author: Harrison, J.:

text:
    Talbot et al. vs. Wilkins et al.
    1. Evidence:
    The rule which excludes parol evidence for the purpose of varying a written contract, is confined to the parties to the contract, and does not preclude strangers to it from introducing such evidence.
    2. --:
    The testimony of a witness upon an examination in bankruptcy, which is taken before a-United States Commissioner and reduced to writing, cannot be proved by parol evidence. The deposition, or a certified copy under the seal of the court, must be produced.
    3. Subrogation : Jurisdiction, waive.r, etc.

    The right of subrogation is founded in the rules and practice of Courts of Equity, and a party seeking it should resort to that court: but if he should seek relief in a court of law the defendant cannot take advantage of the mistake, unless he files a motion to transfer the cause to the equity docket, under the provisions of the Code of Practice.
    4. --: Of surety by payment,.etc.

    A surety who pays the debt of his principal is subrogated to all the remedies of the creditor as against the principal, or others who become liable for the debt.
    5. Warranty:
    A warranty of title will not arise where the circumstances show that the vendor did not intend to warrant, and was so understood by the purchaser.
    6. Bight or Action:
    It is well settled that where a promise is made to one person for the benefit of another, the latter may maintain an action thereon in his own name.
    7. Admissions of one partner.

    Where a partnership is establist ed, the admissions and representations of one of the partners about the partnership business will bind the others.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.

      Carroll & Jones, and Rose, for appellants.

      Bell & Carlton, contra.

   Harrison, J.:

The appellees, Wilkins and Bell, together with Holcombe, one of the appellants, were sureties of Cobb in a note to Tillar, for $2,500, payable 1st day of February, 1873.

After the note fell due, Tillar brought suit on it against the sureties and recovered judgment; which judgment they, on the 14th of March, 1874, satisfied, by each paying one-third:

"Wilkins and Bell brought this suit against Holcombe, and Talbot, the other appellant, to recover the amount $2,025.66, they had paid, alleging in their complaint, besides the foregoing facts, that Talbot and Holcombe, before the note fell due, purchased of Cobb a stock of goods, and as a part of the consideration therefor agreed and promised to pay off and discharge the note.

The defendants, in their answer, denied that the payment of the note was any part of the consideration in the purchase of the goods and that they ever agreed or undertook to pay it. They, as a further defense, averred : That after their purchase of the goods, proceedings in bankruptcy were commenced in the District Court of the United States, for the Eastern District of Arkansas, against Cobb, and he was declared a bankrupt, and that in the said proceedings the sale to them was set aside, as fraudulent, and the goods in their hands seized by the marshal and turned over to the assignee, and that they were adjudged to pay, and did pay the assignee $4,961.90, which they had previously received on the sale of the goods; that they had paid $3,000 besides in costs and expenses in defending their claim to the goods, and they had derived no benefit whatever from the purchase.

On the trial, Austin, a witness for the plaintiffs, testified: That he was Cobb’s clerk, and present when the defendants, in the latter part of November, 1872, purchased his stock of goods. Cobb was to reserve from the stock $3,000 worth at the invoice price, to pay the note he owed Tillar, and in which Wilkins, Bell and Holcombe were his sureties ; and the defendants were to take the remainder at forty-five cents on the dollar, on those prices, which, it was estimated, would make the cost to them about $4,000."

The trade was made at night; the witness went next morning to see E. L. Taylor, to get him to receive the goods reserved out of the stock, for the payment of the Tillar note. He refused to-take them, and witness so reported to Cobb and Talbot. Talbot and Holcombe then agreed to take those goods also, and to pay the Tillar note themselves.

An invoice of the stock was taken, in which the witness, assisted, and it amounted to $12,000 or $13,000. The entire stock was turned over to them, and they sold the whole of them.

Their sales up to the time when the goods were seized by the-marshal, amounted to about $4,900. Talbot bonded them, and then sold the remainder, and he bought up the claims of Cobb’s, creditors.

On cross-examination, he stated that the agreement was reduced to writing, and signed by the parties in the store, on the night the trade was made.

He was then asked by the defendant’s counsel, if he did not. say, when testifying before the commissioner in the bankrupt proceedings against Cobb, in the room adjoining the court room,, that the Tillar note was not mentioned, and its payment formed no part of the consideration, or of the contract; to which he answered that he did not remember testifying in that room, and had no recollection of so testifying. That it was his understanding, from the conversation of the parties at the time, the Tillar' note was to be paid.

Bell, one of the plaintiffs, testified for them, that he, Wilkins, and Holcombe, in the spring of 1872, became sureties for Cobb,, in the note mentioned in the pleadings. That Cobb, about the latter part of November, 1872, expecting, as he said, to be embarrassed, and wishing to secure his sureties, proposed to turn. over to E. L. Taylor, for Tillar, $3,000 worth of goods. Taylor, when applied to, declined to receive the goods. Witness then, upon consultation with Wilkins and Holcombe, concluded to receive them himself, and Cobb consented to turn them over to him. Holcombe, upon request of witness, promised to go to the store that evening and have the goods turned over. On the next morning, or the morning after that, he saw Holcombe, and asked him if he had got the goods. He said he had done better than that; that he and Talbot had purchased Cobb’s entire stock, and made a good thing of it. Witness asked him if, in the purchase, the sureties in the Tillar note were protected or secured. He replied that they were, and witness need give iiimself no further concern about the matter — the note would be paid. A few days after, witness saw him again, when he spoke about the threatened proceedings in bankruptcy against Cobb, and said that in order to protect themselves, it would be probably necessary for him and Talbot to destroy certain papers. What the papers were, witness did not know, but said to him it made no difference to him, so they j>aid the Tillar note and saved him and the other sureties, harmless; and he replied, “that will be done;” and, “do not be uneasy about that.”

The sureties were afterwards sued on the note, and judgment recovered against them. Witness and Wilkins paid off the judgment — $2,025.83, no part of which had been repaid them by the defendants. The judgment was paid about the 6th of March, 1874.

The plaintiffs then read the deposition of Cobb. He deposed that about the last of November, 1872, he sold his stock of goods, in Pine Bluff, worth, according to the invoices, $12,000, to the defendants, for which they were to pay him, except for $2,500 reserved therefrom to pay a note he owed Tillar, in which the plaintiffs and defendant Holcombe were his sureties, 45 per cent, of the value, which was the best price he could at the time get. He made no warranty of title; the very low price at which the goods were sold was in consideration of the risk defendants incurred in the purchase. In the sale, the payment of the Tillar note was provided for, and he himself had never paid it, or any part of it, but his sureties had paid it. At the time he sold to the defendants, they gave him their note for $3,882, upon which Talbot had paid him $1,350, and he had given him his individual note for the remainder,.and nothing had since been paid. The goods were sold by the defendants, or by Talbot, who bought out Holcombe.

The defendants, after the plaintiffs had closed their testimony, moved to exclude all evidence as to the terms of the sale, on the ground that it appeared that the agreement in relation thereto had been reduced to writing. Their motion was overruled, and they reserved an exception.

The defendants testified in their own behalf. Holcombe testified : That he and Talbot made a trade with Cobb in November, 1872, for his stock of goods, or rather, they made two or three trades. The first was, that they should take the stock after Cobb had reserved goods to the amount of $3,000, to be turned over to E. L. Taylor to pay the Tillar note, and pay him 45 per cent, on the cost; the goods to be invoiced, and the payment to be made in' cash or on short time. The next day Austin was sent to Taylor, to get him to take the goods and pay the note to Tillar. Austin returned and reported that Taylor declined to take the goods. Witness and Talbot then agreed to take them and pay the note themselves; but, before it was done, they were informed that such a ¡reference to a creditor would be in violation of the bankrupt act, and subject the goods to seizure in bankruptcy, whereupon they made a new trade, and did not assume the payment of the Tillar note. This last trade was reduced to writing and signed, and was the only one that was consummated. By Cobb’s consent, he took the note they gave him, and placed it in Wilkins’ hands, to be held until the invoice was made, intending to have him pay Tillar out of the money when they paid it, and no other arrangement or provision was made for the Tillar note.

Witness told Bell, after the trade was made, that the payment of the Tillar note was secured, and the sureties protected in the trade, but he did not tell him how it was done. He meant that his and Talbot’s note to Cobb had been placed in Wilkins’ hands, out of which he intended Tillar should be paid; and that would have been done but for the fact that the goods were seized in the bankruptcy proceedings against Cobb, and the note taken and its payment compelled to the assignee. Witness sold his interest in the goods to Talbot, for which he received his account in the store and an interest in the Rob Roy place, valued at $2,200.

Talbot testified : That the trade was as stated by Holcombe. He knew nothing about the delivery of his and Holcombe’s note to Wilkins, or the conversation between Bell and Holcombe; and he had never had any understanding with Holcombe about the Tillar note, and its payment was not provided for in the trade. They made no other trade than that shown by the instrument of writing they signed. Some days after the trade, the goods were seized in the bankruptcy proceedings against Cobb,, and he paid the note he and Holcombe had given in the purchase of the goods to Cobb’s assignee. Witness, in order to save the goods, bought the claims of Cobb’s creditors, which he obtained at a discount, and thereby controlled ^hem. He had, before buying the claims, given bond and released the goods. The goods cost him $10,000, and much more than they were worth.

When Austin returned from seeing Taylor, the next day after the first trade, and told witness that Taylor refused to accept the goods and pay the Tillar note, witness said that he and Holcombe would take them'and pay the note; but being very soon after informed, that if they agreed to pay the note as a part of the consideration in the purchase of the geods, it would bring the transaction within the bankrupt act, witness told Cobb he would not agree, in the trade, to pay the note.

