doctrine, voluntary intoxication furnishes no ■excuse for crime, even when the intoxication is so extreme as to make the person unconscious of what he is doing. “Perhaps no better illustration of the doctrine,” says Mr. Bishop, “ can be given than to state its application in ordinary cases of homicide. The common law divides all indictable homicides into murder and manslaughter ; but the specific intent to kill is not necessary in either. A man may be guilty of murder without intending to take life. He may be guilty ■of manslaughter without so intending; or he may intend to take life, yet not commit any crime in taking it. Now the •doctrine of the courts is, that the intenti¿n to drink may fully supply the place of malice aforethought; so that if •one voluntarily becomes so drunk as not to know what he is about, and then with a deadly weapon Rills a man, the killing will be murder, the, same as if he were sober. In ■other words, the mere fact of drunkenness will not alone reduce to manslaughter a homicide which would otherwise be murder, much less extract from it altogether its indictable quality.” 1 Bish. Crim. Law, sec. 401. But he says that, “in cases where the law requires, not geueral malevolence, but a specific intent to commit the particular act, which intent must concur with the act in point of time, in order to constitute the offense charged against a prisoner, he can not be guilty, if, at the time when the act transpired, he was so drunk as to be incapable of entertaining such intent.” lb., see. 408.

“Intoxication is no excuse for crime,” said Judge Baldwin, in United States v. Roudenbush, “ when the offense consists merely in doing a criminal act, without regarding intention. But when the act done is innocent in itself, and criminal only when done with a corrupt or malicious motive, a jury may, from intoxication, presume that there was a want of criminal intention; that the reasoning faculty, the power of discrimination between right and wrong, was lost in the excitement of the occasion. But if the mind still acts; if its reasoning and discriminating faculty remain, a state of partial intoxication affords no ground of a favorable presumption in favor of an honest or innocent intention, in cases where a dishonest and criminal intention would be fairly inferred from the commission of the same act when sober.” United States v. Roudenbush, 1 Baldw., 517.

In larceny, thpre must be a concurrence with the act— an intent to do it — and also a felonious intent; and the same author we have quoted, says: “A bare intentional trespass not being larceny, but the specific intent to steal being necessary, also, if one who is too drunk to entertain this specific intent takes property, relinquishing it before-the intent could arise in his mind, there is no larceny.”’ Sec. 411; Wing v. The State, 1 Tex. Ct. App., 36; Johnson v. The State, ib., 146; Lozar v. The State, ib., 488.

The instruction should have been given.

During the trial, the officer in charge of the jury took them to his drug store and treated them to whisky, and all of them, except two drank. He also at night took them to a billiard saloon, where they remained a half hour, and on Sunday, took them in a hack five or six miles in the country to church. And the prosecuting attorney loaned one of •them a shirt. It was proven that when they were taken to the billiard saloon, they sat together, and the officer drew a chalk line between them and the crowd in the saloon, and that there was no intermingling between them and the persons there; and that when at church, they were kept together, and not permitted to disperse.

In Thompson v. The State, 26 Ark., 398, the court say: “ The conclusion to be derived from the former decisions of this court, and which seems to be well supported by the authorities, as to the consequence of the misconduct of the jury, in cases of mere exposure to improper influences, we understand to be this: Where evidence is adduced, and shows that the jury were not in any way influenced, biased or prejudiced by the exposure, the verdict will not be disturbed; but unless it is proven that it failed of an effect, the presumption will be against the purity of the trial, and the verdict will be set aside.”

What improper influences may have had an effect upon the views of the jury, can not be known. That they were exposed to none, can not with certainty be said.

Such conduct can not be too strongly reprehended and condemned. It was trifling with a most serious and important duty, and calculated to throw doubt and suspicion upon the fairness of the trial, and to degrade the administration of justice; and for it, as well as for the error before noticed, the verdict should have been set aside.

The judgment is reversed, and the cause remanded, with instructions to grant the defendant a new trial.


text:
    Wells et al. vs. Rice et al.
    1. Sale by Court; When complete.

    Until confirmed by the court, a sale made under its decree is not completed ; and a deed from the commissioner to the purchaser confers upon him no right to the property, and may be availed in a collateral proceeding.
    2. Mortgagor and Mortgagee ; Ejectment.

    Upon failure to pay the mortgage debt at the time stipulated in the mortgage, the estate of the mortgagor becomes forfeited, and ejectment can not be maintained against the mortgagee in possession, or those holding under him, until payment of the debt. But payment satisfies an unexecuted decree of foreclosure, and revest.- the estate in the mortgagor, his heirs or assigns, and may be given in evidence to support the action.
    APPEAL from Randolph Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Henderson for appellants.
   Harrison, J.

