author: Harrison, J.:

text:
    Pennell & Leverett vs. Monroe, adm’r., et al.
    1. Statute: Construction of . Notice of tax sale.

    A statute -which prescribes that the delinquent list shall be published at least three weeks before a sale for non-payment of taxes, construed to mean twenty-one days.
    2. Taxes : Delinquent list where the taxes on part of the land is paid.

    Where a tract of land containing more than one subdivision, is assessed to the owner of one parcel thereof, who pays the proportion of taxes charge- . able against his land, the residue of the tract should be returned as delinquent.
    APPEAL from Desha Circuit Court.
    Hon. W. H. H. Clayton, Circuit Judge.

      L. A. & X. J. Pindall, for appellants.
    Auditor’s deeds make prima facie case. ■ Gantt’s Digest, 5221; Merrick v. Hutt, 15 Ark., 338.
    The clerk was empowered to fix day of sale. Amendatory act of 1869, sec. 7. The acts of the clerk should have a reasonable construction. Bl. on Tax Titles, 310-11; Chandler v. Spear, 22 Vt., 398. The greater time of notice had no semblance of injury. See, also, Sharp v. Johnson, 4 Hill, 99 ; Corwin v. Merrill, 3d Barb., 343; Atkyns v. Kenman, 20 Wend., 249; Torrey v. Mitbury, 21 Pick., 67; Sebley v. Smith, 2 Gibts. Mich., 498-9; Scott v. Watkins, 22 Ark,, 561; Biscoe v. Coulter, 18 id., 435.
    The record of the clerk was the best evidence; the evidence of Weatherford inadmissible. Did not show there'was no other copy of the paper attainable. Greenleaf on Ev., 86 to 92.
    Not material to whom the land was assessed. Gantt’s Digest, sec. 5215. No injury done by returning the unpaid portion of land delinquent.
    The clerk’s deed conclusive evidence of regularity of the sale. Can only be questioned for causes which do not here exist. Gantt’s Digest, sec. 5206.
   Harrison, J.:

This was an action of ejectment by Jasper M. Pinnell and Thomas F. Leverett against Ben. Monroe and Robert Beith for the south half of section 18, in township 7 south, range 2 west.

The plaintiff claimed title to the southwest quarter of the section by a purchase from the State at an Auditor’s sale, on the 26th day of February, 1872, and to the southeast quarter by a purchase at a tax sale on the 20th day of February, 1871.

It was admitted upon the record that the defendants were in possession of the lands, and the court, sitting as a jury, found the following facts:

First — That the southwest quarter was offered by the Collector on the 18th of October, 1869, at a tax sale that day begun and, for want of a purchaser, forfeited to the State, and the plaintiff, on the 26th of February, 1872, purchased it from the State at Auditor’s sale, and received a deed. That the notice of the sale was published three weeks successively in the De Witt Sentinel, the official newspaper ©f the district, the first insertion on the 25th of September, and the others on the 2d and 9th of October, 1869, but there was no insertion or publication of it in the papers on the 16th.

Second — That the east half of the section was assessed as an entire tract in 1870, for the taxes of that and the preceding year, as the property of the estate of Cephas Knowlton, deceased; that the taxes on the northeast quarter, one half the sum charged against the whole, were paid by Knowlton’s administrator, and the southeast quarter was returned delinquent, and was advertised and sold for its taxes on the 20th day of February, 1871, and was purchased by the plaintiffs, who, after the expiration of two years, received a deed from the County Clerk.

The following declarations of law were made:

First — That a sale of land for taxes on a day other than that fixed by law is void.

Second — That the day fixed by the act of February 19, 1869, for the sale of lands for taxes of 1868, in Desha county, was the Monday next succeeding the expiration of the three weeks publication of the notice thereof; and a sale b.egun on Monday the 18th of October, 1869 — the notice of which was published only on the preceding. 25th of September, and 2d and 9th of October— was irregular, and a forfeiture to the State at such sale was void.

Third — That if two tracts of land, belonging to different persons, were assessed as an entire tract as the property of one only, and one half the taxes were paid by him, as the taxes on his tract, the other might be returned delinquent as to its taxes, and sold for the same.

Both parties moved for a new trial, which was refused, and judgment was rendered in favor of the plaintiffs for the southeast quarter.

Both parties appealed.

The facts found by the court are not controverted.

The plaintiffs excepted to second declaration, and the defendants to the third, and these exceptions present the only questions for our consideration.

Section 14 of the act of Februai’y 19th, 1869, was as follows:

“It shall be the duty of the county clerk immediately after the delinquent lands, etc., is returned, as provided in section 12 of this act, to cause such delinquent list of lands, etc., to be published at least three weeks in the official newspaper printed and published in the district in which such county is situated, to which list there shall be attached a notice that the whole, or a a sufficient number of tracts or town or city lots in said list contained, will be sold at the court-house in such county; or in case there is no court-house, at such other place at the county seat as may be determined upon by the county clerk, on Monday next succeeding the expiration of the notice of the three weeks.”

The language of the section we have quoted is not altogether clear, but by giving it that construction, which would best effect the end in view, the publicity of the sale, we undei’stand a notice of three entire weeks or twenty-one days to be meant and intended.

Commencing on the 25th of September, the expiration of the three weeks would be on the 15th of October, the first of October would be one week, the 8th two and the 15th three, and so though the days of publication, were the 25th of September, and 2nd and 9th of October, the second declaration of law was erroneous.

The part of the half section belonging to Knowlton’s estate was distinctly designated and defined, and wp are unable to see any good reason why the administrator of Knowlton should not have been allowed, as he was, to pay the taxes on that without paying on the other also, with which he had no cencern. We can find no provision of the statute requiring the whole tract to be returned delinquent, unless the taxes were paid on each parcel of it. As the law then stood, an assessment of real property was made only every fourth year, and it could not have been intended that the owner, who after assessment of his land, sold a part of a tract should continue to pay taxes on the whole until the next assessment. In the course of four year's, many tracts would be divided, and the parcels be owned by different persons, and a great hardship and injustice would have been the necessary consequence of such a requirement; Cooley on Taxation, 341; McQuesteor v. Swope, 12 Kans., 32.