On cross-examination, he stated, that they got the entire stock, the $3,000 worth, that were to be reserved, with the rest, and they gave no other note than that mentioned in the instrument of writing, upon which he had paid him about $1,300, and for the balance had given him his individual note, but they had never paid him anything more. They sold about $5,000 worth of the goods before they were seized, and after he had released them, he sold the remainder. He had never paid the judgment in the District Court against Holcombe and himself, or any part of it. That the debts proven against Cobb amounted to $24,000 or $25,000, for the most of which he paid 25 cents in the dollar; more for a few, and as high as 75 cents in the dollar for some. By buying all the claims, he acquired the entire interest in Cobb’s estate, and it was in that manner the judgment against Holcombe and himself, and the note to Cobb, were extinguished.

The following instrument of writing, referred to by the last witness, and proven by him, was then read.

“Pine Bluff, Aek., Nov. 26th, 1872.

“This agreement witnesseth: That whereas B. E. Cobb has this day sold and conveyed all of his stock of goods wares and merchandise in his store house in said town of Pine Bluff, for the sum of $4,100.60 to John H. Talbot and James M. Holcombe, and whereas said sale is based upon an estimate of said stock at the whole sum and value of $9,250, at the invoice price of said goods : Now it is agreed between all the parties hereto that a true and perfect inventory of said goods shall be taken by items, and if said stock shall fall short of said sum of $9,250, then said Talbot and Holcombe shall be entitled to a credit upon their note,- which is this day executed; at the rate of 45 pelr cent, for the amount which may be lacking to make up said sum; and if the stock should be of greater value than said sum of $9,250 upon inventory, then said Holcombe and Talbot shall pay said Cobb an additional sum. at the same rate per cent.

“In testimony whereof all of said parties hereunto set their hands and affix their seals, at Pine Bluff, Arkansas, this the 26th day of November, 1872.

“John H. Talbot, [l.s.]

“Jas. M. Holcombe, [l.s.]

“B. E. Cobb. [l.s.]”

The defendants then called W. D. Johnson, who was asked if he was present when J. A. Austin, the witness for the plaintiffs, testified before the commissioner in the proceedings in bankruptcy against Cobb, and he answered that he was. He was then asked where it was, and he said in the room adjoining the court room, and he was then again asked whether said witness did not then say, when so testifying, that in the trade between Talbot and Holcombe and Cobb for the goods, that the Tillar note was not considered, and its payment formed no part of the contract? Avhich question the court, upon objection of. the plaintiffs, would not permit him to answer.

They then read the proceedings in the District Court setting aside the sale of the goods, and the judgment of said court in favor of Cobb’s assignee against them for $4,941.90, the amount of their sales before the seizure.

This Avas all the evidence in the case.

The court gave the jury, against the objection of the defendants, at the instance of the plaintiffs, the following instructions:

First — If the defendants purchased from Cobb the stock of goods mentioned in the pleadings without warranty of title, and agreed, in the purchase, to pay the Tillar note, but failed to do so, and the sureties of Cobb had been compelled to pay it, the plaintiffs are entitled to recover from them the amount they paid.

Second — If the defendants purchased the stock of goods, without warranty, and at their own risk, the subsequent bankruptcy of Cobb, and losses of defendants by reason thereof were no failure of consideration, or in anywise released the defendants from any liability upon the non-performance of their part of the agreement.

It refused to give the following asked by the defendants:

First — If the entire contract between Cobb and the defendants, for the sale and purchase of the goods, was set aside and held void for fraud, by the District Court of the United States, in the bankruptcy proceedings against Cobb, and the goods so sold and purchased seized by order of said court, and that judgment is still in force; all promises and undertakings growing out of, or depending upon said sale and purchase made before such adjudication, were thereby annulled and made .void, and the defendants are not bound by said contract.

Second — If the trade between the defendants and Cobb was so annulled by the proceedings in bankruptcy against Cobb that defendants received no benefit from it, the plaintiffs cannot recover.

Third — If the payment of the Tillar note was assumed by the defendants in the purchase of the goods, but the stock with the proceeds of the sales made, were seized as before stated, and turned over to the assignee of Cobb, and the defendants lost all benefit from their purchase, the consideration for such undertaking has failed and the verdict must be for the defendants.

Fourth — If the assumpsit alleged in the complaint was made solely between Cobb, Talbot and Halcombe, the plaintiff cannot • recover.

Fifth — If the defendants bought the goods from Cobb and gave their note therefor, and Holcombe, with Cobb’s consent, deposited said note with the plaintiff Wilkins to pay the Tillar note, and this was the only provision for the payment thereof, and the note deposited with Wilkins was seized in bankruptcy proceedings against Cobb, and the defendants were compelled to pay the same to the assignee of Cobb, the verdict should be for the defendants.

Sixth — No statement made by Holcombe to Bell, in the absence of Talbot and without his consent, will, in itself, have any effect on Talbot.

The jury returned a verdict in favor of the plaintiffs for $2,209.91.

The defendants moved for a new trial on the grounds that the court erred in admitting parol evidence as to the contract between Cobb and themselves, in refusing to allow them to prove by the witness Johnson the statement of the plaintiff’s witness Austin, when testifying in the bankruptcy proceedings against Cobb, in giving the instructions moved by the plaintiffs, and in refusing those’ moved by themselves, and that the verdict was contrary to the evidence.

The court overruled their motion, and they excepted and appealed.

The first question is. Did the court err in refusing to exclude from the jury the oral testimony in relation to the sale of the goods ?

The rule that parol evidence is inadmissible to contradict or vary the terms of a written instrument is necessarily confined in its applications to the parties to it, or those claiming some right or interest under it. Greenleaf says it is “applied only in suits between the parties to the instrument, as they alone are to blame if the writing contains what was not intended, or omits that which it should have contained. It cannot affect third persons, who, if it were otherwise, might be prejudiced by things recited in the writings contrary to the truth, through the ignorance, carelessness or fraud of the parties, and who, therefore, ought not to be precluded from proving the truth, however contradictory to the written statements of others.” 1 Green. Ev., sec. 279.

In this case the plaintiffs were not parties to, nor claimed any benefit from the contract made on the night of the 26th of November. The agreement, to the benefit of which they seek to be subrogated to Tillar, was that made the next morning, by which the defendants took the $3,000 worth of goods reserved from the stock the night before, and assumed to pay the Tillar note, and were, therefore, entitled to show that such an agreement was made, and all the circumstances attending.

The next exception reserved upon the trial was, to the refusal of the court to permit the defendant to prove, by Johnson, what was said by the plaintiffs’ witness Austin, when testifying before the commissioner in the bankruptcy proceedings against Cobb.

Such evidence was properly rejected. The examination before the commissioner was taken in writing (sec. 5003 Rev. Stat. U. S.), and the deposition, or a certified copy, under the seal of the court, was the only admissible evidence of the witness’ testimony in that case.

Before considering the instructions given and refused, it is important to determine the real nature of the action.

The plaintiffs seek by their suit to be subrogated to Tillar in respect to the obligation assumed by the defendants to pay the note which Cobb, and they as his sureties, owed him.

■“ Subrogation is,” as defined by Bispham, the equity by which a person who is secondarily liable for a debt, and has paid the same, is put in the place of the creditor, so as to entitle him to make use of all the securities and remedies possessed by the creditor, in order to enforce the right of exoneration as against the principal debtor, or of contribution against others who are liable in the same rank with himself.” Bisph. Eq., sec. 335. And this right of subrogation, he says, “ is not founded on contract, but on general principles of equity.” Ib., sec. 338.

Though, as is thus seen, the right of subrogation is an equitable one, the plaintiffs, to enforce it, have brought an action at law. This, however, is not now to be deemed an error. The defendants might have moved, at or before the filing of their answer, to have the action changed into equitable proceedings by proper amendment of the complaint, and its transfer to the equity docket. Gantt’s Digest, secs. 4461, 4464. And, by sec. 4463, it is declared, that unless such correction is made, the error is waived. Newm. Plead, and Prac., 236.

We come now to consider the questions which arise upon the instructions given and refused. The two given for the plaintiffs relate to the claim of the right of subrogation, and the effect of a sale of goods, without a 'warranty of the title.

The doctrine or principle of subrogation cannot be more succinctly stated than it is by the authority just quoted. He says: “This equity of subrogation is one eminently calculated to do exact justice between persons, who are boundior the performance of the same duty or obligation, and is one, therefore, which is much encouraged and protected. This may be seen from the rule which allows the surety to keep alive a judgment for the purpose of obtaining satisfaction out of the principal. Ordinarily, the payment of a debt operates' as an extinguishment, and the judgment obtained for the debt would necessarily fall with it. To apply the rule to the case of a surety paying the debt would obviously work injustice in many instances; for, by coming in as a simple contract creditor, the surety might lose his chance of reimbursement. ' It has accordingly been held, and must be considered to be the generally received doctrine, that a surety who pays a debt which has been reduced to judgment, is entitled to have the judgment kept alive for his benefit, and to enjoy, as against the principal debtor, exactly the same advantages which could have been claimed by the judgment creditor.” Bisph. Eq., sec. 336. Newton v. Field, 16 Ark., 116 ; Cottrell’s Appeal, 23 Penn. St., 294; Marsh v. Pike, 10 Paige, 595; Hays v. Ward, 4 Johns. Ch. R., 123; Burrows v. McWhann, 1 Desaus, 409.

We think, then, if Tillar might, by suit, have compelled the defendant, upon their agreement with Cobb, to pay the note, the plaintiffs, having paid it to Tillar, have clearly the right to be subrogated to him.