On the twenty-second day of March, 1875, Fielding Rice and Susan Rice commenced this action against James M. Wells and Adolphus Kibler, to recover possession of the west half of the southwest quarter of section 11, in township 21, north, of range 1, west, to which they claimed title as heirs at law of their father, William L. Rice, who claimed title by entry and purchase from the government.

The defendants claimed the land in severalty, but did not in their answer, which was joint, designate the part of each, nor was it in any manner shown in the subsequent proceedings. Kibler, they said, purchased from Wells, and Wells the whole tract from Louis Hanauer, who purchased the north half of it, at a sale under a decree of foreclosure of a mortgage thereof from said William L. Rice to said Hanauer; aud the south half at a sale made by the administrator of said William L. Rice under an order of the court of probate, for the payment of the debts of his intestate’s estate; and they averred that they had had peaceable, adverse and continuous possession for more than seven years before the commencement of the suit, and set up and pleaded the statute of limitations.

The vei’dict of the jury was in favor of the plaintiffs, for the whole tract, and for six hundred dollars damages; but the plaintiffs entered a disclaimer as to the south half of the tract, and a remittitur of the damages.

The defendants moved for a new trial; their motion was overruled, and they appealed.

It is unnecessary to notice the evidence and proceedings upon the trial in relation to the south half of the tract.

The plaintiffs read to the jury a patent from the United States to William L. Rice, for the northwest quarter of the southwest quarter of said section 11, dated the seventeenth day of August, 1838.

They then read from the chancery record of the Randolph circuit court the following two orders in — so stated in the bill of exceptions — the suit of foreclosure recited in the deed of the commissioner therein, to Louis Ilanauer, exhibited with the answer:

“ Louis Hanauer, Daniel Hanauer and' Jacob Hanauer, merchants and partners, doing business by the firm name, style and description ofL. Hanauer& Co. vs. William L. Rice.

Bill to foreclose.

“Now come the plaintiffs by their solicitors, and file their motion to require James Martin, the commissioner heretofore appointed in this case to sell the lands as commanded.”

“Louis Hanauer, Jacob Ilanauer and Dan-' iel Hanauer, merchants and partners, doing business by the firm name, style and description of

L. Hanauer & Co., Complainants, vs. William L. Rice, Defendant.

Bill to foreclose mortgage.

“ On this day come the complainants by their solicitor, and showed to the court here that James Martin, Esq., who was appointed commissioner in this case to sell the mortgaged premises, has failed to make sale thereof according to the direction of the decree in this case, and moved the court to direct said commissioner to proceed to sell said premises ; and the premises being seen and fully understood by the court, it is therefore ordered, adjudged and decreed that the order of this court, made at the last term, in this case, be, and is hereby, revived ; and the said commissioner is hereby directed to proceed and sell said lands according to the terms and directions of said decree; and that he, as such commissioner, report his proceedings to this court at the next term, to which time this case stands continued.”

They then introduced the following witnesses:

Larkin Johnson, who testified : That he, in 1852 or 1853, lived at the Warm Springs — the land in controversy — and ivas well acquainted with William L. Rice and his daughter, Susan. Susan was about the age of witness’s sou, who ivas, at the time mentioned, eighteen months or two years old, and he was a little older than she; neither of them could talk plainly. His son was twenty-live years old on the fifth of January, 1877; she was then, at the time of testifying, he understood, married.

Edmond Gilliam testified: That he, in 1856 or 1857, went with William L. Rice to Pocahontas to see Louis Hanauer, who was then merchandizing there. The witness then knew that Rice had before sold or delivered to Hanauer a negro woman on a mortgage, for which Hanauer was to allow him $1,000 and all he could get for her over that sum. Hanauer told Rice that he did not get but $400 for the woman, and refused to account to him for any more. They got angry and had some words, and the interview ended by Rice telling Hanauer that he would sue him unless he paid him the overplus on the negro woman, and Hanauer saying he would not pay, and that he (Rice) owed him on a fair settlement.

William H. W addle testified: That he was a clerk of Louis Hanauer, in Pocahontas, in the years 1856, 1857 and 1858, and knew that William L. Rice, about that time, let Louis Hanauer have a negro woman. Louis, Jacob and Daniel Hanauer did business together, and appeared to be jointly interested. When any land was sold under deed of trust, mortgage or execution, that which was valuable was generally bought in by Louis Hanauer. William L. Rice sometimes had an open-account with the house.

