text:
    Eddins vs. Buck.
    Equity will sustain a gift of property by the husband to the wife, though no trustee has been interposed to hold it for her use.
    Where a suit is brought by the wife for her separate property, the husband should be made a party defendant. (21 Arh. 268.)
    Where there are merits in a bill, it should not be dismissed absolutely for want of proper parties.

      Appeal from Prai/rie Circuit Cou/rt, in Chancery.

      Hon. John J. Clendenin, Circuit Judge.
    Martin, for the appellant. ■
    A voluntary conveyance, entirely free from fraud, will be sustained against a subsequent purchaser with notice. Fond. Eg. 213, note g.; Gowp. 431; lb. 708 ; 1 John. Gh. Hep. 2704 Cow. 603.
    A conveyance directly from the husband to the wile will be supported in equity. Dyer vs, Dean, 15 Arle,. 534; 7 John. Gh. Rep. 62 ; 2 Swanst. 113; 21 Eng. Law Eg. Rep. 559.
    WilliaMs, for appellee.
    A contract cannot be made between husband and wife without the intervention of a trustee — the husband cannot convey directly to the wife. 1 Greenl. Rep. 394; 3 lb. 63 ; 2 Kent’s Gom. 129, 162.
    The deed is purely voluntary, made when the husband was indebted to the appellee. See Livingston vs. Livingston, 2 J. G. R. 539; Shepard vs. Shepard, 7 Lb. 57; 3 Paige, 410, showing that the court will enforce such conveyances only when a good consideration passes.
   Mr. Justice Compton

delivered the opinion of the court.

The bill charges that, by deed, bearing date, the 12th day of August,1856, which was duly acknowledged and recorded, Joseph A. Eddins, in consideration of natural love and affection, conveyed to his wife, Caroline C. Eddins, a negro slave, named Mary; and that afterwards, one Silas Buck purchased the slave from the husband and took her in possession, with full notice of the previous conveyance to the wife.

The object of the bill — which was brought by Mrs. Eddins, in the name of her next friend, Thomas B. Hooker, against Silas Buck — was to recover the slave and her increase, an infant, born after she was taken from the possession of Mrs. Eddins. On demurrer, the bill was dismissed for want of equity, and the case is brought here on appeal from the decision of the court below.

The causes of demurrer assigned are, 1st: “ The bill sets up a deed of conveyance direct from the husband to the wife, and is void in law; ” 2d. “ The husband of the complainant is not a party to the bill.”

Although a direct gift of property by the husband to the wife, is void at law, yet if the husband is in a situation to make the gift, and the transaction is 'bona fide, and not intended as á cover for fraud, equity will sustain it though no trustee has been interposed to hold for the use of the wife. Wallingford vs. Allen, 10 Peters, 583; Lucas vs. Lucas, 1 Atk. 270 ; Walter vs. Hodge, 2 Swanst. 97, 109.

The husband, however, should have been made a party Where the suit is brought by the wife for her separate property the husband should be made a party defendant. Story’s Eg. Pl., sec. 63 ; Kirpatrick vs. Buford et al., 21 Ark. 268.

There being merits in the bill, and it being defective for want of proper parties merely, the court should have dismissed it without prejudice, and not absolutely. The decree is therefore reversed, and the cause remanded with leave to make the husband a party.


source: Caselaw Access Project

author: Mr. Justice Fairchild

license: Public Domain

text:
    Gray et al. vs. Trapnall et al.
    Where a suit for land was brought against the administrator of a deceased claimant, within the period of limitation, and dismissed, and a new suit brought against the administrator and heir, within a year, but after the statute bar had attached, the two suits cannot be so connected as to avoid the operation of the statute — the heir not having been a party to the first suit.
    Whatever may Ije the statements in the bill-, the affidavit prescribed by the statute to procure an order of publication, is necessary to the prosecution of a suit against unknown heirs.

      Appeal,from Pulaski Ghcmcery Gourt.

    Hon. Ueiah: M. Bose, Chancellor.
    Williams & Marten, for the appellant.
    The youngest of the plaintiffs was under 24 years of age when the suit was brought; and the right of action of all, continued during the minority of each. The infancy of one heir prevents the limitation as to all. May vs. Bennett, 4 Litt. 311; Lahiffe vs. Smart, 1 Bus. (S. G.) B. 162. The opinion in Lytle vs. The State, If Ark, differs from the above position; but that was the opinion of one judge only.
    The last suit was brought within one year after the dismissal of the former suit; and is between the same parties. It is true Mary B. Trapnall was only made a party by description of heir, when the first bill was filed; and this is sufficient, for a bill may be maintained against a party by description. 1 Ban. Gh. PI. and Pr. 320. And besides, the administrator is entitled to the possession of the land, and so a suit against him within the statute bar prevents the running of the statute. We submit that the second suit was identical in substance with tbe first, and tlie court erred in dismissing the bill.
    Watkins, for the appellee.
    The deed was sufficient to afford color of -title, coupled with constructive possession. 13 How. 472. It was a constructive disseizin, and the statute commenced running from the recording of the deed. 4 Kent's Com. 404, and note; 18 How. 58; 10 Wend. 639.
    In any two complainants, tenants in common, are barred as to their respective, shares or interests. Per Seott J., m Lytle vs. State, 17 Ark. 649.
    Mary E. Trapnall is the only real substantial party to the bill, and was neither a party to the former suit, nor was that suit ever instituted by bill and process, or publication against any heir of 3?. W. Trapnall, known or unknown. That is essential to save the bar as to Thomas W. Gray, by the institution of a second suit, including her, within a year after the dismissal of the former one. The new suit must be against the same parties. MoClellanvs. The State Bank, 1 Eng. 141; State Bank vs. Sherrill, lb. 183; McClellan vs. State Bank, 14 Ark. 176.
   Mr. Justice Fairchild

delivered the opinion of the Court.' ■

Samson Gray, the father of the plaintiffs, in 1833, had a right to the west half of section eleven, township sixteen south, of range one west, by virtue of a location made by himself, of William Campbell’s donation claim, which was superior to all other claims, and, so far as the record of this suit discloses, was exclusive of every other, claim, till the land was sold for taxes in 1838, by the collector of Chicot county, where it lies, to Franklin Stewart. Under this sale, the infant defendant, Mary R. Trapnall, claims the land as having descended to her from her father,.Frederick W. Trapnall, who bought it at an execution sale against Stewart, in 1845.

The tax sale to Stewart is complained of by the plaintiffs as a void proceeding, but this is not important, if they are barred by the statute of limitations from asserting their title by this suit, which is a ground of defence taken for Mary E. Trapnall.

Samson Gray having died in 1835, his heirs brought this suit on the 20th of January, 1858; and though the youngest of the plaintiffs, Thomas "W. Gray, was more than twenty-five years old, the plaintiffs claim that, in consequence of a suit having been begun in Chicot county by them for this land, against the same defendants, within less than' three years after Thomas became twenty-one years old, its dismissal and the beginning of this suit within a year thereafter, all of the plaintiffs are entitled to an adjudication of their rights, free from the effect of the statute of limitations, llefore the beginning of the suit in Chicot county, two of the plaintiffs, Jacob S. Gray and Samuel E. Gray, had enjoyed the full time given by the statute in which to assert their right to the land by suit. Being infants at the death of their father, each of them had throe years alter becoming of age in which to sue, but after that time the interest of each was barred. The opinion of Soott J., in Jjytle vs. The State, IT Ark., has been adopted by this court, upon full consideration of the proper construction of our statute of limitations, in Wilder vs. Mayo, 23 Ark., and it follows that whatever were the rights of the heirs of Samson Gray to the land in controversy, the courts wore closed to the two older plaintiffs when they first made their claim by the bill filed in chancery in Chicot Circuit Court.

But at the filing of that bill, Thomas "VV. Gray, the other defendant, had not been of age throe years, and the suit was in time to save his interest from the bar of the statute set up against him in this case, if the Chicot county suit can be connected with this, so that both suits shall bo held to relate to the same matter, and to be prosecuted by and against the same parties. Mary E. Trapnall was not made a party to the first suit: that was against the other defendants to the present suit, and seems to imply an intention to have proceeded against the unknown heirs of Frederick ~W. Trapnall, from the statements of the bill, but no affidavit was filed with it necessary to procure an order of publication, which would have been a step in the prosecution of the suit against unknown heirs. Whether under the facts shown in this record, Mary R. Trapnall, born and always living in Pulaski county, in which Samson Gray died, and in which and in territory stricken from it, the plaintiffs have grown up and lived, was liable to be proceeded against as an unknown heir of Frederick W. Trapnall, we need not say; it is sufficient that no proceeding was prosecuted against her, and this suit is, therefore, the first one ever brought against her by Thomas W. Gray about the land in question, and not being brought within three years after his minority ceased, he was subject to the defense of limitations interposed against him.

