author: Geegs, J.

text:
    Magness v. Walker.

      Evidence — Admissibility of wife— The exclusion of tlie wife, when offered as a witness for tlie husband, at common law, was upon the ground of her interest in the subject matter, and when offered as a witness against the husband, on the ground of public policy; but our Constitution has made great innovations, upon the common law rule, respecting the exclusion on account of interest; admitting all parties in interest to testify.
    When wipe competent. — Where the wife was agent for the husband in the making of the contract, she is competent to testify when called by the husband.

      Appeal from Independence Circuit Court.

    Hon. Elisha Bastee, Circuit Judge.

      Watkins lióse, for appellant.
    We submit: 1. That whore the wife is the agent of the husband, acting in his absence, then from the necessity of the case, the wife is competent. . lown v. Lamp shire, 87 Vt. 52. Littlefield v. Hice, 10 Mete. 887; Stanton v. Lap, 378; 1 Gr. ISv. sec. 834, n. 1; Owen v. McCaioley, 36 Barb. 55; and our Constitution removes all incompetency on account of the witness being either a party to the record or a party in interest. Art. 7, sec. 88.

    2. That wherever the husband is made competent, there the wife becomes competent also. 111. Gent. B. B. Co. v. Taylor, 84 111, 333; Mariam v. Hartford B.R. Co. 30 Conn. 363;Lockhart v Lee her, 36 Miss. 68.

    •3. That confidential communications are excluded, unless at least, both husband and wife consent to their admission. Bup v. Steamboat War Eagle, 14 Iowa, 376; Birdsell v. Lunn, 16 Wis. 235; Blake v. Graves, 18 Iowa, 312; Jordan v. Henderson, 19 id. 565. See also generally Walker’s Am. Lav.1, 84O; III. Cent. B. B. v. Taylor, 34 111. 323; Same v. Copland, ib. 335.

   Geegs, J.

The appellant brought suit for two hundred dollars, for rents; a trial was liad before a justice of the peace, and he recovered .$150. Walicer appealed to the circuit court, where a trial was had de novo, and he recovered judgment for $6, against Magness, upon his set off, which had been filed in the court below; from which judgment Magness appealed to this court.

During the progress of this trial, various exceptions were taken to the rulings of the court, all of which were properly preserved and are presented to this court.

The only question not heretofore sufficiently settled by this eourt, relates to the admissibility of the wife of the appellant, as a witness for him, and of her declarations or admissions made before the trial.

The appellant proved that he was absent in the State of Texas, in 1864, and until in. August 1865, and that, during his absence, his wife acted as his agent in renting the farm, etc., and that she rented certain lands to the appellee. He then offered to introduce his wife as.a witness, and to prove the contract made between her, as his agent, and the appellee, to which.the appellee objected and the court sustained his objection and refused to allow her to testify.

During the progress of the trial the appellee introduced his brother, John "Walker, by whom ho offered to prove the admissions or statements of the wife of Magness, made to him, after the making of the contract, and before the trial, and in the-absence of both of the parties; to the making of which proof, the appellant objected, but the eourt overruled his objections and allowed the witness to testify as to what Mrs. Magness told him were the terms of the agreement between her and the appellee, to which also exception was taken.

The rule of the common law, as to the admissibility of testimony, has been, by legislative enactment, in many of the States, modified or changed, and no greater, in allowing parties in interest to testify, has been made than that in our own State, where we have a constitutional provision, that, “in the courts of this State there shall be no exclusion of any witness in civil actions, because he is a party to, or interested in the issue to be tried.” This not only goes to the length of some of the State statutes of allowing parties to suits to testify, but also provides that no interest shall disqualify. In the case of Merryman v. Hartford & New Haven, R. R. Co., the Supreme Court of Connecticut say: “We are ©f opinion that a just construction of the 141st section of the act for the regulation of civil actions, the wife of the plaintiff was a competent witness in his behalf. It was the express object of that section, to remove tlie common law disqualification of persons, as witnesses, in all civil suits, by reason of their having an interest in the event of the same. In legal contemplation, the husband and wife are one person; their interests are therefore identical. This is the ground of their exclusion, by the common law, as witnesses for e*ach other.”- And after discussing the ground of the exclusion of the wife upon public policy, etc., they decláre the doctrine as above stated, that “interest is the true ground upon which such exclusion has heretofore been maintained.” 20 Conn. 363.

The present Chief Justice of Illinois, in delivering the opinion of the court in the case of The People, ex use, etc. v. Randolph et al., 24 Ill., 324, says: “Wo think the general rule is, that a wife can be a.witness in all cases in which the husband could be a witness.”

In New York, Ohio, and, perhaps, some of the other States, the provisions of their Codes are different from the rule in this State, and declare a disability to exist because of the marriage relation of the parties; in some of them, a provision that the husband, interested in the suit, may waive objections, etc ,and upon such statute, the courts, of course, rule differently from what would be the decision upon a law such as ours. See Ross v. Steamboat War Eagle, 14 Iowa, 374. But, even in most of the decisions, the common’law rule is announced that the wife is excluded from being a witness against her husband, because of the relation existing between them; and she is prohibited from testifying in his favor, because their interest is identical, and by that rule, under the strong and explicit language of our law, she would certainly bo competent to testify in his favor, wherein all disqualification, arising upon interest, is removed, and we are not wanting for authority holding that the testimony in many eases depends upon the election of the husband and wife, as to whether or not they will waive such privilege. See Birdsell v. Dunn, 16 Wis., 239; Littlefield v. Rice, 10 Metcalf, 287; Pellry v. Wellesley, 3; C. and P., 558, and cases in those referred, to.

There is another well established rale of practice prevailing, ■even at common law, that in various cases, parties in interest and otherwise disqualified, out of the necessity of the case, are allowed to testify;- for instance, as to the loss of a written instrument, the contents of a lost trunk, the hand writing of certain book entries, etc., and some extend this rule to cases of agencies, etc. 1 Greenl. on Ev., sec. 416; Martin v. Howell, 1 Stevn., 647; Ware v. Bennett, 18 Tenn., 749.

And the general rule, as laid down by Judge Beuce, does not seem to be seriously controverted anywhere, that in cases wherein the plaintiff himself is competent, he may also introduce his wife to establish like facts.

In the case of Birdsell v. Dunn, 16 Wis., 238, the Supreme Court of that State say: “A feme covert may act as the agent or attorney of her own husband, and, as such, with his consent, bind him with her contract, or other act;” and they refer to Story on Agency, 57. “When she acts as such agent, in any department or business, the husband is also bound by her declarations and admissions in relation to matters done under her direction, and they may be given in evidence against him. If the mere declarations of the wife, without oath, are admissible in such a case, it seems difficult to perceive upon what principle her testimony, upon oath, if properly tendered, to the same facts is to be excluded.” * ■ * * * *

“ The competency of agents to prove acts done within the scope of their agency, was well established at common law, notwithstanding many more had an interest in their acts, respecting which they were called to testify. This exception to the general rule had its foundation in public convenience and necessity.” 1 Greenleaf on Ev., sec. 416; Martin v. Howell, 1 Stev. 647; Denison v. Cooper, 3 Wis., 30; Matthews v. Hayden, 2 Esp., 509.”

After reciting several cases of exceptions- to general rules, for the admissibility of evidence, this court says: “It is apparent, from this brief examination of decisions, that-the rules of the common law, excluding witnesses, either on the ground of interest or public policy, are, by no means, inflexible. We are of opinion, especially since the enactment of the statute removing the disabilities of parties, that the case of a wife, acting as the agent of her husband, should constitute an exception, as to all business transacted by her within the scope of her employment; and, therefore, that the testimony of Mrs. Dunn, the wife of the defendant, should have been received to that extent.”

We think it quite clear, from an examination of the common law authorities, that the exclusion of the wife, when offered as a witness on the part of her husband, was based upon the ground of interest; that what was beneficial to the husband was likewise profitable to her; that they were identical. When the wife was offered as a witness against the husband, then the grounds of public policy and the peace and quiet of families were assumed as sufficient cause for her exclusion. Under this rule, when by legislative enactment all suitors and all parties in interest are rendered competent, it seems to us the wife is not incompetent, when called by the husband.

In the case before the court, the wife was the agent on the part of the husband, who was absent, in the State of Texas, when the contract of writing was made between his wife and the appellee; the husband could necessarily know nothing personally of the contract.

The court permitted the appellee to be'sworn and examined as a witness for himself, who gave, in detail, his version of the contract; and then the court excluded the agent and wife of the appellant from testifying, and thereby destroyed all mutuality of rights in the evidence of interested parties, a result certainly never contemplated by those who enacted the law; and wm hold, not sustained by the weight of authority, or the recent decisions of the courts.

The further ruling of the court below, in this case, exhibits the error into which it had fallen. That court allowed John Walker, the appellee's brother, to give in evidence casual conversations bad with the wife of the appellant, Iona; subsequent to the contract. Now, will it be insisted by any one, that all' the wife’s loose and careless remarks, made at various times, and in the absence of both of the parties, are competent to be introduced as evidence, when her solemn oath cannot be heard in the presence of the parties and the court? To assume such, would present strange reasoning for the discovery of truth. If such was the law, it would not only fail in justice and reason, but would border on absurdity.

Then, without attempting to decide all questions that may arise as to the competency of the wife as a witness against, as well as for, her husband, we hold, that in this case, where she acted as agent for her husband, and, in his absence, entered into a contract of writing with the appellee, she was competent, when called as a witness by her husband, to testify in reference to such contract, and the court below erred in excluding her; and for that error, the judgment of that court is reversed, this cause remanded that a new trial may ho had according to law and not inconsistent with this' opinion.


source: Caselaw Access Project

author: HARRISON, J.

license: Public Domain

text:
    Giles, adm’r. v. Wright.

      Evidence — Competency of administrate s, eta. — It was not the design of Art. YII, sec. 22, of the State Constitution, to exclude, absolutely, the testimony of the parties therein mentioned, respecting all matters in controversy between them ; but only in respect to those transactions that were strictly personal, and where,, in the nature of the case, the privilege of testifying could not be reciprocal and of mutual advantage.