As to the warranty of title, the circumstances attending the sale strongly conduced to show that the defendants were aware that Cobb was in debt, and in failing circumstances ; and whether they did or not, they must be presumed to have known that a sale, such as that of his entire stock, and at less than one half of its value, was itself an act of bankruptcy, and subjected the goods to seizure.

A warranty of title will not arise where the circumstances of the case clearly show that the vendor did not intend to warrant, and was so understood by the vendee. • Sto. on Sales, sec 367 a; Benjamin on Sales, 476.

There was no error in giving the two instructions for the plaintiffs, nor in refusing the first three moved for by the defendants, which are, in principle, the converse of those given for the plaintiffs.

It is well settled, where the promise is made to one for the benefit of another, he for whose benefit it was made, may sue thereon in his own name. 1 Ch. Plead,, 5; Schmerhorn v. Vanderheyden, 1 Johns., 139 ; Strohecker v. Grant, 16 Serg. & Rawl., 241; Harper v. Ragan, 2 Blackf., 39 ; Farmers’ Bank v. Brown, 1 Harrington, 330; Felton v. Dickinson, 10 Mass., 287; Arnold v. Lyman, 17 Mass., 400. The fourth instruction moved for by the defendant was therefore properly refused.

The fifth, as a proposition of law, was, we think, not objectionable; but it appears, by their bill of exceptions, that the court gave for them other instructions of similar import. The defendants were not, therefore, prejudiced, and there was no error in refusing it.

And there was no error in the rejection of the sixth. That the defendants were partners in the purchase of the stock of goods, was both proven and admitted, and there can be no question, that the admissions and representations of one partner, relative to the business of the partnei’ship, bind the firm. Par. on Part., 184; Sto. on Part., sec. 107.

The remaining ground of the motion for a new trial is, that the verdict was contrary to the evidence.

The evidence was ample to sustain the verdict. If the cause had been tried without the intervention of a jury, and as in chancery, the plaintiffs, no doubt, would have obtained a decree, and for the same amount awarded by the jury.

The defendants got Cobb’s entire stock of goods; those reserved to pay the Tillar note, as well as those for which they gave their own note, and it is very clear, that in the sale Cobb intended and purposed, if such'was not his main object in making it, to provide for the payment of the Tillar note, and to indemnify and save harmless his sureties; and that it was the understanding and agreement, tacit or expressed, that the defendants should, as a part of the consideration for the goods, assume and pay it. The note they gave was for the balance of the goods, after reserving the $3,000 worth, and if these were not to be paid for in this way, they obtained them without any consideration.

It is very apparent that there was no warranty of the title. The peculiar circumstances under which the sale was made;: Cobb’s failing condition, evidently known to the defendants, and his inability to make good any loss to them; the effort made to evade the bankrupt law, and the extremely low price at which the goods were sold, precludes all idea or implication of warranty.

Nor, though held to make good their promise to Cobb, do they appear to have been losers in the transaction. The stock at invoice prices was proven to be worth $12,000 or $13,000. The utmost that it cost Talbot, who, it seems, bought out Holcombe, according to his own testimony was $10,000, and this included, it must be remembered, what he paid Holcombe for his interest.

The judgment of the court below is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Smithee, Com., etc., v. Mosely.

      Mandamus will not lie to compel Commissioner of State lands to execute a second patent.

    In a proceeding by mandamus against the Commissioner of State lands to compel him to issue a patent to the petitioner to certain lands described, it was alleged that he had, subsequent to the entry under which petitioner claimed, issued a patent to another person who had been permitted to enter the land; Held, that by the issuance of the patent the State had parted with her title, and the petitioner’s remedy was by a proceeding in equity to divest the title of the patentee.
    APPEAL from Pulaski Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Attorney General Henderson, for appellant.

      Ford, contra.

   Harrison, J.:

This was an application by James A. Mosely, for a mandamus to J. N. Smithee, as Commissioner of State lands, -to compel him to execute to the petitioner, a patent for a tract of' 160 acres of land, part of the swamp and overflowed lands granted to the State by Congress.

The facts are these: The tract was purchased from the State, at the Batesville land office, by B. C. Parnell, on the '2d of October 1861, and paid for in Auditor’s warrants. On the 30th of December, 1861, Parnell sold and conveyed it to T. B. Mosely, the father of the petitioner, and from whom he ■derives his title by inheritance.

The State, through her agent, the Commissioner of Immigration and State lands, on the 1st day of April, 1872, again sold the land, the north half thereof, to Abner F. Smith, and the south half to W. C. Renfrow, and a patent was issued by the Governor to Renfrow, on the 16th day of October, 1874, and to Smith on the 24th day of December, 1874.

The petitioner applied to the Commissioner of State lands on the 22d day of September, 1876, for a patent to himself on the certificate of purchase to Parnell, of the 2d of October, 1861, which, as patents had already been made by the State for the same land, he declined to issue.

The court below, upon the hearing of the motion granted the peremptory writ, and the Commissioner appealed to this court.

The State, in making the patents to Renfrow and Smith, whether rightly or not, parted with her title, and now has nothing to grant. If in the purchase of the land, in 1861, Parnell acquired such a right to the land as entitled him to a patent for it, a Court of Equity would, in a suit by him against the party holding the legal title under the patent, declare him as holding it in trust for him, and direct a conveyance thereof, to him.

As there can be no decision upon the title where the party claiming under the patents are not before the court, the issuance of another patent to the appellee, would be a nugatory and void act. Hempstead v. Underhill’s heirs, 20 Ark., 337; Bagnell v. Broderick, 13 Pet., 436; Houghton Co. v. Commissioner, etc., 23 Mich., 270.

The judgment of the court below is reversed, and the cause remanded to it, to dismiss the application.


author: English, Ch. J.:

text:
    Holcomb vs. The State
    Criminal Practice:
    The record, in an indictment for felony, mnst show that the grand jury returned the indictment into court.
    APPEAL from Washington Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.

      J. D. Walker, for appellant.

      Attorney General Hughes, contra.

   English, Ch. J.:

In November, 1876, Mary Holcomb was tried in the Circuit Court of Washington County, on a charge of murdering George Holcomb, her husband; a verdict rendered against her for murder in the first degree; motion for a new trial overruled ; sentenced to suffer the death penalty, and an appeal granted to her by one of the judges of this court.

We have but little to say about the evidence as set out in the bill of exceptions. Whether the prisoner, a feeble old woman, killed her husband, without any apparent motive, with a hammer ; or, as stated by her, two robbers came, in the night, to the cabin, of which she and her husband were the only occupants, and murdered him with clubs, for the paltry sum of $17, which the husband and wife had then recently earned by picking cotton, the evidence leaves in doubt.

It appears from affidavits of some of the jurors filed in support of the motion for a new trial, that the jury hesitated to return a verdict of guilty upon the evidence before them. When they first retired, it seems, they resorted to balloting, which repeatedly resulted in six votes for conviction, four for acquittal and two blank. Finding this an ineffectual mode of reaching unanimity, they went to debating the matter among themselves, and finally agreed to return a verdict of guilty.

There were affidavits also conducing to show that one of the jurors had expressed an opinion, before he was taken upon the panel, that the old woman ought to be hung, though upon his voir dire he stated that he had not formed or expressed any opinion as to her guilt or innocence. But there were counter affidavits, tending to show that he was joking when he expressed the opinion imputed to him.

Whether the evidence was sufficient to warrant the verdict returned by the jury, we need express no opinion.

The clerk has certified the transcript before us to “ contain a full, complete and perfect transcript of the record and proceedings in the cause,” etc., and yet it no where appears in the transcript that the indictment upon which the appellant was tried was returned into court by the grand jury.

There is an entry as follows: “Be it remembered, that on the 20th day of April, 1876, the following indictment was filed, which is, in words and figures, to-wit:” Then follows the indictment, which is endorsed thus: Filed in open court, April 20th, 1876. Jo. Holcomb, Clerk.

But it in no way appears that the indictment was delivered in court by the grand jury, or that any indictment was returned into court by them; or that they were in court for any purpose during the term at which the indictment purports to have been found.

This is a fatal defect in a record involving life or liberty, as decided in Green v. The State, 19 Ark., 178, where the point was fully discussed.

For this error, the judgment of the court below must be reversed, and the cause remanded, with instructions to the court to arrest the judgment, set aside the verdict, and for further proceedings, in accordance with law, etc.

The mode of proceedings in such case is sufficiently indicated in Green v. The State.


author: Walker, J.: Hon. E. H. English, Ch. J.,

text:
    Turner vs. Watkins et al.
    1. Deed of Trust to secure a debt. Legal effect of, etc.

    A deed of trust executed for the purpose of securing a debt, and to be void upon payment of the debt, and containing a power of sale upon default, is, in legal effect, a mortgage. The grantor retains an equity of redemption w’hich is subject to seizure and sale under execution as other equitable estates are under the statute. But where the grantor parts with his title absolutely, conveying it to the trustee to sell for the purpose of rais- . ing a fnnd to pay debts, it is properly a deed of trust, and no interest, legal or equitable, remains in the grantor. (For a full review of the former decisions of this court, see the opinion). .
    2. Execution Sale: Redemption.

    The provisions of section 2696, of Gantt’s Digest, providing for the redemption of land sold at execution sale, applies as well-to debts contracted prior, as to those contracted subsequent, to the passage of the act. The case of Oliver v. McClure, 28 Ark., 555, in which the contrary doctrine is held, is overruled.
    3. -- — -:
    If the act was void as to prior debts, as against the creditor, it would not lie in the mouth of the debtor to object to the redemption by a subsequent judgment creditor, when the prior freditor, who had purchased the property at execution sale, had received the amount bid for the redemption, and was not complaining.