Thus, without passing upon the rights of the heirs of Samson Gray, tiie effect of the tax sale to Stewart, or upon any other questions in the case, we hold that the plaintiffs have not presented a case that entitles them to relief against Mary R. Trapnall.

Martha F. Trapnall was but a nominal party, to the bill. Mary R. Trapnall, as the heir of Frederick W. Trapnall, has his right to the land, and if Martha F. Trapnall, as his administratrix, may have possession of the title papers, which we do not know and cannot infer, it would be idle as well as inequitable to require her to give up to the plaintiffs the evidences of a light that belongs to Mary R. Trapnall.

The decree of the court below is affirmed.


author: Mr. Justice Fajschild

text:
    Brearly vs. Norris.
    B. and those under whom he claimed, owning both banks of the river, had kept a ferry, under proper licenses; but for twenty^years, N. had kept a ferry, under licenses, a short distance above the place where B. had kept it, and where he owned both banks of the river, but for the same uses and at the crossing of the same road: From the time N. took charge of the ferry B. procured no license, nor exercised any ferry privilege: Hi Id, That B. had relinquished his right, and that N. was entitled to an exclusive right to keep the ferry.
    Where a ferry had been kept by the husband in his life time, the landing of which is on the farm attached to the mansion, and the widow’s dower has not been assigned, she is entitled to the ferry as appertaining to her possessory right.

      Appeal from Pope Circtiit Court in Chancery,

    Hon. John J. Clendenin, Circuit Judge.
    Hollowell, for the appellant.
    The granting a license to'keep a ferry by the County Court of the proper county, establishes such ferry, and the party to whom such license is granted acquires in such ferry privilege a private vested right. Lindsay vs. Lindley, 20 Ark. 573.
    A ferry once established by order of the County Court becomes permanent, and the franchise under such order vests and becomes absolute in, and belongs, as any other private property to the party to whom such license shall have been granted. It is not necessary that the party in interest should make any other application for license to keep such ferry, for his privilege is annually taxed by the County .Court, who issues regularly once a year bis license — places the same in the hands of the proper officer who delivers it to the owner, of the ferry, whose duty it is to pay the taxgso levied. See Gould''s Digest, chap. 70, secs. 7, 11, 15, 16, 17, 18, 19. *
    The ferry privilege having once vesled and become a private ■ right, the party in interest must be diyested of his estate therein before he is deprived of his interests, in some way sanctioned by law. He must either make a voluntary conveyance of his estate, or the judgment of a court of competent jurisdiction, must be passed against him or some act of omission or commission, by the party in interest, must so operate as to divest his estate.
    We hold, and respectfully submit, that so far as the doctrine of non user extends it cannot affect, in the least, the rights of appellant. The facts, as proven, taken iu connection with the pleadings, present no such state of case, as will in the most remote degree induce the application of that doctrine in this case to the prejudice of appellant, or to the advantage of appellee. The ferry, it cannot even be remotely inferred from the facts, was ever abandoned by appellant. We submit his case in respect thereto, on the following authorities. 4 J. J. Marshall 29; 5 Whar. R. 584; 23 Pick. 141; 3 Kent’s Com. 359; 10 Mass. R. 183; 3 Camp. R. 514; 1 Chit. Pr. 284-85; 1 Vesey, jr. 6, 8; 2 J. J. Marshall 225.
    Our next enquiry is, was there any forfeiture of said estate by the order, judgment or decree of any court of competent jurisdiction. The record no where shows any such state of case, unless it shall be inferred from the- fact that the license granted to others than the rightful owners to keep such ferry, operated ipso facto as a judgment of forfeiture. We submit that the granting of such license could, in no possible way, have such an effect, and that the only legitimate and authorized course, having in view such forfeiture, would have been by a direct proceeding for that purpose, against the party in interest. Broion vs. Given, 5 J. J. Marshall 30; 1 Dana 260.
   Mr. Justice Fajschild

delivered the opinion of the Court.

Previous to 1836, Brearly, the appellant, and those under whom he claims, had possession of the land on both sides of the Arkansas river, a short distance below Norristown, and under the proper licenses kept a ferry at the crossing of the military road over the river. But from 1836 to 1856, Samuel Norris kept a ferry which answered the same uses as that kept by Brearly, being the crossing place for the same road, connecting points on the banks near to each other, though the ferry of Norris was removed up the river so as to touch landings on each side of Ihe river owned by himself. From the time Norris took charge of the ferry, Brearly did not procure license for his ferry, did not exercise any ferry privilege as appendant to his own land or possession,' but he claims that the ferry of Norris was a continuation of the exercise of his own franchise that he participated in its profits, and in its superintendence) so that he is not precluded from the independent use of his own former right of ferry, which, in 1857, he sought to make available by a license from the County Court of Yell county; in which the land upon the south side of the river lies.

Although the allegations and proofs of Mrs. Norris are meagre about the public authority by which Norris exercised the right of keeping a ferry, yet his use of the franchise during twenty years, is an established and conceded fact, and the cross-bill of Brearly shows that it was done under legal authority given to Norris himself. It is to be presumed that a ferry is kept by and for the person who has the license to keep it, and is responsible to the public, and to individuals for its safe and commodious keeping, yet if the claim of Brearly could be saved from abandonment by proof of the allegations in his answer and cross-bill, that he and Norris kept the ferry together, we think his claim unsustained by the evidence. For, although he introduces testimony in support of this branch of the case, it is not, at most, stronger than the testimony of Mrs. Norris, which proves that Samuel Norris had exclusive control and use of the ferry till his death, and exercised a right over it that was adverse to any other claim, and that Brearly, during the twenty years of the possession and use of the ferry by Norris as his own, did not interfere with the ferry except as he rented it from Norris in a particular year. Looking only at the parol evidence as conflicting upon this the main feature of the case, it is plainly not sufficient to establish the existence of Brearly’s right as a continuing one from the time of his management of the ferry before 183G, till his effort to renew its life by the Yell county license in 1857. In this state of the case, the fact of the license for the ferry being given from year to year to Norris is an important if not a controlling fact. And if we were in greater doubt than we are as to the real claim to, or ownership of the ferry right, while it was in name the right of Norris, we should not feel at liberty to overrule the decree of the court that affirmed the right of Norris, and dismissed the cross-bill. Therefore, admitting that Brearly did own a ferry right before the establishment of the ferry of Norris, or before his continuation of Brearly’s ferry, we hold that Brearly relinquished his right; that Samuel Norris became entitled to an exclusive right to the ferry at Norristown, which, ii well continued and exercised by Susan Norris, the appellee, is entitled to protection as an existing right paramount to that asserted by Brearly in 1857.

It is contended for Brearly that though his right was dormant while Norris kept the ferry, it is not thereby abandoned or forfeited. But an adverse holding of Brearly’s private property) of his real estate, for twenty years, would deprive him of his title, or of the means of enforcing it; much more will this result from a neglect to use, or contend for a right which requires an annual recognition from the County Court. Murray vs. Mcnefee, 20 Ark. 564.

After the death of Samuel Norris, his widow, the appellee, kept up the ferry under license granted to her by the County Court of Pope county. The landing on the north side oí the river is on the land upon which the mansion of her husband is situated, and she holds it as widow, no dower in the estate having yet been assigned to her. While entitled to the use of the mansion and farm attached to it, she is also entitled tQ '4hq„„ ferry as appertaining to her possessory right.

The exclusive control, the entire possession of the lÁnds on each bank of the river by Samuel Norris, during his ..íifeVltíKi^-_¡ notwithstanding Brearly’s purchase of one bank at tan , execution sale with the money and for the benefit of larris',"atidu notwithstanding the deed of gift from Norris of the other bank to his daughter, the wife of Brear]}', with the fact that Mrs. Norris has never relinquished her right to dower, may be considered in this case as not giving Brearly any right to keep a ferry upon his own land on the southern bank of the river below the site where the ferry of Norris has been kept since 1836.

Mrs. Norris was in the possession of the ferry, as the successor of her husband, under a license from the County Court of Pope county, that including the northern bank of the river. When she obtained her license in 1857, Brearly opposed its issuance, but his opposition was overruled, when he obtained his own license front the County Court of Yell county, in which the land of Brearly on the south side of the river is situated. Mrs. Norris was not a party to this proceeding. The disturbance of her franchise under a grant from the authority of Yell county, is as great as if the license to Brearly had issued from the County Court of Pope county, and her right to relief in either case would be the same.