The third declaration of law was therefore correct.

But for the error we have mentioned the judgment of the court below must be reversed and the cause remanded to it with instructions to grant the plaintiffs a new.trial as to the said southwest quarter, and to proceed according to law.


source: Caselaw Access Project

author: English, Ch. J.:

license: Public Domain

text:
    Benton County vs. Rutherford.
    Appeal: From judgment on demurrer.

    On demurrer there must be final judgment before an appeal will lie.
    APPEAL from Benton Cireuit Court.
    J. H. Huckleberry, Circuit Judge.
   English, Ch. J.:

Benton county sued Rutherford and wife in the Circuit Court of the county, upon the covenant of seizin in a deed.

The defendants demurred to the complaint, the court sustained the demurrer, and the plaintiff appealed.

There was no final judgment rendered.

On the sustaining of the demurrer, the plaintiff had her election to amend the complaint or to rest, and permit final judgment to be rendered discharging the defendants, and then appeal.

No appeal lies where,there is no final judgment upon demurrer. Hornor, adm’r., v. The State, 27 Ark., 113.

The appeal must be .dismissed.


text:
    Edrington vs. Mathews, adm’r.
    Parties: Abatement and revivor.

    Where, a suit by or against an officer, in his official capacity, is abated by his death, his successor, in office, and not his administrator, should V» substituted.
    The case of Vandergriff, sheriff, etc., v. Hoyne et al., 28 Ark., 270., . adhered to, with doubt as to its correctness.
    APPEAL from Mississippi Circuit Court in Chancery.
    Hon.--, Circuit Judge.

      Rose for appellant.
    The State board of equalization was not constitutionally organized. Art. 4, sec. 2, Const, of 1868.
    Assessing taxes belongs to the executive department. Alh'» ex parte, 26 Ark., 12.

      The board could not be composed partly of senators. See Rev. Law of April 8th, 1869, sec. 68.
   English, Ch. J.:

After the lands in Mississippi county had been assessed for the year 1870 by the county assessor, the State board of equalization, composed of the members of the Senate, and the auditor, increased the assessment by adding 125 per cent.

James H. Edrington, a tax payer of the county, for himself and others, filed a bill in the Circuit Court of the county against J. P. Murray, the collector, to enjoin the collection of the tax upon the amount so added upon the assessment, on the ground that the act creating the State board of equalization was unconstitutional, and a temporary injunction was obtained.

Pending the suit in the court below, the death of Murray, the collector, was suggested, admitted, the suit abated as to him, and revived against John Mathews, his administrator, who entered his appearance and demurred to the bill. The court sustained the demurrer,- dissolved the injunction, dismissed the bill for want of equity, and the successor of Murray in the office of collector (who was not before the court) was ordered to proceed to collect the tax which had been temporarily enjoined.

Edrington obtained 'the grant of an appeal to this court from its clerk. ¡

•The constitutionality of the act of March 25th, 1871, creating the State board of equalization was fully discussed before this court in Hoyne et al. v. Vandergrif, collector, etc., 28 Ark., 270, and the act held not to be in conflict withthe Constitution.

The argument in the case referred to was, that the matter of ascertaining and fixing the value of lands for taxation belongs to the executive department of the government, and the senators, being of the legislative department, could not act in the matter; and if it belonged to the legislative department, the auditor, who is of the executive department, was out of place among the senators.

Mr. Justice Bennett, who delievered the opinion of the court attempted to answer this argument.

The act creating the State board has been repealed, and the Constitution of 1868, under which it was passed, has been abrogated, and it is not probable that the act will be re-enacted.

There may be doubt about the constitutionality of the act, but the question has once been solemnly passed upon by the court, and we are not disposed to review its judgment.

On the death of the original defendant, his successor in the office of collector should have been substituted as defendant, and not his administrator, but the administrator did not appeal, and is not complaining of the error.

The decree must be affirmed.


author: Walker, J.: English, Ch. J.,

text:
    Govan vs. Moore.
    St'KETY: Discharged by the marriage of the principal debtor with the payee of the note.

    A with others as his sureties, executed a note to B, a, femme sole, and after- . wards A and B intermarried. Under the provisions of an ante-nuptial contract between them, the note did not pass to A upon the marriage, • but remained the separate property of B. Held: That upon the marriage, the wife lost her remedy by action against the husband, and the sureties were thereby discharged.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Adams, for appellant.
    Cited as conclusive, Dobbins v. Oswalt, 20 Ark., 619-624; Oswalt v. Moore, 19 Ark., 257-262; Dobbins v. Hubbard, 17 Ark., 189-198; also act of 1873.

      The wife’s rights in this case are separate and distinct from her husband’s — not affected by the marital relation. Shoular, pp. 232-33 and cases cited, p. 238 and cases cited; Gee v. Lewis, 20 Ind., 149.

      Tappan & Hornor, for appellee.
    Marriage releases the debt. Bright on Hus. and Wife, vol. 1, p. 18. Presumption of law in favor of husband’s marital right. Saddler v. Bean, 15 Ark., 202.
    The debt not mentioned in the marriage contract, cannot have been intended in the general word “ property,” and the right to sue upon it was lost by marriage.
   Walker, J.:

The facts of the case as presented by the record are, that on 19th of February, 1866, William H. Govan, I. I. Govan and William E. Moore executed their writing obligatory to Mrs. Ann Ward, by which they promised, on or before the first of January, 1867, to pay her $9,734.75 with interest at ten per cent.