      Appeal from Pulaski Circuit Court.

    Hob. John "Whytock, Circuit Judge.

      Garland $ Nash, for appellant.
    AVliile the court may require a party in interest, where the evidence is nearly or equally balaueed, or in some other instances, to testify, yet we submit that, in this case, Wright not having been required by the court to testify, it was error in the court to permit him to do so. See, Howland will case, reported in the July No. 1870, American Law Review, p. 656, et seq.

      Farr Fletcher, arid F. W. $ Lick. Gantt, for appellee.
    It is contended by counsel of appellant, that the circuit court erred in permitting Wright, who was plaintiff, to testifiy. The Constitution does not prohibit the party who sues an administrator from testifying as to transactions with the intestate, unless called by the opposite party or required by the court to testify. See Constitution of Arkansas, Article 7, sec. ££. If the court erred in permitting Wright to testify, yet, if there was other sufficient evidence, that error is not a sufficient cause for the reversal of the judgment. Walker v. Walker, 7 Ark., Rep., 54-3; Davies v. Gibson, £ Ark. Rep., 115; Payne v. Britton 10, Ark. Rep. 54; Sumpter v. Gains, 19 Ark. 96.

   HARRISON, J.

Weldon E. Wright, the appellee in this court, appealed to the Pulaski circuit court from a judgment of the probate court refusing to allow a demand exhibited by him against the estate of Albert W. Webb, deceased, where, upon trial anew, he recovered judgment; and the administrator, Josiah.M. Giles, appealed to this court. .

The defense, opposed, by the administrator, was, that -the claim had been settled in a former trial between the intestate and the claimant; and he proved that the intestate'broaght an action of debt against the claimant in the Pulaski circuit court, to which defendant appeared and filed a plea of set-off, and with it a bill of particulars, containing, besides others, the same items as those of his demand; that the plea was, after issue had been taken to it, withdrawn, and a settlement was had between the parties; a part of the set-off claimed was admitted against the debt and judgment entered, by consent, in favor of the plaintiff for the residue. The claimant was then, against the objection of the administrator, permitted to give evidence in relation to the settlement, and testified that only a part of the matters of his set-off were submitted in it, and that those for which he was then contending, had not been taken into consideration and were not adjudicated in the case.

The only question for our consideration is, as to the admission of the testimony of the claimant.

By á constitutional provision, Art., YI1, see. 22, there can be no exclusion of any witness, in this State, because lie is a party to the action, or is interested in the issue to be tried ; but it is provided, that, “in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testily against the other, as to any transactions with, or statements to, the testator, intestate or ward, unless called to testify thereto by the opposite party or required to testify thereto by the court.”

It is plain that it is not the design to exclude the testimony of such parties, as to all matters in controversy, in which the testator, intestate or ward, had been interested, or in any manner connected with, but only in relation to strictly personal transactions, or such as were directly and personally with him and where in the nature of the case, the privilege of testifying could not be reciprocal and of mutual advantage. As the testimony of the claimant did not relate to a transaction of this character, there was no error in its admission and the judgment of the court below must be affirmed.


author: McClure, O. J.

text:
    King & Ackmeyer v. City of Little Rock.

      Practice — Sills of exceptions — Where there is no hill of exceptions taken— no motion for a new trial, an agreed statement of facts constitutes no part of the record, unless made so by bill of exceptions.

      Appeal from PulasJd Circuit Court.

    Hon. John ‘Whytooic, Circuit Judge.

      Howard $ Reeve, and Garland $ Nash, for appellants.
    W. 2. Wanoick, for. appellee.
   McClure, O. J.

King and Ackmeyer were charged, before the police court of the city of Tuttle Rock, with violating one of its ordinances, and found guilty and fined ten dollars and costs, from which judgment they took an appeal to the circuit court, where the same fine was again imposed.

No bill of exceptions was taken; neither was there a motion for a new trial, and King and Ackmeyer appealed, and the record says, excepted to the judgment and rulings of the court below. An agreed statement of facts, constitutes no part of a record, unless made so by bill of exceptions or the order of the court. To hear this case under such circumstances, would be to assume original jurisdiction of the ease, and the subject matter, coming within the rule laid down in the ease of Ashley v. Stoddard, as this case clearly does, we can do nothing but affirm the judgment.


author: BeNNett, J. Gregg; J.,

text:
    State, ex rel. v. McDiarmid.

      Pbacticb — Buie to show causa— Rule to show cause against particular relief sought, is obtained, on motion, ex-parta, and the time for the party to answer is governed entirely by the circumstances surrounding the case, and is left within the sound discretion of the court granting the same.

      Motion for Writ of Quo Warranto.

      Montgomery, Attorney General, Wilshire £ Cabiente, and Warwick, for plaintiff.

      Yonley, E. W. Gantt and Benjamin Barnes, for defendant.

      Quo Warranto.

   BeNNett, J.

On the 81st day of May, 1871, the attorney general presented his relation, in this court, against George W. McDiarmid, and, in the name of the State, asks the consideration of the court, as to matters and things therein alleged, and that a writ of quo warranto be awarded against said McDiarmid.

On the 5th day of June, 1871, on the motion of the attorney general, a rule issued against the defendant, returnable upon the 12th day of June, 1871, to show cause why said information should not be filed, and a writ of quo warranto issue against him.

■ On the 12th day of June, defendant, without entering personal appearance, filed a plea in abatement, and says he is not bound to notice or answer this proceeding during the present term of this court, but is, by law, entitled to have time granted him until the first day of the next regular term of this court.

The only question presented by the plea is, whether a person, against whom a rule has been issued, is entitled to the same time,for answering, as in other proceedings; we think not.

A rule to show cause, against the particular relief sought, is obtained on motion, ex-parte; tbe time for the party to answer is governed by the circumstances surrounding the case, and is left within the sound discretion of the court granting the same. It is merely to give him an opportunity to show, if he can, such a state of facts, that, at least, he has, prima facia, violated no law, nor that the further process of the court should issue against him. His appearance to answer a rule does not necessarily determine any right, but gives the tribunal, which issues it, some facts upon which to say whether he shall be required to further answer its mandates.

Seeing no cause to sustain the plea the same is hereby overruled. The matters and things alleged in the relation, being deemed sufficient, the writ of quo warranto will issue.

Gregg; J.,

dissenting says:

I am still of the opinion that where there' is no demand for a superintending control over another court, that some inferior tribunal of the State ought to issue these original writs.


author: Bennett, J. Gregg, J.,

text:
    Fitch v. McDiarmid.
    Mandamus — In this country the writ of mandamus is not a writ of right — it is derived by grant from the government, through the Constitution or legislative enactments; the issuing or withholding it, is within the judi- . cial discretion of the court.
    When govebned by cohmoN law bules. — When the power has been granted in general terms to a court, it is governed by the common law rules as to when it is proper to be issued.
    Ojbttce oe the wbit. — The purpose of the writ is not to establish legal rights or to inquire into the titles to offices, but to enforce the performance of a duty.
    What a pasty must show. — A party, to be entitled to the writ, must show by his petition, that he has a clear legal right to the subject matter and that he has no other adequate remedy.
    The question of the original jurisdiction of this court in cases of 'mandamus and quo warranto is settled — it is res-adjudieata.

      Petition for Mandamus.

      Wilskire ft Ooblentz, Garland ft Nash, Warwick ft Montgomery, for petitioner.
    This court can issue, hear, and determine writs of mandamus in all eases in which its jurisdiction may be invoked for that purpose. See Price ft. Barton v. Page, treasurer, 25' Ark. 527. We submit that the matters stated in the petition are sufficient to maintain the cause, in law, and that mandamus is the only proper remedy in this case, and not quo warranto, as insisted by the defendant. There is no other specific legal remedy that is complete. Chap. 135, Gould’s Digest, does not afford a complete remedy or means of obtaining the ends sought by the proceedings. The doctrine is well supported by the authorities that, though there be another remedy, if it be not equally convenient and efficacious, the court will grant mandamus. See 2 Moore ft Scott {Eng.) Bep. 80; 11 Adolph, ft Ellis, 82; 3 Berry ft Davidson {Eng.) Bey. 123; 2 Queen’s Bench, {Eng.) Bep. 64; 13 Adolph ft Ellis, 530; 6 ib. 355; 3 H. ft M. Va, Bep. p. 1; Tap. on Mandamus, 19. The American authorities alike support the position. Sec 25 Ills. 825) also, 2 Pick. 897: 8 Mass. 287; 21 Pick. U8, 151.

      T. D. TP. Yonley, PJ. W. Gantt and Benjamin <f Barnes, for defendant.
    We submit that this court has no jurisdiction to issue the writ of mandamus in local or county matters, as is asked by the petition. State v. Ashley et al., 1 Ark., 809'; and cited and approved again in 1 Ark., 335, in State v. Ashley; Price $ Barton v. Page, 25 Ark., 588. Also, in the case of The State v. Johnson, this court again cited and approved of The State v. ' Ashley, as setting forth the true doctrine.
    The petition does not allege sufficient facts to entitle the plaintiff to the relief prayed for. Mandamus will not issue when the petitioner has another adequate remedy. See People v. Stephens, 5 Hill, 616; People v. Trustees of Brooklyn, 1 Wend., 818; PJ. Nelson, ex-parte, 1 Gowen, 4-17; Beading v. Commonwealth, 11 Penn., State B., (1 Jones) 196; Kentucky v. Dennison, 2j. How., U. S., 66; James v. Commissioners of Berks county, 13 Penn., Stale B., (1 Plarris) 72; Goings v. Mills, 1 Ark., 11; Webb v. Hanger, ib. 121; Trapnall, ex-parte, 6 Ark., 9; Williamson, ex-parte, 8 Ark., 424• Plaintiff had a specific and complete remedy under the Civil Code. See sees. 525, 509, 580. Mandamus is not the remedy to settle the title to an office. Quo warranto is the only remedy, and if the plaintiff has any remedy at all in this case, quo xoarranto is the proper one; the question involved being the title to office. Bonner v. State, 7 Geo., 4J8; State v~ Auditor, 86 Missouri, 70; People v. Corporation of New York, 8 Johns, cases, 79) 6 Iredell 155; 5 Stew, f Port., 40; 1 Ala. B., 688) 8 Johns, cases 79; and note to People v-Biehardson, 4 Cotoen, 100.