Upon Brearly’s obtaining license in Yell county, and preparing to establish a ferry in pursuance thereof adjacent to the site of her own ferry, she filed a bill to enjoin him from the use of a ferry. He resisted her right by answer, asserted his own by a cross-bill. The court perpetuated the preliminary injunction awarded to Mrs. Norris, and dismissed Brearly’s cross-bill» and we affirm its decree.


text:
    Sessions et al. vs. Hartsock.
    A bill of sale of negroes containing a warranty of soundness, and providing a particular mode of compensation in case of unsoundness — as that the unsound negroes shall be returned and others substituted — the purchaser cannot, in a suit for the purchase money, recoup the damages suffered on account of the unsoundness of any of the negroes, -without showing a return of, or offer to return the unsound negroes — the mode of compensation under such a contract being exclusively and mutually binding upon the parties: nor is the non-residence of the vendor a sufficient excuse for not returning or offering to return the unsound negroes — the vendee having the means of knowing where to return them.
    Waiving the question, whether, in a suit upon a note given for the purchase money of negroes, the defendant could recoup the damages sustained by such negroes communicating disease to his other negroes, the facts must be shown by uncontradieted and legal evidence to entitle him to the defense here after an adverse finding by the jury.
    A wrong instruction, which could not have injured the party against whoa the judgment was rendered is no cause for reversal.

      Appeal from Chicot Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Garland & Randolph, for the appellant.
    The clause in the bill of sale which required Templeman & Richardson to take back all unsound negroes, cannot operate to the injury of the defendants. It was, doubtless, inserted for their benefit. But it only expressed what the law itself implied; We cannot suppose it imposed any additional burden upon the defendants of tendering back the unsound negroes. This they eould do, or not do, at their option. 2 Stark. N. P. 162.
    But even if it was the duty of the defendants, by this clause, to make a tender of the unsound negroes, yet the fact that Templeman & Richardson were not. present to receive it, excused them. 2 Parsons on Con. 160; 7 Barb. 8. C. Rep.'472; 3 Watts <$• Serg. 295.
    So, then, the naked question is presented whether it is necessary, before a party can proceed for a breach of warranty, for him to tender the unsound article to the warrantor^ And this has been often decided in the negative. See Rotan vs. Nichols, 22 Ark. Rep.

    Hutchinson, for appellee.
   Mr. Justice Fairchild

delivered the opinion of the Court.

On the 13th of April, 1857, Richard R. Sessions and Daniel H. Sessions made their note to Templeman & Richardson, for the price' of negroes bought of them, payable at the office of Hewett, Norton & Co., Nfew Orleans, on the first of January following. By indorsement the note came to the hands of Hartsook, who brought suit upon it in the Chicot Circuit Court, in July, 1858. The suit was defended on the ground of particular unsoundness of two of the negroes, which caused the death of one of them, and made the other “ comparatively worthless,” and because all of the negroes were, when sold, suffering from an infectious cough, which greatly lessened their value, and which, by its communication to the other negroes of Richard R. Sessions, the buyer of the negroes from Templeman & Richardson, caused him great damage.

A bill of sale of the negroes was given to Richard R. Sessions, which contained a general warranty of their soundness of body and mind, and a provision that Templeman & Richardson were to take back such of the negroes as might be unsound and furnish others in their places. The plaintiff insisted that the defense was inappropriate to the action, as Sessions had made no offer to return any of the negroes to Templeman & Richardson on account of their alleged unsoundness, and because any loss that accrued to Sessions from the communication of disease to his other negroes, was too remote to be connected with the purchase of those for which the note was given. To avoid the effect of these conclusions, the defendants claimed that Richard R. Sessions was relieved from an-y effort to return the negroes to Templeman and Richardson, as they did not reside in the State; and it is also maintained for them here, that the provision in the bill of sale for the return of the unsound negroes was inserted only for the benefit of Richard R. Sessions; that he might therefore waive his privilege, and have the benefit of any defense to which he would be entitled under the breach of the general warranty.

The bill of sale contained a warranty that the negroes, for which the note was given, were sound, but it also provided a special mode for the compensation that Sessions should have for their unsoundness, which was, upon their return to Temple-man & Richardson, to have them substituted by other negroes1 This mode of compensation was exclusive of any other, and was mutually binding upon the parties. Sessions might prefer to have sound negroes to any deduction from the price of the unsound: Templeman & Richardson might find it more easy, as negro traders, or for some other reason, to replace with others the returned negroes. But whatever were the inducements to such a contract, it was so made, and as made it must be abided by on the part of, the sellers and buyer. The defen. dants then had no right to insist on such a defense as their notice of recoupment contained, without showing that Richard R. Sessions had fulfilled his part of the contract in returning, or offering to return the unsound negroes. Nor was he excused from this because Templeman & Richardson lived out of this State. It is not to be presumed that Richard R. Sessions would . buy negroes to the amount of seven thousand, one hundred and fifty dollars, with the right to return unsound ones, and have others for them, and not know where to make his offer of return. The note was made payable at a particular place in New Orleans, out of the State, and it must be inferred that an enquiry at the office of Hewett, Norton & Co., would have been successful in finding the residence or locality of the sellers of the negroes, had Sessions been earnest to ascertain the fact_ And it is', besides, in proof that Templeman, one of the warrantors of the negroes, was in Pine Bluff much of his time, and kept a negro yard for the purpose of trading and selling negroes.

And upon the other branch of the case, in which Richard R. Sessions would recoup against the note the damages he sustained from the communication of the whooping-cough to his other negroes by those bought from Templeman & Richardson, he is debarred from relief; for, to be entitled to that defense here, after an adverse finding of the jury, it was necessary for him to have shown (he facts by uncontradicted and legal evidence, which are not shown by the record. We do not, however, wish to be understood as intimating that, in any event such damages as Sessions claimed could be allowed against the 'note. But upon the case presented, it is plain that, with our view of the effect of the contract, there was no error committed in suppressing parts of the depositions of Stone and of Miss Gibson, nor in giving the instructions of the. plaintiff, except the fourth, nor in refusing the second, third and fourth instructions asked by the defendants, nor in not granting a new trial on account of such rulings of the court.

Ellen was one of the negroes whose unsoundness Richard R. Sessions alleged made her “ comparatively worthless,” and the plaintiff proved an offer of Johnson Chapman to take her and her child at the price that Richardson said, and Sessions admitted, they were computed at in the sale, which Sessions refused. Upon this the court instructed the jury, that if the facts were according to the evidence, nothing could be allowed to Sessions on account of the unsoundness of Ellen. Such is the effect of the plaintiff’s fourth instruction. This implied that Sessions was bound to adjust his loss for Ellen’s unsoundness in money, and at the price at which Ellen and her child were sold, which was incorrect. To obtain satisfaction for the loss of having an unsound negro put upon him, Sessions was not obliged to return the child that might have been sound, or in his estimation worth more than it was valued in the trade. Yet this instruction, although wrong, could not have injured Sessions, for no method of compensation but a return of unsound negroes and taking of others, could have been accorded to him.

The first instruction given at the instance of the defendants was wrong, for Sessions was not entitled to any diminution from the note, notwithstanding Richard R. Sessions might have lost the labor of the slaves that were unsound when he bought them, and might have incurred expense in their case, until it had been shown that the loss and expense were necessarily incurred before Sessions could have offered to return the negroes. But of this the defendants, the appellants here, cannot complain.

Upon the whole record, the judgment against the defendants for the amount of the note and interest was right, and is affirmed.


text:
    Woodward et al. vs. Roane.
    A right of possession of property depending merely upon the statute or municipal regulations of one State, will not, from comity, be recognized in another State when the effect will be to divest rights from its own citizens, orinflict injuries upon them.

      Appeal from .Jefferson Circuit Court.

      Hon. John C. Murray, Circuit Judge.
    Yell, for the appellants, contended that the plaintiffs having a lien upon the slaves in Mississippi, or a right to their possession, under the statute law of that State, had the same right in this State. 1
    Watkins & Gallagher, for appellee.
    Admitting that plaintiffs really had complete and full title to the. slaves, yet it was only by virtue of a statutory conveyance (not a voluntary one on the part of the owner), and which operated only on the property whilst it was within the limits of Mississippi. '(Story's Con. Lex., sec. 411.) Outside of that State it was a dead letter. Such a conveyance, by act of law, could only be recognized here by the inter-comity of States; but Mrs. Roane being a purchaser in good faith, she must hold the property, because the rule in such cases is:.“that neither justice nor comity demands that the foreign law should be recognized to the extent of divesting the titles of our own citizens fairly acquired.” Hoyt vs. Thompson, 19 N. Y. Rep. (5 Smith) 226; 12 Barb. 631; 18 Geo. 554; 6 Pick. 286; 14 Ark. 370.
   Mr. Justice Fairchild

delivered the opinion of the court.