On the 29th of October, 1866,-William H. Govan, one of the makers and principal in the note, in contemplation of marriage with Ann Ward (to whom the note was payable) entered into a marriage contract with her, in which, after reciting that the parties contemplated marriage, and desired to reserve to themselves rights and privileges, which they could not enjoy unless reserved before marriage, agreed: “That the property which each may hold now, or at any time hereafter, shall be held and enjoyed by each, and to be disposed of by the said parties respectively, by will, or devise, without molestation or hindrance on the part of each other. And in no event shall the property of either, at any time hereafter, become responsible for the debts now contracted, or which may be hereafter contracted by the said parties respectively; but, that the property of each ¡shall alone be responsible for the debts that the one or the other may now owe, or such as they may individually hereafter contract, each of them hereby retaining the power to contract in respect to the separate property now owned, or which may hereafter be owned, by each in his or her own right.”

This is as much of the agreement as has a bearing upon the question at issue.

The agreement was soon ihei eafter probated and duly admitted to record.

Afterwards, on the first day of November, the parties were married, and at the January term of the Circuit Court of Phillips county, Mrs. Ann Govan brought her suit on the note against the defendant, William E. Moore.

To this action defendant made several answers, only one of which need be noticed. The answer upon which the questions of law arise, is, in substance: That defendant executed the note as security for William H. Govan. That after the execution of the same, said Govan married Ann Ward, to whom the note was made payable, who is the plaintiff in this suit. ■ That she and Govan are still husband and wife.

To this paragraph of the defendant’s answer, the plaintiff in substance replied, setting up her right to this debt as her separate property, under the marriage agreement, that the note at the time the agreement was entered into was part of the property then owned by her.

To this reply the defendant demurred, the demurrer was sustained and final judgment rendered for defendant, from which plaintiff' has appealed.

The questions of law to be considered arise upon the sufficiency of this reply.

It will be observed that whilst the terms of the agreement are clear and definite as regards the respective rights of the parties to retain the property then owned, or thereafter to be. acquired, as their separate pi’operty, to be conveyed or disposed of at the pleasure of each, and to be alone responsible for debts then, or thereafter contracted by the respective' parties, it makes no reference whatever to the amount, value, ©r description of the property which either of them owned at the time the agreement was entered into. That Mrs. "Ward, at that time, held the note in suit against her intended husband and his securities, is evident, but ho reference is made to it, or to any debts or choses in action, or to their collection.

If this note was intended to be included, it must have been under the term property. The separation of the property, its separate use and enjoyment, and the liabilities for which alone it should be held responsible, seem to have been the leading purpose of making the agreement. There are no terms of exception or restriction used, and it is perhaps more consistent with the true spirit and intent of the parties, to hold that the. term property was intended to include debts as well as lands and chattels.

If the rights of purchasers, or those who had subsequently acquired an interest in the property of the wife, or a charge upon it, was at issue, a question might arise as to the necessity of giving such a description of the property intended to be reserved to the parties and held as their separate estate, as to identify it,, but in this instance, the liability of the defendant is simply to pay upon a contract with the wife, entered into before marriage,, and not to charge her estate.

Giving to the ante-nuptial contract its full effect, and conceding that the debt due to the plaintiff from her husband, and the defendant, his surety, did not by force of the marriage, vest in the husband, as at the common law it would have done, but remained the separate property of the wife, it still leaves the question to be settled as to the effect which the marriage had upon the marital rights of the parties, and the remedies afforded for the enforcement of the contract.

It is settled, upon undoubted authority, that marriage is, at law, a release of all contracts existing between the parties contracting in marriage, which existed at the time it was consummated. A man cannot - sue his wife, nor a woman her husband,, in any form of action. Cord on Married Women, sec. 1019. In contemplatioh of law' they are considered one person. But, giving effect to the ante-nuptial contract, as we must, to the extent that the title to the wife’s personal property, including this debt, did not pass to the husband upon the marriage, but remained in her, as her separate property, we are not prepared to-say that it so changed the common law rule as to allow the wife to sue her husband upon this debt, and take judgment against him for its satisfaction. The familiar rule, which upholds a right of action in- the party who is vested with legal title, should not,, we think, be applied to this state of case. At the common law the husband and wife are held to be one; the rights of the wife-are, to a great extent-, by marriage merged in the husband. To allow the one to litigate with the other, would tend to disturb the nuptial relations, which are intended to be sacredly preserved. ' In the language of Mr. Cord: “A man cannot sue his wife, nor a woman her husband.”

The attempt of the wife to sue would lead to absurd consequences. . Conceding the note to be the wife’s, a debt contracted before marriage, in order to sue for it she must join her husband in the action, and thus the principal debtor would become plaintiff in an action against his security, to enforce from the security the payment of a debt, which, if collected, the security would instantly have his right of action to recover back from him. This could' not be done. It necessarily follows, that the right of recovery by force of the marriage was lost. The ante-nuptial-contract could make no such innovations in the relations of husband and wife, as was expressly held by this court in the case of Harrison v. Trader and wife, 27 Ark., 288.

In that case the effect of an ante-nuptial contract was the subject of consideration. The question presented was, whether the parties could, by a contract made in contemplation of marriage, discharge the husband from his common law liability to pay the debts of his wife contracted before marriage, and it was held that such could not be its effect. When considering this question, Mr. Justice Bennett, who delivered the opinion of the court, ‘-aid : “ While, as between husband and wife, the contracts entered into between themselves before marriage in reference to the property of one another, by means of which they may change and control the general rules of their nuptial state, may be held good, they cannot change or vary the terms of the conjugal relation itself; nor can they add to or take from the personal rights or duties of the husband and wife.” Citing as authority, Bos. and Pul., n. a, 148, in which it is said. “A contract, no matter how solemnly entered into, between a man and a woman, that would attempt to, or has for its object the contravention of the general policy of the law in settling the relations of domestic life, and which creditors, third persons and the public, are interested to preserve, is invalid.”

In the case of Marshall v. Mary Ruttan, 8 Term. Rep., 547, Lord Chief Justice Kenyon said: “How can it be in the power of any persons, by their private agreements, to alter the character and conditions which by law result from the state of marriage, while it subsists, and from thence to infer rights of action, and legal responsibilities, as consequences flowing from such alteration of character.and condition; or,„ how can any power, short of that of the Legislature, change that, which, by the common law of the land, is established ?”

