author: WlhSHIRE, C. J.

text:
    Scott et al. v. Eaton, Betterton & Co.
    Bes Judicata. — All questions determined when a cause is before this court on an appeal, are res judicata, and must be treated as settled.

      Evidence — Appearance by Attorney. — Where the transcript of a judgment of record of another State, shows that the parties appeared by-attorneys, it is prima facie evidence that they did so appear; and even though there were testimony to show that the attorneys were not duly authorized to do so, the error could be corrected on motion for a new trial; and if the transcript does not show such motion, the evidence is not properly before this court.

      Appeal from the Pulaski Circuit Court

    Hon. Joiin Whytock, Circuit Judge.

      Garland £ Nash, for appellants.

      Watkins if Pose, for appellees.
   WlhSHIRE, C. J.

This is the second time this cause has been before this court. The suit was brought in the Pulaski circuit court by the ap-pellees against Pennywit, on a transcript of a judgment obtained by them in the fourth district court of the city of New Orleans, Louisiana,

Two pleas were interposed by Pennywit in the court below: 1st. Nul tiel record; and the 2d. That Pennywit, when the suit in the fourth district .court of New Orleans was commenced, wherein was rendered the judgment upon which this suit was brought, was, and from thenceforth had been, a resident of the State of Arkansas, etc., and was not served with process, and had no notice whatever of the pendency of said suit, and never appeared thereto, either in person or by attorney, and that no one was duly authorized to enter his appearance to such suit, etc.

On the trial, in the court below, the transcript of the judgment rendered in the fourth district court of Hew Orleans against Pennywit, was excluded from the'evidence, and judgment being rendered against Eaton & Betterton, they appealed. On that appeal this court reversed the judgment of the court below, holding that the fourth district court of Hew Orleans had jurisdiction, and the transcript of the record was properly authenticated, and should have been admitted in evidence,, as it raised “a strong prima facie presumption that the defendant did appear in that court by attorney,” and that the evidence offered by Pennywit in the Pulaski circuit court, as appeared in the transcript then before this court, was not sufficient to rebut that presumption, and the cause was remanded to the court below for further proceedings.

The only questions presented by the transcript that demand our attention, are those raised by the proceedings in the court below, subsequent to the mandate of this court. All questions determined when this cause was here on the appeal of Eaton & Betterton, are res judicata, and must be treated by us as settled. 6 Ark., 558; 7 Ark:, 542; 10 Ark., 186.

Taking that view of this case, the only question we find requiring examination is, whether the evidence introduced by the defendant, at the second trial in the court below, was sufficient to rebut the presumption raised by the record of the fourth district court of Hew Orleans, that Pennywit appeared to the suit of the appellees in that court, by attorney, and defended, etc.

The testimony introduced on the second trial, in the court below, does not seem sufficient to rebut that prima fade presumption. It is true two witnesses, Messrs. Durant and Horner, the counsel appearing of record for Pennywit, in the Hew Orleans court, state that their recollection of that case is not very distinct. Mr. Durant testifies that so long a time has intervened since the pendency of the suit in the Hew Orleans court, he cannot recollect any such suit, except in a very faint and indistinct manner, not sufficient to enable him to say any-tiling about it. Mr. Horner testifies that it is his impression that his firm, Durant & Horner, were employed by Moses-Greenwood, on behalf of the owners of the steamboat “Thirty-fifth Parallel,” which was the subject of the suit against Ilennywit in the How Orleans court, and the securities on the bond given to release the boat from seizure under the attachment proceedings.

But Moses Greenwood testified that, as the agent and attorney in fact of Pennywit, to look after and protect his interest in the steamboat “Thirty-fifth Parallel,” he employed Messrs. Durant & Horner, attorneys, to represent Pennywit,. and defeud the suit instituted against him in the Hew Orleans-court, which the transcript of the record of that court shows-they did.

There appears to be no testimony presented by the transcript to overcome the statement in the record of the Hew Orleans court, that the defendant there appeared by attorney, etc.; nor does it appear that the defendant, in the court below,, produced any testimony to show that the attorneys, appearing of record in the Hew Orleans court for Pennywit, were not duly authorized to do so.

But, even if there was such testimony, the error could have-been corrected in the court below, on a motion for a new trial-There appearing, by the transcript, to have been no motion fora new trial, we think thé evidence is not properly before us.

The judgment of the circuit court is, therefore, affirmed-


source: Caselaw Access Project

author: <xREÜO, J.

license: Public Domain

text:
    Cox v Fraley.
    Fraudulent Conveyance — The fact of a grantor "being embarrassed, is no proof that a conveyance is fraudulent.
    Creditors— Preference. — If acting in good faith, a debtor may pay or secure one creditor in preference to another.
    The mere allegation of a general creditor that he owns a valid claim, will not authorize him to go into a court of equity to prevent other creditors, who have been more vigilant than himself, in recovering against a failing firm.
    Demurrer. — Where there is no equity in the bill, a party is not aggrieved by rulings upon minor points.

      Appeal from Independence Circuit Court.

    'Host. Elisha BaxteR, Circuit Judge.

      rByers if Cox, tor appellant.
    1. The demurrer should have been stricken out. The causes ’.assigned were general in terms and extended to the whole Bill. The only causes assigned being multifariousness and want of equity.

    The filing of the plea was a waiver of the demurrer, the •demurrer being to the whole bill.
    'The cross bill was not multifarious.

      1 Danl. Ch. PI. <f Pr. 31¡8, and notes; 1 Danl. Ch. PI. <f Pr., 3Jy5, 3J¡.8 and notes; 6 Paige Rep. 77; Adams’ Eg. 650 and .notes.

    A demurrer for multifariousness goes to the whole bill.

      1 Danl. Ch. PL <f Pr., 353, note 3; 5.Paige 79; Adams JEqt. l655 and note.

    Allegations of fraud in the bill precludes demurrer.
    1 Danl. Ch. PL <f Pr. 333; Adams JEqt. 696, 7 and notes; Niles ct cd. v. Anderson et al., 5 IIow (Miss.) R. 365; Stovall v. Northern Rank Miss., 5 Sineads f M., 17.

    A court of equity has the right to declare acts, and every kind of instruments, void for fraud, even though sanctioned by the most solemn forms of the law. It may, for this cause, avoid legislative acts. 4 liar. McHenry, 6.

    Judgments of courts of record:

      1 John. Gh. Hep. 406; S John. Gh. Rep. 380; 8 Des. Rep. ‘368; 3 Cowen Rep. 189; Gooper’s JSqt. 96; 1 Ves. -120; 1 Sell, ft Ref. 355; Milford’s Pleading, 84; 1 Monroe, 256; 3 Monroe, 260; 3 J. J. Marshall, Jfl5; 1 Pirtle 460.

    Deeds or patents:

      White v. Jones, 1 Wash. Jfl; Jackson v. Raioton, 10 John. R.. 23; Polk’s lessee r. Wendcdl, 2 Tenn. 155; Bagnell v. Broderick, 13 Peters, 436. And of bonds, notes and bills of exchange, the cases are innumerable.
    The exercise of this power is all that is asked on the present occasion.
    A purchaser, pendente lite, and while the property is actually in the custody of the law (as was the case here by Fraley and wife; the property having been attached and in the possession of the sheriff and custody of the law at the time they purchased) is utterly void, and no title whatever is acquired. Meux v. Anthony et al., 11 Ark. 441.

    The purchaser, pendente lite, takes nothing by his contract,, not even in a case where he pays full value and has no actual notice of the pendency of the suit. Ib.

    An attachment levied upon property constitutes a lien from the time of the seizure, of which all persons are hound to take notice. Merrick v. Fenno, 15 Ark. 331; Frelison v. Green 19 Ark. 376.

    The purchase of this property, by Fraley and wife, was after the seizure by the sheriff", under the attachment, consequently they were bound to take notice of the attachment lien; and in addition to this the cross hill charges that they had actual notice of the fraud of the makers of the note and mortgage, and of the appellant’s lien.

      Garland ft Nash, for appellees.
    We submit that there was no shadow of equity in the cross Pill, and not a semblance of defense in the answer of Oox, and that however the conclusion was reached, the decree was correct. See Civil Code, sec. 870.

    Admitting that the mortgage was fraudulent, Oox had no right to come into a court of chancery to have it set aside, until he had recovered a judgment on his claim. Mohawk Bank v. Stawler, 2 Page 57; Lawton Levy, 2 Bden Chy. 12,199; Hendricks v. BoUnson, 2 Johns. Chy. 296; Brink-•erhoff v. Brown, 4 Ib. 671; Williams v. Brown, lb. 682; North American Fire Ins. Co. v. Graham, 8 Sandf. 197; Halbert v. Grant, J; Monroe 580; Allen v. Camp, 1 lb. 281; Graser v. Stell-•wayen, 25 N. Y. 815.

    Oox being a creditor at large of Burns, had no concern with his fraud. Wiggins v. Armstrong, 2 J. C. HI And still less could he here interfere without connecting Eraley and wife with the fraud. ■17 Ark. 146.

    Rot only should Cox have shown that he had judgment, but also that he had execution returned nidia bona. Meux v. Anthony, 1.1 Ark. 4-11; Williams v. Bizzell, lb. 718; Cook v. Cook, 12 Ark. 887; King v. Payan, 18 lb. 589.

    The writ of attachment was no proof of the debt. Currier v. Ford, 26 111. 488; Hall v. Stryker, 29 Barb. 105.