This suit, an action of replevin, by William Woodward and Seymour Taylor, against Julia Roane, to recover certain negroes» which had been the property of Charles Ratcliff, in Amite county, Mississippi, is connected with Huff vs. Roane, 22 Ark. 184, in which this court held that the deed of trust, made by Charles Ratcliff, on the 13th of April, 1854, conveying certain slaves to Reuben L. Huff to secure a debt tp Woodward and Taylor, administrators of Joicy B. Ratcliff, was fraudulent, being made with an intent to defraud Ratcliff’s creditors, and that by the acknowledgment of, and provision for a debt that had no existence. Having then decided that Woodward and Taylor obtained letters of administration upon the estate of their mother-in-law, the wife of Charles Ratcliff, a married woman with no separate estate, for the sole purpose of making up a false account against Charles Ratcliff to enable him to put his own slaves beyond the reach of his creditors, that deed of trust cannot be the foundation of any suit prosecuted by the trustee, as was the case in Huff vs. Roane, or by Woodward and Taylor, its alleged beneficiaries.

If, therefore, this suit was sought to be upheld by the deed of trust, a simple reference to the case of Huff vs. Roane would perpetuate its defeat by an affirmance here of the judgment rendered for the defendant in the Circuit Court. But this case is now presented as a prosecution in behalf of the creditors of Charles Ratcliff in this way: The creditors, not regarding the deed oí trust as a bar to the recovery of their debts out of the property conveyed, procured the slaves mentioned in the deed of trust to be levied upon, when Woodward and Taylor made claim to the property as belonging to them by virtue of the deed of trust. Having given security to make their claim good at the next term of the Circuit Court of Amite county, the sheriff took the bond of Woodward and Taylor, instead of the slaves levied upon, the parties to the bond being required by it, or by the statute of the State, to sustain their claim on a tria^ of the right of property before the court, or, in event of failure, to surrender the slaves to the execution, or to have judgment entered against them for their value. At the trial, the slaves were found to be subject to the executions, but in the meantime, though by the law of Mississippi the slaves, when released from the levy by the sheriff, were constructively in the possession of the principals oí the bond, they were actually never removed from the possession of Charles Ratcliff, and the night of the day that the slaves were found to be subject to the executions, instead of being sheltered therefrom by the fraudulent transactions between Ratcliff, Huff, Woodward and Taylor, they were run from the county, and in a short time some of them were brought to Jefferson county and sold to the defendant.

Woodward and Taylor having no claim under the deed of trust to be respected, the only mode of supporting this suit is to maintain that the right of possession of 'the negroes vested in them by the statutory proceeding by which the negroes were released from the executions levied upon them. Until the trial of the right of the property before the Circuit Court, and till the adverse judgment rendered against the claimants at that trial, it may be conceded, from the proof in the record, that Woodward and Taylor had the right to the possession of the negroes against any claim that could be made upon them in Mississippi. And waiving the question whether the judgment of the court declaring the negroes to be subject to the executions against Charles Ratcliff divested that right, or left it undisturbed in Woodward and Taylor, but subject to an obligation to bring the negroes forward and surrender them to the sheriff to be applied to the executions, we may proceed to solve the question whether the statutory right of possession that was vested in Woodward and Taylor can be recognized in the courts of this State so as to divest an adverse title of one of our own citizens acquired in good faith.

It is evident that the claim of Woodward and Taylor rests upon the right of possession that the statute of Mississippi annexes to the execution of such a bond as they gave to the sheriff, for they had no other claim but that made under the deed of trust, which was overruled in the Circuit Court upon the trial of the right of property, and which Huff vs. Roane would prevent us from recognizing. This right of possession in Mississippi was conferred upon Woodward and Taylor by the mere operation of the statute of Mississippi, and can have no more extended effect than judgments in rent, or the involuntary conveyances by which assignees are invested with the estates of insolvents or bankrupts. And the rule is, that such legal proceedings and involuntary assignments have effect only in the territory where the laws authorizing them are in force. Merrick vs. Avery, 14 Ark. 388; Story on Conflict of Laws, secs. 411, 414.

It therefore does not follow, as argued by the counsel of Woodward and Taylor, that the right to the possession of the slaves sued for will prevail here if it would prevail in Mississippi. For the right depending upon a mere statute of Mississippi, has no force elsewhere. The municipal regulations of that State cannot confer any right in this State. Milne vs. Moretou, 6 Bin. 365; Hoyt vs. Thompson, 19 N. Y. R. 224.

Often, a right depending upon the statute or municipal regulation of one State, from comity, will be recognized in another State, but not when the effect will be to divest rights from its own citizens, or inflict injuries upon them. Holmes vs. Remson, 20 John. 261; Martin vs. Hill, 12 Barb. 633. “The municipal laws of a country have no force beyond its territorial limits, and where another government permits them to be carried into effect within her jurisdiction, she does so upon a principle of comity. In doing so, care must be taken that no injury is inflicted on her own citizens, otherwise justice would be sacrificed to courtesy, nor can the foreigner or stranger complain of this.” Oliver vs. Townes, 2 Mart. N. S. 98.

Viewing this suit in the most favorable light, it is to enforce a mere statutory right of Mississippi to save the plaintiffs from a responsibility taken upon themselves under the laws of their own State, with the necessary effect of inflicting an injury upon a citizen of this State. Comity does not require us to sacrifice the rights of the defendant to afford protection to the plaintiffs against the consequences of their own acts.

This is the only question that legitimately arises upon the record, and the judgment of the court below being for the defendant, it is right upon the whole record, and we affirm it without regard to the correctness of the rulings of the court in giving and refusing instructions asked by the parties, in giving instructions upon its own suggestion, and in refusing a new trial on account of such instructions.


text:
    Peterson vs. Manley
    'Where a creditor sells the property of several tenants in common as the property of one, buys it all, and asserts, on a trial, his right to the whole, the other tenant in common may recover his interest without proof of the sale or destruction of the property by the purchaser: But this court might infer that such proof was made , where such inference is not excluded by the bill of exceptions.
    And so where the correctness of the verdict depends upon the fact whether cotton, ginned by a third person, was still in possession of the ginner — he having no lien upon it for ginning, if it was out of his possession — this court might infer that the evidence sustained the, verdict, unless the bill of exceptions excluded such inference.
    On a motion for a new trial on the ground of newly discovered evidence, this court will infer that proper diligence was not used, where the new witness was one of the joint owners of the property in litigation.

      Appeal from the Circuit Court of Union County.

    Hon. Len B, Green, Circuit, Judge.
    Carleton, for appellant.
   Mr. Justice Fairchild

delivered the opinion of tbe court.

Peterson attached nine bales of cotton as the property of McClendon, and at a sale made under the order of the Circuit Court, bought it, when Manley, claiming the entire interest of three bales of the cotton, and one-fourth part of the remaining six bales, brought this suit, an action of trespass, in the Union Circuit Court, against Peterson, and recovered judgment for a sum that the cotton he claimed would produce at the price at which the whole cotton was sold. Peterson’s motion for a new trial was overruled, and he appealed to this court.

When the cotton was taken to the gin, it was there deposited by Manley and McClendon as their property, and as that of one llidgell: that is, three bales were left as the exclusive property of Manley, a.nd the other six bales as the property of all three — Ridgell being admitted by them to be the owner of one half, while Manley and Peterson owned the other half. This was sufficient to show Manley’s interest in the cotton; and entitled him to a recovery against Peterson for its value, if the latter appropriated the cotton to his own use. And that Peterson intended, and perhaps that he effectuated this, might be inferred from his attachment and purchase of the cotton.

But Peterson insists here, as he did in the Circuit Court, that until he had sold or destroyed the cotton, he was not liable to be sued for Manley’s interest in it, as that interest was a tenancy in common with Peterson, and was in existence till the sale or destruction of the cotton. Peterson attached the cotton as all belonging to McClendon, bought it all, and on the trial asserted his right to the whole, but a more precise and technical answer may be given to his objection by saying thaj¡ the bill of exceptions does not show that it contains all the testimony adduced upon the trial, whence it must be inferred that evidence may have been given showing the sale or destruction of the cotton by Peterson.

This also disposes of the objection that no abatement was made from the value of Manley’s interest in the cotton for the one twelfth part of it that was due or belonged to the ginner as his toll for ginning the cotton. Without doubt, as the Circuit Court instructed the jury, Manley was liable to the ginner for toll, yet it would not thence follow that the ginner could not exact toll in kind for the nine bales of cotton; and if the cotton had still been in his possession, it would have been wrong for the court to have directed the jury to include the one-twelfth of the cotton in the verdict they might- find for Manley, on the ground of his continuing liability to the ginner for the toll cotton. But the ginner had no lien upon the cotton after it was out of his possession; this possession may have ceased, and the bill of exceptions, in failing to show that if recited all the testimony, does not exclude the possibility of such a conclusion having been reached by other evidence.