We do not understand these authorities as- questioning the right of the parties to make any contract they may choose, in anticipation of marriage, for the protection of their property, or their right of control over it, but it does deny the power by such contract to interfere with the marital right, so as to disturb the repose essential to its full enjoyment, or to perform a duty enjoined, even, as we held in Harrison v. Trader and wife, to compel the husband to pay the debts contracted by the wife before marriage. Nor are we to be understood as holding that in suits in equity, in view of the relations of husband and wife, and the nature of the contract entered into by them, the rule might not, to some extent, be different.

But in an action at the common law, suchas the one under consideration, in which the effect of the marriage was to deny to the plaintiff the right of action against her husband, the rule is different.

This change deprived the surety of the right, under the statute to compel the creditor to sue the principal debtor after thirty days’ notice. By her marriage she had placed it out of her power to sue the debtor, her husband, there ceased to be a necessity for notice to sue, because, if given, she had lost the power to sue, the surety had a right to compel her to sue the principal debtor, or, on failure to do so, discharge him, and, when she placed it out of her power to do this, the discharge of the surety was - complete. Mr. Parsons, in his work on contracts, page 17, says : “Any material change in the relations between the principal and the party to whom he owes the debt, or duty, discharges the ■surety. Nor can the surety, in such case, be held to show that the change was injurious to him.” At page 18 the same writer says: “Anything which operates as a novation discharges the surety.”

In the case of Mayhew v. Boyd, 5 Md., 102, it was held that “any dealings with the principal debtor by the creditor, which amounted to a departure from the contract by which the surety is bound,' and which, by possibility, might materially vary or enlarge the latter’s liability, without his assent, discharges the surety.”

We are satisfied that the plaintiff in this case did, by her marriage with her principal debtor, so change the relations which existed between them at the time the contract was made, as most materially to affect the liabilities of the surety, the defendant, by reason of which he was discharged.

The demurrer to the plaintiff’s replication was properly sustained.

Let the judgment be affirmed.

English, Ch. J.,

dissenting:

Being unable to concur with my brother judges in the conclusion which they have reached in this case, I will briefly express the grounds of my dissent.

But for the ante-nuptial contract entered into between Mrs. Govan and her husband, the principal in the writing sued on, the debt would have been extinguished as to him by their marriage, and he being discharged by her voluntary act of entering into the marriage, the sureties would also have been released.

But, by virtue of the ante-nuptial contract, the obligation remained her separate property after the marriage, the debt was not extinguished thereby, nor the husband, nor, of course, the sureties released from the obligation, but it continued to be valid and binding against principal and sureties in her hands. Otherwise, the reservation in the ante-nuptial contract in her favor was worthless as to the obligation in question.

The effect of the marriage was merely to suspend the wife’s right of action against her husband upon the obligation, in the court of law, and transfer it to the court of equity.

Id other words, the effect of the marriage was not to impair the obligation of the contract, nor to destroy the wife’s right of action upon it against her husband, but merely to shift the forum in which the remedy was to be asserted. Burleigh v. Coffin, N. H. (2 Foster) 118; Power v. Lester, 17 Howard (N. Y.), 413; Boatright v. Wingate et al., 2 Constitutional (S. C.) Rep., 521.

But the bond being preserved to the wife as her separate property by the ante-nuptial contract, the statute gave her the right to sue any of the obligors, other than her husband, upon it, in her own name in the court of law. Gantt’s Digest, secs. 4487, 4194.

Moore, the appellee, one. of the makers of the bond, has no cause to complain that she sued him only. This she could have done if she had never married Govan, for the bond being upon its face joint and several, she had the right before the marriage to sue all or any of the makers. As between them and her, they were all principals, and severally, as well as jointly, liable. As between Govan (who became her husband) and <the other makers of the bond, the relation of principal and sureties existed (though this did not appear on ,the face of the obligation), but she was not bound to sue the principal before or after the marriage, unless notified by the sureties to do so under the statute. Gantt’s Digest, sec. 5696.

Whether the sureties ever gave her any notice to sue her husband or not does not appear in this case.. But suppose they had given her notice to sue, she could have brought her suit on the chancery side of the court below upon the bond, against her husband and the other obligors, and obtained a decree against all of them for the debt, and the husband, as between him and the sure-, ties, being primarily bound to pay the debt, the court could have directed the decree to be satisfied by execution against his property, if he had any, and prevented the wife from resorting to the property of the sureties for satisfaction until the effects of the husband were exhausted. And if he had no property, the court could have directed the matter of contribution as between the sureties. And thus the suit in chancery could have been made more protective and convenient to the sureties than a suit at law would have been on such notice, had the marriage not taken place, and the sureties would have obtained all the benefit intended to be conferred upon them by the statute, and its purpose would have been substantially accomplished.

Moreover, suppose the court below had rendered judgment in this suit in favor of the appellant against the appellee, and he had paid the debt, he could have sued the husband (his principal) for the amount, or moved for judgment against him in the same court, under the statute (Gantt’s Digest, p. 1001-2), just the same as if the appellant had never married the principal, and forced the appellee to pay the debt.

Again, when the appellee was sued alone at law, in this case,, he might, perhaps, by proper pleading, have had the cause transferred to the equity side of the court, made the husband and the co-securities parties, and procured a decree to be rendered to enforce the primary liability of the husband, etc., as above indicated. Rees v. Berrington, 3 leading cases in equity (Hare and Wallace), 547; Hempstead et al. v. Watkins, adm’r., 6 Ark.,, 354.

I cannot see how the marriage of the appellant with the principal debtor worked any substantial prejudice to the rights of the appellee as a surety, and, with all due deference to the opinion of my brother judges, think the judgment of the court below should be reversed.


text:
    Zimmer vs. The State.
    1. Railroad Companies: Consolidation. Effect of.

    Where, by consolidation, two or more railroad companies form a new or consolidated company, the latter, unless restricted by the law under which the consolidation takes place, succeeds to all the rights, privileges immunities and fra chises of the several companies forming it.