    The attachment of Oox could hold, subject to this mortgage, but certainly not to delay or interfere with the mortgage at all. The mortgage must be foreclosed, and what is l'emain-ing after satisfying that, will go to Cox’s debt under the attachment. Leaman v. Stoughton, 8 Barb. Chy. 844l Lodge v. McClure, 6 Hill {N. Y.) 9.

   <xREÜO, J.

On the 7th of May, 1868, the appellees brought their suit, in equity, against Benjamin E. Burns, James F. Jordan and Stephen M. Henley, to foreclose a mortgage executed by them upon a portable steam engine and apparatus, to Jesse H. Henley, and by him assigned to Mrs. Fraley.

Hpon petition, the appellant was made a defendant, and for answer to the bill, he alleged that the note, to secure the payment of which the mortgage was given, was executed without ■consideration; that it and the mortgage were given to delay and defraud creditors, etc., and that the mortgagors were indebted to him, and that his equities were known to Fraley and wife before they purchased the note and mortgage.

On motion of the complainants, the court struck the answer from the files. The appellant excepted, and then filed a cross bill. After several motions and the forming of some immaterial issues, the court, sustained a demurrer to the material parts of the cross bill.

Upon the hearing, a final decree was rendered against the original defendants, foreclosing their equity of redemption, etc., and Oox only excepted and appealed to this court.

There is no proof of fraud on the part of B. E. Burns & Co., in executing the note and mortgage. This court has repeatedly held that the fact of grantor being embarrassed is no proof that a conveyance is fraudulent. Splawn v. Martin, 17 Ark., 146; Dardenne v. Hardwick, 9 Ark., 482; Hempstead v. Johnson, 18 Ark., 124.

If acting in good faith, a debtor may pay or secure one creditor in preference to another. Huff v. Roane, 22 Ark., 184; Williams v. Buzzard, 11 Ark., 718; Cook v. Cook, 12 Ark., 387; King v. Payne, 18 Ark., 589.

But there was no issue in this cause presenting that question, which the appellant seemed to be seeking to raise.

The object of the bill was to foreclose the equity of redemption of Burns & Co , and have the property sold to satisfy a debt against them. The appellant was a general creditor of that firm, and had no interest whatever in the property mortgaged and no more right to inforce his demand against it than any other creditor had. If he attached the property, it was after the execution and recording of the mortgage, and with a full knowledge of the existing lieh. This he had a legal right to do, and if the value of the property was greater than the amount due under the mortgage, he can have the excess applied toward the payment of any judgment he may obtain; but a mere obligation that he owned a valid claim against Burns & Co., did not authorize him to come into a court of equity and set up fraud to prevent other creditors, who had been more vigilant than himself, from recovering against a failing firm. Appellant showed no interest in the property, and no claim even reduced to judgment; and there was no error in sustaining the demurrer to the material allegations in his cross bill. And if there was no equity in appellant’s cross bill, and we are clearly of opinion there was none, he was not aggrieved upon any ruling of minor points in the cause, as the final decree would, of necessity, have been against him. Certainly no small amount of the time of the court below was consumed in motions that did not go to the real merits of the cause.

Binding no error in the final decree of the court below, the same is in all things affirmed, with costs.


author: Harrisoh, J. McClüRE, J.,

text:
    Kaufman & Co. v. Barb.
    Emancipation proclamation. — The emancipation proclamation of January 1, 1863, did not liberate and free the slaves in the insurrectionary States, outside the lines of occupation of the national forces.

      Pleading — Presumption of facts. — Pleas are taken most strongly against the party pleading, and a |>lea, not averring that the sale took place -within the Federal lines, or that the negro man had ever been -within them after the proclamation of January 1, 1863, the presumption is against such facts.

      Appeal from Independence Circuit Court.

      3Ion. Elisha BaxteR, Circuit Judge.

      Watkins Hose, for appellants.

      .Byers Cox, for appellee.
   Harrisoh, J.

This was a suit on a writing obligatory, executed by the defendant to Hirsch & Adler, and assigned by them to the plaintiffs.

The defendant filed nine pleas. The first and second were, on the plaintiff’s motion, struck out, and they took issue to the ninth, and demurred to the others.

The court sustained the demurrers to the third, seventh and eiyhth pleas, but overruled those to the fourth, fifth and sixth,. and, without disposing of the issues taken to the ninth, rendered dual judgment against the plaintiffs.

The fourth, fifth and sixth pleas, though varying, somewhat in language, wei’e, in substance the same, and the defense set tip in them was, that the instrument sued on was given for a negro man, purchased by the defendant from Hirsch & Adler, in Independence county, in this State, on the 10th day of July, 1863, that had been emancipated and freed by the proclamation of the President of the United States, of September 1, 1862, and January 1, 1863, and therefore without consideration.

It was not averred, in the pleasj that the county of Independence was within the territorial lines when the sale was made,, or that the negro man had ever been within them after the proclamation of January 1, 1863; and as every body is presumed to make the most of his own case, and it is a maxim of construction that every thing shall be taken most strongly against the party pleading, the presumption is against such facts.

In Dorris v. Grace, 24 Ark. 326, it was decided that the emancipation proclamation did not liberate and free the slaves in the insurrectionary States, outside the lines of occupation of the national forces. Of the correctness of the decision in that case, we think there can be no doubt, and as it is conclusive of the question presented in this, the judgment of the court below is reversed, and this cause remanded to it, with instructions to sustain the demurrers to the fourth, fifth and sixth pleas, and proceed to the trial or disposal of the issue formed on the ninth, and otherwise in accordance with law.

McClüRE, J.,

dissenting, says:

It seems that Barb, on the 10th day of July, 1863, purchased a negro slave from ITirsch & Adler, for the sum of thirteen hundred aud twenty-five dollars, and in payment thereof executed his note for that amount, payable “twelve months after the expiration of the (then) present war.” This note was assigned to Kaufman & Co., who brought suit on the same.

Barb, in his fourth plea, alleges “that on the 1st day of September, 1862, Abraham Lincoln, then President of the United States, issued his proclamation, warning the citizens of certain States, then in rebellion against the said United .States, including the State of Arkansas, and the county of Independence, aforesaid, to return to their allegiance to said government on pain of forfeiture of all the-slaves within said certain States. * * * And the said defendant further avers, that, on the 1st of January, 1863, the said Abraham Lincoln, President as aforesaid, and as commander-in-chief of . the army and navy of the United States, issued his second proclamation, emancipating and freeing, absolutely, all slaves within certain States, therein mentioned, as continuing in rebellion, including the said State of Arkansas, and said county of Independence. * i:' * That on the 3d day of May, 1862, the forces of said United States government, under the command of Major General Samuel Curtis, occupied the county of Independence, aforesaid, and established the head quarters of the military district, including the said State of Arkansas, at Batesville, in said county; that said head quarters were after-wards removed to Helena, in' the county of Phillips, in said State, and remained there until the close of the war; that from and after the first occupation of said county of Independence, and that portion of the said State of Arkansas surrounding-said county of Independence, the said Hnited States authority claimed the same was within their military lines and jurisdiction; and, for the greater portion of the time, actually occupied and controlled the said county of Independence; that Hirsch & Adler, at the county of Independence, aforesaid, well knowing (on the 10th of July, 1863) that said negro was, by virtue of said proclamation, of right and by the irresistible power of the said Hnited States forces, in fact free, fraudulently induced the said defendant to purchase from them said negro man; that trusting in the said fraudulent representations and promises of the said Hirsch & Adler, he, in total ignorance of said proclamation, purchased said negro from them, and then and there executed the said writing obligatory, and for no other consideration whatever; that the contract was made in violation of tbe said ' proclamation and the law of the land, and that said writing obligatory is null and void, etc.

The majority of the court say that “ it is not averred in the pleas that the county of Independence was within the Federal lines when the sale was made.” I have quoted at some length from one of the pleas, and am of opinion that the averment is made with sufficient precision and certainty. The fourth plea from which I have quoted, was demurred to, and the demurrer was overruled. The majority now direct that the court below shall sustain the demurrer to this and certain other pleas.

In my opinion, the defense set up by the plea is a good one,' for the demurrer admits that the sale of the slave was made to Barb at a time when the Federal forces were in the occupation of the county of Independence, and at a time when the emancipation proclamation had been in effect for more than six months, and that Hirsch & Adler were aware of this fact. The reason assigned by tbe court in Dorris v. Grace, (24 Ark. 330) for sustaining tbe demurrer to tbe plea in that case, was, tba-t “ tbe enemy” (and, by the use of this word “enemy,” I suppose we are to understand tbe forces of tbe United States,) “bad not extended bis lines to Pine Bluff,” but in tbis case tbe Federal forces are admitted to be in possession of tbe county of Independence, at the time the sale was made. Tbe majority of tbe court may endorse an opinion which speaks of the army of the United States as an “enemy,” as much as they are a mind to, but I shall do no such thing.

I concur with the majority in remanding tbe cause.


author: McClure, J.

text:
    Wilson v. Strayhorn.
    Misrepresentation. — Every misrepresentation will not avoid a contract — ' the fact or thing misrepresented, must he of such a character that the party deceived had a right to rely upon it.

    Misrepresentations, to he fraudulent, must he matei ial, must mislead the party to his damage, and must he false.

    A party upon, whom fraud has heen practiced, must be prompt in communicating it when discovered.
    What required of contracting parties. — The law requires contracting parties to ho vigilant and to exercise due caution, and if the means of information are alike accessible to both, so that with ordinary prudence and diligence the parties might respectively rely upon their own judgments, they must he presumed to have done so.
    Mistake. — Where the mistake is mutual, courts of equity will correct, hut not mahe a new contract.