Another ground for a new trial insisted on for Peterson, was the discovery of new evidence. Why this was not known to Peterson before the trial, we are not-informed, and as the new witness was the person with whom Manley and McClendon owned the six bales of cotton, it might well be inferred that proper diligence was not used by Peterson to discover the testimony before the trial. This part of the appellant’s case does not fulfill the exactions of the law as declared in Burriss vs. Wise, 2 Ark. 42, and other decisions of this court.

The judgment of the Circuit Court of Union county is affirmed.


text:
    Hill et al. vs. Wright, Williams & Co.
    Any question that could be raised upon the overruling of a demurrer to some of the counts of a declaration, is waived by afterwards pleading to the whole declara tion.
    The obligation of principals to reimburse to securities the money paid by them, is not founded on the bonds which securities give for their principals, but on the express contracts of indemnity which the parties make, or upon the implied promi* ses raised by the law upon the payment of money for another at his request.

      To refuse an instruction asked for soon after the court had refused one deemed deficient in form but containing the same legal principle, because tendered after the time fixed by the court for the presentation of instructions, is not a proper exercise of the discretion of the court, where the giving it could not injure the opposite party, and refusing to give it was to' deprive the party of the application of a legal principle to which he was entitled by the facts of the case.

      Appeal jrom Ouachita Circuit Court.

    Hon. Len B. Green, Circuit Judge.
    Gallagher and Knight, for the appellant.
    Farrelly & Finley, for appellees.
   Mr. Justice Fairchild

delivered the opinion of the court.

In 1853, the steamboat D. S. Stacy was attached in New Orleans in several suits for violation of contracts of affreightment, and to relieve her from seizure, Ezra Hill and James Yaughan, part owners of the boat, procured Wright, Williams & Co. and Frellson to enter into the bonds required by the Louisiana laws. Judgments were entered against the boat and owners, in the district courts of New Orleans, and upon appeal bonds being given by the same sureties, suspensive appeals were allowed against the judgments, which, in due course of legal proceeding, were affirmed in the Supreme Court of Louisiana. The result of the whole litigation to Wright, Vffilliams & Co. and to Frellson was, that they became liable to pay, and did pay the large sums that were adjudged against the boat and owners; Wright, Williams & Co. paying one half, and Frellson the other half of these liabilities.

To recover the amount that Wright, Williams & Co. had thus paid for the liabilities of the steamboat D. S. Stacy, the surviving members of the firm brought this suit, an action of assumpsit, against Hill, Yaughan, Lovetzer and Austin, owners of the boat, in the Circuit Court of Ouachita county.

The declaration contained as many special counts as there were alleged judgments, and payments thereof by the plaintiffs as securities for the owners of the boat, and common counts for moneys paid to the use of the defendants.

Hill and Vaughan defended the suit by separate pleas of non-assumpsit, and judgment was rendered against them upon the verdict of the jury, a discontinuance having been taken as to bovetzer and Austin, who were not served with process. Vaughan alone appealed, and having died during the pendency of the suit here, it has been revived in the name of his administrator.

We pass b}r the arguments that the special counts of the declaration are insufficient, and that a recovery cannot be sussustained upon the common counts, because we diss.ent from the latter conclusion, and because any questions that could be raised upon the demurrer to the special counts were waived by pleading to the entire declaration after the demurrer was overruled.

Wright, Williams & Co. and Frellson were each liable for the whole amount of the several judgments rendered in the Louisiana courts, because such was the effect of their bonds; and if there were no other evidence than the records of those judgments and of their satisfaction by the securities, it would be inferred that the principals, that is, the owners of the D. S. Stacy, would each be liable to the several securities' for the sums respectively paid by them. But the obligation of principals to re-imburse to securities the money paid by them, is not founded on the bonds which securities give for their principals, but on the express contracts of indemnity which. the parties make, or upon the implied promise raised by the law upon the payment of money for another at his request.

It, is fully established by the testimony in this case, that Wright; Williams & Co. became securities upon the different bonds in the litigation about the steamboat D. S. Stacy, at the instance, for the benefit and upon the responsibility of Ezra Hill alone; that they refused to become bound for,James Vaughan, or to enter into a bond for Hill till Vaughan should also procure security for himself. Frellson also became security in the New Orleans suits at the request of Vaughan, and refused to undertake that responsibility till it was ascertained that Wright, Williams & Co. would assume and discharge the liabilities of Hill. And in pursuance of this condition of things when the end of the litigation resulted in fastening upon the securities the responsibilities of the D. S.'Stacy, Wright, Williams & Co. discharged one half of them for Hill, and Frellson the other half for Vaughan.

It was Frellson’s good fortune that his principal paid him all that he was obliged to pay upon the different judgments mentioned in the record; but the ill fortune of Wright, Williams & Co. in not being repaid by Hill, does not maintain their claim for satisfaction of their payments for him from Vaughan, for whom Wright, on behalf of the firm, refused to assume any responsibility, although this was never asked of Wright, Williams & Co. by Vaughan, so far as the record shows.

Wright, Williams & Co. may recover of Hill for their advances for him, but cannot recover them from Vaughan.

The instructions given for the plaintiffs, or refused to the defendant Vaughan, inconsistent with the foregoing declaration of the law of this case, were injurious to Vaughan and erroneous against him, for which the judgment inust be reversed.

It follows that the court erred in giving the first instruction asked by the plaintiffs, and in refusing to give the principle of the fifth instruction asked by Vaughan. Conceding that the form of Vaughan’s fifth instruction was subject to the criticism which this court gave in Floyd vs. Ricks, 14 Ark. 295, in The State Bank vs. McGuine, Ib. 537, and Burr vs. Williams, 20 Ark. 188, to instructions not hypothetically stated, which is hardly required of us, the additional instruction asked by the defendants as its substitute was unobjectionable in form, and in accordance with the law as herein declared. This does not seem to have been denied by the court; but the instruction was refused because it was tendered after the time fixed by the court for the presentation of instructions. This instruction was asked for soon after the court had refused the instruction containing the same legal principle, but deemed deficient in form, and the court should have used its discretion so as to give the parties the benefit of a legaj instruction to the jury. Giving it could not injure the opposite party, refusing it was to deprive Vaughan of the application of a legal principle to which he was entitled by the facts of the case.

We have not overlooked the fact that the court refused to give the 9th, 10th and 11th instructions of the plaintiffs which announced a contrary doctrine, and that in giving the third instruction of Vaughan a principle was announced directing the jury towards the same conclusion reached in the additional instruction, but in the probable confusion of mind which might fall upon the jury from the numerous and conflicting instructions asked for by the parties, we must perceive that the refusal of the court to give the clear and pointed additional instruction would tend to mislead the jury and prejudice the interest of Vaughan.


author: Mr. Chief Justice English

text:
    Harris, Wormley & Co. vs. Redman, Surv.
    Action of assumpsit for money had and received — proof of receipt of the money, and detailed statement of facts showing its payment — verdict approved and judgment affirmed.

      Error to Jackson Circuit Court.

    Hon. Wm. R. Cain Circuit Judge.
    Rose, for the appellant.
    Stillwell & Woodruff, for appellee.
   Mr. Chief Justice English

delivered the opinion of the court.

This was assumpsit for money had and received, etc., brought by Harris, Wormley & Co., of Memphis, Tennessee, against Parmenius H. Redman, surviving partner of the late firm of P. H. Redman & Co., of Jacksonport, in this State, composed of Redman and Daniel P. Wilbanks.

The bill of particulars filed by the plaintiffs is as follows:

“ P. H. REDMAN, as surviving partner, etc.,
To Harris, Wormley & Co., Dr.
To amount of money received by P. H. Redman & Co., in or about December, 1853, from us, which you were to have invested in cotton for us, which was not done by you, and for which you have not made any account to us, and which still remains due, which sum is.....$500.”

The suit was commenced 7th November, 1854.

The defendant pleaded non-assumpsit, payment, limitation and set-off.

The verdict was against the plaintiffs, they moved for a new trial on the grounds that the court erred in the admission of certain papers offered in evidence by the defendant, and that the verdict was contrary to evidence.

The plaintiffs proved that they had made an agreement with P. H. Redman & Co., by which they were to furnish them with money, and they were' to purchase cotton and ship it to the plaintiffs, for a commission of 50 cents per bale.

The plaintiffs also proved by W. P. Brooks that, on the 21st December, 1853, they delivered to P. H. Redman & Co., by the hands of Silas Daugherty, $500 in gold, and that, on the same day, S. S. Carey deposited with them $300, on account of plaintiffs, and took a receipt therefor. The plaintiffs did not prove that they ever furnished them with any more money.