      4. Estoppel:
    Where a defendant in execution assented to the sale, and endorsed on the writ a waiver of advertisement, and subsequent to the sale recognized by various acts the title of the purchaser, he will be estopped from denying the validity of the sale, or that he owned such an interest in the land sold as was subject to seizure and sale under execution.
    5. Equity op Redemption: Right of the purchaser. Tender, etc.

    A purchaser at execution sale of the equity of redemption in real estate, succeeds to all the rights of the mortgagor, among which is the equitable right of redemption by paying the mortgage debt. And a tender of the debt by such purchaser will stop the accrual of interest from the date thereof.
    The purchaser at execution sale of the equity of redemption under a deed of trust, does not acquire such an interest in the land as entitles him to maintain' an action for the rents.
    APPEAL from White Circuit Court in Chancery.
    Hon. John Whytock, Circuit Judge.

      Rose, and J. M. Moore, for appellant.

      Coody, contra.

   Walker, J.:

The appellant, Turner, filed his bill of complaint in equity in the White County Circuit Court against Thomas Watkins, William Watkins, Green B. Green, George F. Baucum, and Jesse N. Cypert, in which plaintiff claims title to certain tracts of land as purchased at execution sale, which had, before the judgment lien attached under which he purchased, been conveyed in trust to secure- the payment of borrowed money.

Several questions are distinctly presented by the pleadings for our consideration, the most material of which are : First — As to whether, when property is conveyed in trust, there remains any estate, equitable or legal, which may be levied upon and sold under execution. Second — Whether, conceding this to be true as a general proposition, if the sale under execution is made under the direction and with the consent of the debtor, such detbor is not estopped from questioning the validity of the sale. Third — Whether the payment of the trust debt, or the offer to do so, which in equity is equivalent to payment, is not a discharge of the trust lien, and, when paid, the party paying should not be subrogated to all the rights of the trustee, and, with them, other questions as incident to them, and bearing upon the equities of the parties, is that of the purchase of the trust debt by William Watkins and his subsequent assignment of the same to Green and Baucum.

The facts are stated so clearly in the bill that we need only give the substance of them as set forth in the complaint, omitting only such as are not necessary to a full understanding of the questions put at issue by the pleadings.

It is alleged that on the 9th of June, 1869, Thomas Watkins, to secure the payment of a note for $331.70, at 12 per cent, interest per annum, payable December 25th, 1871, and one other note for $3,168.25, at a like rate of interest, due at the same date, the first payable to Sallie E. Dougan, and the second to her as guardian, conveyed several tracts of land situated in White County, Ark., to Jesse N. Cypert, in trust, with power in the trustee, if the notes were not paid when due, upon notice, to sell the lands, pay the debts and expenses of the trust, and to Watkins, the excess of the money for which the lands should be sold, should such excess remain ; but that if Watkins should, at any time before such sale, pay said debts, interest and cost of the trust, then such conveyance should be void; that on the 4th of November, 1869, Moses Greenwood and son obtained judgment in the Circuit Court of said county, for $1,930.50 debt, and $80.85 damages and costs, which sums were to draw 10 per cent, interest until paid; that, in February, 1870, execution was issued on said judgment, and levied upon the lands conveyed in trust to Cypert.

The execution was returned without a sale of the property, and on the 10th of July, 1871, a writ of vend. ex. was issued, by which the sheriff was commanded to expose the lands so levied upon to sale; that thereafter, but before the sale of the lands, Watkins, the defendant in execution, by a parol agreement, contracted and agreed with the attorney of Greenwood and son, that the sheriff should sell said lands to satisfy the judgment of Greenwood and son ; and, in accordance with such an agreement, by his written endorsement upon said writ of vend. ex. authorized the sheriff to sell said land, at the court house door in said county, on the 5th day of August, 1871, and therein waived the necessity of an advertisement of the terms, time and place of sale, and that said sheriff did, on said 5th day of August, 1871, in accordanee with such agreement, at said court house door, offer said lands to the highest bidder, and Moses Greenwood and son being such bidber, said lands were sold to them for the sum of $916.45, being the residue of their debt, interest and costs of said judgment, and returned said writ fully satisfied.

That, in June, 1868, plaintiff recovered judgment against said Watkins, for the sum of $987.67 debt, and $1.55 costs, with interest upon debt until paid. On the 1st of August, 1872, execution issued upon this judgment, which was placed in the hands of the sheriff; plaintiff then paid to the sheriff $1,052 for Moses Greenwood and son, the sum which they paid for the land at execution sale, with 15 per cent, per annum from date of sale,, and all charges thereon, and credited his execution with $991.60, being the amount of debt, interest and costs due thereon, which credits'and payments were endorsed on the execution, and a statement thereof filed with it, which was endorsed by the clerk, on the execution book in his office that he had bid the sum of $991,60 for the redemption of said land; that, on the 8th day August, 1872, said land being unredeemed by said Watkins, or any other judgment creditor, said sheriff executed a deed for said land to plaintiff; after which Watkins recognized and confirmed plaintiff’s title to said lands, by virtue of such purchase, as good and valid, subject to no defeasance or incumbrance, except to said deed of trust to Cypert; and, on the 14th of January, 1873, by written contract entered into with plaintiff, rented the land from him for that year, and agreed to pay plaintiff $1,650 for the rent thereof; and, also, to deliver possession to plaintiff on the 1st of January, 1874; that, on the 24th of February, 1873, William Watkins, the son of Thomas Watkins, bought of Sallie E, Dougan the notes which she held on Thomas Watkins, to secure the payment of which the deed of trust was executed, and took from her an assignment both of the notes and deed, and thereafter, by assignment, assigned them to Greer and Baucum, who claimed to hold the debts and the benefit of the security for their payment, and, at their request, the trustee, Cypert, advertised the property for sale; that plaintiff, in order to remove the prior incumbrance upon the land, created by the deed of trust, tendered to Cypert, the trustee, the whole amount of the debt, interest and cost, secured to be paid by such trust, which was refused by the trustee, under the direction of Greer and Baucum.

Without referring to numerous other allegations in the complaint, the cross complaint of defendants and the amended complaint of plaintiff, which are not necessary, in order to the proper understanding of the material questions to be considered, and many of which may, upon the questions which arise upon the above state of facts become unnecessary to a proper determination of the case, we will proceed to its consideration.

It will be seen that the deed of trust was prior in time to the judgment of Greenwood and son, and that the lands were conveyed in trust to secure the payment of borrowed money, which, if paid when due, the deed, by its terms, was to be void; if not paid, the trustee was to sell the land, pay the debts and costs, and the excess realized from the sale, if any, to be paid to Watkins.

The first question presented is, whether the deed conveyed to the trustee the entii’e interest and estate of Watkins, both legal and equitable, in the land, or whether the legal title was conveyed in trust, leaving an equitable estate in Watkins for the redemption of the land. If both the legal and equitable estate were conveyed to the trustee, then there remained in Watkins no estate subject to levy under execution; if, on the other hand, the equitable right of redemption remained in Watkins, then there is no question but that Greenwood and son acquired it by virtue of their purchase at execution sale, and if, as claimed by plaintiff, he, as judgment creditor, redeemed the land by paying Greenwood and son’s bid for the same, and by the endorsements and returns upon his own execution, and took a deed from the sheriff for said land, he thereby acquired such an interest in the estate as would authorize him to' j>ay off the prior incumbrance, and succeed to his rights as purchaser.

Prior to the execution of the deed, it is conceded that Watkins was the legal owner of the land, and held a title in fee simple to the same; and when he executed the deed of trust, he necessarily parted with such title and estate as was necessary to give effect to the trust, and nothing more.

The estate must be such, and need be no greater, than is necessary to give effect to the trust thus created; if to sell land, the legal title is necessarily vested in the trustee, because, without it, he cannot convey the legal title: but when the holder of the legal title makes no défeasance, or condition upon the performance of which the trust ceases to exist, then the equitable estate must, of necessity, remain in the cestui que trust, because both estates cannot be united in the same party, the effect of •which would be to extinguish the trust. This is expressly held to be its effect by Perry, in his work on Trusts, vol. —, p. 10, paragraph 13, in which he says: “ No person can be trustee and ■cestui que trust at the same time, for no one can sue out a subpoena against himself; therefore, if an equitable estate and legal ■estate meet in the same person, the trust or confidence is extinguished, for the equitable estate merges in the legal estate.” “ The act of making the trust is,” says Mr. Washburn, “the .source or origin of two estates, which flow on afterwards independent of each other in point of ownership, until they merge .again by being united in the same person.”

If, as in the case before us, the trust is coupled with a power •of sale upon failure to pay a sum of money, when the money is paid, the purposes for which the power to sell were conferred having been accomplished, or rendered unnecessary, the legal •estate vested in the trustee is, by operation of law, merged and and reunited with the equitable estate in the party who executed the deed of trust. But if the money is not paid when due, and the sale takes place, then the legal title passes from the trustee to the purchaser, and draws with it the equitable estate which remained with the vendor after the execution of the trust.

Such being the law as we understand it, we must hold that Watkins, after executing the deed of trust, held an-equitable estate, the right of redemption before foreclosure, which was at .-the time subject to levy and sale under Greenwood’s execution; but it by no means follows from-this that all equitable interests in every form and purpose of trust are liable to be levied on and sold under execution. To do so would, in many instances, defeat the purposes of the trust.

At the common law, lands were not subject to sale under execution, but by statute (sec. 2630 Gantt’s Digest) all real estate, whether patented or not, whereof the defendant, or any one for his use, was seized in law or equity, shall be subject to execution. .