      Appeal from Yell Circuit Court.

    IIon. William K May, Circuit Judge.

      Clark §'■ Williams, for appellant.
    Strayhorn delivered the whole without explanation, and ho cannot be heard to say that Wilson did not purchase the whole ■or contract for it; and he is bound to make good the whole. This act of delivery shifts the whole onus upon Strayhorn. Even where a man stands by and sees another purchase lands which belong to himself and says nothing, ho is afterwards estopped from setting up his title. Shall v. Biscoe, 18 Ark. 14%; Trapnall ct al. v. Burton et al. 84 Ark. 871.

    The doctrine of caveat emplor does not apply here. Long on Sales, 189-80; Hall v. Gray, 1 Stark 4%4; Speuglemeyer v. Crawford, 6 Paige, 864; 1 Story Eq. sec. 800-806; 8 Kent, 481, 491. In such case the seller is required to tell the truth. Doggett v. Emerson, 8 Story P. 788: see also, 1 Story Eq. secs. 198, 804, 806-7-8-9-10, 141-8-8 and 144; Richardson v. Blight, 8 B Monroe, 680; Calruly v. Williams, 1 Yes. Jr. 810, 811.

      English, Gantt English, for appellee.
    We submit that, even though Strayhorn did represent to Wilson that he owned all the lands in his enclosure, Wilson would be entitled to no recoupment on account of such misrepresentation,- because the streets, alleys, courts, etc., of the town -were public matters, open to inspection, observation and inquiry as well to Wilson as to Strayhorn, and not matters within the peculiar knowledge of Strayhorn. See Smith v. Richards, 13 Peters R. 85; Hill v. Bush, 19 Ark. 589; Yeates v, Pryor, 6 Eng. R. 66, and cases there cited.
    Even if the streets, alleys and courts of the town had been properly dedicated to public use, when the town was laid out, which does not appear in the record, yet part of them being -enclosed with lots, purchased and openly held, possessed and used as part of his premises by Strayhorn, for more than the longest period of limitation ever prescribed by any statute of this State, ho acquired a perfect legal title to the ground, so enclosed and held, as against the corporation and all others. Cunningham, v. Brumback, 28 Ark. 336; Hicks v. Fluit, 21 Ark. J/.68; Walker v. Town, 28 Ark. llfl ; Bowman v. Wathen, 1 How. U. 8.189; Angel on Limitations, Title, Adverse Bossession, and particularly sections 388, 393.

    We respectfully submit that, in any view, the decree of the court below should be affirmed.
   McClure, J.

Strayhorn sold to Wilson lots 1, 3, 5, 7, 17, 19, 21, 23 and 25, in block eight, in the town of Dardanelle, for $2,200 ; seven hundred dollars of this amount was paid on the 16th of March,. 1867, and the note of Wilson for $1,500, due January 1,1868, was executed and delivered to Strayhorn, who executed a title bond, binding himself to make a good and sufficient deed, in fee simple for the lots above .described, upon the payment of the purchase money.

Wilson went into possession of the property, and has so continued until the present time. Failing to meet the note at maturity, Strayhorn, in September of 1868, filed his hill asking a decree for the purchase money, and a foreclosure of the-equity of redemption held by Wilson.

To the bill Wilson filed an answer and cross bill, wherein he sets up that the property purchased from Strayhorn was inclosed by a fence; that he was a stranger in the country and unacquainted with the size of town lots, and was led to believe, from the statements and action of Strayhorn, that the lots described in the title bond, in extent, were equal to the whole amount of ground inclosed by the fence of Strayhorn ; that he now finds such is not the fact, and that a portion of the ground within the inclosure is public ground of the town of Dardanelle; that certain repairs Strayhorn had verbally promised to make, have not been made, and concludes with a prayer that he may be allowed a credit on said note for the deficit of land within the inclosure purchased of Strayhorn, on account of certain alleys and courts that lie now finds belong to the town of Dardanelle, and for certain improvements that have not been made.

At the hearing the court below rendered a decree against Wilson for §1,513, foreclosed the equity of redemption, and ordered the property sold in default of payment. From this decree Wilson appealed to this court.

It is a well settled .principle of the law that fraud must be charged, and not left to inference. The allegation in the cross bill is “that he (Wilson) was informed by Strayhorn that he owned all the lots within his inclosure; that Strayhorn distinctly stated that the whole inclosure belonged to him, and was divided into nine lots; that the courts and alleys within the inclosure, belonging to the town of Dardanelle, constituted about three-twelfths of the property inclosed.

There -is no allegation in the cross bill that this statement was falsely or fraudulently made, with an intent to deceive, or that it did deceive the appellant in this case. In order to vitiate a contract for fraud, the representation must have been 'material — not only material, but it must have misled the other party to his damage and injury; and, in addition to this, the statement must have been false. It is not every misrepresentation that will avoid a contract. The fact or thing misrepresented must be of such a character that the deceived party had a right to rely apon it. The law requires each contracting party to bo vigilant, and exercise a due degreee of caution.

In Yeates v. Pryor, 11 Ark., 58, this court held that if the means of information are alike accessible to both, so that with ordinary prudence or vigilance the parties might respectively rely upon their own judgments, they must be presumed to have done so; or, if they have not so informed 'themselves, must abide the consequences of their own inattention and carelessness.

Strayhorn, in his answer to the cross bill, denies representing to Wilson that he owned any land within said inclosure, except the said nine lots, as they are represented on the map of said town, and described in the title bond. There is no allegation in the cross bill that Wilson was misled by the statement of Strayliorn, or that he believed or relied on the same; if he did not, no fraud conld have been practiced upon him.

The introductory or prefatory statement in Wilson’s bill, that he was a stranger in the country, and had no knowledge of the size of town lots, is not such an averment as would excuse him from seeking- such information as was accessible to a man of ordinary prudence and vigilance, nor is it such an averment as would authorize Wilson to rely implicitly upon the statements and representations of .Strayliorn.

All towns have streets and alleys. The citizen of one State is as much presumed to know this as the citizen of another, and that the lots are not always uniform in size throughout a State. Strayliorn was not hound to communicate any fact to Wilson that an ordinary man, in the usual course of trade and business, would naturally look to. If a man of ordinary business tact and prudence would have inquired as to the location of streets, courts and alleys in a strange town, before making a purchase, then Wilson would be bound by the rule.

In our opinion, a man of ordinary prudence would feel some interest in knowing something about the streets, courts and alleys contiguous to his property.

There is another matter connected with this question of fraud that it may be well to look to, and that is, that the party' on whom a fraud has been practiced must be prompt in communicating it when discovered.

Wilson went into the possession of the property, purchased in March, 1861, and has been continuously in possession since. On the first of April, 1868, more than a year after he went into possession, he paid Stray horn $117 on the $1,500 note, but said nothing about being misled or deceived as to the quantity of land purchased. Wilson states that at the time Stray-horn came to him for the six or seven hundred dollars, that he knew of the deficit of land for which he now claims a deduction, but that he said nothing about it to Stray horn. He also admits that he offered, and was willing to borrow the money and pay the note if Strayhorn could tell him where the money could be borrowed.

Wishard, another witness, states that he had the note for collection, and about one month before the bringing of the suit, he called upon Wilson and. wanted him to pay the note; that Wilson did not say anything about a deficit of land on account of the court and alleys, but did say something about troughs not being made as Strayhorn had promised, and offered to pay the note if Wishard could tell him where he could borrow the money.

It strikes us as being somewhat strange that Wilson would mention the fact that the troughs had not been finished as Strayhorn promised, and not say anything about having been misled or deceived as to the quantity purchased, especially at a time when Wishard was urging the payment of the note given for the property, and threatening to sue.

The first notice that Strayhorn received that he had practiced a fraud on Wilson, is found in the answer and cross bill of the appellant. A period of twenty months after the purchase, and during all which time the appellant was in possession of the premises, he .says nothing about being defrauded. It seems, too, that he has not shown any promptness in commu-nciating the fraud, if one was perpetrated upon him.

Wilson alleges that within the inclosure made by Stray horn’s fence there are forty-eight thousand and thirty-two square feet, and that twelve thousand three hundred and ninety-two feet of this amount is public ground of the town of Dardanelle, and to this extent there is, not fraud, but a failure, of consideration. Eor aught that appears in the record, Wilson would have purchased the property if he had known of the existence of the court and alleys within the inclosure.

Strayhorn, in most emphatic terms, denies all fraud, and there is no proof to sustain the charge; he insists that he was only selling the lots within the inclosure. On the other hand, “Wilson alleges that he understood he was buying all the ground inclosed by the fence.

Both men might have been honestly mistaken as to the meaning of the other. Such a mistake is no ground for the-reformation of this contract. Eor, while it may be true that Wilson would not have purchased the propérty if he had known of the existence of the court and alleys within the inclosure; it may be equally true that Strayhorn, knowing of the existence of the streets and alleys, would not have parted with his property for less than twenty-two hundred dollars. Under such circumstances a reformation of this contract or sale would,' in reality, be the making of a new contract by the court, to which the minds of neither party ever consented. Such is not the province of a court of equity. In cases where the mistake is mutual, a court has the power to reform a contract, but this is not the fact in this instance.

The attention of neither of the parties, at the time of making the sale, seems to have been called to the question of streets-- and alleys. It was no more the duty of Strayhorn to mention them than it was of Wilson to inquire after them. The neglect, or rather the result of a neglect, must be borne by the party who had it in his power to have provided against it by the exercise of ordinary diligence.