The defendant, after reading in evidence several letters of plaintiffs acknowledging shipments of cotton, etc., read also in evidence the following letter:

“ Memphis, May 23d, 1854.
Mr. P. H. Redman,
Jacksonport. Ark.,
Dear Sir:
We enclose you sales of the 2 bis. cotton you sent us; the quality was very bad; net proceeds to your credit $51 66. We also enclose account current, balance due us $438 24. This sum includes the $300 which we wrote you about. Mr. Carey gave us your receipt for $300, as received of him for our act. and we did not know how you had disposed of it. We are now closing our old business, and wish all of our accounts adjusted as early as we can. We will be obliged to you to send us by packet the 138 24, and advise us how the $300 was disposed of, that you gave us the receipt for.
Very respectfully,
HARRIS, WORMLEY & CO.”

Defendant having proved that in the spring of the year 1854, J. H. McManus was a steamboat captain on White river, acting as a common carrier between Jacksonport and Memphis, and that the following receipt was in his hand-•writing, was permitted to read it as evidence, against the objection of the plaintiffs:

“ Received of P. II. Redman for acc. Messrs. Harris, Wormley & Co., of Memphis, one hundred and .thirty eight 24-100 dollars ($138 24). May 30, 1854.
J. H. McMANUS.”

The defendant also read in evidence the following receipt’ after proving it to be in the hand-writing of the plaintiffs:

“ Harris, Wormiey & Co. received .of J. C. McManus the following described money, belonging to the late firm of P. II. Redman & Co., as payment on the note of P. II. Redman & Co. of $309, viz:
New Orleans Bank notes.................... $200
Gold, American.............................. 80
One Dubloon............................... 15 60
Exchange, 1 pr. ct........................... 2 95
Bank note, Tennessee........................ 10
Silver change.............................. 45
$309 00
Memphis, July 14, 1854.
HARRIS, WORMLEY & CO.”

The defendant also produced the following note, and, after proving it to be in his hand-writing, -was permitted to read it as evidence against the objection of the plaintiffs:

“ Memphis, June the 19th, 1854.
One day after date I promise to pay to Harris, Wormiey & Co., or order, three hundred and nine dollars for value received.
P. H. REDMAN & CO.”

The defendant also produced the following receipt, and, after proving it to be in the hand-writing of his deceased partner, was permitted by the court to read it in evidence, against the objection of the plaintiffs:

“ $300. Received of S. S. Carey three hundred dollars, to be placed to the credit of Harris, Wormley & Co. This Dec. 16 th, 1853.
P. H. REDMAN if CO.”

Thus it appears that the plaintiffs stated in their letter of 23d May, 1854, about five months after they deposited with P. II. Redman & Co. the $500 and $300, as proven by Brooks, that the- balance due them was $438 24, which included the $300 deposited through Carey.

The defendant attempted to prove, by the papers copied above, and we think the attempt was successful, that he had paid the balance so claimed to be due by the plaintiffs.

The plaintiffs requested P. II. Redman & Co., in the letter just referred to, to send them $138 24, by packet, without naming any particular boat.

It appears that about seven days after, the defendant delivered that sum to McManus, the captain of a steamboat running between Jacksonport and Memphis, for the plaintiffs. There is no proof that the boat was unsafe, or the captain irresponsible, nor indeed is there any pretence that the plaintiffs did not receive the money.

That the note read in evidence by the defendant, dated 19th June, 1854, was given for the $300 deposited by Carey, with $9 interest, there is little room to doubt. That it had been in the possession of the plaintiffs, is shown by their receipt to J. C. McManus; and that it had been paid was proven by the same receipt and by the production of the note by defendant; and that the sum deposited by Carey had been settled, was also shown by the production by defendant of the certificate of deposit given to him, which the plaintiffs referred to in their letter as having been delivered to them by Carey. It is true that there is a discrepancy between the date of the receipt, and the testimony of Brooks as to the time Carey made the deposit — the receipt bears date 16th December, 1853, and Brooks says the money was deposited 21st December, 1853-But there is no evidence that plaintiffs ever made any other deposit through Carey, and Brooks may have been mistaken as to the day on which the deposit was made, or the receipt may have been antedated for some reason or other.

The plaintiffs introduced no evidence tending to prove that they were mistaken when they stated, in their letter of 23d May, 1854, that the balance due them at that time by P. H. Redman & Co., was only $438 24.

The court permitted the defendant to introduce in evidence, against the objection of plaintiffs, some receipts, drafts, etc., relating to moneyed transactions between P. H. Redman & Co. and the witness Brooks, which appear to us to have been irrelevant to the matters in issue, and inadmissible, but we do not see how their admission could possibly have prejudiced the plaintiffs, for the jury could not, we think, have found otherwise than they did upon the evidence properly admitted before them, unless they had found a balance in favor of the defendant, under his plea of set-off, upon letters of plaintiffs stating the sums that were to his credit for shipments of cotton, and upon other evidence as to the commissions, etc., he was entitled to for purchasing the cotton, etc.

The judgment of the court below', overruling the motion, for new trial, appearing to be right upon the whole record, it must be affirmed.


author: Mr. Justice Compton

text:
    The State vs. Branum.
    .The prosecutor is not liable for costs, under the statute, triiere, instead of a trial, a nolle prosequi is entered.

      Appeal from Tell Circuit Court.

    Hon. John J. Clendenin, Circuit Judge.
    Hollowell, attorney general for the state.
    Batson and Cravens, for appellee.
   Mr. Justice Compton

delivered the opinion of the Court.

On an indictment, found in the Yell Circuit Court at September term, 1859, against William Aikin, for assault and battery, the name of Hiram Branum, the party injured, was endorsed as prosecutor. At a subsequent term, a nolle pros, was entered, and judgment for costs rendered against Branum. The case is brought here on appeal from the decision of the court below sustaining Branum’s motion in arrest of judgment, and the question is, was Branum liable for the costs?

In a certain class of prosecutions — to which this case belongs — the. statute requires the name of the party injured to be endorsed on the indictment as prosecutor; and then provides that if any indictment, so endorsed, shall be returned “ not a true bill,” or if the defendant be acquitted on the trial, the prosecutor shall be adjudged to pay the costs. Dig., chap, 52, secs. 89, 90, 91. The prosecutor, in the case before us, was clearly not liaftle. The entering a nolle pros, is not a trial within the meaning of the statute, or in any other sense, and unless there is a trial, where a true bill has been found, the prosecutor is not to be burdened with the costs — the law is so written, and we most apply it.

Let the judgment be affirmed.


text:
    The State vs. Sartain et al.
    A scire facias upon a forfeited recognizance must show that the recognizance was entered into before a court or officer authorized to take it. (Darby el al. vs. Stale, 21 Ark.)

      Appeal from Perry Circuit Court.

    Hon. John J. Clendenin, Circuit Judge.
    Hollowell, Attorney General, for the State.
   Mr. Justice Compton delivered the opinion of the court.

This was a proceeding by scire facias on a forfeited recognizance. The scire facias does not show that.fhe recognizance was entered into before the court in which the prosecution was had, or before any of the officers authorized by law to take it, which this court held in Darby et al. vs. The State, 21 Ark. 523, must be shown. The judgment of the court below quashing the scire jadas is, therefore, affirmed. Of course the State may sue out an alias.


text:
    Strawn vs. Norris et al.
    If a party file a petition for discovery, and read a part of the answer in evidence the whole answer must be considered as evidence in the case, as well that which is not, as that which is, responsive to the interrogatories.

      Appeal from Montgomery Circuit Court.

    Hon. Len B. Green, Circuit Judge.
    Gallagher and Knight, for appellant.
   Mr. Justice Compton

delivered the opinion of the Court.

In this suit, an action of assumpsit, the plaintiff, finding it difficult to establish his demand without appealing to the conscience of the defendant, filed a petition for discovery, and obtained an answer. At the trial — which was before the court sitting as a jury — the plaintiff read the answer in evidence; and thereupon the defendant insisted that the whole answer should be considered by the court as evidence in the case, but the court decided that so much of it only as was responsive to the interrogatories in the petition should be so considered. In thus deciding, the court erroneously adopted the rule applicable to cases where the bill is for relief. Where the bill is for discovery merely, the rule is, that if the plaintiff makes use of the defendant’s answer, the whole of it must be read, and weighed together as evidence (Greenleaf’s Evidence, vol. 3, secs. 290, 291; Glasscock vs. Hayes, 4 Dana 58; Lady Ormond vs. Hutchinson, 13 Ves. 53; Stillwell ex. vs. Badgett, 22 Ark. 168); and the statute expressly provides that the answer to a petition for discovery shall be evidence in the same manner and with like effect as an answer to a bill in equity for discovery. Gould's Dig., chap. 133, sec. 97. The party seeking a discovery may introduce the answer in evidence, or not, at his option (Conway el al. vs. Turner et al., 3 Eng. 356), but if he does introduce it, the whole of it must be considered.