   Bennett, J.

The petitioner represents that, under and in pursuance of the provisions of an act of the General Assembly of the State of Arkansas, approved March 16, 1871, he was appointed circuit clerk of Pulaski county, and that he qualified on the 18th •day of March, 1871, and that, under and by virtue of said act, he is made recorder of said county of Pulaski.

The petitioner also represents that, prior to the passage of the act of the General Assembly, aforesaid, the defendant, George "W". McDiarmid, was county clerk of Pulaski county, and, prior to the passage of said act, as such county clerk, was ex-officio recorder of said county; but the petitioner submits that, from and after the passage and approval of the above mentioned act, and the appointment, commission and qualification of the petitioner, the said George 'W. McDiarmid ceased to be recorder of said county; and the petitioner says he is the legal and proper recorder, and, as such, entitled to all the hooks, papers, records, etc., of said office. The petitioner further represents that the books, etc., belonging to said office, were, at the time of his appointment, etc., and now are in the possession of defendant.

The petitioner also represents that, soon after his appointment as said circuit clerk, he applied for’and demanded of de-’ Pendant the books and all other property belonging to said office of recorder, and has, several times since, demanded of him the delivery of said property, but the defendant has, at all times, neglected and refused to give them up.

Under this state of facts, he prays for a writ of mandamus.

To this petition the defendant demurs, for the following causes:

First. That, while the defendant admits the jurisdiction of this court to issue writs of mandamus, in all matters pertaining to the State at large, he denies the jurisdiction of this court to issue writs of mandamus in local and county matters, as is asked for in this case.

Second. That the petitioner, if entitled to any relief, has mistaken his remedy; that he, haying admitted in his petition that the defendant is in possession of said records, by virtue of and under color of office, to wit: county clerk, bis remedy is quo warranto, and not mandamus.

Third. That the petitioner does not allege facts sufficient to entitle him to the relief prayed for.

Fourth. That so much of the act of the Legislature, approved March, 1871, as pretends to make the petitioner recorder of the county, by virtue of his office as circuit clerk, is contrary to the constitution of the State and the United States.

The first cause alleged for demurrer raises the question of the jurisdiction of this court to issue the writ in this case, the subject matter not relating to the State at large, but being local, etc.

Section 4, article 7, of the present constitution, says: “The Supreme Court shall have power to issue writs of error, super-sedeas, certiorari, habeas corpus, mandamus, quo warranto, and other remedial writs, and to hear and determine the same.”

In the case of Price & Barton v. Page, Treasurer, 25 Ark., 527, this court distinctly and unmistakably announced .its authority to issue writs of mandamus, and hear and determine the same, in all eases in which its jurisdiction might be invoked for that purpose.

In a later case, The State of Arkansas v. Johnson, this court has enunciated the same doctrine. The question of the original jurisdiction. of this court over writs of mandamus and quo warranto may bo considered as settled. It is res-adjudicata.

The defendant, for a further ground of demurrer, states that the plaintiff has mistaken his remedy. We confess that this • question is not to bo solved so easily.

A writ of mandamus, at common law, was a command, issuing in the king’s name, from the court of king’s bench, and directed to any person, corporation or inferior court of judicature, within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king’s bench has previously determined, or, at least,’ supposes to be consonant to right and justice. 2 Blackstone Com., 110.

In England it is denominated a prerogative writ, and is a writ of riglit, and lies where there is a right to execute an office, perform a service or exercise a franchise; and where a person is wrongfully kept out of possession and dispossessed of such right and has no other specific legal remedy.

But in America the authority to issue the writ of mandamus does not exist as a prerogative power of the courts, but is derived by grant, from the government, through the constitution or legislative enactments. And where the power has been granted in general terms to a court, it is to be governed by the common law rules, as to when it is proper to be issued. Kentucky v. Denison, 24, How. 66.

"With us it is not a writ of right. Courts have the power to issue, or withhold it, according to their discretion. But this discretion is not. an arbitrary one, it is a judicial discretion.

Wo have said that the issuance of this writ is to be governed by common law rules. Let us fora moment turn back to old time judges and see what they have said in relation to it.

Lord Mansfield, Ch. J., in Rex v. Barker, 3 Burr., 1265, says: “It was introduced to prevent disorder from a failure of justice and defeat of parties. Wherefore it ought to be used on all occasions, where the law has established no specific remedy, and where injustice aud good government there ought to be one.” If there be a right, and no other specific remedy, this should not bo denied. The same principles are declared by Lord Ellenborough in Rex. v. Archbishop of Canterberry, 8, East. 219. In the case of Rex. v. Williams 1 Burr. 402, the court says: “ It is a common remedy for restoring persons to corporate offices, of which they are unjustly deprived, the title to the office having been before determined by proceeding by quo warranto.”

In a review of all- the English cases at our command, in which this writ has been brought into requisition, the courts have seemed to consider that the office must be of such a character, that the person seeking the possession of the same has such a vested and permanent interest in it as that the court can render the operation of the writ of mandamus effective towards restitution, the title to which there can be no dispute.

As to the rule in America, Judge Eichardson, in the case of Williams v. the Judge of the Cooper Court of Common Pleas, 20 Mo., 225, says: “It is a general rule that a mandamus will not issue, unless the party seeking it has a clear right and no other specific legal remedy.”

In the case of The Board of Trustees of Franklin Township, County of Ripley, v. State, 11 Ind., 205, the court say: “ Mandamus is proper only where some legal right has been refused or violated.”

Judge Breese, in the case of the School Inspectors of Peoria v. The people ex rel., Grove, 20 Ill., 525, says: “ The petition must show a clear legal right to the remedy asked. This writ is of such a nature that courts will grant it only in an extraordinary ease where otherwise there would be a failure of justice.” In the case of The People v. Thompson, 25 Barbour, 76 Harris, J., says: “The invariable test by which the right of a party, applying for a mandamus, is determined, is to inquire, first, whether he has a clear legal right; and if he has, then, secondly, wdiether there is any other equitable remedy to which he can resort to enforce his right; if there is, he can not have a mandamus. The writ only belongs to such as have legal rights to enforce and find themselves without some other appropriate remedy.”

Hie positions assumed, as above quoted, are amply supported by abundant authority. See Bac. Abr. tit. Mand., 527; 3 Blacks. Com. 110; The People v. Sup. of Albany, 12 Johns. 414; Hull v. Sup. of Onedia, 19 ib., 260, Nelson, ex parte 1 Cowen, 423; Goings v. Mills, 1 Ark., 11; Taylor v. Governor ib. 21; Webb v. Hanger, 16 ib., 121; Trapnall ex parte, 6 Ark., 9; Williamson ex parte, 8 Ark. 424.

Upon the strength of the foregoing authorities, emanating, as they have, from such eminent jurists, we have no hesitation in announcing that, before a person can obtain the writ of mandamus, he must first present such a case, or sbow tbat be bas a clear, legal right to tbe subject matter of his petition. Second, tbat be bas no other adequate remedy. Tested by these rules, bow does the case at bar stand? The petitioner sets up tbat McDiarmid’ was elected county clerk of Pulaski county,, in 1868; tbat by virtue of being county clerk be has been recorder of the county, and claims to be recorder of tbe county now, by virtue of bis being county clerk. Tbe petitioner, Eitcb, says, that he bas been appointed circuit clerk, under an act of tbe General Assembly of Ai-kansas, approved March, 1871, and by virtue of bis being circuit clerk, be claims to be recorder of the county. Here the defendant is in possession of the office of recorder under color of office, to say the least, and the plaintiff claims tbe office. Tbe petitioner admits tbat tbe defendant is in possession of tbe records and books, by virtue of bis being county clerk,- which office, before the late enactment, gave him a clear legal right to such possession; be also says that, by virtue of being county clerk, be, the defendant, still claims to be recorder, and refuses to surrender tbe books, etc. Do not tbe facts, as stated by tbe plaintiff, plainly show tbat this application is made to settle tbe title to tbe office? Is mandamus the proper remedy for that purpose? In the case of The People v. Corporation of New York, 3 Johnson’s cases, page 79, the court say: “When tbe office is already filled by a person who bas been admitted and sworn, and is in by color of right, a mandamus is never issued to admit another person. Tbe proper remedy, in the first instance, is by an information in tbe nature of a quo warranto, by which the right of the parties may be tried.”

“A mandamus will not be issued to admit a person to an office while another is in, under color of right.”

“A conflict of title to the office being presented, cannot bo determined by mandamus; it must be by direct proceeding in the nature of a quo warranto.” State ex rel. Jackson v. State Auditor, 36 Mo. 70.

Chief Justice Rupein, in the case of Doughty, ex parte, held that if a person thinks himself elected to an office, instead of the one pronounced by the proper officers to have been duly "elected, his remedy, if he has one, is by a writ of quo warranto. See 6 Iredell, 155.

The case of the People v. Stevens, 5 Hill, 616, is exactly in point. When the petitioner claimed to be clerk of Brooklyn, and applied for a mandamus to have the books and papera turned over to him, the court refused the writ and held that it was only trying the title to the office, and that must be done by quo warranto, or an information in the nature of quo war-ranto. The court refused to try it on mandamus.

BRUNSON, J., says: “The right to the books and papers is altogether subordinate to the main question; neither party claiming possession, even on the ground that he is clerk. * * The relator should first establish his title to the office, by a direct proceeding for that purpose, and then his right to the books and papers would follow as a matter of course.”