Nicholas Bach testified: That shortly after the death of William L. Rice, which was in 1857 or 1858, he went to Batesville to enter a tract of land adjoining the Rice Springs, or Warm Springs, and he met Daniel Hanauer there. That Daniel Hanauer asked him why he did not buy the springs-property. He told him he was not able— that if he should do so, they would want their money on the mortgage, and he could not pay it, and Daniel Hanauer replied, “ that that was all settled, and the mortgage satisfied ; and that there was not more than fifty dollars between them, and that was against the estate.”

And John P. Black testified: That Louis, Jacob and Daniel Hanauer were partners. That he was present at the foreclosure sale of the land — the northwest quarter of the southwest quarter of said section (11), and that it was bid in by Jacob Hanauer.

It was admitted that the plaintiffs had brought a previous action against the defendants for the land, which was commenced on the twenty-second day of May, 1874, and a non-suit was taken in it at the November term of the same year. The defendants objected to the admission of the orders read from the chancery record, of the testimony of Gilliam, Waddle, Bach and Black.

The defendants read to the jury a deed, from James Mai’tin, as commissioner in chancery, to Louis Hanauer, for the said northwest quarter of the said southwest quarter, in which it was, in substance, recited: That the said William L. Rice, on the twenty-fourth day of April, 1850, executed to the said Louis Hanauer a mortgage on the said tract of land, and other property, not described, to secure the payment of a note of that date to him for $1,000, bearing ten per cent, interest from date until paid — payable on the first day of April, 1852; that the said Louis Hanauer brought suit, after the maturity of the note, in the Randolph circuit court in chancery, for a foreclosure of the mortgage, and sale of the mortgaged property, and a decree of foreclosure and sale was rendered thereon on the fourth day of December, 1854, and that he, tile said Martin, was appointed such commissioner to sell the property and carry the decree into effect.

That the said William L. Rice, having died, and Elizabeth Rice been appointed administratrix of his estate, the decree was, on the twenty-fifth day of May, 1858, revived against said administratrix, and he, the said commissioner, was directed, unless the money should be paid on or before the first day of the next term of the court, the same being the twenty-second day of November, 1858, to sell said property, on that day, to the highest bidder for cash; and that the money not having been paid, and having given the notice of the sale prescribed in the decree, lie, on that day, offered the said tract at public auction, in pursuance of the decree, and the same was bid off and purchased by the said Louis Hanauer, at and for the sum of $400. Which deed was dated the twenty-seventh of November, 1858, and acknowledged before the clerk andfiled for record, the same day.

They then read a power of attorney from Louis Hanauer and Jacob Hanauer to James C. Marvin to sell any or all of the land owned by them in the counties of Randolph, Green, Craighead and Lawrence,in the state of Arkansas; and Ripley, Howell, Oregon and Carter, in the state of Missouri, dated on the thirtieth of May, 1868, and a deed from them, by their said attorney, to the defendant Wells for the entire tract in controversy — dated the sixth day of October, 1869.

Isam Russell, a witness for the defendants, testified that he had lived a near neighbor to William L. Rice, and was well acquainted with him ; that he died in 1857 or 1858. He left two children, a son, who died about 1863, and a daughter. The daughter’s name was Susan, and she was about one year younger than a daughter of the witness, who was twenty-nine years old on the thirty-first day of January, 1877. Susan had since married, but had not, by her marriage, changed her name. He also said that the widow of William L. Rice was in possession of the land in 1866. The premises had been, both before and since that time, occupied by visitors at the springs which were on it, but he did not know under whom they occupied. But only a small part was cleared. Wells went into possession in 1869 or 1870.

Edmond Gilliam testified for them that the premises were, in 1867 and 1868, occupied by visitors, but said he did not know by whose permission. He stated, further, that William L. Rice'was in possession in 1857, and his widow in 1866. And Joseph T. Fisher, another witness for them, testified that Wells went into possession in January, 1870.

The deed from Martin, as commissioner, to Louis Hanauer, contained no recital of a confirmation of the sale by the court, or of a report of it, having been made by him to it.

It is contended by the appellants that the sale by the commissioner could not be attacked collaterally, or in an action other than that in which it was ordered, or it be shown that the debt was paid before the sale was made.

This position would undoubtedly be correct, had there been a confirmation of the sale, and it had so become completed and absolute.

But, until confirmed by the court, a sale made under its decree is not completed, and a deed to the purchaser confers upon him no right to the property.

“The theory of sales of this chai'aeter is,” as the court say, in Sessions v. Peay, 23 Ark., 41, “ that the court is itself the vendor, and the commissioner, or master, its mere agent in executing its will. The whole proceeding, from its incipient stage up to the final ratification of the reported sale, and the passing of the title to the vendee, and the money to the person entitled to it, is under the supervision of the court. The court will confirm or reject the reported sale, or suspend its completion, as the law and justice of the case may require.” Ror. on Jud. Sales, secs. 1, 2; Freem. Void Jud. Sales, sec. 41.