The judgment must be reversed.


text:
    The S. B. Violet vs. McKay.
    Where depositions have been suppressed on motion, because the evidence Was adjudged by the court inapplicable to the case, it is error to permit them to be read, or other like testimony given, on the trial, unless reasonable notice to the party making the motion be given him, before the trial, that a different rule would be adopted — the party being thereby taken by surprise.

      Where depositions on lile'are copied into the transcript as referred to in the order of court, and the bill of exceptions refers to them by the names of the witnesses, they are sufficiently identified and incorporated into the record.

      Appeal from Desha Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    „Weatherford, Farrelly & Finley, for the appellant.
    Stillwell & Woodruff, for appellee.
   Mr. Justice Fairchild

delivered the opinion of the court.

McKay, the defendant in error, brought an action against the steamboat Violet, filed an affidavit that he had a demand against her for work done on her as pilot, of two thousand dollars, and procured the boat to be attached under the statute providing for the attachment of boats and vessels running upon the navigable waters of this State. James T. Roberts, the owner of the boat, gave bond under the 9th section of chapter 18 of the Boat Attachment Law, when the boat was discharged from seizure. At the return term of.the suit, on'the 13th of December, 1858, a parcel of depositions of the plaintiff was published in open court. In these depositions, testimony is given concerning pilotage done by the plaintiff on the steamboat Tiber, a boat owned and controlled by Roberts, the owner of the Violet, and concerning a river custom of allowing double or extra pay to a pilot running a boat alone. The defendant the day after the publication of the depositions, moved to suppress so much of the depositions as related to these subjects,' which motion was sustained by the court. But upon the trial of the cause, at the November term of the court for 1860, the court permitted testimony to go to the jury contained in these and other depositions, showing the existence and propriety of a custom, upon the river, to allow double or increased pay to single pilots upon a steamboat, as the .plaintiff claimed to be much of the time covered by his claim on.the Yiolet.

The ground upon which the motion to suppress was made, was that the plaintiff’s evidence showed that he was working on the Yiolet under a special contract, and could not, therefore, recover a charge founded upon custom. When the court sustained this 'motion, the defendant had a right to suppose that at the trial the suppressed part of the depositions and all other like testimony would be excluded from the case; and permitting such evidence to go to the jury against the objection of the defendant, ivas prejudicial to him and erroneous. And when he alleged this procedure as cause for a new trial, on the ground of having been surprised, his motion presented a valid ground for new trial, and should have been sustained. This conclusion is irrespective of the propriety of the success of the motion to suppress. If the court had become convinced that its decision upon the motion was incorrect, reasonable notice before trial, that a different rule would be adopted, should have been given to the deféndant.

The surprise induced by the decision of the court at the trial, is very different from that caused by unexpected' evidence given by witnesses, contrary to the expectation of a party, as was the fact in Nelson vs. Waters, 18 Ark., 570 ; and Coker vs. The State, 20 Ark., 62.

The depositions aré copied into the transcript as referred to in the order of the court when brought into court before the trial, as is customary with pleading and matters of record, and those read on the trial were copied as in chancery cases. But the bill of exceptions refers to the depositions by the names of the witnesses and we- think them well incorporated into the case.

Other matters complained of in the motion for a new trial do not seem to require notice, although the amount of the verdict seems to us to be larger than the testimony warranted ; but it is not necessary to decide that the finding of the jury was so exorbitant as to require the verdict to be set aside here.

The 3 udgment of the Circuit Court is reversed.


text:
    Miller vs. Wood, Ex.
    To a suit upon a note the defendant pleaded, that the consideration of the note was an agreement, signed and sealed, by the plaintiff and her testator, to sell to the defendant their possession as occupants of certain lands, and deliver possession by a certain day, and alleging that possession had not been delivered, and so the consideration had failed: Held, that the plea contained proper subject matter of defence.

      Appeal from the Circuit Court of Greene Coumty.

    Hon. Mare W. Alexander, Circuit Judge.
    Garland & Randolph, for the appellant.
   Mr. Justice Fairchild

delivered the opinion of the court.

Mary Wood, executrix of Coleman Wood, sued by petition and summons on a note, of which the following is a copy:

“ By the first of October next, I promise to pay Coleman Wood three hundred and fifty dollars for his improvement. Given under my hand and seal this 11th of December, 1856.
G. W. MILLER.”

Miller interposed this plea: “ And the said defendant, by his attorney, comes to defend the wrong and injury when, etc., and says, actio non, because be says that, on the 11th December, 1856, the said Coleman "Wood, who was then in full life, and the said Mary Wood, who was then the wife of said Coleman Wood entered into an agreement with this defendant, and under their respective seals to the following effect: ‘Articles of agreement made and entered into between Coleman Wood and Mary Wood of the first part, and G. W. Miller of the second part, the consideration is, that the said parties of the first part has this day sold unto said Miller their possession as an occupant on the south-west and north-west quarters of section two, township seventeen, and range 5 east, with all the improvements thereon, said Miller agrees to pay said Wood four hundred dollars for it, fifty dollars down, and three hundred and fifty dollars the first of October next, and the- parties of the first part agrees to give possession the first of October next, in as good pare as it is now in, with the exception of decay. Given under our hands and seals this the 11th of De-

lier

cember, 1856. Coleman Wood, (seal,) Mary jxj Wood, (seal:)

mark.

Attest, J. C. Nott.’ And said defendant avers that in consideration of which agreemont, and in compliance therewith, on his part, this defendant executed the said note in the said declaration mentioned, and for no other consideration whatever, and said defendant avers that the said Coleman Wood and Mary Wood did not, on the first of October next after the date of said agreement, nor at any time before or after, in the lifetime of said Coleman Wood, give possession of said improvement to said defendant, nor did any one do so for — nor has the said Mary Wood, either in her capacity as executrix as aforesaid, or individually, done so, after the death of said Coleman Wood, nor has any one done so for her. And so the said defendant says that the consideration of, and for which said note was given, has wholly failed.”

To this plea issue was joined, and the case was submitted to the court sitting as a jury.

On the trial, the defendant proved the execution of the agreement set forth in the plea, and proposed to read it as evidence, which the court refused, on objection of the plaintiff. The defendant also offered to prove what was the consideration of the note sued on, and to ask the witness if the purchase of the occupation of the land had failed, or the contrary, and if the contract for which the note was given had been carried out by Coleman Wood, or by the plaintiff since his death, and if they had ever delivered possession of the improvement, or given its occupancy to the defendant; all of which questions the court would not allow to be answered by the witness, or to be made to him. The defendant excepted, and after judgment against him moved for a new trial for these rulings of the court.

The plea contained proper subject matter of defence to the note, and when issue was taken to it, the agreement and the failure of Coleman Wood and the plaintiff to fulfill its terms, should have been received in evidence.

■ For the erroneous ruling of the court in excluding the evidence offered by the defendant, the court should have granted a new trial, whieh'the defendant claimed for the error of the court. Let the judgment be reversed, and the case sent back with instructions to the circuit court to allow the defendant a new trial.


text:
    Langridge et al. vs. Cobbs, Ex.
    Suit by petition and summons on an obligation for a specified sum of money, with interest at ten per cent., from a day anterior to its date: Held, that the breach in the petition, being in the words of tbe statute, is sufficient — that the court know of no reason why the bond will notsustain the action — do not see how the bond is usurious; and if so, that objection is not presented by the demurrer, and could not be,

      Appeal from St. Francis Circuit Court.

    Hon. Mark W. Alexander, Circuit Judge.
    Garland & Randolph, for appellant.
   Mr. Justice Fairchild

delivered the opinion of the court.

Thomas Farrar, for the use of Samuel F. Ilollowaj, brought suit, by petition and summons, against Nancy C. Langridge and Thomas II. Alexander, on a bond for twelve hundred dollars, dated the 26th of April, 1858, “bearing ten per cent, interest from the 25th of day of December, 1857.”

The defendants demurred to the petition, because the breach was not large enough, and because petition and summons cannot be sustained on the bond for its being “an obligation to pay a specified sum of money, and interest at ten per cent., from a day anterior to its date.” The court overruled the demurrer, judgment was rendered, and defendants appealed.

The breach is in the words of the statute, and covers principal and interest. Cail vs. Brookfield, 4 Ark., 554.

No reason is given why the bond will not sustain the action : we know of none.

It is suggested for the appellants that the bond is usurious. We do not see bow ; and if so, that objection is not presented by the demurrer and could not be. Howell vs. Vansant, 2 Eng. 146; Jennings vs. Willamowicz, ib. 277; Pilsbury vs. McNally, 22 Ark. 409.

Farrar having died during the litigation, the suit was revived in the name of Cobbs, his executor.