      2. Same: Effect of charter provision authorizing it.

    A power conferred on a railroad company by its charter to form a union, or consolidate with any other company, is a contract between the State and the corporation, and cannot be impaired by subsequent legislation.
    3. --: Exemption of officers, agents, etc., of, from military and other duty.

    A provision in the charter of a railroad company, exempting its officers, agents and servants from military and road duty, and serving on juries, was not a mere personal privilege conferred upon the class of persons described, but constituted a valuable right in the company, to which another company, formed by consolidation between it and a third company, would succeed.
    APPEAL from Miller Circuit Court.
    Hon. James K. Young, Circuit Judge.

      Rose for appellant.
    Relied on section 26, of the act to incorporate the Miss. Val. R. R. Co., passed June 12th, 1856, together with the charter of the Cairo & Fulton Co., sec. 13.
    The right of exemption from road duty for employes was not lost by consolidation. See act of 2d March, 1869, sec. 4. There was authority to consolidate before Constitution of 1868 was adopted. See sec’. 10 of original charter. The right cannot be withdrawn. Oliver v. Memphis & Little Rook R. R. Go., ante.

      Attorney General Hughes for appellee.
    Cited section 18, Bill of Rights, Constitution of 1868. This is a new company, and succeeds only to such franchises, rights and privileges'as the Cairo and Fulton Railroad had, which were necessary to the operation of the road, and no further. The Legislature could not, after the Constitution of 1868, create such exemptions, nor transfer them to a new company. Trash v. MeGuire, 18 Wall., 391.
    Exemptions are to be strictly construed. They are never implied. Del. JR. JR. Tax, 18 Wall., 206.
    The duty to work the road does not interfere with any duty of the company to the United States. Railroad Co. v. Peniston, 18 Wall., 5.
   Harrison, J.:

George Zimmerman, the appellant, was indicted and convicted in the Miller Circuit Court for failing to work on the public road.

It was admitted on the trial that the defendant was, when warned by the overseer, and at the time appointed to work on the road, an employee and servant of the St. Louis, Iron Mountain and Southern Railroad Company, and that said Company was formed on the 30lh day of April, 1874, by the consolidation of the Cairo and Fulton Railroad Company with the St. Louis, Iron Mountain Railroad Company.

The defendant requested the court to instruct the jury that if these facts were true, he was not liable to the duty of working on public roads. The which instructions the court refused to give.

A new trial being refused, he appealed.

The Cairo and Fulton Railroad Company was incorporated by a public act of the Legislature, on the 12th day of January, 1853.

Besides those specifically granted, the 13th section of the act declares: “ That all the rights, privileges, immunities and franchises contained in the charter granted at this session of the Legislature of this State to the Mississippi Valley Railroad Company, and not restricting or inconsistent with this act, are hereby extended, and shall form a part of this incorporation as fully as if the same were inserted herein.”

Section 26, of the charter of the Mississippi Yalley Eailroad Company there referred to, which charter was also a public act, was as follows: “ Sec. 26. The president and directors, clerks, agents, officers and servants of said company, shall be exempt from military duty and serving on juries and working on public roads.”

It is insisted for the State that the consolidation having been made since the adoption of the Constitution of 1868, which, by the eighteenth section of the bill of rights, inhibits the General Assembly from granting to “any citizen or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens,” the exemption or immunity which the Cairo and Fulton Eailroad Company had of its officers, agents and servants from military -duty, serving on juries and working on public roads, did not pass to 'the new or consolidated company.

This objection, perhaps, might not be without force if the sole authority for the consolidation of the two companies was the general provisions of section 43, of the act of July 23d, 1868, (see. 4068, Gantt’s Digest), but the Cairo and Fulton Eailroad Company was expressly empowered by the 10th section of its charter to make such consolidation. The section is as follows: “Sec. 10. Said corporation shall have power to unite their road with the southern en’d of the Missouri road at some suitable point on the line which divides these two States. And its southern end with any road coming from Texas, at such point on the boundary line which divides that State and Arkansas that may be deemed most eligible, and to make any contract or agreement with any other railroad company in reference to this business that may be best to insure the early construction of said road and its successful management, and also to make joint stock with any other railroad company in this or any other State, and to form one board of directors for the management of their affairs. If it should be found necessary to facilitate the early construction of their said road, the contract or agreement of the respective boards shall form a part of their respective Charters, whenever the same may be entered into and recorded with their charters.”

The power here given the company to form a union or consolidation with any other company was a right secured by the inviolability of a contract between the State and company, which could not be withdrawn or to any extent impaired by the State. Oliver v. Memphis & Little Rock Railroad Co., ante.

It is well settled by numerous decisions that where two or more railroad companies form* by union or consolidation a new or consolidated company, the latter unless restricted by the laws under which the consolidation takes place, succeeds to and possesses the franchises, rights, privileges and immunities of the several companies from which it is formed. Baltimore v. Baltimore and Ohio Railroad Co., 6 Gill., 288; Tomlinson v. Branch, 15 Wall., 460.

The St. Louis, Iron Mountain and Southern Railroad Company has therefore the same immunity for its officers, agents and servants from military duty, serving on juries and working on public roads, the Cairo and Fulton Railroad Company had at the time of the consolidation.

The exemption claimed by the defendant' is not a mere personal privilege, but it is a valuable right of the company, granted to it by the State, to save and protect it against such serious inconveniences and injuries as would necessarily happen, were those upon whom it must depend for that vigilance, promptness and despatch indispensable in its business, liable to be called away to the performance of other duties.

It follows, that the defendant, if an employee and servant of said company, and it was so admitted at the trial, was not liable to work on public roads.

The judgment of the court below must therefore be reversed and the case remanded to it with instructions to grant the defendant a new trial, and to proceed according to law.


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    Hanner et al. vs. Bailey.
    Replevin: Pleading in, before J. P.

    An affidavit in an action of replevin before a justice of the peace, which contains a statement of the particular facts constituting the cause of action, is a sufficient compliance with the statute requiring a written statement of the facts upon which the action is founded, and no complaint need be filed.
    APPEAL from Lafayette Circuit Court.
    Hod. Myron D. Kent, Circuit Judge.