The judgment of the Yell county circuit court is affirmed.


author: GRE&g, J.

text:
    State v. Dunn.
    Illegal Co-habitation. — An indictment for illegal co-liabitation, should charge the parties to be of different sexes, and that they co-habited as husband and wife. The statutes of this State do not prohibit person» from co-habiting together, nor is such an offense at common law.

      Appeal from, Pulaski Gireuit Court.

      Hon. John 'Whytock, Circuit Judge.
    Montgomery, Attorney General, for appellant.

      W. J. Warwick, for appellee.
   GRE&g, J.

The grand jury of Pulaski county, on the 12th of February, 1869, filed an indictment in the circuit court of said county, against the appellee and Jinnie Harrison.

In the second count of the indictment it was charged that said “Ellick Dunn and Jinnie Harrison, on the 25th day of December, 1868, and on divers other days and times, in the year aforesaid, did then and there illegally cohabit together — they, the said Ellick Dunn and Jinnie Harrison, not being then and there husband and wife — to the injury of public morals, contrary to the statute, and against the peace and dignity of the State of Arkansas.”

The appellee appeared in court, and demurred to said second count. The court sustained the demurrer. The prosecuting attorney then entered a nolle prosequi to the first count in the indictment, and the court rendered judgment that the defendant go hence, without day; and the attorney for the State prayed an appeal to this court.

The second count in the indictment was clearly bad.’ There is no charge that Dunn was a man, and Harrison a woman, or vice versa, or that they co-habited as husband and wife.

There is no statute in this State prohibiting persons from cohabiting together, nor is such an offense at common law.

The judgment of the circuit court is affirmed.


author: 'Bowen, J.

text:
    King v. Carnall.
    '’CONFEDERATE Money. — Contracts based upon Confederate money are illegal and void.

      Pleading — Time of filing. — After issue joined, the filing of a special plea, at subsequent term, is within the discretion of the court.

      Appeal from Sebastian Circuit Court.

    Hon. E. J. Searle, Circuit Judge.

      Du Vail §• King, for appellant.

      Watkins § Bose, for appellee.
   'Bowen, J.

' This is an action of debt brought by appellee against appellant and others, in the circuit court’of Sebastian county.

At the October term, 1866, suit was discontinued as to all -.-the defendants except appellant, who filed, during the term, the -pleas of nil debit and set off.

At the April term, 1867, plaintiff took issue to the first plea, .and replied the statute of limitations to the plea of set off.

The defendant filed an additional plea of set off, on a note - executed by John Carnall, in March, 1862, for one thousand /■dollars. To this the plaintiff replied: First. The general issue; second, a special replication, setting up that the promissory note executed by Carnall was given for Confederate money, ..and therefore void, the same being an illegal consideration. To this replication the defendant entered his general demurrer, which was overruled. The cause was submitted to the court, • sitting as a jury, who found for the plaintiff and entered judgment accordingly.

It appears from the bill of exceptions that, at the latter term, defendant asked leave to file a special plea, under oath, alleging substantially that the plaintiff, at the time of commencing this suit, had no claim or title to the note sued on*, having previously assigned the same to one Sarah Clark. The-plaintiff objected to the filing, and was sustained therein by. the. court. The defendant excepted to such ruling, and to the-overruling of his motion for a new trial, and the cause is here on appeal.

The only point involved in the overruling of defendant’s, demurrer to plaintiff’s replication to defendant’s second plea of set off is, that of the illegal consideration. “We have, already settled that question in the case of Clark v. Latham, 25 Ark.

The refusal of the circuit court to permit defendant to file, his special plea just before going to trial, was a matter which addressed itself to the discretion of the court, and is one with, which we will not interfere, especially since no good reason appears for asking to file at so late a day.

At the trial, in the circuit court, the note sued on was in evidence. The court having refused leave to defendant to file his special plea, and this court sustaining it therein, renders it unnecessary for us to say any thing further.

Judgment affirmed.


author: Boiven, J.

text:
    Granger and wife v. Pulaski County.
    Quasi CORPORATIONS — Powers of. — Counties may be termed quasi corporations, the assumption of their corporate powers conferred and duties imposed, are wholly involuntary, they possess no power, incur no obligations^ except specially conferred by statute.
    Liability. — A private action will not lie, at the suit of a party injured;, against a quasi corporation, resulting from non-performance by its ofBeers-of a corporate duty, unless given by statute.

      Appeal from Pulaski County.

      Hon. John "Whytock, Circuit Judge.

      ■Bice Benjamin, Gallagher Newton and T. D. W. Tonley, for appellant.
    Counties are liable as bodies politic, as also municipal. Gould’s Dig. ¡887, Sec. 1, Chap. J¡.1\ corporations are liable at common law for trusts and acts of their agents. Hawkins v. Duchess of Orange; Steamboat Co., 8 Wend. lf>3; McCready v. Guard, of the Poor, S. $ B. 9j; Lyman v. White Biver Bridge Co., 8. Ark. 355, 8. Hill 573, per Harper, C. J.; Goodloe §■ Smith v. city of Cin., J. Ham 500 and A If; Cincinnati v. Hamilton Co., Wright 603; Chestnut Hill Turnpike Co. v. Butler, J. S. $ B. 16; Kansas v. Schuylkill Bank, J. Was. C. C. 106; Biddle v. Proprietors of docks and canals, 7. Mass. 187; Gerch v. Fulton Bank, 7. Can. j.85. The demurer admitted the authority of the corporation. Lyman v. White Biver Bridge- Co., 8. Ark. $55,857. A county is liable to repair a bridge unless they can charge a particular person. 1. Salk B. p. 859, (s. 7.) 1. Vent 61; 6. Mad. 150, 191, 855, 307. Holt 389. To render •corporation liable for negligence, law must impose duty upon it. Hawkins v. Plattsburg, 15. Bart. j$7; also, Western College v. Cleveland, 18; Ohio n. s, 875; Perkins v. Newell, 86 III. 880; Cates v. Davenport, 9\ Iowa $87, (Withwell) 887. Municipal .are equally liable as civil. See B. v. Bingham § Glancetshen B. Co., 88, 883; B. v. Great N. B. Go., 815; 3 B. £ Ala., 890; B. v. Scourbeck 6 A. F. 513; 8 Black, jl8; 1 Black, 39; 17 Haw. 161. That all the requisites exist to create the liability in regard to Pulaski county, see, see. 1. chap. jl, p.887, Gould’s Dig.; Boads and Highways lb. p. 968; Public Boads declared, Highways, sects. 1 and 8; lb. p. 971, sect. 76, 77; lb. 966, sec. 89; Acts of Legislature 1860, p.- 859; lb. 871; Acts of 1866, Boads and Highways; Acts of 185 j, p. 176.

      Warwick, Watkins Bose, for appellee.
    A county cannot be sued for damages occasioned by a defective bridge or highway; Sedges v. County, 1. Gilman, III. 567; Russell v. Men of Devon, 2 Durnf $ Hast, 667; Ruddle v. Proprietors $c., 7 Mass. 186; Miney v. Police, 12 La. An. 858; Schuyler Co. v. Mercer Co., 1 Gilman, 20; Ward v. County of Hartford, 12 Conn. Commissioners v. Meghels, 7 Ohio State R. 109; Huffman v. San Joaquin, 12 Cal., 1$6; Harvey v. Town of Newfane, 8 Barb., Sup. Ct. R. 61f>; Makinnon v. Penson, 18 Mig. L. 8; Eg., 509.

   Boiven, J.

Daniel B. Granger and Alice C.,his wife, brought an action, in the Pulaski circuit court, against the county of Pulaski, seeking to recover damages for injuries received by said Alice C. Granger, by being thrown from a bridge on a public highway in said county, in consequence of the. insecure condition of the bridge, etc.

The appellee demurred to the declaration, which was sus. tained, from which ruling and judgment of the circuit court Granger appealed.

The principal point raised by the demurrer is, whether any action lies against a county in this State for damages resulting from a defect in a public highway.

Counties are a political division of the State Government, organized, as part and parcel of its machinery, like townships, school districts and kindred sub-divisions. They do not derive any of the corporate powers they possess by a special charter. Their functions are wholly of a public nature, and their creation a matter of public convenience and governmental necessity, and in order that they may the better subserve the public interest, certain corporate powers are conferred on them. Whether they will assume their corporate powers and perform the duties and obligations imposed, are questions over which they have no choice, but their assumption is wholly involuntary.

They have been termed quasi corporations, possessing no power, and incurring no obligations save those especially conferred or imposed by statute.

Chief Justice Parker, of Massachusetts, in speaking of these involuntary corporations, said: “That they are not bodies politic and corporate, with the general powers of corporations, must be admitted and the reasoning advanced to show their defect of power is conclusive: “They may be considered, under our institutions, as quasi corporations, with limited powers, eo-extensive with the duties imposed upon them by statute or usage, but restrained from the general use of authority, which belongs to these metaphysical persons.”

It is well settled that, at common law, these quasi corporations are not liable to a private action at the suit of a party injured, resulting from the non-performance by its officers of a corporate duty, and no such action lies unless given by statute. This doctrine has been repeatedly asserted and applied by the courts of this State, where actions have been brought against counties and townships for injuries received in consequence of defects in the public highway. "We know of but one State in which a contrary opinion is held. See Mower v. Leicester, 9 Mass., 250; Bartlett v. Crozier, 17 Johnson, 439; King v. Police Jury, 12 La., 858; Hedges v. County, 1 Gillam, 567; Moray v. Newfane, 8 Barb., 645; 21 Cal., 426; 2 N. H., 393; 27 Barb., 543; 4 Mich., 557; 11 N. Y., 392.