Judgment affirmed.


author: Mr. Justice Faiechild

text:
    The State vs. Moore.
    On the trial of an indictment against an overseer of a road, for neglect of duty, if the State fails to prove that the road is a public road, as defined by the statute, the jury must acquit.
    An order of the county court appointing an overseer for a particular road or district, is evidence that, during the term of the appointment, the road described is a public road.
    Although, if a private person cut a ditch across a public road and bridge it he may be liable for not Peeping it in repair, that would not excuse an overseer for allowing a dangerous bridge over the ditch to remain in the road.

      4. On an indictment against an overseer, although the ¡átate may prove that he was appointed overseer, she must also prove that he received notice of his appointment: and if he worked on the road, it is a circumstance from which it may be inferred that he had notice.

      Appeal from Saline Circuit Court.

    Hon. JohN J. CleNdeniN, Circuit Judge.

      Holloweli,, Attorney General for the State.
    Pope & Newton, for the appellee.
   Mr. Justice Faiechild

delivered the opinion of the Court.

Moore was indicted in the Saline Circuit Court, for that being an overseer of the military road, fourth division, from the slough, near G. Keesee’s to the Hot Spring county line, he suffered the road to be obstructed with trees and tree tops, and by not repairing the bridge of the road.

The indictment was filed the 20th of April, 1860, and the testimony showed that during the year before that time, the road was in as good condition as any other road in the county, and was a good road, except for twenty-four or thirty-six hours, a sapling, bent over the road by sleet, might impede the stage on passing under it; that a ditch, to drain land occupied by one Mitchell, had been dug through the road, which he had bridged, but the bridge had got out of repair, its puncheons being misplaced and worn out, so that the leg of a horse might have gone through; that the bridge remained so out of repair three or four weeks, when the bridge was removed and the ditch filled up by the overseer r but whether that overseer was Moore, the record does not show. The ditch was two or three feet wide, and a foot, or a foot and a half deep, when the bridge was removed. The bridge was considered dangerous by some of the' witnesses, others did not so consider it, but the bill of exceptions affords us no way of estimating the evidence only by showing its contrariety.

The jury found the defendant not guilty, the State moved for a new trial, because the verdict was against law and evidence, and because the court gave wrong instructions to the jury; the court overruled the motion, and the State appealed.

If the judgment is reversed, it is evident it must be for erroneous instructions, as the finding of the jury, being on discordant testimony, will not be here disturbed.

The first instruction is, that if the State fails to prove that the road is a public road, as defined in the statute, the jury must acquit. How the State could be prejudiced by this instruction, we cannot see, especially, as the State proved that the road was a public road in the estimation of the county court, shown by the appointment of an overseer for it on the 2d of. January, 1860. That is sufficient, in the first instance, to prove a road to be a public road, as defined by the statute. This was all the evidence upon this subject, and the court did not'impeach its sufficiency, and would likely have affirmed it, if the State had so asked.

The second instruction is to the effect, that if the ditch was cut by Mitchell, for the benefit of his land, it was his duty to keep the road over it in repair, and that for not doing so, he was liable. That may follow from the ITth section of chapter 149, Gould's Digest, although it would not excuse the overseer for allowing a dangerous bridge over the ditch to remain in the road. The court did not say that Mitchell’s liability to punishment would exonerate the overseer from performing his duty, and would doubtless have instructed the jury to the contrary, had the State asked it.

The third instruction of the defendant is, that although the State may prove that Moore was appointed overseer, she must also prove that he received notice of such appointment. Even without the modification which the court gave of this instruction to the jury, it would not be inconsistent with The State vs. Stroope, 20 Ark. 202, for the instruction did not imply that working on the road as overseer was not proof of notice of the appointment. But with the explanation given by the court, on motion of the State, that if the defendant worked the road, it was a circumstance from which it might be inferred that he- had received notice of his appointment, the State certainly could not complain of the whole instruction.

We find no error in the proceedings of the Circuit Court, and affirm its judgment.


author: Mr. Justice Faieohild

text:
    The State vs. Hagood.
    An order of the county court appointing an overseer for a particular road or district, is evidence that, during the term of the appointment, the road described is a public road.
    On the trial of an indictment against an overseer of a public road, the State having shown, by record evidence, that a particular road; by a name other than that given to the one in the indictment, was duly established by order of the county court, may show by parol evidence the identity of the two roads. ’

      Appeal' from Washington Gvreuit Oowrt.

    Hon. J. J. GekeN, Circuit Judge.
    Hollowell, Attorney General, for the State.
   Mr. Justice Faieohild

delivered the opinion of the Court.

At the January term, 1857, of the county court of Washington, the appellee was appointed overseer of the sixth division of the Cane Hill road, commencing at Kidd’s Mills and terminating at the Yineyard township line. This order was evidence that the road district for an overseer had been laid oif, and that the appellee was appointed the overseer. State vs. Hester, 19 Ark. 193. It was the duty of the county court to divide the county into road districts, specifying their boundaries; none but public roads are included in these districts; overseers are not charged with the care of private roads; the establishment of public roads is.a matter of record in the county courts: it must then follow that the order should be evidence that the road mentioned in it is a public road. We, therefore, adopt, upon full consideration, the conclusion that wag reached in The State vs. Moore, just decided, although the matter was not as directly presented in that case as in the present one, which is, that an order of the county court appointing an overseer for a particular road or district, is evidence that during the term of the appointment, the road described is a public road. This is not in conflict with The State vs. Lemay, 13 Ark. 405, for it is record evidence that establishes the character of the road, and of so recent a date as to forbid the possibility of the road having been vacated; while in TheStatevs. Lemay, the record evidence offered could only show that the road in that case was regarded by the county court as a public road in 1843 and 1844, several years before the indictment in that case was presented, and from the failure to show a subsequent recognition of the road as a public road by the county court, a strong inference might be drawn that the road had been vacated. Then, without regard to other orders ot the county court showing that the road mentioned in the indictment had been provided for by the county court as a public road, we hold that on the single order of January term, 1857, of the county court, appointing the appellee overseer of the road, the second instruction asked by the State, on the trial of this case, should have been given.

The first instruction was an application of the same principle to a series of orders of the county court, of the same import, and should also have been given.

The first and second instructions of the defendant, the appellee here, were to the effect that the road mentioned in the indictment must be proved by record evidence to be a public road established by the county court, to maintain the indictment. The court did not, abstractly, err in giving those instructions, according to The State vs. Lemay, though the tendency of them, with the refusal of the court to give the first and second instructions of the State, was to impress upon the jury that the necessary record evidence meant by them was that of orders which authorized the view and first establishment of the road.

The State did show, by record evidence, that a particirlar road, by another name than that given to the road named in the indictment, was duly established by order of the county court, and then proposed to show by parol evidence, the identity of the two roads, which the court refused leave to do. In this the court was wrong-: The identity of persons and objects may, and generally must be proven by evidence from the mouths of witnesses.

The third instruction of the defendant, directing the jury to disregard all parol evidence that tended to show that any other road than the Cane Hill road was the Cane Hill road, should have' been revised before it was asked of the court.

This case was an indictment preferred in the Washington circuit court against the appellee for neglect of duty as overseer of the sixth division of the Cane Hill road, and in consequence of the rulings of the court, in not permitting evidence to be given to the jury, showing the Cane Hill road to be the same as that established by the county court under a different description, and refusing the first and second instructions asked for by the State, a verdict of acquittal and judgment of discharge were rendered. For the errors indicated, which were urged to the court as grounds for a new trial, the judgment should have been set aside, and a new trial awarded; and because this was not done the judgment is reversed.


text:
    Smith vs. Carrigan.
    The depositions falling far short of sustaining the allegations of the bill against the sworn denial of the answer, the bill is dismissed for want of equity.

      Appeal from Independence Circuit Cov/rt in Chancery. '
    Hon. William E. CaiN, Circuit Judge. •
    Stillwell & Woodruff, for appellant.
   Mr. Chief Justice English

delivered the opinion of the Court.

Smith obtained judgments at law against Carrigan on two writings obligatory, made by one Wood as principal, and Carrigan as security.

Carrigan sought, by the bill in this-case, to injoin the judgments on the grounds that he signed the bonds, at the request of Wood, and on his representation that one McMillen was to sign them as. co-surety; and delivered them to Wood upon the express condition that they were not to be delivered to Smith until Mc-Millen signed them. But that Wood fraudulently delivered them to Smith, without the signature of McMillen, and that Smith was cognizant of the fraud, etc.

The material allegations of the bill, on which the relief is asked, are denied by the sworn answer of Smith, and the depositions read upon the hearing fall far short of sustaining the allegations against the sworn denial, etc.

The court below erred in rendering a decree for injunction, as prayed by the bill; and the decree must be reversed, and the cause remanded with instructions to dissolve the injunction, and dismiss the bill for want of equity.