It is not our purpose on the present occasion to attempt drawing the distinction (if, indeed, such can clearly be done) between such equitable estates as may, or may not, be taken in execution, or what restrictions should be placed on the terms, all real estate,” etc., but will limit our inquiry as to whether the particular estate held in the case before us was or not subject to sale under execution.

If the payment of these debts had been secured by a deed of mortgage on the lands, there would be no question of the right to levy upon and sell the mortgagor’s equity of redemption, the effect of which would be, as we have repeatedly held, to subrogate the purchaser to the equitable rights of the mortgagor, which would be to pay off the mortgage debt, and hold the estate just as the mortgagor would, if redeemed by him. Rice v. Wilburn et al., ante.

But instead of securing the payment of these debts by a deed of mortgage, the same end has been substantially accomplished by deed of trust securing the payment of the debt; the legal effect of a mortgage is to convey the legal estate with a defeasance, that if the debt is paid,- the deed shall be void, and, if not paid, to remain in force.

If no power of sale is conferred by the deed, the equity of redemption is foreclosed by the court, and the property decreed to be sold. If a trustee is appointed in the deed to sell upon failure to pay, the sale effects substantially that which is effected by -a decree of the court, a foreclosure of the equity of redemption.

A deed of trust executed with power of sale upon failure to pay the debt, is in legal effect the same as a mortgage in which is appointed a trustee to sell upon the same contingency. In . each form of convevance the legal title passes to the party empowered to sell, the equities of the grantor are the same, upon the happening of a like contingency (the failure to pay in either); the same equitable right to redeem before sale or foreclosure exists.

This equity of redemption is an estate in the land. So 'held by Coote on Mortgages, Ch. 14, p. 256; 4th Kent Com., 158; Burr v. Robinson, adm’r., 25 Ark., 277; Rice et. al. v. Wilburn et. al., ante.

No matter by what technical name the instrument may be called, whether a mortgage coupled with a power of sale, or deed of trust, the power to sell placed in a third person, is in substance the same: Law Eegister, 1863, vol. 2, p. 640, in which the subject of trusts is fully discussed, and references made to the text books, and American decisions, and after a careful review of them, the conclusion reached is, that where the grantor parts with his title, giving it to the trustee absolutely, for the purpose of raising a fund to pay debts, this is properly speaking a deed of trust, but where the conveyance is to secure a debt in case of default, thus assimilating the transaction to a mortgage, and where the intent of the grantor, instead of parting with his estate, is to retain it, in case he performs his obligations according to its terms, instruments of this class are also, but less technically, called deeds of trust, but in substance they are mortgages, with specific powers of foreclosing, or barring the equity of redemption, the effect of which is to afford a creditor an easy, cheap and speedy remedy, and to enable him to avoid delay, expense and the inconvenience of foreclosing in a court, and sale under a decree.

The attributes of a deed of trust for such purpose, and a mortgage with power of sale are. the same, both are intended as securities, and, in a legal sense, are mortgages; in both the legal title passes from the grantor, but in equity he is, before foreclosure,, considered the actual owner in both, and as broadly in one as the other; the grantor has the right to redeem, in other words, the equity of redemption, which can only be barred by a valid execution of the power.

Every instrument intended to secure the payment of money,, whatever may be its form, and whatever name the party may choose to give it, is, in equity, a mortgage. 2 Sumner, 533; Story’s Eq., sec. 1017; 20 Ohio, 469; id., 572; 2 Devason, 555;; Eaton v. Whiting, 3 Pick., 484; Bloom v. Rensalaer, 15 Ill., 505.

In strict accordance with the authorities above cited, this court-held, State use Ashley & Watkins v. Lawson et al., 6 Ark., 269, that if in attempting to create a trust for the use of a third person, all of the rights and estate be reserved to the grantor, that-are reserved in a mortgage power, the fee in the land will remain with the grantor to the same extent that it would if by mortgage,, which we must understand to be the right of redemption, and it was in that case held that such right was subject to levy and sale-under execution.

The same question was presented in the case .of Crittenden v. Johnson, 11 Ark., 94, and as we must suppose from inattention to the difference between the facts presented in the two cases, the-case of the State, use of Ashley & Watkins v. Lawson was overruled, without reference to authority, and without reasoning, and evidently without observing the difference between the character of the trust then under consideration, and that decided in State, use, etc. v. Lawson.

The deed in Crittenden v. Johnson was executed to a trustee, empowering him to sell real estate, and pay debts; there was no defeasance, no condition for the payment of the money, or the redemption of the lands; no contingency whatever upon which the legal estate was to revert to the grantor; in fact, the very reverse of the purposes and conditions of the State, use, etc., v. Lawson. Both cases may stand upon sound principles of law.

In Pettit v. Johnson, 15 Ark., 55, like that of Crittenden v. Johnson, the deed was executed, with power in the trustee to sell certain lands and pay debts. The provisions of the deed are not fully reported, but it seems, from a brief statement of the case, that Thomas Ware owned several tracts of land, and was indebted to William H. Sutton and others, to provide for-the payment of which, he executed to his creditors a deed of trust, absolutely to sell the lands, pay the debts, and the excess, if any, to Ware. The sale was to be made absolutely, and without condition.; there was no contingency upon which the land was to revert; no right of redemption; no equitable estate was left in Ware. Under this state of case, it was held that although in some respects this interest was much like that of a mortgagor’s equity of redemption, it certainly differed in this, that the equity of redemption, as well as the legal estate, was conveyed by the deed; or, if reserved, was dependent upon a contingency, not to happen until after the sale.

The only possible contingency which could arise in this case, was that there might be an excess of money after the payment of the debts — this and nothing more, omitting an inadvertent expression in the opinion, in which it is said that the equity of redemption, as well as the legal estate, passed.”

There was nothing in this opinion conflicting with that of Crittenden v. Johnson, or State use, etc., v. Lawson; there was no equity of redemption; the whole estate was conveyed to be absolutely sold, so that the court, under the state of case presented, was right in holding that there was no estate, legal or equitable, in Ware, upon which to levy the execution.

It has not escaped our observation that the judge who delivered the opinion of the court in this case reviewed the legislative enactment authorizing a sale of equitable estates, and referred to the consequences which might result from sale of an interest dependent upon contingencies; but the opinion is distinctly placed upon the ground that the conveyance was in its terms absolute, and dependent upon no contingency, leaving the converse of the proposition by inference true, that had there been a defeasance or condition, upon the happening of which the estate should revert to the grantor, there would have remained in him an equitable estate, subject to sale under execution.

In Hannah v. Carrington, 18 Ark., 85, Carrington and wife conveyed to Hannah, by deed of trust, several tracts of land to secure the payment of debts then due ; the deed was to be void on payment of the debts, and a day therefor given. Carrington also conveyed to 'William B. Easley, forty-two slaves, by deed of trust, giving day for the payment of the debts; Carrington died, and an order of the County Court was made to sell the land and slaves, as the property of Carrington’s estate; they were sold, and bought in by Rust; the same property was subsequently .sold under the deed of trust. The question was presented upon an issue of title, as to whether, after the execution of the deed of trust, there remained in Carrington any estate in the property.

When considering the question of title thus presented, Mr. Justice English said: “Whatever difference there may be between a mortgage and deed of trust in other respects (see Crittenden v. Johnson and Pettit v. Johnson), it is manifest that they agree in this, that the debtor has the right in equity to redeem, by paying or tendering the amount of the debt, at any time before foreclosure of the former, or sale of the latter.

“ At the time of Carrington’s death, the slaves had not passed absolutely out of him, but he had a right to redeem, by discharging the two incumbrances upon them, and his administrator succeeded to this right. No matter what- the interest remaining in Carrington after the execution of the two instruments may be, or what technically called, it is beyond dispute that whatever interest he had, in law or equity, passed to Rust, the purchaser at the sale made under the order of court.”

This decision, under the state of case presented, does not conflict with the case of Crittenden v. Johnson, nor Pettit v. Johnson, but, in principle, reaffirms the case of State, use, etc. v. Lawson.

The case of Cornish v. Dews, 18 Ark., 183, was decided upon principles of equity, which do do not affect the question under consideration.

In the case of Biscoe v. Royston, Id., 508, the facts were, that Scott was largely indebted, and was the owner of a plantation, slaves, horses, cattle, mules and farming utensils, which he conveyed to Royston in trust, to secure the payment of his debts. By the terms of the deed, if the debts remained unpaid at the expiration of five years, Royston, at the request of the creditors, was to sell the property ; in the meantime, Scott was to retain possession of it, employ the negroes and stock in cultivating the land, and annually account for its products, the proceeds of which, when sold, were to be applied in payment of the debts, upon payment of which the property was to be reconveyed by Royston to Scott.

Under this state, of case, a sale of the proj^rty would, in effect, defeat the trust; the whole estate was conveyed in trust for the purpose of raising money to pay Scott’s debts; in fact, Scott held under the trustee, and cultivated the land for the benefit of his creditors. The mortgaged estate was levied upon as the property of Scott, and bought by Royston, who claimed title to it as purchaser at execution sale. Under this state of case, it was held (and we think correctly), that the property was not subject to execution sale.

When considering the case, unnecessary importance was attached to our former decisions; the facts of the case were different from either of them, and was properly decided on its own merits.