      Rose for appellant.
    It was error to strike out the amended complaint. Sillivant v. Reardon, 5 Ark., 140.
    The complaint was filed before the issuing of the summons.
    Pleadings up to ordinary standard before justice’s courts. The case should be remanded.
   Harrison, J.:

This was an-action of replevin, commenced before-a justice of the peace, for 3115 pounds of seed cotton and twenty-three bushels of corn.

On applying for the order of delivery, the plaintiffs filed an • affidavit, in accordance with section 5035, Gantt’s Digest, in which the value of the property was stated to be $166.62. The affidavit contained a particular statement of their cause of action, and they filed no other.

The defendant, after the property had been replevied, gave bond, and the same was restored to him. A jury trial was had, and there was a verdict and judgment for the plaintiffs for a portion of the cotton and corn. The defendant appealed to the Circuit Court.

After the plaintiffs had filed an amended complaint, and a demurrer had been sustained to it, the Circuit Court, upon motion of the defendant, dismissed the suit, upon the ground that it had no jurisdiction of the case, because no .written statement of the facts on which the action was founded, or other than that contained in the affidavit, Avas filed Avith the justice, The plaintiffs appealed to this court.

As the affidavits filed contained a particular statement of the facts constituting the plaintiffs’ cause of action, it served the office of both complaint and affidavit, and the statute requiring a Avritten statement of the facts upon which the action is founded to be filed with the justice before the summons is issued, Avas substantially , if not literally, complied with. Jetton & Farris v. Smead,; Perkins v. Smith, 4 Blackf., 299; Minchrod v. Windoes, 29 Ind., 288.

The Circuit Court erred in dismissing the suit; its judgment, is therefore overruled, and the cause remanded to it, with instructions to proceed to a determination of the cause according to laAv.


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    Arkansas Central R. R. Co. vs. McKay.
    Mechanics Lien: Pleading.

    A complaint, to warrant a judgment in rem on a mechanic’s lien, must . shoAV that the account was filed in the Clerk’s office within ninety days, and a full compliance with the statute in other respects.
    ERROR to Phillips Circuit Court.
    Hon. Thomas B. Hanly, Special Judge.

      Charles C. Waters, for appellant.
    Verdict erroneous, because it declares a lien on specific property,'.-.

      There should be general judgment only. It is not within the requirements of a mechanics lien. Gantt’s Digest, sec. 4067; Gould’s Digest, ch. 112, p. 768, sec. 8. No lien against a railway. Daño v. M., O. & R. R. R. R. Co., 27 Ark., 564; Eedfield’s Eailways, vol. 1, p. 443; Houck’s Law of Liens, p. 160, sec. 155; JrlePheters v. Mer. Bridge Co., 28 Mo., 468; Thmn v. North Missouri R. R., 24 Mo., 493.
   English, Ch. J.:

The complaint in this case is as follows:

“The plaintiff (John A. McKay) states that he is a contractor and builder, lately doing business in the City of Helena, etc., etc., and that on or about the — day of —, 1872, he entered into a verbal agreement with the defendant (Arkansas Central Kailroad Company) to construct a certain depot house, platform, railing, steps, walks, and four privies, on lots numbered 16, 17, 18, 19 and 20, in block No. 4, in that part of the City of Helena known as New Helena, the said defendant agreeing to pay therefor the sum of $1,549.68, the plaintiff agreeing to perform the labor in the construction of the same for said sum. That in accordance with the said agreement, plaintiff proceeded to erect said depot house, platform, railing, steps, walks and privies, and, on or about the 10th day of September, 1873, the said work was completed in pursuance of the agreement aforesaid. That on the 20th day of December, 1872, the said defendant paid plaintiff the sum of $400, leaving a balance due on said contract of the sum of $1,149.68 wholly unpaid, etc., which amount plaintiff claims is a lien on said depot house, platform, railings, steps, walks, and privies, hereinbefore described.
“Plaintiff prays judgment for said sum of $1,149.68, and that the same be declareed a lien on the above described premises,” etc.

The defendant demurred to the complaint on the ground that the facts therein stated did not constitute a cause of action, etc.

The court overruled the demurrer, after which the plaintiff asked, and obtained leave to amend the complaint, but it does not appear what, if any, amendment was made.

Defendant saying nothing further in bar or preclusion of plaintiff’s demand, a jury was empanelled, the cause submitted to them, and a verdict returned in favor of plaintiff for the sum claimed with interest, and that the same.was a lien upon the property described in the complaint.

Judgment against defendant for the amount found by the verdict to be due to the plaintiff, and the property condemned to be sold to satisfy the debt, etc.

Defendant brought error.

The complaint does not aver all the facts necessary to constitute a valid builder’s lien under the provisions of the statute.

It does not aver that within ninety days after the work was done, or at any time, an account properly verified, etc., of the demand, etc., with a description of the property to be charged with the lien, was filed in the office of the Clerk of the Circuit Court, etc. Gantt’s Digest, secs. 4060, 4067; Hicks et al. v. Branton et al., 21 Ark., 186.

The complaint was sufficient to warrant a judgment in ‘personam, against .the plaintiff in error, but not a judgment in rem.

The judgment must be reversed, and the cause remanded to the court below with instructions to permit the defendant in error to amend his complaint, and for further pi’oceedings, etc.


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    Harrell vs. Tenant, Walker & Co.
    1. Practice:
    Where motion to strike from the files is overruled, the objection is waived by filing an answer.
    3. Consideration: Surety.

    Antecedent indebtedness is a good consideration to support a new note, as to one who signs the note as a surety.

      APPEAL from Madison Circuit Court.
    Hon. James. H. Berry, Special Judge.

      E. Harrell, appellant.
    Every action must be in name of the real' party in interest. Code, sec. 25; Initials not sufficiently specific.
    As to answer No. 3, see Williams et ais., v. Perkins, 21 Ark., 18.
   English, Ch. J.:

Tenant, Walker & Co. sued Elias Harrell on a note, before a justice of the peace, and the case was taken by appeal, after judgment, to the Circuit Court of Madison county.