In the case of Humphries v. Armstrong County, 56 Pa. St. R,. 204, cited by appellants, the question here raised does not seem to have been passed upon. It may be’observed, however, that the statute of that State makes it an imperative duty for the county to repair all bridges in the county.

Numerous decisions have been cited by appellant’s counsel, wherein cities and municipal corporations have been held liable. It must be borne in mind, however, that municipalities are usually created by express charter, in which the State parts with a portion of her sovereignty, and grants them large powers of self-government; larger powers of acquiring and controlling corporate property are conferred than on counties; special and peculiar priviliges are given them as to streets and public ways, and special authority given for the use of public ways for the convenience of the citizen, unknown elsewhere. The benefits conferred raise an implied promise of the corporation to fulfill every corporate duty and obligation. The assumption of corporate powers by a municipality is voluntary. In this respect they assimilate a private corporation; and, having accepted a valuable franchise on the condition of the performance of certain public duties, are held to contract by the acceptance, for the performance of those duties.

There is no statute in this State rendering counties liable in actions sounding in tort, and the circuit court did not, therefore, err in overruling appellants’s demurrer.

Judgment affirmed.


text:
    Blair, Adm’r. v. Alston.
    Feattdleítt Deed — Fraud may be shown against any deed, and evidence tending to show fraud in the execution of a deed, to hinder or delay creditors, is relevant and should be admitted.

      Appeal from Johnson Circuit Court.

    Hon. "William N. May, Circuit Judge.

      Watkins Sp Rose, for appellants.
    Fraud avoids a contract both at law and in equity. Stray-horn v. Giles, @2 Ark., 5S1; and the evidence tending to establish the fraud, should have been allowed to go to the jury; Mullen v. Wilson, 44 Penn., 4^S; Millett v. Pottinger, 4 Mete.
      (Ky.), SIS; Babcock v. JEJckler, S4 N. Y, 6S3; Porter v. McDonnell, SI Missouri, 6%; Telles v. Register, 4 Min., 391; Chandler v. Roeder, S4 How. TJ. S., SS4; Mitchell v. Berry, 1 Mete., (Ky.) 60S; Jones v. Lake, % Wis., S10; Burke v. Murphy, S7 Miss., 167. See Gould’s Digest, Chap. 74, See. 4-

   McClure, J.

On the 22d of December, 1860, Alston executed and delivered bis note, under seal, to one E. T. Blair, for the sum of $820, payable one day after date, with ten per cent, interest until paid.

On the 9th day of August, 1866, Louisa J. Blair, adminis-tratrix of E. J. Blair, deceased, brought suit, by attachment, against said Elijah B. Alston, on the ground of being a nonresident of the State, and the sheriff attached eighteen hunr dred and twelve acres of land, as the property of Elijah B. Alston.

John "W. Alston, a nephew of Elijah B. Alston, came into court and filed an interjfieader, wherein he states: “ That at and before the time of the sueing out and service of said writ of attachment, the property attached was not the property' of said Elijah B. Alston, but, on the contrary, the property of the interpleader, John W. Alston.

To the interpleader the appellant filed a general replication, and the interpleader joined issue. The cause was submitted to a jury, and it found for the interpleader.

The appellant made a motion for a new trial, assigning several causés, and, among others, the following, which is the only one we shall notice: “ First. Because the ruling of the court, in excluding parol testimony, whereby fraud would have been apparent, is contrary to law.”

Upon the trial of the cause, the interpleader, to sustain the issue on his part, introduced and read to the jury a deed executed by Elijah B. Alston, on the 20th day of July, 1865, to John "W. Alston. The consideration expressed in said deed is $7,000, and natural love and affection that the grantor bears towards his nephew, the grantee. The interpleader also introduced a quit-claim deed, executed upon the same consideration expressed in the deed of July 20,1865, by Elijah B. Alston and Hannah, his wife. This last deed bears date June 1,1866. The deeds mentioned are for the same lands attached by the appellant, and were filed for record on the 9th of November, 1865, and September 8, 1866, respectively. The interpleader also proved that he had managed and controlled the lands described in said deeds since the fall of 1865. This was all the evidence submitted to the jury on the trial of the cause.

The appellant offered to prove that the deeds executed to the interpleader, by Elijah B. Alston and Hannah, his wife, were executed to defraud creditors; that the deed of the 20th of July, 1865, was executed by the said Elijah B. Alston, at a time when John "W. Alston was in the State of Texas, and without any consideration; that the said John W. Alston was poor and penniless, and could not and did not pay any thing for said lands, and was a party to said fraudulent conveyance; that said Elijah B. Alston, at the time of m'aking said deeds, was in failing circumstances; that he owed at the time as much as those ¿ands were worth; that said lands were about all the property owned at the time by the said Elijah B. Alston. The appellant further proposed to prove, by exhibiting to the court, the writing obligatory sued on. The court refused to permit the introduction of any testimony tending to establish these facts.

Judge StoRY says that fraud avoids a contract ab initio, both at law and in equity, whether such fraud was committed by one of the contracting parties upon the other or by both upon persons not parties thereto, for the law will not sanction dishonest views and practices by enabling an individual to ac-quii’e any right or interest by means thereof. Chitty on Contracts, 589.

We understand that a creditor may show fraud against any deed that defeats the collection of his claim, and that if the badges, when presented to the court, disclosed that the grantor and grantee have participated in the fraud, to the delay and injury of creditors, that the deed may be set aside.

Evidence tending to show that the appellant was a creditor of Elijah B. Alston, and that the Alstons had acted fraudulently for the purpose of defrauding, delaying or hindering creditors, was relevant, and should have been allowed to go to-the jury.

The judgment of the Johnson county circuit court is reversed, and the cause remanded for a new trial, not inconsistent with this opinion.


text:
    Johnson v. Geisriter.

      Bankrupt — Assignment.-—No assignment of property by a bankrupt after the filing of his petition is valid.

      Appeal from, Jefferson Circuit Court.

    Hon. IT. B. Mohse, Circuit Judge.

      B. 8. Johnson, for appellant.

      Bell <f Carlton, for appellees.
   McClure, J.

On the third of September, 1867, Geisriter executed and. delivered his note to ~W. W. Johnson, for $600, payable one-year after date. W. W. Johnson assigned said note to one-Ben. S. Johnson, the plaintifi in this action, who brought suit on the same.

Geisriter answered, setting up that W. "W. Johnson had filed his petition in bankruptcy; that, at the time of filing said petition, said Johnson was the owner of the note sued on; that ■said note was not included in Johnson’s schedule of assets, and that he had no right or authority to assign the same; that said W. "W. Johnson, long after the filing of said petition in bankruptcy, was the owner of said note; that the assignment to Ben. S. Johnson, the plaintiff, was and is null and void, and that said plaintiff acquired no legal title by reason of said assignment.

To this answer the plaintiff demurred on the ground that '“the answer does not state facts sufficient to constitute a defense.”

The court overruled the demurrer, the plaintiff rested, and judgment was for the defendant. The plaintiff appealed.

The question presented is whether a bankrupt can assign property that ought to have been scheduled, after having filed .a petition.

The demurrer admits the filing of the petition of bankruptcy, by W. W. Johnson, the ownership by him of the note at the time of filing the petition, that it was not included in the schedule of assets of said Johnson, and that long after the filing of the petition in bankruptcy, Johnson was the owner ■of the note.

The appellant urges that a bankrupt’s assets do not pass to the assignee until the assignee has been appointed and qualified.

The bankrupt act requires the petitioner to make a schedule of his assets and liabilities. It also declares that, upon the appointment of the assignee and his qualification, the judge, or, where there is no opposing interest, the register shall, by an instrument under his hand, assign and convey to the assignee all the interest, real and personal, of the bankrupt, and that such assignment shall relate back to the commencement of said proceedings in bankruptcy; and therefore, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee, * * * and shall dissolve any attachment made within four months next preceding the commencement of said proceedings. The 11th section of the act declares : “ The filing of such petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt.”

The appellant urges that the answer does not disclose that the petitioner had been adjudged a bankrupt, or that an assignee had been appointed and qualified. The language of the 11th section is, that “the filing of the petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt.”' "We construe this language to mean that a petitioner shall be deemed a bankrupt from the day on which he files his petition.

The moment the petition is filed the bankrupt is civilly dead. During the interval existing between the filing of the petition and the appointment of the assignee, a condition of things exist not unlike that in the ease of a person dying intestate, and before the appointment of an administrator. On the death of a person intestate, no one is authorized to dispose of or assign his assets. A bankrupt is eivililer mortuus, from the day on which he files his petition, and during the interval, between the filing of the petition and the appointment of the assignee, no assignment of his assets can be made. A judgment rendered against a bankrupt, after the filing of the petition, and before the appointment of'an assignee, is as much a. nullity as a judgment rendered against a deceased person, who has no legal representative. If no valid judgment can be rendered against a bankrupt at such a time, it is not at all probable that the law gives him the power to make a valid assignment of assets that should, and which the appellant admits, ought to have been placed in the schedule.

The judgment of the Jefferson county court is affirmed with costs.


author: GrREGG-, J. McClure, J.,

text:
    Buchanan as adm’r. etc. v. Nixon.

      Appeal from Franklin Circuit Court.

    Hon. William N. May, Circuit Judge.

      Garland <f* Nash, for appellant.

      Clark Williams, for appellees.
   GrREGG-, J.

The appellant presented a claim against the estate of the deceased for $1520, founded upon a promissory note, which claim was allowed, duly classed and ordered to be paid.