In the case of Pope’s Heirs v. Boyd, 22 Ark., 533, the deed was, in some respects, like that of Biscoe v. Royston, but differed in this, that in that case the property was conveyed to enable the trustee to make the money out of the products of the land to be cultivated by means of the slaves, stock and utensils also conveyed in trust, which, if taken in execution and separated from the. trust would have destroyed it; but in the case of Pope’s Heirs v. Boyd, the property was conveyed to secure the payment of a debt at a future day, named in the deed, and, upon failure to pay, the property was to be sold. Thus considered, we must hold, that in so far as it denies the existence of an equity in the grantor subject to levy and sale by execution, it must be overruled. It is with reluctance that we overrule a case which fixes the character of an instrument and the rights of the parties under it, but, in view of the apparent inconsistency of the several opinions delivered upon this question, and the doubts which exist in the minds of the profession and the courts, we have thought it best to review all the decisions, and place each upon reconcilable grounds, or to overrule such as were not reconcilable with the law, as we understand it.

This review of our former decisions .will suffice to correct any misapprehension with regard to the case under consideration.

The only error which we deem it necessary to notice was committed in the case of Pope’s Heirs v. Boyd, and of Crittenden v. Johnson, in overruling the case of State, use, etc., v. Lawson, 6 Ark., 269, which must, under the state of case presented, be held as the correct rule, and is fully sustained by the authorities above cited, and fully justifies us in the conclusion, that an equitable estate — the right of redemption — remained in Watkins, after the execution of the deed of trust to Cypert, which, under the provisions of our statute, was subject to sale under the judgment and execution of Greenwood and son against Watkins.

Having thus disposed of our first inquiry, as to the interest remaining in Watkins after the execution of the deed of trust, and also of the second, the sale of the land under execution to Greenwood_ and son, our next inquiry is, has Turner, the plaintiff, acquired such title by redemption as to vest in himself the title acquired by Greenwood and son at execution sale.

It is provided, sec. 2696 Gantt’s Digest: “When any real estate therein is sold under execution, the same may be redeemed by the debtor from the purchaser or his vendees, or the personal representatives of either, within twelve months thereafter.” Section 2698 provides, “ that at any time before the expiration of twelve months from the time of sale, any judgment creditor may redeem the same by suing out an execution, and placing it in the hands of the proper officer, and paying to such officer the amount for which such real estate was sold, and 15 per cent, per annum from the date of such sale, with all charges thereon, for the use of the purchaser, and shall offer to credit his execution with a sum equal to at least 10 per cent, of the amount for which the land was sold, which offer shall be accepted as a bid, all of which shall be endorsed upon said execution, and a statement thereof filed with the execution upon which the land was sold; whereupon the clerk shall endorse in the proper place upon the execution book, that said creditor has bid for the redemption of said property.”

The plaintiff is shown to have complied strictly with the provisions ©f this section.

Sec. 2699 provides: “ That unless the purchaser shall, within thirty days, pay the 10 per cent, bid by the judgment creditor, the same shall operate as a redemption of said property by such creditor, who shall succeed to all the rights and liabilities of such purchaser.”

Twelve months allowed for redemption having expired without payment by Greenwood and son, the sheriff made plaintiffs a deed to the land bid off by them.

Counsel for Watkins contend, that conceding all this to be true, the debt, upon which the judgment of Greenwood and son was rendered, was contracted before the statute provision took effect, and was not embraced within its provisions, their debts having been created in 1860 and 1867, and the act authorizing redemption, in 1868.

To sustain this position, we are'referred to Borer on Judicial Sales, and to several adjudicated cases cited by Borer, in support of that position; in addition to which a decision of our own court, Oliver v. McClure, 28 Ark., 555, in which it was held, that the provisions of the Civil Code of Practice, respecting the redemption of lands sold under execution, do not apply to judgments rendered on contracts made before the adoption of the Code.

It may be remarked that this opinion was delivered by a special judge, and by a divided court, two out of five dissenting.

The decisions referred to in support of the position assumed by the counsel for Watkins, and relied upon in the case of Oliver v. McClure, do but recognize a well established rule, that legislative acts which impair the obligation of contracts, are void; but before we can give them application to the statute provisions, which, after sale, confer upon the debtor the right to redeem his property within twelve months, by paying the amount bid for it, and 15 per cent, in addition, we must inquire whether such act does, in fact, impair the obligation of the contract.

In the case of Oliver v. McClure, the real estate of the judgment debtor was sold to satisfy a debt contracted before the redemption act of 1868. McClure became the purchaser, and moved to compel Oliver to execute to him a deed, without allowing time for redemption. The contract upon which the judgment was rendered was to pay a sum of money at a given day. There was no delay in rendering the judgment, nor in executing it; the land was levied upon, and exposed to sale for cash in hand, and the money paid over to the creditor. This was all he could ask. Whether the debtor was or not allowed time to redeem his property was a matter of no significance to him, and most assuredly the obligation of the debtor was not impaired by giving him time-to redeem, nor could the creditor be incidentally prejudiced upon the assumption, that if the land had been sold without the privilege of redemption, it would have brought more money. The 15 per cent, upon the purchase money paid for redemption was ample indemnity to the purchaser, or, if redeemed by the defendant in execution, the land would have again been subject to sale for further satisfaction, in case the debt had not been fully paid.

A glance at the cases cited in Oliver v. McClure will show that they were not applicable to the ‘state of case then under consideration, but were applicable to cases where the 'creditor had been prejudiced by varying the time, terms or conditions of his contract.

Thus, in Burton v. Bolander, 49 Green (Iowa), 393, it was held that remedial directions to enforce rights may be changed by statute, but not the substantial rights of the parties contracting.

In Willard v. Longstreet, 2 Doug. (Mich.), 172, the law requiring that the property in execution should, before sale, be appraised, and not sold for less than two-thirds of its appraised value, was held to impair the obligation of the contract entered into before the passage of the act.

In Bungardner v. County of Howard, 4 Mo., 60, a stay law was declared unconstitutional; and, without further reference to authorities, all the cases cited refer to acts which impair the obligation of the contract, or the remedy for enforcing it.

This decision of our court is so clearly erroneous, that we must hold it not a proper interpretation of the law.

In the case now before us, the law which was in force at the time Watkins contracted with Greenwood and son, gave the right of sale for cash in hand, and the law of 1868, which conferred upon the defendant in execution the right to redeem, did not, in this respect, change the former law. The sale was required to take place under like process, and for cash in hand. Greenwood and son, the creditors and purchasers of the land, do not complain that the obligation of their contract has been impaired, and most assuredly Watkins, the other contracting party, had no cause to complain that time to redeem the property sold had been given him.

We must, therefore, hold, that having complied with the provisions of the law conferring the right of redemption upon judgment creditors, and having acquired title by deed from the sheriff, Turner, the creditor, must be regarded as the purchaser of said property, as fully and to the same extent as if he had been the original bidder at the execution sale.

But should we be mistaken in this position, the question arises, whether, under the state of case presented by the evidence, the defendant is not estopped from taking advantage of it.

In the first place, Watkins, the defendant in the execution, recognized and assented to the sale of the property under Greenwood and son’s execution; he entered into an agreement with their attorney that the sale should be made without advertisement, etc., and also for time in which to make redemption. Cypeit, the attorney, appears from his deposition to have had personal knowledge of all the transactions connected with the sale of the land, and of its redemption. He says that himself and partner in the practice of law were entrusted by Greenwood and son with the collection of .these debts, and obtained a judgment, upon which the land in controversy was sold; that after the property was levied upon, Watkins made some payments, and-the executions were returned without sale; that subsequently, Greenwood and son urged the collection of the debts. Witness saw Watkins, who said he was unable to raise the money; did not like his property to be advertised and sold publicly. Witness told him if he chose to do so, that he could, by an endorsement upon the execution, waive an advertisement, which, as witness understood, was done; his partner, Holland, attended the sale, and bid off the land for Greenwood and son, for the entire debt and cost, according to an agreement entered into between witness and Watkins, which was, that the attorneys of Greenwood and son should buy in the land, giving for it the whole amount of the debt and costs, with an agreement that Watkins was to have twelve months in which to redeem, by paying 15 per cent, per annum, as provided under the Code Practice.

About the time the right of redemption expired, witness called the attention of Watkins to the fact, and advised him to prepare for redemption, and afterwards went with Watkins to the clerk’s office to arrange for redeeming the lands, when he ascertained that the lands had been redeemed by plaintiff as a judgment creditor.

Witness and Watkins then went to see plaintiff, and requested him to abandon or release his bid. .Plaintiff declined to do so, because an endorsement of the bid had been entered of record, after which he doubted whether it could be done; plaintiff told Watkins that he had no disposition to take the lands from Mrs. Watkins; that he only wished to secure himself in what Watkins owed him. After leaving plaintiff, Watkins expressed a doubt that plaintiff wished to take advantage of him. Witness proposed to Watkins to act as the mutual friend of himself and plaintiff, and after-wards saw plaintiff and intimated to him Watkins’ fears. Plaintiff answered that he. had no disposition to deprive Watkins of his property; that he only wished to secure what Watkins owed him, and named the judgment which he held against Watkins, a debt due Mrs. Quarles, and one due Turner and Moore. - After some discussion as to the amount of indebtness of Mrs. Quarles, terms were agreed upon between Watkins and Turner.

Witness says Watkins wished him to draw up the agreement between them; not having time to do so, he told Watkins that Turner would draw it up.

The written agreement is identified and made an exhibit, bearing date 14*th of January, 1873, signed by both Watkins and Turner. By its terms and provisions Watkins rented of Turner the lands mentioned in the deed of trust, and held by Turner under the sheriff’s deed, for the year 1873, for the consideration of $1,650, the lands to be delivered by Watkins to Turner on the 1st day of January, 1874. It was also part of the same agreement that upon the payment to Turner of $4,635.67, the amount agreed upon as being due by Watkins to Turner, Turner was to convey, by deed, the lands so held as purchaser at sheriff’s sale to Mrs. Watkins and her children.