In the Circuit Court, the plaintiff filed an amended complaint, which the defendant moved to set aside, because the initial letters of the Christian names of the plaintiffs only were given, and not their full names, and because no profert was made of the note sued on, etc., and because there was a variance between the note- and the complaint.

The court overruled the motion to set aside the amended complaint, and the defendant filed two answers. Answer number-one, as it is designated in the transcript, was struck out because not sworn to, etc., and a demurrer was sustained to answer number two.

The defendant declined to plead further, judgment was rendered against him on the note, and he appealed to this court.

First — The appellant insists that the Christian names of the appellees should have been set out in the amended complaint, and that it was not- even good Code pleading for them to declare by the initials of their Christian names. If this objection was well taken, it was certainly waived by filing two answers in bar.

Second — Answer number one, containing two paragraphs, was stricken out for want of verification, etc., and not brought back upon the record by bill of exceptions, and though copied in the transcript, is not properly before us. Pelham v. Page, 6 Ark., 537.

Answer number two is as follows:

“The undersigned, Elias Harrell, for answer to the complaint herein, says that he believes there was a consideration long since passed between the plaintiffs and the principals on said note, Richard Johnson and Ozias D. Johnson, but that neither before, nor at the time of signing said note, was there any consideration whatever passed between this defendant and said plaintiffs; that said note, as this defendant believes, was given by said Johnsons upon consideration of said old indebtedness, and this defendant did not ask for further time, nor did said plaintiffs otherwise pay any consideration to this defendant, therefore he prays judgment,” etc.

If the Johnsons thought proper to give their note to the appellees for an old debt, and appellant thought proper to sign the note as their surety, the old debt was a sufficient consideration to uphold the note against both principals and surety.

If the Johnsons had made the note and delivered it to appellees for the old debt, and afterwards they had induced appellant to sign it without consideration, it might perhaps have been invalid as to him. But such is not the case made by the answer.

Appellant complains that he put in answer number three, and that the court below took no notice of it, but we find but the two answers in the transcript.

Judgment affirmed.


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    Cooper et al. vs. Merritt et al.
    1. Misrepresentation: When it will not vitiate a contract.

    The rule adopted in Yates et al. v. Pryor, 11 Ark., 58, that misrepresentation by a vendor of real estate, in regard to a matter equally within the knowledge of both the contracting parties, will not vitiate, adhered to.

      2. --: What will entitle the party to rescind.

    Where a vendor of real estate, for the purpose of inducing his vendee to purchase, represented that the land sold embraced thirty or forty acres of cleared land and other improvements, when in fact it only embraced about one acre of cleared land and none of the other improvements, the vendee is entitled to rescind the contract.
    3. Rescission: Vendee's lien for purchase money advanced.

    Upon the rescission of a contract for the sale of land, the vendee has an equitable lien for purchase money he has advanced.
    APPEAL from Arkansas Circuit Court in Chancery.
    Hon. P. C. Dooley, Circuit Judge.

      Cockrell, for appellants.
    Error to award damages after the bond for title had been annulled. Todd v. Gee, 17 Vesey, 273; 2 Story’s-Eq., sec. 796 et seq; Bellows v. Cheek, 20 Ark., 437.
    Appellees had equal opportunity to examine the lands. Hill v. Bush, 19 Ark., 522

      Rose, for appellee.
    Vendee has a lien on rescission, for purchase money prematurely paid. Montesquieu on Liens, p. 100; 2 Sto. Equ. Juris., sec. 1217 and n.; Burgess v. Wheat, 1 W. Black., 150; Brown v. East, 5 Mon., 408 ; Finch v. Earl of Wiñchelsea, 1 Pierre Williams, 282; Oxenhani v. Esdcdle, 3 Yer. Ju., 264; Ludlow v. Grayall, 11 Price, 58; Small v. Atwood, 1 Yonege, 507; Payne v. Atterbury Harring, Chy. Rp., 414; Lowell v. Mutual Ins. Co., 8 Cush., 132; Cuote. on Mort, 265.
   English, Ch. J.:

The bill in this case was filed by William Merritt and Nero Weatherspoon, in the Arkansas Circuit Court, against Garrett Cooper and O. J. Lewis.

The bill alleged in substance: That on the first of February, 1872, plaintiff purchased of defendants the west half southwest quarter of section 29, the southeast quarter of southeast quarter section 28, and north“half northeast fractional quarter of section 33, township 6 south, range 6 west, containing 172.75 acres, situate near Swan Lake, in Arkansas county, for the consideration of $2,000.

That defendants executed to plaintiffs a bond for title, in which they acknowledged that plaintiffs had paid them $1,000 of the purchase money, and given them a note for $1,000 payable on the first of December following.

That at the time and before the purchase, defendants pretended to show plaintiffs said lands, and represented to them that there were almost forty acres of the lands cleared; and went with plaintiffs and showed them where the lines run, winch, if they had been as represented, would have taken in at least forty acres of cleared land, and one double and one single cabin; and they also represented that the gin-house belonging to the Dun place was on the lands sold by them to plaintiffs.

That plaintiffs were colored men, could neither read nor write, knew nothing about the description of lands, and had to rely entirely upon the honesty and veracity of others for information in regard to such matters.

That they were assured by defendants that all, or nearly all, of said lands were above overflow.

Plaintiffs were requested by defendants not to say anything-about the purchase of the land for a time, as they said the white people in the neighborhood were opposed to negroes purchasing or owning land, and would likely cause some trouble about it.

Plaintiffs, believing at the time that defendants were honest and truthful in the matter, did not make any further inquiry in. regard to the lands.

Plaintiffs supposed the matter was all right until sometime' about the month of-, 187?, when the county surveyor surveyed the lands, and it turned out that the lands described as-above and sold plaintiffs by defendants were not the same as those shown them ; and that, instead of embracing the forty acres of cleared land, cabins and gin house, as represented, they did not embrace exceeding two acres of the cleared land, nor either of the cabins, or the gin house.