The appellant then filed his bill in equity and prayed an injunction against the collection of the claim, and that the order and judgment of the probate court be declared void, upon the ground that the only consideration for the note was certain negro slaves, sold in the year 1859, by the appellee to the deceased, in his life-time.

The appellee answered, made a feeble attempt to show that he had received pay for the slaves and then loaned part of the money.

Upon the hearing in the circuit court, the chancellor dismissed the bill for want of equity, and decreed costs against the appellant, from which decree he appealed to this court.

The only question involved in this case was decided by this court in the case of Jacoway v. Denton, 25 Ark. 265. That case determined the validity of the notes given for slave pro-, perty before the attempted secession of the State.

The decree of the circuit court is in all things affirmed with costs.

McClure, J.,

dissenting, says:

I dissent on the grounds given in Kaufman v. Barb.


author: TVilsiiiRE, C. J.

text:
    Stephens v Holmes, et al.

    Vendor's Lien — Taos Title — Neither the legal or equitable title to lands or town lots, sold for the non-payment of taxes, vests in the purchaser or holder of the certificate of purchase, until the execution and delivery of the collector’s deed, and the relation of vendor and vendee does not exist between the purchaser and owner until such .execution and delivery.
    Redemption. — The owner, in order to redeem, is not required to pay to the purchaser taxes paid by him subsequent to the purchase and before redemption.

      Appeal from Pulaski Chancery Court.

    Hon. T. D. W. Yonley, Chancellor.

      M. L. Rice, for appellant.

      J. W. Faust, for appellees.
   TVilsiiiRE, C. J.

This is a bill filed in the Pulaski chancery court by B. M. Stevens, against Rebecca B. Holmes, (formerly Rebecca B. Ryan), Dr.-Holmes, Henry S. Rymal and Edwin T. Lins-ley, the object of which was to enforce a vendor’s lien.

The facts are briefly these: Stevens, on the 15th day of June, 1866, at a sale of lands, in Pulaski county, belonging to nonresidents, for the payment of taxes, purchased certain lands belonging to Mrs. Rebecca B. Ryan, (now Rebecca B. Holmes), for the sum of $255 f-fa, being the amount of taxes and penalty due on said lands, and the cost of the sale thereof; that he afterwards paid the taxes assessed upon said lands for the year 1866, amounting to $132; that after that, on the 16th day of July, 1867, said Rebecca B. Ryan (now Holmes) paid to Stevens the sum of $255 the amount paid by him at the tax sale for the land, and, also, the sum of $27 for improvements made by him on said lands; and thereupon Stevens transferred, by assignment in writing, the certificate of purchase of the lands, to said Rebecca B. Ryan, in the following language:

“Little Rook, July 16,1867.
“ I hereby assign and transfer all my right, title, claim and interest to the within described lands to Rebecca B. Ryan, for value received, acquired by tax sale for the year 1865.
“Signed: B. M. STEVENS.
“Attested by B. E. Rice and J. W. Eaust.”

That the complainant(Stevens) has since demanded of said Rebecca B. Holmes, and her husband, Dr. --Holmes, as, also, of the two other defendants, who hold under said Rebecca B. Holmes, by purchase and as tenants, the payment to him of the taxes on said lands for the year 1866, amounting to $182, paid by him, together with oné hundred per centum thereon, which he alleges they refuse to do; and he prays that' the same be declared a lien upon the lands, and the defendants directed to pay him the amount found to be due him, and, in default thereof, the lands be subjected to the payment thereof, etc.

The defendants demurred to the bill for want of equity, the eourt below sustained the demurrer and dismissed the bill, and the complainant appealed to this court.

The statute under which these sales were made, provides that lands and town lots belonging to non-residents of the county, in which they are situated, when sold for the payment of taxes, the non-resident owners of such lands may, within twelve months from the time of the sale thereof, redeem the same by paying or tendering to the purchaser of such lands, his legal representatives or lawful agents, the amount of taxes and penalty paid thereon, together with the costs of such sale and one hundred per centum on the whole amount paid by such purchaser, and shall also pay, or tender, to the purchaser, or his legal representatives, the true value of any improvements made on such lands, etc. See Gould’s Digest, Sec. 143 Under that statute, no deed could be executed by the collector of revenue until after the expiration of one year from the date of the sale. Section 126 of the same statute provides that the-“certificate of purchase shall be assignable, and an assignment thereof shall vest in the assignee, or his legal representatives, all the right and title of the original purchaser.”

By section 129 it is provided that the collector, after the lapse of one year from the time of sale of lands belenging to-non-residents, if not redeemed, shall execute to the purchaser, his heirs or assignee, a deed of conveyance. Section 180 provides that, upon the deed being executed, acknowledged and delivered by the collector to the purchaser, the title, both in law and equity, shall vest in the grantee.

It is evident to our minds that it was not the intention of the Legislature enacting the statute, above referred to and quoted, to vest the title, either legal or equitable, in the purchaser or holder of the certificate of purchase of lands or town lots sold for payment of taxes, until after the execution and delivery of a deed by the collector for such lands or town lots. Therefore, the relation of vendor and vendee, necessary to create the vendor’s lien, never existed between the complainant and any of the defendants, for it does not appear that the collector of revenue of Pulaski county ever made a deed to Stevens for the lands in question; but, on the contrary, the record of the chancery court shows that the lands, purchased by Stevens, were redeemed by Mrs. Ryan, and the , certificates of purchase transferred to her by the written assignment of ■ Stevens.

The statute under which the sale of Mrs. Ryan’s lands was madej does not expressly require the owner of lands or town lots sold, to entitle her to redeem the same, to pay to the purchaser any taxes paid by him on such lands subsequent1 to his purchase, and before the redemption thereof. The purchaser, in such a case, if he has any remedy, is remitted to an action at law against the party for whose use and benefit he may have j>aid the taxes, subsequent to the purchase and before the redemption.

We think the chancery court properly dismissed the complainant’s bill for want of equity.

The judgment of the court below is, therefore, affirmed..


author: IIaeRison, J.

text:
    Hanger & Co. v. Keating, Adm’r. etc.

      Jurisdiction — Prohibition.—Where there is no final judgment, no appeal! ■will lie. Prohibition is the only remedy before determination, where* courts are proceeding without jurisdiction.

      Appeal from Pulaski Circuit Court.

    I-Ion. John Whytock, Circuit Judge.

      Q-arland $ Nash, for appellants.

      Watkins ¿f Pose, for appellee.
   IIaeRison, J.

Thomas I). Keating, administrator of Milus' Killian, deceased, applied, by petition, in the circuit court of Pulaski county, for an order to sell the lands belonging to- his intestate’s estate, for the payment of its debts.

Peter Hanger & Co., and Fletcher & Hotze, creditors of the estate, as they alleged, appeared in court and demurred to the petition upon the ground that the subject thereof, and the power to make such order, was not within the jurisdiction of the court. The court overruled the demurrer and made an order that all persons interested in the estate should be notified to show cause, on the first day of the next term of the court, why the prayer of the petitioner should not be granted. Peter Hanger & Co. and Fletcher & Hotze excepted to the rulings of the court, and without further proceedings being had, prayed an appeal to this court.

It is manifest that there was no final judgment, or order, in the proceeding from which an appeal might be taken. If the court was proceeding in a matter not within its jurisdiction, a prohibition was the only remedy which could be resorted to, before the determination of such proceeding. The ease must therefore be stricken from the docket.


author: "WlLSHIRE, O. J.

text:
    City of Little Rock, ex parte.

      Jurisdiction — Prohibition.—Prohibition will not lie to an inferior court, in a cause arising out of its jurisdiction, until that matter has been pleaded in the original court and the plea refused.
    The circuit court will not be presumed to take cognizance of matters not within its jurisdiction.

      Petition for Prohibition.

      T. D. W. Yonley, Montgomery Wai wick, for petitioner.
    The power of amotion is incident to every corporation, 8 Kent. Com. §4-8-9; Angelí $ Ames on Corp. sec. 408-9, 27, 82; 5 Ind. 77; Grant on, Corp. p. 240, and is conferred by statute in this State. See page 273, New Digest, sec. 67, Law of Mun. Corp. The city council is not a court and the provisions of the Code (see. 681,) do not apply to it.
   "WlLSHIRE, O. J.

■ On a former day of tlie present term the city council of the city of Little Rock presented to this court their petition, suggesting and informing us that one II. H. Pugh had applied to the Pulaski circuit court for a writ of mandamus, commanding the members of the said city council to refrain from further proceeding in the cause of impeachment instituted in said council for the removal of said 31. H. Pugh, as the solicitor of said city, upon charges preferred against him, and also commanding said city council to dismiss said proceedings against said Pugh.

This court, in a very early case, announced the doctrine that at common law the rule was that no pi'ohibition lay to an inferior court, in a cause arising out of its jurisdiction, until that matter had been pleaded in the original court, and the plea refused. Williams, ex parte, 4 Ark., 540; Blackburn, ex parte 6 Ark., 22.

The same doctrine was reiterated and re-affirmed in the case of McMeechen et al., ex parte, 12 Ark., 73. The suggestion in this cause .fails to show that the petitioners have made any effort to defeat the issuance of the mandamus by the circuit court, by plea to the jurisdiction of that court, or otherwise.

This court will not presume that the circuit court will take cognizance of matters not within its jurisdiction.

There being no allegation in the suggestion that the petitioners have sought, by plea or otherwise, to object to the jurisdiction of the circuit court, and prevent the issuance of the mandamus; that the plea or objection was overruled and refused, the application here for a rule to show cause why the writ of prohibition should not issue must be refused.


author: WaRAViok, Special J.

text:
    Trulock et al. v. Taylor, Adm’r.