Defendant, in the case at bar, as appears by petition, was, in 1868, elected to the office of county clerk, by virtue of which office he was recorder. He is in the possession, of the books and papers appertaining to the office, and is exercising the duties thereof under a prima facia title. lie is in office by color of right. Petitioner, it is true, claims he is the officer de facto; but his right has not been fully resolved into a “clear legal title.” If this inquiry had been made and a judgment of ouster obtained, vacating the defendant’s claim or title to the office, and the legality of petitioner’s appointment to the office been established by the final judgment of a court of competent jurisdiction, and he had a clear right to exercise the duties thereof and enjoy its emoluments, then, upon the refusal of defendant to permit him to receive into his custody and possession the books and papers pertaining to the office, he would, in our judgment, be entitled toa mandamus. The proper office of the writ is to enforce the performance of a duty, not to inquire into titles to office or establish legal rights.

Has the defendant no other specific legal remedy?

In our judgment, the petitioner has another specific and much more appropriate remedy to try the validity of his title to the office, which the defendant is exercising — which is by quo warranto. In The State v. Deliesseline, 1 McCord, 52. it was held that an information, in the nature of a quo warranto, may be filed against an officer who holds a commission under the State. In The State ex rel. Meade v. Dunn, 1 Minor, Ala. Rep. 46, the court held that a' mandamus would- not lie on behalf of one claiming an office, when another held the commission .and was in the exercise of the duties of the office — quo war-ranto was the proper remedy.

The writ of quo warranto is a correlative writ, and proposes an inquiry into the authority by which an individual exercises an office or franchise. These writs operate on the individual, and it is the only one under which a judgment of ouster can be rendered.

There may be other remedies under our statutes, which are within the reach of the petitioner, of which we do not pro- • pose to speak at this time; nor is it necessary for us to notice the fourth ground of demurrer, in as much as the petitioner has not placed himself within the above rules, viz: has not shown, upon the face of his petition, that “he has a clear right to the subject matter, and that ho has no other adequate remedy.’'

The demurrer is sustained and petition dismissed.

Gregg, J.,

dissenting, says:

I do not differ with the majority of the court in their conclusions of law, as above announced, but I dissent from them in assuming original jurisdiction in this case.


author: McClvbk, C. J.

text:
    Neal, et al. v. Singleton.
    Joint parties — When not served — Where several are jointly sued, somo of whom are not served, judgment against those served, will not he reversed on that account; and those defendants, not served, cannot prosecute tho appeal.

      Errors — Motion to correct — Premature trial is a clerical misprision under tho Code of Civil Practice, and neither it or any other error, that might ho corrected on motion, will be heard here, unless such motion was made in the court below and overruled.

      “Dependants.” — Hoio construed. — Where the judgment is against the defendants, the word “defendants,” will be construed and regarded to mean the defendants who appeared or were served.
    Excessive Damages— When not considered. — Where tho verdict is responsive to the issue and the judgment in accordance with the verdict, and no motion for a new trial made, exceptions to the evidence or ruling of the court taken, the question of excessive damages will not he considered.

      Appeal from Desha Circuit Court.

    Hon. John E. Bennett, Circuit; Judge.

      J. V. Palmer, for appellants?.
    Pitidalls, for appellee.
   McClvbk, C. J.

The appellants were the owners of the steamboat “Richmond,” and were jointly sued, by the appellee, as common carriers, for damages sustained by the refusal of the appellants to land him at the end of his journey, when a passenger on their boat. The declaration, in addition to the usual counts, also alleges special damages. Service was had on J. Stutt Neal and John S. Woolfolk. At tho October term, A. D. 1868, J. Stutt Neal appeared and filed a plea to tho jurisdiction of the court, which was overruled. J. Stutt Neal and Woolfolk then filed their plea in bar and the appellee entered his similiter, in short upon the record. At the same time an alias summons was ordered against Rube E. Heal, and the cause was continued. On the 9th of March, 1869, the sheriff returned the alias summons, endorsed as follows: “I served the within writ, on the within named Rube E. Heal, on the 9th of March, 1869, by delivering to his clerk, on the steamboat “Indiana” his place of abode, a true copy of the same, at the county of Desha, Arkansas.”

On the 4th of February, 1869, the appellants asked and obtained leave to take depositions; and again, on the 2d of April, leave was granted to appellants to take depositions. In the different pleas filed, and in the notice to take depositions, both before and after the service on Rube E. Heal, one Thompson signs himself as attorney for “J. Btutt Heal.”

The depositions of certain persons were taken, and leave was given to file and open the same. The appellee made a motion to suppress the depositions of the two Blackburns for the following reasons:

First. That there is no notice filed with said depositions.

Second. That the plaintiff' (appellee) had no notice of the taking of said depositions, as required by lav-

Ihird. Because said depositions are not properly certified.

Fourth. Because the notice to take said depositions was not legally served upon him.

What disposition was made of this motion, by the court, does not appear from the record. Upon the same day, upon which the motion to suppress the depositions was filed, the record shows, that “the parties, by their attorneys, appeared and declared themselves ready for trial.” A jury was impaneled, and they found for the appellee and assessed his damages at twenty-two hundred and fifty dollars. The appellee, on leave of the court, entered a remittitur, as to seven hundred and fifty dollars, and thereupon the court rendered judgment against the defendants for fifteen hundred dollars. Ho exceptions were taken in the court below, as to any of its proceedings, nor was there any motion for a new trial, and under this state of facts, the ease comes here by appeal.

The first point urged, by the appellants, is, that there is no service on Rube E. Neal, nor any entry of his appearance. The only service that could be made, under the Code, save that by publication, was by delivering or offering to deliver to the appellants a copy of the summons, or by the appellant acknowledging service by endorsement on the summons. (Code, secs. 66 and 68.) The return of the sheriff discloses the fact that Rube E. Neal was not summoned in any manner known to the law at that time. But does this fact invalidate the j udgment as to the other two defendants? or is it any ground for the reversal of the judgment? Section 886, of the Civil Code, declares that “a judgment or final order shall not be reversed {by the Supreme Court) for an error which can be corrected on motion in the inferior courts, until such motion has been made there and overruled.” The cause seems to have been prematurely tried; but section 569, of the Code says: “A misprision bf the clerk shall not be a ground for an appeal, until the «ame has been presented and acted upon in the circuit court;” and the Code, in defining what constitutes a “misprision of the clerk,” says: “Rendering judgment before the action stood for trial, shall be deemed a clerical misprision.” (Sec. 570.) If J. ■Stutt Neal and "Woolfolk had desired to vacate the judgment, because it was rendered before the action regularly stood for trial, they ought to have made the motion, within the first three days of the succeeding term, (Sec. 572,) in the circuit ■court; failing in this, they will not now be allowed to complain of their own negligence in that respect.

The next question arising is, can Rube E. Neal be heard as to any matter appearing in this record? We are of opinion that the right to relief by appeal, from a final judgment, exists only in favor of the parties whose substantial rights have been prejudiced by the judgment appealed from. (3 Met. 72.) We have already said that Rube E. Neal was not legally summoned before the court; it follows therefore, that there is no legal judgment, and there can be no legal judgment rendered against Mm by the court below. This being true, his “substantial rights” are not prejudiced by the judgment, and it follows, that he cannot prosecute this appeal.

Ilaving determined that the premature trial of this cause is a matter that neither J. Stutt Real, "Woolfolk, or Rube E.-Eeal can complain of now, we will sec if the premature trial of the "cause invalidates the judgment as to J. Stutt Neal and Woolfolk. In the case of Clark et al. v. Finnell et al. (16 B. Mon. 334,) a judgment was rendered, as in this case, against the “defendants.” It appeared in that case, as in this, that no service had been had as to one of the defendants, nor was there any appearance; and in construing the effect of such a judgment, the Supreme Court of Kentucky held, that “the word ‘defendants’ must be understood to apply to those defendants only, who either appeared or were served with process,” and it refused to reverse a judgment upon such grounds.

The appellants were sued, as the owners of a steamboat, for not landing a passenger at his proper landing. In the case of Kountz v. S. Brown et al., 16 B. Mass., 585, suit was brought against the owners of a steamboat for damage done to a wharf-boat. Service was had on but one of the owners, and a judgment was rendered against the “defendants,” and the court held that “the judgment must be regarded as a judgment against the party served,” although it was, in terms, against the “ defendants,” in the plural; and in.speaking of the right to appeal, the court said, “the judgment being in legal estimation, a judgment against Kountz only, if right against him, it must stand, and he is the only appellant.” In the case of Walker et al. v. Martin, 17, B. Mon., (188,) which was a case where" some of the defendants had been served and others had not, and judgment, rendered against the “defendants,” the-court said: “although the judgment is against the ‘defend-dants,’ without discrimination, it is to be understood as a judgment against those ‘defendants’ only, who were “served with process,” and the court continued by saying: “it is no available objection ,to the judgment, that no notice is taken of the defendants who were not served with process and no express disposition made of the case as to them.” When it is taken into’ consideration that the Supreme Court of Kentucky Avas construing the language of a Code, from which ours was copied literally, upon this point, we may regard these cases as settling that point.

The second question raised is, that the cause was tried without disposing of the issue, on the motion to suppress depositions. This court will not reverse the judgment of the circuit court, except for errors, to the prejudice of the party appealing, (sec. 879.) Whether the depositions were in reality suppressed, or whether their suppression would have prejudiced the appellants, this court has no means of determining, as no exceptions were made at the time of the trial, nor was there a motion for a new trial. If the party was prejudiced he must make it appear of record. Unless this he done, we shall presume in favor of the regularity of the proceedings of the circuit'court.

The third objection is, that the damages are unwarranted and excessive.

The verdict rendered is responsive to the issue and the judment is in accordance with the verdict. This question can not he reviewed in this court, upon the record presented. The record does not show that any declaration of the law, made by the court below, was excepted to, or that illegal evidence was admitted, or that any legal evidence was excluded ; in short, the record does not attempt to show any evidence that was submitted to the jury; the' appellants made no motion to set 'aside the verdict, nor did they ask a new trial, neither did they take a bill of exceptions. To make a long story short, there is nothing, in the record that would warrant a reversal.

Let the judgment be affirmed.

Bennett, J., being disqualified, did not sit in this case.