Plaintiffs also learned, after the purchase, that the lands were subject to overflow ; that there were not exceeding two acres of the lands that were not subject to overflow from the waters of the Arkansas river during high water.

That the lands shown plaintiffs by defendants, and which they supposed they were purchasing, were very valuable, the improved land being worth from $30 to $40 per acre, and their object in purchasing the lands was to get the improved land.

That the lands described were not valuable, not being worth over $3 or $4 per acre, and being subject to overflow, plaintiffs did not want them at any price.

That after the lands were surveyed, plaintiffs went to defendants and demanded a cancellation of the trade, and a return of the money they had paid them, and defendants talked like they would do so, and asked plaintiffs to give them the title bond, which they did, after which plaintiffs demanded the money they had paid defendants, and the note they had given them for the lands, and they refused to refund the money, or surrender the note, etc.

That though the bond for title recited that plaintiffs had paid defendants $1000, they, in fact, paid only $907. That they expected to pay the balance of the cash payment in a short time after the purchase, but discovering the imposition practiced upon them, they refused to do so, etc.

Prayer that the contract of sale be rescinded, the title bond cancelled, the defendants be required to surrender -the note, etc.,- and that plaintiffs have a decree against defendants for the $907 paid them on the lands, with interest, etc.; that the same be declared a lien upon the lands, and, if not paid by a day to be fixed, they be sold to satisfy the decree, etc.

In their answer, the defendants admit the sale of the lands described in the bill to plaintiffs, at the time and on the terms stated in the bill, and the execution of the title bond, but deny that plaintiffs paid them $907 on the lands, as alleged.

Admit that they showed the lands to plaintiffs at and before the time of the sale, but deny that they represented the lands to be above overflow, or that there was forty acres of the lands cleared' and in a state of cultivation, or that there were any cabins or gin hou'se on them.

On the contrary, they aver that before the sale, for the mutual benefit of the parties, they procured the county surveyor to survey the lines and establish the boundaries of the lands, and that plaintiffs were present when the survey was made, and that defendants told them at the time of the sale that the lands were subject to overflow.

Deny that they requested plaintiffs to keep silent about the sale, and aver that the sale was public and generally known in the community, defendants frequently speaking of it among their neighbors.

Admit that about the 14th of November, 1872, plaintiffs came to them and demanded a cancellation of the trade, which they then consented to, on the express agreement that they were to retain the amount of the advance payment made them by the plaintiffs, and, on this agreement, plaintiffs cancelled and delivered up to them the bond for title, which, with an endorsement, is made an exhibit.

Aver that plaintiffs expressed no dissatisfaction with their purchase until some months after the sale; and that the sale was not- completed, the title bond executed, the money paid and note taken until after the lands were surveyed and the lines established in the presence of plaintiffs.

Deny that they made false representations to plaintiffs as alleged, to induce them to purchase the lands. Aver that, at the same time the bond for title was cancelled, they gave plaintiffs a receipt or acquittal against their note, if it was not delivered up to them, and that the trade was cancelled by mutual consent of the parties.

The cause was heard upon bill, answer and depositions, and decree for plaintiffs in accordance with the prayer of their bill, and the defendants appealed.

First — The appellants did not testify in the case. The appellees testified that appellants represented to them that the lands were not subject to overflow, when and before they made the purchase. That the lands were subject to overflow from the Arkansas river, there can be no doubt, from all the evidence. They were outside of the levee and the marks of the overflow were apparent. The appellees were not strangers, but had resided for several years before they purchased the lands on a neighboring plantation, and with ordinary care and prudence, when the lands were shown them might have observed the indications of overflow. The rule as to such misrepresentations is laid down in Yeates et al., v. Pryor, 11 Ark., 58.

Second — The depositions conduce to prove that the lands were surveyed, and the lines established, after appellees purchased them, and not before as alleged in the answer. That by way of inducing appellees to make the purchase, appellants represented to them that they embraced thirty or forty acres of cleared land, some cabins, and perhaps a gin-house' shown them by appellants, and it turned out upon the lines being run that they did not take in exceeding an acre of the cleared land, nor the cabins, etc.

Such a misrepresentation of the quality of the lands entitled the appellees to a rescission of the contract of sale. ■

Goodwin et al., v’. Robinson, ante, and cases cited.

Third — The appellants deny in the first paragragh of their answer that appellees paid them $907 on the lands, but after-wards, in effect, admit the payment, and aver that by agreement of the parties the contract was rescinded, the title bond,canceled and delivered up to them, and that appellees were to lose, and they were to retain, the money paid them.

The endorsement upon the title bond, made an exhibit to the answer, is as follows:

“We, the undersigned, transfer and cancel the within bond; the same is annulled from this day. November 14th, 1872.” To which are the names and marks of the appellees.

The evidence conduces to prove that appellees paid the $907 on the lands when or before they took the bond for title ; that after the lands were surveyed, and they ascertained that the cleared land and cabins were not embraced, they were dissatisfied with the trade and went to appellants, and insisted upon a rescission of the contract of sale; that they were illiterate and confiding, and that appellants induced them to cancel and surrender the bond by promising to pay them back the money that they had paid them on the "lands, but afterwards failed to do so..

The allegations of the answer that appellants were released by agreement with appellees from all obligation to repay the money advanced upon the lands, were in avoidance and affirmative, and are not sustained by the depositions.

The weight of the evidenoe is to the contrary.

Fourth — Though doubted by Mr. Sugden, it seems now to be very well settled that upon a rescission of a contract for the sale of land, the vendee has an equitable lien upon the land for the money advanced upon it. 2 Story Eq., sec. 1217 and note;: Brown, et al., v. East, 5 Monroe, 407; Wickman v. Robinson, 15 Wisconsin, 494; Macreth v. Simmons, 1 Lead. Cases in Equ.,, (Hare and Wallace notes,) 357.

The decree of the court below must be affirmed.