      3D;iecthe:st — Swamp and overflowed lands. — An entry of lands -with, tlie register of the United States land office, in accordance with the law ¡authorizing him to act, and the receipt of the purchase money by the proper officer, although no patent be issued, vests such title and legal interest, as enables the purchaser to maintain ejectment; and a subsequent grant by the United States, of such land, under an act entitled “An act to enable the State of Arkansas, and other States, to reclaim the swamp lands within their limits, approved September 28, A. D. 1850, conveys mo right or title, as against the original purchaser, from the United States to the St9>te, or its vendees, further than a naked legal title in trust for the party holding the prior and more equitable title.

      Pleading — Practice.—Where, under the Code of Practice, an equitable defense may be made to a suit at law, and the case is not transferred to the equitable side of the docket, the issue made on such defense is not to bo disregarded, and such issue must be disposed of by the court according to the principles involved, either of law or equity.
    Equitable Title — When pleaded — An equitable title, in an action on a United States land iiatent, can be pleaded in a State court, when permitted by the law of the State.

      Pleas — Election of— Parties can only be required to elect between x>leas presenting the same issue and botJi well pleaded.

      Appeal from Jefferson Circuit Court.

    Hon. JIenry 33. Morse, Circuit Judge.

      Watkins $ Rose, for appellants.
    We submit:
    1. Actionis barred by Statute of Limitation. Gould’s Rig. p. J/63, sec. 33. Ib. p. 739, sec. 3.

    2. Suit of 1862 is a nullity. Const. 1868, art. 1, sec. 35.

    -3. Refusal to allow first plea reinstated, was error.
    4. Refusal to declare law propositions of appellants, was «error.
    As to third proposition, see Goioper, JJ73.

    There was nothing dubious in appellant’s equity. 3 Johnson’s
      cases, 8*21. See also, 3 Wheat. 221; 2 Wend. 109; Angel on Dim. sec. 827; 7 Wallace, 386.

      5. The second suit was not a continuation of the former one. ■8 Qranch, 81/.; 22 Texas, 98.

      Bell Carlton, for appellee.
    The ruling of the court requiring appellant to elect between 1, 3 and 4 pleas, was right. Davis v. Calvert, 17 Ark. 85; Spencer v. McDonald, 22 Ark. 1/66; Sumpter v. Tucker, 11/ Ark. 186. Plaintiff had a right to demur after motion to elect was disposed of. Davis v. Calvert, 17 Ark. 85.

    The propositions of law asked by defendants, were clearly erroneous. As to the first, see Thorington v. Smith £ Harly 8 Wallace; Hawkins v. Filkins, 21/ Ark. 288. The second was based upon the idea that time runs against the government.
    The third proposition is, that defendant’s equitable title, based upon a pre-emption float, that had never been confirmed by the United States, will prevail in this action of ejectment over the plaintiff’s legal title. See Campbell v. Garvin, 5 Ark; Hooper r. Scheimer, 23 Howard, 21/9. We submit there was no •error in the ruling of the court below.
   WaRAViok, Special J.

At the May term, 1862, of the circuit court of Jefferson county, Creed Taylor, administrator of the estate of Solon B. Jones, deceased, brought action of ejectment against Amanda Trulock, et al., to recover possession of eighty acres of land in Jefferson county. Summons was issued and the defendants served, but no other proceedings appear to have been had in this ease.

At the May term, 1866, said Creed Taylor, administrator, etc., instituted a new suit, to recover possession of said land, against Amanda Trulock, et al., alleging in the declaration that Solon B. Jones, his intestate, was, on the first day of Jan-nary, 1861, in possession of the lands sought to he recovered, and that, by virtue of such possession, he, Creed Taylor, as administrator, became entitled to the possession of said premises on the first day of January, 1866, and that afterwards, to wit: on the first day of February, 1866, Amanda Trulock, et al., entered, etc.

At the fall term, 1866, on motion of Taylor, the first suit was dismissed. At the fall term, 1867, the appellants filed four pleas: First. Fot guilty. Second. Statute of limitations. Third. Possession since the 27th April 1836, under right and title derived from the United States, by virtue of an entry and purchase thereof, on that day made, of the register and receiver of the United States district land office, located at Little Rock, Arkansas, and authorized by law so to sell the same, and so continuously have been in such actual, peaceable, uninterrupted, adverse possession and occupation to the present time. Fourth. Possession under Barraque, (who entered) and assignees, as in third plea. That appellee claims title thereto, and right of possession, by virtue of a purchase made by his intestate, Solon B. Jones, in the year 1856, of the State of Arkansas, claiming the same under an “Act (of Congress) to enable the State of Arkansas, and other States, to reclaim the swamp lands within their limits;” approved September 28, A. D. 1850; that the land in controversy was not, at the time of the passage of the act of Congress, and has not been since, swamp or overflowed land, and that the selection and confirmation thereof, as a part of the grant inuring to the State of Arkansas, was and is a mistake, and a fraud upon said act.

On motion of the appellee, the appellants were required, by the court, to elect between their first and fourth pleas, and they elected to stand upon the fourth.

The appellee then demurred to the fourth plea, which demurrer was sustained by the court. "Whereupon the appellants moved the court for leave to reinstate their first plea, which motion was overruled by the court.

At the May term, 1869, this cause was submitted to the-court, sitting as a jury, on the following written agreed statement:

“Por the trial and determination of the issues joined in this cause, and now submitted to the court as a jury, and for the purpose of such trial, the said parties, by their respective attorneys, agree that the facts are as follows: The tract of land described in the delaratioa was located with an eighty acre pre-emption float, under the act of Congress of 29th of May, 1830, by Antoine Barraque, at the United States land office, at Little Rock, on the 27th of April, 1836, and the purchase ‘money thereof ($100) paid by him to the receiver of said land office, but no patent has ever been issued on said entry.
“On the 12th day of December, 1843, said Barraque and wife made a deed of trust, of and upon said land, to Frederick Nolrebe and "William B. Wait, to secure the payment of certain debts owing by him.
“On the 21st day of February, 1845, said trustees, Notrebe and Wait, sold said land, under and in pursuance of said deed of trust, when the same was purchased by James B. Trulock, the husband of said Amanda, father of said other defendants, and conveyed to him, by deed of said trustees, and he entered into possession thereupon, and cleared the same, and it has ever since then been in cultivation; and under and by virtue of such purchase, at said trustees’ sale, said tract of land has been in possession of the said James II. Trulock, and of the said defendants, succeeding and claiming under him, ever since the 21st day of February, 1845, and down to-the present time; and this paragraph includes the fact that said defendants were in possession of said land at the time of the institution of this suit, and of any former suit for said land^ So far, such fact may be relied on by said plaintiff.
“Said Antoine Barraque and James H. Trulock are both dead, and both died in or prior to the year 1848.
“ Ever since said J ames II. Trulock purchased said land at said trustees’ sale, he and said defendants, claiming under him, have been in the actual possession of said land, openly and notoriously claiming the same as owners, and using and cultivating the same.
“Said tract of land has never been overflowed, so far as known to any person now living, and was not at the time of the passage of the act of Congress of the United States entitled ‘An act to enable the State of Arkansas, and other States, to reclaim the swamp lands within their limits,’ approved September 28, 1850, and has not since beeu swamp or overflowed land, or in any way made unfit thereby for cultivation.
“Said tract of land was selected, by the agents of the State of Arkansas, as part of the swamp lauds in said State, under and by virtue of said act of Congress, and on the 9th day of August, 1855, the intestate; Solon B. Jones, entered and purchased the same at the State swamp land office, at Pine Bluff.
“Such selection was confirmed by the commissioner of the general land office, at Washington City, and the same, along with other lands so selected, were patented to said State; and said tract of land was conveyed by the Governor of said State, pursuant to such entry, to Solon B. Jones, by deed, on and bearing date January 14, 1858.
“On the 10th day of February, 1862, said plaintiff instituted an action of ejectment for said lands against the defendants thereto. The declaration and writ in that suit, on file in the office of the clerk of this court, and indorsements thereon, as the same appears of record, are here referred to and made part hereof, the same as if here inserted at full length.
“On the 19th of March, 1866, said plaintiff, on account of the supposed loss of said papers, instituted this suit, and on the -3d day of December, 1866, dismissed the said former suit.
“And upon the foregoing facts this case is submitted to the •court, sitting as a jury, upon the issues joined herein, with leave to either party to except to any rulings of the court, upon any propositions of law that may be moved by either as applicable to this case, and take a bill of exceptions in respect thereof.” Signed by attorneys for both parties.

The court below gave judgment of possession to the appellee, Creed Taylor, administrator, etc., and damages against the appellants, Amanda Trulock, et al., in the sum of $2, 690, from which they appeal.

The Code of Practice for this State went into and took effect on the first day of January, 1869, by its own provisions, and has been in full force and effect from that date, so far as it gave or created any new or substantial right. The act of the Legislature, approved April 12, 1869, entitled, “An act to legalize the practice and proceedings of the courts of this State from January 1, to June 1,1869,” in no manner postponed the time of its taking effect, but merely extended to the pleader the privilege or option to plead under the former practice, or under the Code, until the first of June, 1869, after which time all pleadings were required to conform to the Code.