Hon. W. W. Wilshiee, Special Supreme Judge.


author: Bennett, J.

text:
    Merrick v. Britton
    New Trials — What must appear. — To entitle a party to a new trial, on the ground of surprise, it must clearly appear that he has used proper diligence in the preparation of the trial, and that he is wholly free from negligence, and that without the interposition of the court, injustice would he done.
    When addressed to'discretion oe courts. — Amotion for a new trial, on the ground that the witness swore contrary to expectation on the trial, is addressed to the discretion of the court, and will not be granted, unless the party show that he has used proper diligence by taking the precaution to converse with the witness beforehand.
    Waiver of. — Where a party, for any good cause, is unprepared to go to trial, and fails by motion to postpone or continue, to show the fact to the court, at the proper time, he waives his want of preparation, and all right to afterwards object.
    Newly discovered evidence — What affidavit must show. — To entitle a party to a new trial, on the ground of newly discovered evidence, the affidavit must show, first; the names of witnesses whose testimony has . been discovered, and the facts expected to be established by them. Sec- ( ond. Facts and circumstances sufficient to prove that the applicant has used due diligence in preparing his case for trial. Third. That the facts and circumstances, newly discovered, have came to his knowledge since the trial, and are such, as if adduced on the trial, would have been competent to prove the issue, and would probably have changed the issue. Fourth. That the evidence is not cumulative.
    Tbespass— What plaintiff must show. — In trespass the plaintiff must show that he has either the actual or constructive possession of the property sued for.
    Deceased Persons — Estates in custody of law. — Upon the death of a person his estate passes into the custody of the law, to be administered for the benefit of creditors.

      Appeal from Hempstead Circuit Court.

    Hon. John T. Bh AR»en, Circuit Judge.

      J. H. Eakin, for appellant.
    "We submit that the affidavit for a new trial contains all the essential requisites as laid down in the cases cited in Rose’s Digest, p. 563.

      Gallagher, Newton $• Hempstead, for appellee.
    We submit, that motions for a new trial, on the ground of newly discovered evidence, are addressed to the sound discretion of the court, and the motion, in this instance, was not sufficient. Ballard v. Noahs, 8 Ark., 4-5;,Olmsted v. Hill,® ib., 846; Robins v. Fowler, 8 ib., 138; Bourland v. Skimnee, 11 Ark., (6 Fng.) 671; Holeman v. State, 13 Ark., 105; Pleasant v. State, 13 Ark., 360; Binleyv. State, 15 Ark., 895\ Whiter. State, 17 Ark.,404; JDunnahoe v. Williams, 24 Ark., 266. The suppression of a portion of the depositions of Charles and Sheppard was no ground for a new trial. Haynes v. Tunstall, 5 Ark., 580. As to the question of surprise, see Nelson v. Walters, 18 Ark., 570; Cokes v. State, 20 Ark., 62.

    Under the provisions of our probate system, upon the death of a person, whether solvent or insolvent, the estate passes into the custody of the law, to be administered for the benefit of creditors. Slocomb v. Blackburn, 18 Ark., 818; Bach v. Cook, 21 Ark., 273-, Barasein v. Odum, 17 Ark., 129.

   Bennett, J.

The appellant instituted, in the Hempstead circuit court, his action of tresspass against the appellee, wherein he alleged that the appellee had taken, seized and carried away certain cotton in the seed, the property of the appéllant, of weight unknown, but sufficient to make eighteen bales of ginned cotton, of five hundred pounds each, and of the value of $2,500, and converted the same to his own use.

Appellee pleaded not guilty, a trial was had; verdict for the defendant; new trial was moved; motion overruled; appeal to this court.

The plaintiff proved that, in 1865, one Walker died leaving upon his plantation a lot of seed cotton, in the possession of his widow. Some time after the death of Walker, in August, 1865, plaintiff came to the plantation, having a paper which, he claimed, entitled him to the cotton. lie then rode around the place and marked certain pens of cotton as his own, to be taken possession of under the obligation, all of which was assented to by Mrs. "Walker, the widow of Walker. In September one Jackson L. Britt came and took the cotton away.

The plaintiff then proved, by E. W. Gantt, that, in January, 1866, he obtained from the plaintiff a written instrument, purporting to be a sale of cotton from James M. Walker to A. Block, or bearer; but he could not authenticate the same by identifying the handwriting of Walker. The plaintiff then endeavored to prove the same by witness Eakin, but this witness stated that he Was not acquainted with Walker’s handwriting, but he had in his possession an instrument purporting to have been executed by Walker.

The plaintiff proved by Britt, that he (Britt) was acting for defendant, and that he took the cotton by virtue of a writ of replevin; or, at least, was told that the sheriff had such a writ, and it was by his orders he hauled the cotton away. The witness also testified that he had bought and paid for the cotton of Mr. Walker, previous to his death. When he purchased the cotton it was to remain where it was until it should be ginned and baled, ready for delivery when called for. lie sampled the cotton in the log house at the time he made the purchase. Plaintiff also introduced a notice to the defendant, asserting his claim to the cotton. Plaintiff then offered to pi’ove that there had been no administration on Walker’s estate until some time in the fall of 1865. Also, that it was owing, in a great measure, to the general attention of the father of Mrs. "Walker that the personal property was saved. This, together with the testimony of Gantt and Eakin, was not allowed to go to the jury by the court. To this ruling, the plaintiff objected at the time. The defendant introduced no evidence.

The plaintiff asked of the court certain instructions, which were all given, .with the exception of a portion of the third and all of the fifth.

The third instruction asked for, is as follows: “To constitute such a sale of the cotton as would vest the title and right to specific possession in the defendant, the cotton must have been not only sold to him by the owner, hut actually or constructively delivered, or the cotton so separated and distinguished from the mass of other property as to leave nothing to be done to identify it.” That portion not given by the court, is as follows: “that the cotton so separated and distinguished from the mass of other property as to leave nothing to he done to identify it.”

The fifth instruction is as follows: “If the jury believe, from the evidence, that the cotton was sold to Britt by "Walker, in his life time, and the money paid, but that part of the same remained mixed, in the seed, with other cotton of the vendor, and was neither separated nor ginned, nor the amount to be taken out accurately ascertained, the contract of sale was not complete as to so much of the cotton as remained mixed with the other, and no right to possession accrued from the same to-said Britt.”

To the refusal of the court to give the above instruction, the plaintiff excepted. The defendant asked' the court to instruct the jury as follows:

“First. If the jury believe, from the evidence, that J. S. Britt, in the life time of James M. Walker, purchased from him a certain amount of cotton in the seed, to the amount of 18 bales of lint cotton, and the said James M. Walker told him to take the same out of the house, in the evidence mentioned and in case the same did not contain such quantity, then to take the deficit from any of the six adjoining pens mentioned, in the evidence, and that said J. S. Britt afterwards sold said cotton to said defendant, and as his agent, afterwards took the amount of cotton, to the extent of 32,400 pounds, from said designated pens, and that the same is the cotton in controversy, and that after the said sale to J. S. Britt, the said Mary Walker, as widow to James M. Walker, designated and set apart this cotton, as a part fulfillment of a previous sale of a large amount of cotton, without any designation or setting apart of the same by James M. Walker to Block, or the firm of Block & Go., and which was by him or them partly assigned to plaintiff, they must find for defendant — inasmuch as said Mary Walker had no right, by the fact of her continued residence upon the plantation of James M. Walker, after his decease, to designate and set apart any cotton belonging to his estate, as a conqale-ting or carrying out of any contract made by said James M. Walker in his life time.”
“Second. That if the jury believed, from the evidence, that James M. Walker did sell to Block, or Block & Go., a large quantity of cotton, and that afterwards, he or they assigned a portion thereof, in wri ting, to said plaintiff, and that, after the decease of said Walker, the said Mary Walker designated and set apart a certain amount of cotton, including the cotton in controversy, as an execution of said contract, they must find for the defendant, so far' as said written contract is concerned, there being no legal or sufficient proof of the terms of said contract, the written contract itself being the best evidence of its import and effect.”
Third. That if the jury believe, from the evidence, that J. S. Britt purchased from James M. Walker, in his life time, the amount of cotton in controversy, who designated the house and adjoining pens, in the evidence mentioned, as the place from which said cotton in controversy was to be taken, and the said cotton was taken therefrom, and, after said sale, said J. S. Britt sold said cotton to said defendant, and afterwards, as his agent, took the same, and prior to said taking, Mrs. Walker, after the death of James M. Walker, had previously set apart said cotton as a part performance of a sale of cotton made by-James M. Walker, to Block, or Block & Co. without designating or setting apart the same, they must find for the defendant; the said Mary Walker having no right or authority .to make such designation, or setting apart said cotton, for the purpose aforesaid.”

The above instructions were given against the objection of the plaintiff. The first reason assigned in the motion for a new trial was, that the plaintiff, upon the trial, was taken by surprise, in not being able to prove and authenticate a paper writing, said to have been a bill of sale of the cotton in question, by James M. "Walker, in his life-time, to one Block, or Block & Bros.

Second. Because the court, against the objection of the plaintiff’, excluded, from the jury, all- the testimony of witnesses Gantt and Eakin, which went to prove the existence of an instrument purporting to have been a sale of cotton and executed by Walker to Block & Co.

Third. Because the court, against the objection of plaintiff', excluded the testimony of witness Shepherd, which went to prove that no administrator was appointed, upon the estate of Walker, until the fall of 1865, and that if no one had taken personal supervision of the place, the personal property would have been lost or destroyed; and that Mrs. Walker could not have gotten the negroes to take due care of anything had she tried; and the ‘evidence, concerning the conversation held between the plaintiff and Mrs. Walker, regarding the contract and delivery of said cotton.

Fourth. Because the court, against the objection of the plaintiff, gave the first, second and third instructions asked for by the defendant.

Which motion was overruled.

As to the first reason assigned by the plaintiff’, why he should have a new trial, viz.: surprise, we have to say, that the preliminaries of atrial are arranged on purpose that the litigants, being apprised beforehand of the nature of the proceedings» may come fully prepared.