Watkins in his answer does not deny the execution of this instrument in terms, but that owing to his embarrassed circumstances, and -the confidential relations which existed between Turner and himself, Turner having for many years been • his. attorney and legal adviser, he was induced to execute the instrument, which contained different recitals of contract from those agreed upon and intended between the parties. And it is for the purpose of setting aside this contract, that Watkins filed his cross complaint.

Much evidence has been taken tending to show the embarrassed circumstances of Watkins, and that for some years before this transaction Turner had been his attorney and confidential advisor.

All of the allegations in the cross bill are positively denied by Turner.

The burden of proof to sustain _ the allegations in the cross bill was upon Watkins, and we think them not sufficient to sustain the cross complaint, but to the reverse of this. Cypert, who was present at the time the contract was made, states that the written agreement conformed substantially to that made between the parties.

In addition to this there is other evidence tending to show that Watkins did rent the land from Turner, and recognize him as the owner of it, and, under this state of case, another question arises, which is: whether, conceding the redemption of the land, and the deed executed under it by the sheriff to Turner to be insufficient to vest in him title to the land, Watkins, who claimed an interest in it, and by agreement consented to its sale, and thereafter and when Turner had procured a deed by redemption, recognized Turner as the legal owner of the land, rented it of him as landlord and agreed to pay him rent for it, and agreed to give possession of it at the end of the year, and contracted with him for the purchase of the land, is not estopped from asserting any claim to the land, adverse to Turner? We think he is estopped.

It is a principle of law in estoppel, that when a party once waives and abandons a right, he shall not afterwards be heard to assert it. To this principle is to be attributed the familiar rule, that one who stands by and sees his property sold under an execution against another, or by a bailee of the property, cannot assert his title against an innocent purchaser.

During the time of these transactions, Watkins was in possession of the land, he made no objection at the time of sale but assented to and authorized it; he. most clearly recognized the validity of Greenwood’s purchase by his efforts to redeem under him, and of the title of the plaintiff by his contract of rent and offer to purchase from him. Major v. Deer, 4 J. J. Marsh, 586; Reid v. Heasley, 2 B. Monroe, 254; Moore v. Simpson, 3 Met., 349; Lay v. Nevil, 25 Cal., 545; Rorer on Judicial Sales, sec. 442, p. 57, are authorities which sustain us in the conclusion that upon this ground also the title of Turner should be sustained.

The great mass of testimony taken in the case upon questions growing out of the relation existing between Watkins and Turner, as attorney and client, sufficiently show that such relation did exist prior to this transaction, and that Turner’s retainer did continue him in the service of Watkins in some instances after that time, but it does not appear that he was such attorney in the matters connected with this suit.

It was not with Turner, or by his advice, that his land was sold under the Greenwood judgment, but in person with Cypert, the attorney for Greenwood and son; he made no pretense at that time that he had no interest in the land or that it was not subject to sale, but that he did not wish his property sold at public sale, but wished it sold without advertisement, and bid off for Greenwood and son, for the full amount cf their judgment, giving him time to redeem. Turner did not advise this course, and had nothing to do with it, but being the holder of a judgment upon Watkins availed himself of his privilege of redeeming under the statute, which he had a right to do.

If Turner had acted as the attorney and advisor of Watkins, a court of equity would hold him to the strictest account faithfully and honorably to discharge his duty as such, and would deny to him any advantage growing out of such relation.

But such we have seen is not the case.

If Watkins’ embarrassed circumstances prevented him from completing his purchase with Turner, or when he had the power to do so, of paying off his trust debt, it was his own misfortune, not Turner’s misconduct as his attorney, which has placed him in his present condition.

So far as the interest of Greer and Baucum are concerned, all of their rights seem to have accrued after the sale of the equity of redemption under Greenwood and son’s judgments, and conseqirently at a time when Watkins had no estate or interest in the land, equitable or legal, and therefore acquired nothing by the conveyances subsequently made by Watkins to them, or if they had, should have asserted their rights by way of cross bill, which they have failed to do. As purchasers of Mrs. Dougan’s trust debts, they succeeded to the rights which she had to prior satisfaction out of the land, and are entitled .to receive the amount of the debts so purchased, with interest thereon up to the time of tender.

Turner, the purchaser of the equitable interest of Watkins, succeeded to all of Watkins’ rights, among which was the equitable right of redemption by paying the prior incumbrance, and holding the land under the sheriff’s deed; should he fail to do this, day being given for that purpose as he had once tendered the money to redeem, the land should be sold by the trustee under the deed of trust, or by a commission appointed by the court for that purpose; the proceeds of the sale be first applied to payment of the debt, and if the tender be not made good, then the entire interest to day of sale, and costs of trust sale, the residue if any, to Turner the plaintiff.

As regards the cross complaint of Watkins, which sought a decree setting aside the contract to rent, we think that the title to the land remained all the while, after the maturity of the debts secured by the deed of trust, in the trustee, and that Turner had no such interest in the land at. the time he rented the same to Watkins as to entitle him to the rents, and that a decree should be rendered perpetually enjoining the collection of the same.

These are the only material questions which we deem it necessary to notice.

The decree of the court below must be reversed and set aside with costs, and the cause remanded to the court below, with instructions that a decree be rendered in said court, in accordance with the opinion herein expressed, and according to the rules of equity practice, so as to vest in the parties the rights accorded to-them under this decision.

Hon. E. H. English, Ch. J.,

dissenting:

Whilst I do not dissent from the conclusion reached by my brother judges, upon the whole record in this case, I prefer to express my own views in relation to the sale of Watkins’ equity of redemption in the lands conveyed by him to Cypert as trustee, to secure the payment of the debts which he owed to Mrs. Dougan.

Equitable interests in estates were not, by the common law, subject to sale on execution.

What equitable estates may be sold on execution from the courts of law, under the statute (Gantt’s Digest, sec. 2630) has been the subject of judicial controversy in this, as well as in other States, where like statutes have been enacted.

In The State, use etc., v. Lawson et al, 6 Ark. (1 Eng.) 269,, the rule which generally prevails in the United States, that the right of a mortgagor to redeem his estate is liable to be taken upon execution by his creditors, was recognized. Freeman on Executions, sec. 190.

But in that case, the debtor conveyed his land to a trustee to secure the payment of money borrowed of the creditor, the deed to be void on payment of the debt at maturity,- but on failure to pay the debt, the trustee (a third party) was empowered to sell and convey the land, and pay the debt out of the proceeds of sale; and the court held, that the right of the maker of the trust deed to redeem the land, before sale by the trustee, was the subject of sale on execution.

The court said, if the maker of the deed had conveyed the land to the trustee, in trust for the creditor, unconditionally and without reserving to himself any right of redemption, by payment- of the debt or the performance of any other duty, it would have been strictly a deed of trust, and nothing would have remained in the maker of the deed, which could have been sold on -execution.

The first and last of the above propositions have never been controverted by any of the later decisions of this court, and had the second proposition, which was the point before the court in the case referred to, been adhered to, it would perhaps have been in harmony with the weight of authorities. But it was overruled in Crittenden v. Johnson, 11 Ark. (6 Eng.), 94, twenty-seven years ago, and the ruling in this case, has been uniformly recognized and followed in all the latter cases, and I am reluctant to disturb a rule of property so long established. If the rule has proved an evil, which I doubt, it is better to change it by legislation made to affect future transactions, than for the court to hazard the infliction of loss and wrong upon persons who have acted in reference to the rule, by reversing its own decisions.

The opinion of the court in Crittenden v. Johnson, is very brief, on the point in question, and may not have been quite.satisfactory to the legal profession; but it was approved and supported in Pettit et al v. Johnson et al, 15 Ark., 100; Cornish v. Dews et al, 18 ib. .175; Biscoe v. Royston, ib. 519 ; and in Pope’s heirs v. Boyd, 22 Ark., 538.

That Watkins had the right of redemption in the lands conveyed by him to Cypert as trustee, to secure the payment of the debts which he owed Mrs. Dougan, there can be no doubt, but that this contingent right could be sold on execution I cannot affirm, without overruling some of the decisions of this court of long standing; and. upon which many persons, who have heretofore made such deeds of trust, may be relying for protection against such sales.

It was well said in Pettit et al v. Johnson, that: “A sale of an interest so uncertain, as to the nature and extent of the interest, as to the time when the purchaser could take the benefit of his purchase, would, in most instances, be attended with great loss to the debtor, and of very little benefit to the creditor,which are the prominent considerations to be considered and guarded against in-judicial sales. We must presume that the legislature did not loose sight of this in passing the act authorizing the sale of equitable estates under execution. They must] have known that no one would be inclined to bid the value of interests so doubtful, and to enjoy which the purchaser would have to resort to a Court of Equity to ascertain his true interest, and affirm his title.”

But this argument does not apply to the validty of the sale in this case, because' it appears that Watkins gave his written consent to the sale under execution in favor of Greenwood and son, waiving public notice of the time of sale, etc.; and he is estopped from setting up any objection to the sale.


text:
    Fife vs. The State.
    1. The r ight to bear arms — Constitutional provision.

    The provisions of Article ii of Amendments to the Constitution of the United States, guaranteeing to the citizens the right to keep and bear arms, was not intended as a restraint on State legislation.
    2. ---: Same.

    The provisions of Article ii, sec. 5, of the Constitution of this State, securing to the citizens the right to keep ana bear arms for their common defense, relates to such arms as are used for purposes of war; and does not prevent the legislature from prohibiting the wearing of such weapons as are not used in civilized warfare, and would not contribute to the common defense.
    3. --: Construction of the act prohibiting.