• No evidence whatever was offered that the sale had been confirmed, or that it had ever been reported to the court; consequently no title could be established in the defendants through the deed. Although, therefore, it may not have been necessary for the plaintiffs to have shown that the debt was paid, evidence of such fact was not improper and could not have prejudiced the defendants. If, however, the debt still existed, the plaintiffs could not maintain their action, if the defendants, as they claimed, entered into possession under the mortgagees, because upon the failure to pay the debt at the time stipulated in the mortgage, the estate of the mortgagor was forfeited. It was competent, therefore, for the plaintiffs to show that the debt had been paid, and the decree satisfied, by which the title revested in the mortgagor.

The orders in the case were produced, as it clearly appears, not only for the purpose of showing that the suit for the foreclosure was not such as was recited in the deed, but by showing the interest of Daniel Hanauer in the mortgage, to lay a foundation for the proof of his declaration that the mortgage had been paid by William L." Rice, in his lifetime, and the decree satisfied.

As the obvious object in introducing them was the proof of the fact that Daniel Hanauer was a party plaim tiff in the foreclosure suit, it was not necessary for the plaintiffs to have read the whole record, but it would, it seems, have been better to have read the decree. However, if there had been a mistake as to the title of the cause, and none can be presumed, the defendants, by reading the decree themselves could have shown it. We can see, therefore, no objection to the admission of the orders, or of any of the evidence objected to, which tended to prove the payment of the money.

The defendant, Wells, was proven to have first taken possession of the land in January, 1870. Hanauer appears never to have been in possession. No question as to the statute of limitations can therefore arise; and the averment in the complaint that the plaintiffs were the children and heirs at law of William L. Rice, was not denied or put in issue by the answer.

The evidence was clearly sufficient to maintain the verdict. <

The judgment is affirmed.


text:
    Scanland, Ad., et al. vs. Mixer.
    1. Justice oe the Peace: Their power over their process. Equity can not enjoin.

    A justice of the peace has control of an improper or improvident execution issued by him, and may recall and quash it. Or the circuit court may bring up the proceedings by certiorari, and grant relief. But equity can not enjoin it. It has no power to correct even the grossest errors of inferior courts.

      APPEAL frorpi Arkansas Circuit Court in Chancery.
    Hon. J. A. WfcuLiASiS, Circuit Judge.
    A. A. Johnson} for appellant.

      Gibson, contra\ '■

   Eakin, J.

Bullock, on the fifteenth of July, 1874, recovered a judgment against Mixer, before a justice of the peace of Morris township, for the sum of $187.70. The suit had been removed, by change of venue, from another township. An appeal was prayed and granted. The affidavit and bond required by law were duly filed on the thirty-first of the same month. The justice failed to send up the transcript to the next term of the circuit court, and his office expired in November following. On the twenty-seventh day of February, 1875, his successor issued an execution on the judgment, which was levied upon the goods and chattels of Mixer. He obtained from the probate and county judge an interlocutory order restraining the plaintiff, Bullock, and the constable, from proceeding with the execution. The court overruled a demurrer to the complaint, and upon hearing, upon bill, answer and exhibits, made the injunction perpetual. Meanwhile Bullock had died, and his administrator, Scanland, had entered an appearance. The defendants below appealed.

The execution was unlawful. The appeal was granted at the time of the rendition of the judgment, and the affidavit and bond required by section 3819 of Gantt’s Digest, w7as filed within thirty days. This suspended all further proceedings before the justice. He was not required to give a certificate of appeal unless an execution bad been already issued. The proceedings were before him, or should have been turned over tip., him by his predecessor. He had no authority to p/oce^fjtfurther.

Courts of chancery do not sit, hoiíveveri to correct even the grossest errors of inferior courts*1. |*There must be some special element of equity jurisdiction to justify an interference — some impending mischief otherwise irremediable, some want, or peculiar obstruction, of legal redress. The remedies in this case were plain.

A justice of the peace has control of an improper or improvident execution issued by him, and may revoke and quash it. If he should refuse to do so, or, from accident be unable to act, the circuit court, by its general supervisory power may, on proper application, bring up the proceedings by certiorari, and grant relief. Or the better course still would have been, for the appellant from the judgment of the justice to have prosecuted ' his appeal and obtained a rule for the proceedings and a supersedeas.

No reason is shown why these were not pursued. The demurrer should have been sustained.

Reverse the decree and dismiss the bill here, without prejudice to either party in the appeal, which is still pending from the original judgment before the justice.