The party bringing the action, is of course, presumed, fore he commences, to be properly cognizant of the nature his claim, and every step necessary to establish it. He knows what ho will be required to prove in order to make out his • case, and ho ought, also, to know the name of every witness upon whom he relies, and what each can testify. He can, moreover, anticipate the probable defense and prepare to meet it. He chooses his own time to prosecute, elects his remedy, and decides, of his own free will and choice, upon what he deems the best course to be pursued. Being the aggressor, he is presumed to be ready for the emergency. We find in Graham and Waterman, on new trials, vol. 3, p. 876, the following words: “For either party to allege surprise as a ground for a new trial, is unlooked for, and not regarded with favor. The facilities for information and preparation are so extensive, there can ordinarily be no excuse and no reason to complain from such a source. In a majority of cases, it is a cover and apology for unpardonable heedlessness, rather than an application that merits relief. When, however, it is a clear case of surprise, and the party complaining is wholly free from negligence, so that, without the interposition of the court, injustice would he done, a new trial would be granted.” “Surprise,” says Chief Justice Ewing, in the case of Mathews v. Allen, 6 Halstead, p. 242, “although in some cases, justly the cause of granting a new trial, is always admitted with great caution. When it is occasioned by an act of the adverse party, or by-circumstances out of the knowledge, and beyond the control of the party injured by it, he has been some times relieved, but in no instance where he might have been fully informed by the exercise of ordinary diligence, or when it was induced by his own oversight, forgetfulness or neglect.”

The surprise complained of in the case at bar, is, that the plaintiff thought he could authenticate the paper writing, purporting to be a bill of sale, by a certain writing; but, when called to the stand, he could not identify the hand writing of the party executing the same; in fact, witness said he did not know the hand writing when he saw it. This witness- was never interrogated in relation to the matter, before he was brought upon the stand, by the plaintiff; but he seems to have relied entirely upon a presumption that he knew the facts, which it was desirable to adduce.

In this case there is not the least pretense, that the most careless man could have been surprised at. By the plaintiff’s own showing, he exercised no diligence whatever, but it was induced entirely by his own oversight, forgetfulness and neglect. In the case of Nelson v. Waters, 18 Ark. 570, Chief Justice English says: “Motions for a new trial on the ground of surprise, because the party’s witness, swore, upon the trial, contrary to his expectation, are addressed to the sound discretion of the court, and should not be granted, unless the party shows proper diligence on his part to prevent surprise, by taking the precaution to converse with the witness before trial.”

That a party came to a trial unprepared to make out his case or establish his defense, has not even the appearance of a valid excuse. It is true, that sometimes no amount of diligence or effort will suffice to arrange all the details and procure every thing needful for the trial. But injury need not for that reason be sustained. Courts are extremely indulgent and liberal in granting continuances, and they are seldom or never appealed to in vain in proper cases. It is therefore incumbent upon a party, if for any good cause he finds himself unprepared to go on, to state the circumstances to the court and move a postponement of his ease. If he fails to do so, he waives his want of preparation, and all right after to object.

In the case at bar, no motion for continuance was made, no examination of witness previous to his being put upon the stand — no inquiry made where the instrument, upon which the very substratum of the suit was founded, was, or in whose possession it might be found, or whether he could prove its existence or not, or if found, whether it could be authenticated.

But plaintiff claims that the cause was unexpectedly called, in advance of the time at which it ivas usual to take up trials of civil cases. If a party complaining has shown a want of diligence in attending and watching his cause, so that his default is referable to his own inattention rather than to genuine surprise, his application will be denied. To entitle the party to relief, there must be merits; and the surprise, on this ground, must be such as care and prudence could not provide against. See Thompson et al. v. Williams, 7 Smedes & Marshall, 275.

Plaintiff introduced the affidavit of Thomas H. Simms, who says he is acquainted with the hand writing of ~Walter, deceased, and by whom, it is alleged, ho can substantiate the bill of sale from Walker to Brock. “In order to entitle a party to a new trial on the ground of newly discovered evidence, the affidavit in the case must show, First. The names of witnesses whose testimony has been discovered; and the facts expected to be established by them. Second. Pacts and circumstances sufficient to prove that the applicant has used due diligence in preparing his case for trial. Ihird. That the facts and circumstances, newly discovered, have come to his knowledge since the trial, and are such, as if adduced on the trial, wo^ld have been competent to prove the issue, and would probably have changed the issue. Fourth-. That the evidence is not cumulative.” See Burns v. Wise, 2 Ark. 33; Robins v. Fowler, 2 Ark. 133; Olmstead v. Hill, 2 Ark. 346; Bourland v Skinner, 11 Ark. 671.

The affidavit wholly fails to show any clear facts or circumstances, showing the plaintiff had used any due diligence on his part — but on the contrary, it is hard to conceive of a case, wherein greater negligence or carelessness has been displayed' by a party asking the intervention of a court for relief.

The action of the court in excluding the testimony of Gantt and Eakin, we think was right and proper. They were introduced to prove and authenticate a bill of sale from Walker to Block, for the cotton in controversy; they knew nothing of the matter, nor did they know the hand writing of Walker. Under such circumstances, what they did testify to could have had no weight with the jury. The same may be said in relation to the exclusion of certain portions of the testimony of Shepherd, in relation to there being no administrator of Wal ker’s estate, the personal supervision of the place, what Mrs. Walker could not do with, the negroes; and conversations had between plaintiff and Mrs. Walker, in relation to the cotton.

To maintain an action of trespass, the plaintiff must show that he has actual or constructive possession of the property-sued for. The defendant is not put to his justification until such fact is established. There is ample time for him to contest it. See 1 Chitty on Pleading, 169; Parson v. Dickinson, 11 Pick, 382; Putnam v. Wyley, 8 Johns. R. 432; Hyatt v. Wood, 4 Johns. 151; Gauche v. Mayer, 27 Ill. 135; Rout v. Chandler, 10 Wend. 110; Hume v. Tuft, 6 Blackf. 136.

There is no proof that the plaintiff ever had possession of tlie cotton, either actual or constructive. He does not claim that Walker ever delivered him the cotton before his death, or that it ever was in his possession at that time; and Mrs. Walker, merely designating certain cotton in certain pens, on the plantation of her deceased husband, as the property of the plaintiff, did not give him the property, either general or qualified; hut it continued to remain as the property of the estate, and in possession of the law, or of whomsoever should he appointed by the probate court. Under the provisions of our probate system, upon the death of a person, whether he be solvent or insolvent, his estate passes into the custody of the law, to be administered for the benefit of creditors and heirs, Barasien v. Odum, 17 Ark., 122; Rust, Ex’r v. Worthington, 17 Ark., 129; Slocomb v. Blackburn, 18 Ark., 318; Bach v. Coon, 21 Ark., 272.

Whether the cotton was taken by the defendant or plaintiff, the same was in possession of the law; and whether either of them took it, if taken wrongfully, he or they could only be proceeded against by the proper person appointed by the probate court.

We see np error in giving the instructions asked for by defendant, in their general application, and, finding no error, the judgment will be affirmed.


author: McClure, C. J.

text:
    Wakefield v. Johnson, Adm’r.

    Vendou’s lien — What assignee must allege. — The assignee of a note, which is a lien upon land, must allege in his bill, to inforce the lien, the agreement between the vendor and vendee, and unless he does, he will not bo heard in a court of equity.
    On title bond to convey, on the payment of the residue of the purchase money, an assignment of the note carries with it the lien; and the as-signee, to avail himself of the vendor’s lien, must allege in his bill the considerations of the title bond; as, also, whether any other notes, which are liens, remain unpaid; so the holders thereof should be made parties before tendering a deed.
    Tender of purchase money. — Where vendor wants the purchase money, the deed should be tendered before filing a bill; and where vendee wants a deed, the purchase money should be tendered before filing a bill.
    Purchase money — Failure to pay, not a forfeiture. — The mere fact that money is due, and upaid, does not create a forfeiture, nor is snch neglect regarded, in equity, as a default.

    Deed and tender of PAYMENT. — The payment of the purchase money, and the execution of the deed, are acts that are to be simultaneously done, and not in the order tliey happen to be stated in the title bond.

      Appeal from Arkansas Circuit Court

    Hon. IIenr,y B. MoRse, Circuit Judge.

      •Garland $■ Nash, for appellant.

      Watkins § Hose, for appellee.
   McClure, C. J.

It seems, from the record, that one Hewitt purchased certain lands of one Thomisson, in Arkansas county. For a portion of the purchase money, it seems that Hewitt executed Ms note to Thomisson. One of these notes passed into the hands of John A. Wakefield, the appellant, who filed Ms bill, in the Arkansas circuit court, to inforce a véndor’s lien. The bill alleges the death of Hewitt; the appointment of Johnson, the appellee, as administrator, and that he, Wakefield, is the legal owner of the note; that no portion of the five hundred Hollars has been paid; that Hewitt and his legal representatives are, and have been, in possession of the lands ever since the purchase; that Thomisson is, and has, at all times, been ready to make deed to said lands, to said Hewitt, his heirs, etc., upon payment of said sum of five hundred dollars, with the interest due thereon; that Thomisson never tendered, to said heirs and legal representatives of said Hewitt, a good and sufficient deed, with general warranty, etc.

The inference to be drawn from the allegations, is, that the title to the property is yet in Thomisson, and yet, but for the allegation, that Thomisson is lawfully seized of the lands, that he has good right to convey the same, and that said land is free from all incumbrances, there is nothing in the bill to show that the title is in Thomisson; nor does the bill allege the execution of a title bond, or any agreement to convey at any time, nor do the terms of the sale appear from the bill.

The bill was filed on the 20th of March, 1869, but no deed was filed with the bill. On the 29th of April following, a demurrer was filed to the bill, on the ground that no deed had been tendered before the suit was brought. On the 3d of May, following, a deed was filed. The court sustained the demurrer, and dismissed the bill, and Wakefield appealed to this court.