Under the Code of Practice, a defendant may, in his answer, in action to recover the possession of land, set up and rely upon an equitable defense. See section 116, Code of Civil Practice. This was a substantial right enjoyed by the defendants in the court below, at the time of the trial of this cause, viz : at the May term, 1869, of the Jefferson circuit court. Where an equitable defense is set up to a proceeding at law, either party may have the ease transferred to the equity side of the docket; but if this be not done, the issue made on such defense is not to be disregarded, and such issue must be disposed of by the court according to the principles involved, either of law or equity. Petty v. Maher, et al., 15 B. Mon 604. The right of a defendant to plead an equitable title, in an action on a United States land patent, in a State court, when permitted by the law of the State, was definitely settled in the Supreme Court of the United States, in the case of O'Brien v. Perry, 1 Black, (U. S.,) 132. This was a case similar to the ‘One now under consideration, in which the right was maintained by the Supreme Court of Missouri, and an appeal was ¡affirmed.

In this? ease the appellee claims title and possession through a purchase from the State of Arkansas, she acquiring title by a grant from the United States, as swamp and overflowed lands, and received a patent from the general government for the same. The appellant claims under and by virtue of an entry made with a pre-emption float, at the United States land office, on the 27th of April, 1836, and for which the United States, or her representatives received the purchase money, for which a certificate of entry was given, but no patent has been issued thereon.

Various questions of pleading, practice and limitations are presented to the court, none of which, however, with our views, being necessary to the determination of this cause, we pass them, and proceed to the main inquiry, viz: Does the third plea of the appellant, taken in connection with the agreed state of facts, present a sufficient legal or equitable defense to defeat the appellee’s claim? Eor, as we have before stated, the appellant could rely on an equitable as well as legal defense, under the Code of procedure of this State.

It is admitted by counsel for the appellee, that all the facts set forth in the agreed' statement could be given m evidence, under the first and third pleas of the appellant, and upon this statement the ease was presented to the court below, and upon it. do we form our opinion.

At the time Barraque, the first purchaser, entered upon the-land in controversy, it was the subject of sale and entry under the laws of the United States. Barraque did all that the law-required of him to entitle him to a patent, in the selection of' the land and payment of the money to the receiver of the land office at Little Rock, and he, and those claiming under him, cannot be affected by the negligence or want of fidelity of the-officers of the government. It was held, in Moyer v. McCullough, 1 Ind., 343, that when “the Register of the land office,, in accordance with the law authorizing him to act in the premises, admitted the location to be made, and granted a. certificate of the location, his authority for disposing of the land, thus legally located, was at an end. The land was no> longer in the market and the Register’s subsequent sale of it, though to a person without notice, is not sustainable in a court of equity against the location.”

So, also, in Astrom et al., v. Hammond, 3 McLean’s Reports, 107, Justice McLean said, in regard to land thus situated: “Until the patent is issued the purchaser has not the legal title, but having made the entry of the land, and paid for it, the government can no more dispose of the land to another person than if the patent had been issued.” An entry or survey for lands is an inchoate legal title, incomplete it may be; they will descend, may be devised, or aliened, and, as has been held by this court, vests such legal interest as enabled the purchaser to maintain ejectment.

In the United States courts it has.been held that, where land has been bought and paid for, a certificate to that effect makes it as much the land of the purchaser as the patent itself. “Lands which have been sold by the United States can, in no sense, be called the property of the United States. They are no more the lands of the United States than lands patented.”

In the case of Reichart v. Phelps, 6 Wallace, 160, the Supreme Court of the United States held that “patents by the United States for land, which it has previously granted, reserved from sale, or appropriated, are void.” It is certain that in this case Barraque,, having entered the land with a preemption warrant of the government, and the money paid to an agent of the government, duly authorized to receive' it, the United States no longer held any right or title to grant to the State of Arkansas.

So, also, in Stark v. Starrs, 6 Wallace, 402, held that “the right to a patent once vested, is treated by the government, when dealing with the public lands, as equivalent to a patent issued.” Can there be a doubt as to the lands in controversy, that a right to a patent vested in Barraque, when he located the land, and paid the government the full price she demanded in money? We think not.

It is insisted by the appellee that the patent is conclusive. This is true, so far as it appropriates the land called for, and against rights subsequently acquired; but it has been judicially determined, in many cases, that when an equitable right, which originated before the date of the patent, whether by the first entry or otherwise, is asserted, it may be examined. Bush v. Ware et al., 15 Peters 93, and cases there cited.

The most that can be claimed for the title of the appellee is, that he holds the naked legal title in trust for the appellants; and it would be manifestly inequitable to oust the beneficiary holding a prior and more equitable title.

"We cannot but conclude that the selection of the land by the State, and the issuance of a patent by the United States, was the result of a mistake, but from which the State of Arkansas, and the appellee claiming under her, take nothing — for, from the great length of time these lands were occupied notoriously by Barraque, and appellants under him, taxes must; have been paid thereon, to the State, raises a very strong-presumption, if not conclusive, that the State, as well as the-appellee, had actual notice of the prior equities of the appellants.

There is one question' of practice presented by the record, that we cannot pass without allusion. At the fall term, 1868, the appellee filed a motion to require the appellants to elect between their first plea (not guilty), and their fourth plea, being a special plea for possession, under color of title, etc., which was sustained by the court, and the appellants elected to stand on their fourth plea; whereupon the appellee demurred to the fourth plea, assigning that it was defective, double, etc., which was sustained by the court.

At the next term the appellants prayed to have their first plea reinstated, which was refused.

Without passing on the merits of the fourth plea, but conceding that, under the practice before the adoption of the Code, (whatever it may be now) the demurrer was rightly sustained, the court below erred in sustaining the motion requiring the appellants to elect between the first and fourth pleas. Eor it is a well established rule that parties can only he required to elect between pleas presenting the same issues, and both well 'plead.

The judgment of the court below is reversed, and the cause remanded with instructions to permit the parties to further plead.

Harrison, J., being disqualified, did not preside in this case.

Hon. W. I. Warwick, Special Judge.


author: McClure, C. J.

text:
    Lester v. Hoskins, Heiskell & Co.

      Judgments — When enjoined. — Equity -will not relieve against a judgment at ' law when the defense could he made at law, unless it is clearly shown that the defense set up is meritorious, and the party was prevented from making it, hy unavoidable circumstances, or without any default or laches on his part.

      Appeal from the Lawrence Gircuit Court.

    Hon. L. L. Mack, Circuit Judge.
    English, Gantt £ English, for appellant.

      Watkins <j- Rose, for appellee.
   McClure, C. J.

It appears from the record in this case, that Glasscock & (Jo. were indebted, by note, to Hoskins, Heiskell & Co., in the sum of $2,591 03 ; that in order to secure the payment of this and other indebtedness, Giasscock & Co. assigned to Lester their partnership book accounts. At the time of this assignment, Lester held the note of Glasscock & Co., due Hoskins, Heiskell A Co., for $2,597 03, for collection, upon which was a credit of $1,816 49.

Hoskins, Heiskell & Co. brought suit against Lester, on the law side of the Lawrence county circuit court, alleging that said Lester was indebted to them, in the sum of two thousand dollars, for moneys collected from the books of Glasscock & Co. Of the pendency of this suit Lester had notice.

At the Uovember term of said court, 1866, Hoskins, Heis-kell & Co. obtained a judgment against Lester for'$1,294 58, and an execution was issued and levied upon his property.

In April of'1870, Lester filed his bill, setting up the above, and other facts, and prayed for an injunction, based upon the ground, that at the time said judgment was obtained, he was ■“too sick and wholly unable to ride to said court,” and that he conceived his most appropriate remedy was in a court of equity.

Hoskins, Heiskell & Co. filed their answer, wherein they, allege that they are unable to admit or deny that said Lester was sick and wholly unable to ride to said court, and ask that he be required to make strict proof to said allegation; that said Lester is an attorney, practicing in the Lawrence circuit court, and that in other cases in which said Lester was a litigant, at said November term, he was represented by Paschal L. Liggan, Esq., a j>racticing attorney in said court.

At the filing of the bill a temporary injunction was granted, and at the hearing, the injunction was dissolved and the bill dismissed. Erorn the decree Lester appealed to this court.

'The appellant sets up no defense in equity, that he could not have availed himself of in a court of law. He simply states the payment of certain sums that he was entitled to receive as credits on the note; the defendants admit the right to . these credits, and allege that Lester received credit therefor in the suit at law. The only ground set up in the bill that would authorize the interposition of a court of equity on the facts stated is, that the appellant was too sick to appear and defend in the court at law.

The defendants, as has been stated, required strict proof upon this point, and none is given; in fact the appellant makes no proof of any controverted allegation in the bill.

Green P. Nunn, it seems, held the receipt of Lester for the note, and was the attorney for Hoskins, Heiskell &, Oo.; he died. His executor delivered it to James 0. Marain, who called on Lester for the money. Marain testifies that Lester ■offered to pay the sum due on the note to him in July of 1860, but that he would not agree to pay the interest, and that he, Marain, would not receive the principal without the interest. Marain also states, that he contracted with a partner of Lester’s for some land, and that it was agreed that $100 00 should be credited on the note ; that Lester was informed of this fact, and refused to do it on the ground that the defendants were residents of the State of Pennsylvania and that the debt was confiscated to the Confederate States.

No claim seems to have been set up by Lester, at the time alluded to, that he had not realized the money out of the assets of Glasscock & Co., and he presents no evidence in support of that position. The offer to pay the note, less the interest, can hardly fail to carry conviction to the mind that Lester must have realized, at least, the amount he offered to pay, out of the assets of Glasscock & Co. He at no time, before the beginning of the suit, placed his refusal to pay the note on the ground that he had not realized the money out of the assets in his hands.

The judgment of the circuit court of Lawrence county is affirmed with costs, and ten per centum damages. .