    The act of February 16th, 1875, which prohibits the carrying of any pistol whatever, as a weapon, refers to such pistols as are usually carried in the pocket, and of a size to be concealed about the person, and used in private quarrels; and not to such as are within the provisions of the Constitution.
    ERROR to Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Gallagher & Newton, for the plaintiff in error.

      Henderson, Attorney General, contra.

   English, Ch. J.:

Alfred Fife, the plaintiff in error, was charged, before a justice of the peace of Jefferson County, with carrying a pistol as a weapon, contrary to the act of 16th February, 1875, convicted, and appealed to the Circuit Court, where he was tried anew, and again found guilty ; moved for a new trial, which was refused; final judgment rendered against him for the fine imposed by the jury, and he brought error.

One witness testified, on the trial, that he was walking down a street in Pine Bluff, about the 17th of September, 1875, when he met plaintiff in company with one Terry, near Trulock’s bank. Plaintiff had a banjo under his left arm, and a pistol in his hand. Witness spoke to Terry, when plaintiff raised his pistol, and asked him what he said ? Witness replied that he was talking to Terry. Plaintiff laid the guard of his pistol, which he held in his hand, against the face of witness, and said that, meaning the pistol, ruled the world, to which witness replied : “ Yes, it did.” Witness saw the pistol, and thought it was a revolver.

On the same day, perhaps, another witness saw plaintiff in a drug store, with a pistol in his hand. He did not notice it particularly,1'hut thought it was a revolver.

On the evening of the same day, plaintiff was playing cards in a saloon, when an intoxicated man came in, and plaintiff undertook to put him out. They clenched and fell' behind a screen. After the difficulty was over, the saloon keeper found on the floor the cylinder of a pistol, but he saw plaintiff with no pistol.

It is probable, from all the evidence, that the plaintiff was carrying a pocket revolver.

It is submitted for the plaintiff that the act under which he was convicted is in conflict with Article ii Amendments to the Constitution of the United States, and sec. 5 of the Declaration of Rights of the Constitution of 1874.

The act provides:

“That any person who shall wear or carry any pistol of any kind whatever, or any dirk, butcher or Bowie knife, or sword or spear in a cane, brass or metal knucks, or razor, as a weapon, shall be adjudged guilty of a misdemeanor, etc., etc. Provided, that nothing herein contained shall be so construed as to prohibit any person wearing or carrying any weapon aforesaid on his own premises, or to prohibit persons traveling through the country, carrying such weapons while on a journey with their baggage, or to prohibit any officer of the law wearing or carrying such weapons when engaged in the discharge of his official duties ; or any person summoned by such officer to assist in the execution of any legal process, or any private person legally authorized to execute any legal process to him directed.” Sec. 1, act February 16th, 1875. (Pamph. 1874-5, p. 155.)

Article ii, amendments to the Constitution of the United States, declares that:

“A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

Judge Story, commenting on this clause of the Constitution, said:

The importance of this article will scarcely be doubted, etc. The militia is the natural defense of a free country against sudden foreign invasion, domestic insurrection, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses with which they are attended, and the facile means which they afford the ambitious and unprincipled rulers to subvert the government ©r trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”j 2 Story on the Const., sec. 1896-7.

Mr. Cooley remarks upon the same article:

“Among the other defenses to personal liberty should be mentioned the right of the people to keep and bear arms. A standing army is peculiarly obnoxious in any free government, etc. The alternative to a standing army is a well regulated militia, but this cannot exist unless the people are trained to bearing arms. How far it is in the power of the Legislature to regulate this right we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts.” Const. Lim., 350.

'Ut is manifest from the language of the article, and from the expressions of these learned commentators, that the arms which it guarantees American citizens the right to keep and to bear, are such as are needful to, and ordinarily used by a well regulated militia, and such as are necessary and suitable to a free people, to enable them to resist oppression, prevent usurpation, repel invasion-, etc., etc.

This article, however, is a restraint upon federal, and not upon State legislation^ Andrews v. The State, 3 Heiskell (Tenn.), 172; Barron v. City of Baltimore, ,7 Peters, 243; Fox v. Ohio, 5 Howard, 434; Smith v. Maryland, 18 id., 71; Withers v. Buckley et al, 20 id.; Twitchell v. Commonwealth, 7 Wallace, 321.

Sec. 5, Art. ii, of the preseut Constitution of this State, declares that:

■ “The citizens of this State shall have the right to keep and bear arms for their common defense.” j

There was a similar clause in the Bill of Rights of the Constitution of 1836, and in The State v. Buzzard, 4 Ark., 18, this court held, in effect, that it and the second article of the Amendments to the Constitution of the United States had a common purpose, and that the act prohibiting the wearing of concealed weapons was in conflict with neither of them. ■ See Gantt’s Digest, sec. 1517.

In Aymett v. State, 2 Humph., 158, Judge Green said: “As the object, for which the right to keep and bear arms is secured, is of a general nature, to be exercised by the people in a body for their common defense, so the arms — the right to keep which is secured- — -are such as are usually employed in civil warfare, and constitute- the ordinary military equipments. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights, etc. * * * The Legislature, therefore, have the right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, and would not contribute to the common defense.”

'Mr. Bishop, treating of the provision of the Constitution of the United States, which secures to the people the right to keep and bear arms, says: * “If we look to this question in the light of judicial reason, without the aid of specific authority, we shall be led to the conclusion, that the provision protects only the right to keep such arms as are used for purposes of war, in distinction from those which are employed in quarrels and brawls and fights between maddened individuals, since such, only, are properly known by the name of arms, and such, only, are adapted to promote the security of a free State. In like manner, the right to bear arms refers merely to the military way of using them, not to their use in bravado and affray.’’j 2 Crim. Law, sec. .124.

By the Constitution of Tennessee (1870), “ The citizens of this State have a right to keep and bear .arms for their common defense.”

In Andrews v. The State, 3 Heiskell, 171, an act prohibiting any person from carrying, publicly or privately, a dirk, sword-cane, Spanish stiletto, belt or pocket pistol or revolver, with a provision for exceptional cases, as in our act, was held to be constitutional.

Judge Freeman, who delivered the opinion of the court, after showing that the object of the second article of the amendments to the Constitution of the United States, and that of the clause of the Constitution of Tennessee above copied, was the same, said: “In order to arrive at what is meant by this clause of the State Constitution, we must look at the nature of the thing itself, the right to keep which is guaranteed. It is ‘ arms / that is, such weapons as are properly designated as such, as the term is understood in the popular language of the country, and such as are adapted to the ends indicated above, that is, the efficiency of the citizen as a soldier, when called on to make good the defense of a free people ; and these arms he may use as a citizen, in all the usual modes to which they are adapted, and common to the country. What, then, is he protected in the right to keep and thus to use ? Not everything that may be useful for offense or defense, but what may properly be included or understood under the title of arms/ taken in connection with the fact that the citizen is to keep them, as a citizen. Such, then, as are found to make up the usual arms of the citizen of the country, and the use of which will properly train and render him efficient in defense of his own liberties, as well as of the State. Under this head, with a knowledge of the habits of our people, and of the arms in the use of which a soldier should be trained, we hold that the rifle, of all descriptions, the shot gun, the musket and repeater, are such arms, and that, under the Constitution, the right to keep such arms cannot be infringed or forbidden by the Legislature. Their use, however, to be subordinated to such regulations and limitations as are or may be authorized by the law of the land, passed to subserve the general good, so as not to infringe the right secured, and the necessary incidents to the exercise of such rights.”

The learned judge might well have added to his list of war arms, the sword, though not such as are concealed in a cane.

By the word “ repeater,” we suppose the judge meant the army and navy repeaters, which, in recent warfare, have very generally superseded the old-fashioned holster, used as a weapon in the battles of our forefathers. He certainly did not mean the pocket, revolver, for, in Page v. The State, 3 Heiskell, 198, the same? court held, that Page was properly convicted for carrying such pistol. Hicholson, judge, who delivered the opinion of the court,, said : ■ The evidence fully establishes the fact that the pistol carried by Page (a pistol called a revolver, about eight inches long) was not an arm for war purposes, and, therefore, under the ruling of this court, in the case of Andrews v. The State, the carrying of which the Legislature could constitutionally prohibit.”'

Our act prohibits the carrying, as a weapon, “ any pistol of any kind whatever,” with provisions for exceptional cases.

Pistol is from Pistola, a town in Italy, where .pistols were first, made. A pistol is a small fire-arm, or the smallest fire-arm used, intended to be fired from one hand, differing from a musket chiefly in size. Pistols were introduced into England in the year 1521. Webster.

In the act, the pistol is associated, in the prohibited list of weapons, with the dirk, butcher or Bowie knife, the sword or spear in a cane, brass or metal knucks, and the razor.

From the company in which the pistol is placed, and the known public mischief which the Legislature intended by the act to prevent, it is manifest that the pistol intended to be proscribed is such as is usually carried in the pocket, or of a size to be concealed about the person, and used in private quarrels and brawls, and not such as is in ordinary use, and effective as a weapon of war, and useful and necessary for the common defense.”

The indications in the evidence are, that the plaintiff in error was carrying a pistol of that class or character intended to be prohibited by the Legislature, and which we think may be prohibited, in the exercise of the police power of the State without any infringement of the constitutional right of the citizens of the State to keep and bear arms for their common defense.

The only point made for the plaintiff in error by his counsel here, is that the whole act is unconstitutional, and we think, when properly construed, it is not in conflict with the Constitution, and that the judgment of the court below should be affirmed.