If the agreement between Thomisson and Hewitt was, that the title should remain in Thomisson until the payment of the notes, this agreement should have been alleged by Wakefield. While it is true, as a general rule, that it is incumbent on the vendee io show a waiver of the lien, we understand that the assignee of a note, which is a lien upon land, must aver the agreement between the vendor and vendee, and failing in this, the doors to a court of equity would be closed on him. Where a sale of land is made, and a title bond is given to convey on the payment of residue of the purchase money, and the vendor of the property assigns one of the notes, it carries with it the lien; but, if the assignee desires to take advantage of the vendor’s lien thus assigned, he must allege the considerations of the bond; and if this be so, where there is a bond, we do not Bee why the relation between tbe vendor, vendee and assignee should not be set forth with the same certainty, in cases where there was a simple agreement to convey.

The bill nowhere alleges.the original amount for which the property sold, hut does allege that “a large portion of the purchase money for said tract of land was to be paid at a future day, after the sale.” Whether the other notes have been paid off, does not appear from the bill; and, we think, this fact should appear, for if there were other notes due and unpaid, the holders thereof should have been made parties before tendering a deed. Whether the deed should have been tendered before the filing of a bill, is a question that the courts of this country are not unanimous upon. After a review of the holding of the courts that most nearly assimilate to that of our own, upon the assignment of the vendor’s lien, we are of the opinion that the deed ought to have been tendered before the filing of the bill. The case of Klyse v. Brayles (37 Miss., 524), is very similar to'the case at bar. The allegation in the bill, in that case, is very similar to the allegation now in the bill before us. It was, “that the complainant was ready and willing, and has been at all times, and now is, to make title upon the payment of the purchase money.” In that case, the defendant demurred to the bill, on the ground “that the complainant had not made or tendered to defendant a deed to the land, and demanded the purchase money so as to put the defendant in default, before filing said bill.” This demurrer was sustained in the court below, and the cause went to the Supreme Court of Mississippi, and that court said: “The question is, are the vendees in default in making payment? The answer is, they are not until a tender of performance by another party.”

We think the plain common sense view of this question is} where the vendee desires a deed, that, before he files his bill, he should make a tender of the money due, and that in case where the vendor wants the purchase money due, he should make out and tender a deed and demand the money. Time, in a title bond, is not, in a court of equity, regarded as the ■essence of tlie contract. The mere fact that the money is due, and has not been paid, does not create a forfeiture, nor is such neglect regarded by a court of equity as a default. Ordinarily, a title bond recites that the deed is to be made upon the payment of the purchase money due. This language does not constitute a condition precedent. The payment of the purchase money and the execution of the deed are acts that are to be done simultaneously, and not in the order they happen to be stated. A tender of the deed, before suit, puts the vendee in default; a tender of payment, before suit, by the vendee, puts the vendor in default. To open the doors of a court of equity to litigants to come in and say, “I will make a deed if A. B. will pay the purchase money,” or to allow a vendee to come into a court of equity and say, “I have the money and want my deed,” before either of them has offered to perform, would be to say that the province of a court of equity, in such cases, is to play the part of a commissioner of deeds.

If a party comes into a court of equity and says his purchase money is due, and that he has tendered a deed to the opposite party, or if a vendee comes in and says he has made a tender of the purchase money and demanded a deed, here is something tangible; but until some such thing tías been done, the time of the court is unnecessarily consumed. The court did not err in sustaining the demurrer; but the bill ought to have been dismissed without prejudice, and with this modification, the decree is affirmed.


author: McCluRe, C. J.

text:
    Willis, et al. v. Johnson, admr. et al.

      Appeal from ■ Arkansas Circuit Court.

   McCluRe, C. J.

The doctrine laid down in the case of Wakefield v. Johnson, settles the law of this case.

The decree is affirmed.


author: McOluRE, C. J.

text:
    Hays, et al. Ex-parte.

      Mandamus — Statute superseded by Code. — Chapter 88, Gould’s Digest is no longer in force, being superseded by chapter IY, of the Civil Code.
    When and pob what will lie. — Mandamus never lies to control judicial discretion, it only lies to compel the performance of a public duty, and only then when there is no other legal remedy.
    Pubpose op writ op — The writ cannot be used to establish a right, but may be used to enforce a right after it is once established.

      Petition for Jfandamus.

      Garland Arash, for petitioners.
   McOluRE, C. J.

This is an application, to this court, for a mandamus against the Hon. Heney B. Mokse, judge of the circuit court of Chicot county, to compel him to grant an injunction restraining the collector and treasurer of Chicot county from receiving certain scrip.

Hays and others prepared what may he called a complaint in equity, with a prayer for a perpetual injunction, as to certain parties therein named,- and 'presented the same to Judge MORSE, at chambers, and asked for a restraining order or temporary injunction, against the parties named, until the cause-could he heard on its merits. Judge Mouse refused to grant the temporary restraining order, and an application is now made, to this court, for a mandamus to compel him to grant it. The question now arises, “Will this court award a mandamus under such circumstances?” Wo emphatically say, no! Before the adoption of the Code, under the provisions of section six, of chapter 88, of G-ould’s Digest, a mandamus was authorized to he issued against a circuit judge or a circuit court, that refused to grant an injunction, by any judge of this court, or by the court itself ; but chapter 88 of Gould’s Digest, is no longer in force, it being superseded by chapter IY, of the Civil Code. Mandamus never lies to control judicial discretion; it only lies-to compel the performance of a public duty, and only then, when there is no other legal remedy. Mandamus cannot be used to establish a right; but may be used to enforce a right after it is once established. It will lie to compel a judge or other person to perform a duty enjoined by lav/; but will not be used to control the discretion of a judge or other officer vested with discretion. To illustrate, it will lie to make a judge hold a court at the time prescribed by law, but will not direct what the judge shall do, when his court is once opened. The reason for this is, that when the court is once opened and it proceeds ■ to act, that its action can be corrected by a writ of error, or appeal; and it is a general rule, that mandamus will not lie where the matter complained of can be corrected by a writ of error or by appeal.

Under chapter 88, of Gould’s Digest, “the circuit court, in term time, or any judge thereof, in vacation,” was the only power in the State that could grant an injunction, but it is not so now. A probate judge, a circuit judge, or a Judge of the Supreme Court, are authorized to grant an injunction, when it appears from the complaint that the plaintiff is entitled to the relief demanded. In the case now before* us, it appears that the circuit court judge is of opinion that the complainant is not entitled to the relief demanded, upon the showing made by the complainant. This refusal does not leave the party remediless under the Code, as it did under chapter 88, of Gould’s Digest, because, after the probate judge of the county, and the judge of the circuit, has refused, there are five Supreme Judges, any one of whom have the power to grant an injunction until the causéis heard on its merits. These things being true, it will at once become apparent to the most casual ■observer, that the party now asking for a mandamus is not without a remedy. This point being conceded, this cause comes within that general rule which declares that mandamus will not lie where there is another remedy. It may be asked what the applicant for an injunction can do, if the probate judge, circuit judge, and the Supreme Judges all refuse to grant the temporary restraining order. The reply is, that the provision of the Code furnishes ample remedy in such a case, as was furnished by chapter 88, of Gould’s Digest, for if no one of the Supreme Judges would grant the temporary restraining order, it is not at all likely they would award a mandamus to a circuit judge, to compel him to do it.

Mandamus is denied.


author: McGluRE, C. J.

text:
    Marshall, adm’r. v. Sloan, et al.

      Creditors — How payments,applied. — Wlioro a parly owes a person two different sums of indebtedness, and money is paid by tlie debtor, without instructions as to which debt the payment is to be applied in extinguishment of, the creditor may apply it to either.

      Instruction — When improperly given. — An instruction, though unobjectionable in itself, is improperly given where there is no evidence to warrant it.

      Surety — A personal defense not available to principal. — The defense that a person signs a note as surety, is a personal defense and one that the principal of a note can not set up.

      Appeal from Randolph Circuit Court.

    . Hour. Elisha Raxteii, Circuit Judge.

      Watkins $ Rose, for appellant.
    The court erred in permitting the witnesses to prove that a part of the defendants were sureties. Parol evidence was not admissible to vary the written contract. Irowbridge v. Sanger, 4 Ark., 179; Bertrand v. Byrd, 5 ib., 651; Field v. Watkins, ib., 672; Miller v. Hemphill, 9 ib., 4-89; Black v. Bowman, ib., 501; Scott v. Henry, 13 ib., 125; Jordan v. Ferril, ib., 593; Hensely v. Brodie, 16 ib., 519; Borden v. Feay, 20 ib., 293; Richardson v. Comestock,21ib., 69.

    The second instruction given by the court was abstract, and should have been refused. State Bank v. Williams, 6 Ark., 161; State Bank v. Hubbard 8, ib., 186; Johnson v. Ashly, 7 ib., 470; Stanton v, State, 13 ib., 318; Collier v. State, ib., 676; Owen v. Chandler, 16 ib., 651; Morton v. Scull, 23 ib., 289.

    As the defendant, at the time of the payment, made no appropriation of it, the plaintiff had the right to apply to any debt due him: 2 Barsons Cont., 141. Could the plaintiff have applied the payments to the debts due him as administrator? Fairchild v. Holly, 10 Cowen., 175; Johnson v. Boone. 2 Harring, 172; Sneed v. Wiester 2 A, K, Marsh, 277.

      Garland Nash, for appellees.
    "We submit: First. A principal could not make a new contract so as to bind Ms security, without Ms, security’s, consent.

      Second. In paying debts to a creditor by a debtor, the creditor was bound to apply the payments on those debts where there were securities.

      Third. And in making a new arrangement or contract, if part payment was made under that contract, the statute of frauds did not apply. We think these propositions well sustained by the law. See 1st: 2 Vesey, 54-0; 6 Arle., 317-, 15 Gray (Mass.) 173; 7 Hill, (N. Y.) 116; 2nd: Barge on Suretyship, 123, et seq.; 3d: Nose’s Nig. p. 365, (Title Fraud, Statute of,) sec. S', 1 Parsons Cont. 6, et seq.', ib.,46, et seq.-, S3, ib., 10-12.

   McGluRE, C. J.

On the 8th of February, 1866, II. C. Sloan, William 33. Janes, A. Oakes, G-eorge Wells and Joseph J. Wyatt, executed and delivered to C. J. Marshall, as administrator of the estate of William 13. Marshall, deceased, their joint note for “nine hundred and eighty-nine dollars, in Louisiana bank money, and if not paid within thirty days, the amount was to be eight hundred and thirty-two dollars and seventy-five cents “in Confederate currency,” at the rate of ten per cent, per annum “until paid.” '

Marshall, as administrator, brought suit against Henry C. Sloan, William 33. Janes, Alfred Oakes, and Joseph J. Wyatt, but does not say anything about George Wells. Whether service was had on any of the defendants, does not appear from the record. At the October term, 1869, Henry C. Sloaip one of the defendants, filed an answer, in which he says: “that he and Janes (another defendant) executed the note sued on, as principals, with Oakes, Wyatt, and Wells as sureties. That one Ereeman, on behalf of Sloan, satisfied and contented said Marshall of said debt, by delivering to him a large amount of goods,’wares and merchandise, and a large amount of bills. bonds and book accounts, which the plaintiff then and there accepted, in full accord and satisfaction of said debt; that in March of 1867, Janes, one of the defendants, paid to the order of Marshall, eight hundred dollars, which the said Janes applied to the payment of said debt, as far as the same would extend, which amount should be credited on said note of that date. To this auswer, Marshall filed a demurrer, setting up:

First. That the answer of Henry 0. Sloan does not aver accord and satisfaction to plaintiff as administrator.

Second. The answer sets up payments to plaintiff, in his in- ■ dividual capacity, and not as administrator.

Third. The answer is double, in this, that it sets up two separate causes of defense in bar.

Oakes, one of the defendants, entered his appearance and leave was given to amend. 'Whether an amended answer was ever filed, is a fact of which the record, in this case, leaves us in blissful ignorance. The next thing happening in chronological order, as appears by the record, is, that “the parties announced themselves ready for trial.” A jury was impaneled and it found for the defendants, and the court rendered’a judgment accordingly. The appellant made a motion for a new trial upon the following grounds:

First. The court erred in instructing the jury.

Second. The court erred iu refusing to instruct the jury, on the motion of the plaintiff, ou the effect of the statute of frauds upon collateral promises to answer for the debt or default of another.

Third. The court permitted improper evidence to go to the jury.

Fourth. The verdict of the jury is contrary to the evidence and the instructions of the court.

Fifth. The court erred in permitting the defendants to show to whom the consideration of the bond, sued on, went, and for' what purpose the defendants used the money, by parol testimony.

The motion for a new trial was overruled, and the plaintiff ■excepted and appealed to tills court. The trouble about this •case is, in the absence of the amended answer, to know what , defense was attempted to be set up in the answer, on which, it is presumed, the parties went to trial. The different co-partnerships, founded between Janes and his confederates and the plaintiff, seem to have not only confused the record, but confused the parties, as to their liability. From what can he .gathered from this transcript, it appears that Sloan and Janes were in partnership, selling dry goods, groceries, ote., and desiring more capital, they, together with Oakes, Wells and Wyatt, gave to Marshall the note sued on in this case, which is a Joint note. Sloan sold his interest in the business to one Frce-■man, who verbally assumed the payment of one-half of: the -outstanding indebtedness of the firm of Sloan & Janes, a part •of which consisted of the note now sued on. Shortly afterward Marshall, the appellant, and Wyatt, one of the appellees; -purchased the interest of Freeman, and they agreed to pay one-half of the firm debts owing by the firm of Freeman & Janes, a portion of which was the note now in suit, and the firm was known as Janes & Co. Continuing in partnership some time, Marshall, the appellant, sold his one-fourth interest to Janes & Wyatt, his former partners, for three hundred and fifty dollars, .■and the firm was thereafter known by the name of Janes & Wyatt, and it agreed to assume the payment of the outstanding indebtedness of the firm of Janes & Co., a part of which consisted of the note now in controversy. It seems, after this last ^ale was consummated, that the partnership affairs were not thoroughly understood, and a friend of all the parties was •chosen to make settlement for them, which was agreed to, and formed the basis of the co-partnership between Janes & Wyatt-King, the man who made thé settlement, says that Marshall was charged with $59-=^-, and with the further sum of $800, on the firm books of Janes & Co. in making the settlement, and that, when the firm books were balanced, there was a balance due Marshall of between one and five hundred dollars. Marshall swears that the exact amount due him in the settle-merit was $425. King ‘further states that the note, in controversy, was not taken into consideration by him in. the settle- ' ment lie made for the firm of Janes & Go.

The first instruction given by the court was, “that the-burthen of proof is on the defendants to show that the debt is. satisfied, and the jury will find according to the preponderance-oí the testimony in the case.” There is no evidence in the bill of exceptions showing any satisfaction of the debt. The testimony of the defendants is, that sometime after Marshall had. drawn the $800 from the firm, that they wanted him to apply the amount on the note held by him, as administrator, and that Marshall told them ho would not do it, and that the amount had been apppliod on account, and when King made the settlement for them, they assented, by silence and acquiescence, to the credit being applied on the partnership transaction. It is a well settled principle of the law, that if one party owes another two different sums of indebtedness, and money is paid by the debtor without instruction as to which debt the payment shall bo applied to the extinguishment of, the creditor may apply it, as to him seems best, and this is just what Marshall did, and to which these defendants assented when they allowed Marshall to be charged in the settlement of the partnership accounts with the money they now contend should have been applied to the payment of the note sued on. The second instruction would, perhaps, be unobjectionable, if there was any proof upon which it could be based, but there is no evidence in the bill of exceptions that would warrant the giving of any such instruction. The third instruction, like the second, although good enough in the abstract, has no application to the facts proven, and coming from the court upon a pre-supposed state of facts, no doubt had a tendency to lead the jury into the belief that the court regarded the state of affairs to bo proven, that the instructions refer to. The fourth instruction is: “If the jury find that the firm of "Wyattt & Co., paid money'to the plaintiff, on his order, it will be presumed the payment was made on a precedent debt, unless the contrary be shown, and such a payment cannot be applied to an indebtedness subsequently accruing, when the rights of other parties would be prejudiced thereby.” RTo such instruction as this ought ever to have been given. First, because it was shown, by the admission of the defendants, that the amount drawn from the firm of Janes, Wyatt & Co., was, by the. consent of the defendant, charged to the appellant in. the settlement of the partnership account. Second, because in the absence of instruction, at the time of the payment of the money, the creditor had the right to elect where he would credit it, and, third, because the appellant could make no application of the money that “would prejudice the rights of other parties,” if he had desired to. We have said that the note sued on was a joint note. The object of the fourth instruction was, to give the jury to understand that Oakes, Wells and Wyatt bad a right, as sureties, to have the money of the co-partnership of Janes, Wyatt & Go., applied to the payment of a debt which they might become responsible for. In. the first place the record does not sho w that either Oakes, Wells or Wyatt sought any advantage, or made any defense oh the ground of being sureties. In fact neither of them answered. The defense that a person signs a note as surety, is a, personal defense, and one that the principal in a note cannot set up. ' If Sloan, who is the only one of the defendants who answers at all, tendered any issue of this sort, it was an immaterial issue, for he admits that he signed as principal. For these reasons, we say, that the giving of the fourth instruction was clearly erroneous. There is no objection to the giving of the fifth and last instruction.

The judgment is reversed, and the cause remanded to be proceeded in according to law and not inconsistent with this opinion.


author: McClüRé, O. J.

text:
    Henry & Co. v. Gibson & Helmer.
    Bills oe Exception. — Where the bill of exceptions fails to show that appellant objected to the ruling of the court in refusing to give instructions asked by him, and fails to set out the instructions asked for by appellee, but sets out the declarations of law made by the court, without showing at whose instance they were made, the judgment will be affirmed. >

      Appeal from Pulastí Gircuit Court.

    Hox. John Whytooic, Circuit Judge.
    Gallagher, Newton $ Hempstead, for appellant.

      JB. S. Johnson, for appellees.
   McClüRé, O. J.

It appears from the record that- one W. A. Powell became the guest, or lodger, of Henry & Co., who were keepers of a hotel, at the city of Little Rock. During Powell’s stay in the city, his hill run up to sixty-five dollars, and he gave Henry & Co., a draft on Gibson & Helmer, for the amount of his bill, which was sent to them, at Louisville, and protested for nonpayment.

It also appears that Gibson & Helmer are dealers in, and manufacturers of safes, and that Powell, during the time ho contracted the board-bill, was soliciting orders for the sale of safes manufactured by the defendants. After the protest of the draft, drawn by Powell, on the defendants, Henry & Oo. commenced a suit by attachment against Gibson & Helmer, for the board-bill of Powell, before a justice of the peace, and one J. P. Jones, as debtor of the defendants, was garnisheed. At the hearing, before the justice of the peace, the appellants obtained judgment against the defendants for $65 00 and costs, and also against J ones, who was garnisheed.

From this judgment Gibson & Helmer appealed to the circuit eourt of Pulaski county. At the hearing, in the circuit court, the cause was submitted to the court, sitting as a-jury, and it found for the appellees. A motion for a new trial was made on the following grounds:

First. Because the verdict and finding of the judge, sitting as a jury, are contrary to the evidence.

Second. Because the verdict’ and findings of the judge, sitting as a jury, are contrary to law.

Third. Because the court refused to declare the law of the case, as asked for by the plaintiffs.

Fourth. Because the court found the law of the case, -as asked for by the defendants.

The motion for a new trial was overruled. The bill of exceptions, in this case, sets out the evidence and the instructions asked by the appellants, but does not show that the appellants excepted to the refusal of the court to declare the law, as asked by the appellants. Hor is this the only defect. The declarations of law,.asked by the appellants, are set out at length, but the declarations of law, asked by the defendants, are not set out in the bill of exceptions at all; nor does it appear that the appellants excepted to any declaration of law asked by the appellees. The bill of exceptions sets forth a declaration of law, made by the court; whether at the instance of the appellees or appellants, we are unable to determine; nor was there any exceptions made to the declaration made by the court.

The judgment is affirmed.